United States v. Boswell ( 1975 )

KELLY, Associate Judge:

The United States appeals, pursuant to D.C.Code 1973, § 23-104(a) (l),¹ from a ruling granting appellee’s pretrial motion to suppress evidence allegedly obtained by an unconstitutional search and seizure. The factual predicate for the ruling is that early on Christmas afternoon of 1973, Metropolitan Police Detective Anthony H. Johnson observed appellee Raymond Boswell walking rapidly down a city block in the vicinity of 25th Street and Pennsylvania Avenue, N.W. Johnson’s attention was attracted to Boswell because he was carrying a large object wrapped in a blue blanket and was accompanied by a man who appeared to be very drunk.² Although then off duty, Johnson nevertheless watched as both men proceeded along Pennsylvania Avenue for about a hundred yards. At that point, Boswell stopped and placed the blanket covered object in the hallway of a building at 2511 Pennsylvania Avenue, N.W. He then left the hallway, went directly next door to a laundromat, and made a telephone call. Meanwhile, his companion wandered off down the street.

Johnson used this opportunity to investigate his suspicion that criminal activity was afoot. Unobserved by either Boswell or Griffith, he entered the hallway and by lifting the blanket, discovered underneath a Sony color television. He immediately copied down the serial number of the television, left the hallway, and called the police station. After a quick computer check, Johnson learned that the television had not been reported stolen. He then returned to the front of 2511 Pennsylvania Avenue, approached Griffith and asked what he was doing with the television. Griffith replied that he wanted to sell it. Johnson asked the price, but before any answer was given, he identified himself as a police officer. Boswell joined the discussion about this time and Johnson asked how the television had been obtained. Each man gave a different and conflicting answer. The encounter ended with Johnson writing down their names and addresses.

The following day William R. Herman reported his apartment burglarized and the theft of a Sony color television bearing the same serial number that Johnson had copied on Christmas Day. Additionally, he reported as stolen a blue blanket, a money clip, a 1968 Yale class ring, a house key and a television antenna. Based on the information he had previously obtained, Johnson swore out a warrant for Boswell, who was arrested shortly thereafter and indicted for second degree burglary, grand larceny and receiving stolen goods (D.C.Code 1973, §§ 22-1801 (b), -2201, and -2205). When arrested, Boswell did not have the television but he was wearing a Yale class ring bearing the complainant’s initials.³

In a pretrial motion Boswell moved to suppress all evidence, and in particular the serial number, obtained as a result of his Christmas Day encounter with Johnson. After a hearing at which Johnson, Boswell and two occupants of one of the two apartments at 2511 Pennsylvania Avenue, N.W., (one being Boswell’s brother-in-law), testified the court granted the motion.

The government advocates two theories to sustain Johnson’s search and seizure of the serial number. First, it contends that Boswell abandoned the television and consequently lacks standing to question the legality of the search. Second, it argues that even absent abandonment, the search was nonetheless reasonable and not proscribed by the Fourth Amendment. In advancing both theories the government relies principally on Johnson’s pretrial testimony describing the “articulable suspicions” that caused him to think a crime might have been committed. These articulable suspicions were that Boswell was carrying a large covered object; that Boswell appeared tired, yet he did not stop to rest; that the covered object was left unattended in the hallway; and that he, Johnson, had recently investigated several daytime burglaries in the area. However, in all appeals which concern the application of Fourth Amendment principles, it is crucial to consider and weigh all relevant circumstances surrounding its alleged infringement. Thus, there are several other factors which must be noted; namely, Johnson had no knowledge of any burglary in the area on that day; it was daylight, about 1:00 p.m.; Johnson could not discern the object being carried was a television; Johnson observed Boswell for only a short distance, about one hundred yards; the hallway in which the television was left is in the same building and only twenty to thirty feet from the laundromat; and Johnson, although the government relies on abandonment, did not actually seize the television.

