Appeal from the Superior Court of the District of Columbia (D-822-01) (Hon. Patricia A. Wynn, Trial Judge).
Before Terry and Ruiz, Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Terry, Associate Judge
Appellant was charged by information with indecent exposure. In this interlocutory appeal, appellant contends that the trial court erred in denying his motion to dismiss the information.
During a search incident to his arrest for indecent exposure, the police recovered a small bag of marijuana from appellant's pocket. The United States Attorney (on behalf of the United States) charged appellant with possession of marijuana, and the Corporation Counsel (on behalf of the District of Columbia) charged him with indecent exposure. The prosecutions were not joined.*fn1
Appellant filed a motion to suppress the marijuana in the possession case, which the trial court granted after determining that there was no probable cause for the arrest. Some time later, during the Corporation Counsel's prosecution of the indecent exposure charge, appellant filed a motion to dismiss the information on the ground of collateral estoppel. Appellant asserted in his motion that the District was collaterally estopped from "relitigating" the indecent exposure charge because the court had previously found that he had been arrested without probable cause. The court denied appellant's motion, concluding that the District and the United States were not in privity.
On appeal Johnson makes four arguments. First, he asserts that the "common law" doctrine of collateral estoppel "stands on its own as a fundamental and independent principle precluding, in a second criminal prosecution, re-litigation of the same issue decided in favor of the same defendant in an earlier prosecution." As an alternative to that argument, appellant contends that "[t]he Collateral Estoppel Doctrine . . . embraced and incorporated within the Fifth Amendment's guarantee against Double Jeopardy," bars the District's prosecution. Next, he argues that the requirements for collateral estoppel were met because the District and the United States "were in privity with each other." Finally, he argues that the District is now collaterally estopped from trying him for indecent exposure because it could have participated in the United States' prosecution of the possession charge but chose not to do so. We do not resolve any of the issues that appellant raises. Instead, we hold, on the authority of Jones v. United States, 669 A.2d 724 (D.C. 1995), that we do not have jurisdiction to evaluate the merits of appellant's claims. Jones requires the occurrence of a "jeopardy-attaching" event, id. at 729, before we can exercise jurisdiction over a collateral estoppel claim raised in an interlocutory pre-trial appeal. Since jeopardy did not attach during the suppression hearing in the marijuana possession case, we must dismiss this appeal for lack of jurisdiction.
Appellant was arrested for indecent exposure after two police officers allegedly saw him expose himself in an alley behind the 500 block of H Street, N.E. During a search incident to his arrest, the officers found a green ziplock bag containing marijuana in appellant's pants pocket. The next day two criminal informations were filed against him in the Superior Court. One, filed by the United States, charged him with possession of marijuana, a controlled substance; the other,*fn2 filed by the District of Columbia, charged him with indecent exposure. Appellant*fn3 filed a motion to suppress the marijuana, and after a hearing that motion was granted by Judge Rafael Díaz, who ruled that there was no probable cause for the arrest.
The United States Attorney elected not to appeal from that ruling and, shortly thereafter, dismissed the marijuana possession charge.
Several months later, when the indecent exposure case was approaching its trial date, appellant filed a motion to dismiss the information charging him with that offense, asserting that "the fundamental and dispositive issue decided by Judge Díaz in favor of the defendant is precisely the same issue the Government seeks to re-litigate, and to have re-decided . . . in the present Indecent Exposure case." This motion to dismiss was based on both the "common law doctrine" of collateral estoppel and collateral estoppel as a component of the Fifth Amendment's guarantee against double jeopardy. The District filed an opposition to appellant's motion,*fn4 arguing (1) that appellant was never at risk of jeopardy on the indecent exposure charge during the suppression hearing in the marijuana case, (2) that the District and the United States were separate and independent parties, (3) that there was probable cause for the arrest, and (4) that "[e]ven if the defendant's seizure was illegal, this does not deprive the government of the opportunity to prove the accused's guilt through introduction of evidence wholly untainted by the police misconduct." The*fn5 District cited Randolph v. District of Columbia, 156 A.2d 686, 688 (D.C. 1959), in support of its assertion that it was not the same party as the United States. Judge*fn6 Patricia Wynn denied appellant's motion to dismiss because she determined that the United States and the District were not in privity with each other, citing Randolph.*fn7 Appellant filed a timely notice of appeal.
In this appeal, as in any other, we must ascertain at the outset whether we have jurisdiction to consider the merits of the case. If the proceedings below had involved the denial of a pre-trial motion to dismiss based on traditional double jeopardy grounds, we would have jurisdiction to evaluate appellant's claim by considering that denial as a "collateral order." See Abney v. United States, 431 U.S.*fn8 651, 659 (1977) (holding that an order denying a motion to dismiss on double jeopardy grounds falls under the collateral order exception to the final judgment rule and is therefore immediately appealable); Green v. United States, 584 A.2d 599, 601 (D.C. 1991) ("[t]he denial of a motion to dismiss on double jeopardy grounds is immediately appealable" (citing Abney)). Appellant's motion to dismiss, however,*fn9 did not raise a traditional double jeopardy claim, but rather a double jeopardy-based collateral estoppel argument, which requires us to apply the special rule that we adopted in Jones.*fn10
Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties." Ashe v. Swenson, 397 U.S. at 443. In Jones this court "explicitly endorse[d]" a special rule for determining "whether it has jurisdiction to decide interlocutory appeals of collateral estoppel claims . . . ." 669 A.2d at 729. We held that "if a defendant claims that at a prior jeopardy-attaching proceeding, a fact was determined in such a manner that, if the determination were adopted in the instant proceeding, the double jeopardy clause would foreclose the prosecution, this court will have jurisdiction to review the question." Id. (citations*fn11 omitted; emphasis added). We stressed throughout our discussion that "jeopardy [must] have attached in the earlier proceeding if it is to be appealed on an interlocutory basis." Id. at 730; see id. at 728 ("for there to be a valid double jeopardy claim, initial jeopardy must have attached in a prior proceeding"); accord, Serfass v. United States, 420 U.S. 377, 393 (1975) ("the fundamental principle [is] that an accused must suffer jeopardy before he can suffer double jeopardy"); United States v. Sedgwick, 345 A.2d 465, 469 n.5 (D.C. 1975) ("the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial" (citation omitted)), cert. denied, 425 U.S. 966 (1976). Thus, under Jones, "a prior ...