The issue is not the propriety of Johnson’s investigating suspicious behavior but rather whether his action of removing the blanket to determine what it concealed and his copying the serial number is, in the circumstances described, a permissible investigative step under the Fourth Amendment.

In meeting that issue, it is first necessary to determine whether or not a search and seizure occurred. Johnson’s observation of Boswell on the street and his viewing the blanket covered object in the hallway were not, of course, a search and seizure since:

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . [Citation omitted.]”⁴

On the other hand, Johnson’s removal of the blanket was a search for evidence and his copying the serial number was a seizure. It was a search because neither the television nor its serial number were visible to the naked eye and Johnson’s sole motivation was an expectation of finding criminal evidence. Although the television was not seized, the copying of the serial number, under these circumstances, was a seizure.⁵

The government contends that by leaving the blanket covered object in the hallway Boswell evidenced an intent to abandon it and he therefore lacks standing to raise the Fourth Amendment issue. It is true that one who abandons property does, indeed, lack standing; however, “[abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent. How did the person who was supposed to have abandoned the property act, that is, what did he do, and, second, what was his intention ?”⁶ The critical factor is intent, and as one court has observed:

Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. . . . All relevant circumstances existing at the time of the alleged abandonment should be considered. . . . The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. . [Citations omitted.] ⁷

Implicit in a determination of abandonment is the concept that the “Fourth Amendment protects people, not places” ⁸ and that wherever a citizen has a reasonable “expectation of privacy” ⁹ he is entitled to be free from unreasonable governmental intrusion. There is no doubt that a citizen carrying a covered object on the street has a reasonable expectation of privacy and that it should be honored. This court said in Campbell v. United States, D.C.App., 273 A.2d 252, 255 (1971):

Our often criticized society has not yet deteriorated to the point where we can say that a man who carries openly, on the street, a large household appliance is probably a thief.

Such logic applies equally to a person carrying a covered object on the street.

Nevertheless, the government argues that by placing the object in the hallway while he went next door to make a telephone call, Boswell relinquished his reasonable expectation of privacy. The government is correct, but only if from all the circumstances, an intent to abandon is reasonably inferable. And as we wrote in Peyton v. United States, D.C.App., 275 A.2d 229, 230 (1971), quoting from Friedman v. United States, 347 F.2d 697, 704 (8th Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965):

“ * * * An abandonment must be made to appear affirmatively by the party relying on it, and an intention to abandon will not ordinarily be presumed, and this is particularly true if the conduct of the owner can be explained consistently with a continued claim. Proof of abandonment must be made by the one asserting it by clear, unequivocal and decisive evidence.”

Boswell’s actions evidenced an intent, if any, to secrete the television and not to abandon it. Johnson’s response was not to seize an abandoned television, but rather to determine if it had been stolen. Apparently Johnson, who was the only eyewitness to Boswell’s actions, did not believe the television was truly abandoned. Indeed Johnson’s brief observation of Boswell (his carrying the object one hundred yards), the proximity of Boswell (next door, twenty to thirty feet away), and the reason for leaving the object (to make a telephone call) do not reasonably allow an inference of an intent to abandon.¹⁰ Accordingly, on its first theory for urging reversal, the government has plainly failed to meet the standard in Peyton v. United States, supra, that abandonment must be shown by clear, unequivocal and decisive evidence.

The government’s second basis for sustaining Johnson’s search and seizure is that it was not unreasonable within the meaning of the Fourth Amendment and, therefore, not prohibited. On this very point the Supreme Court stated in Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971):

Thus the most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.” . . . [Footnotes omitted.]

In this case the government does not rely on any constitutionally recognized exception to the warrant requirement. It argues the search and seizure is reasonable in light of Johnson’s “specific articulable suspicions” that a crime might have been committed. Thus, it relies, by analogy, on the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), to uphold the reasonableness of the search and seizure. Unquestionably, the police may stop a citizen on the street if they have a suspicion based on “specific and articulable facts” ¹¹ [emphasis added] that a crime has been or is about to be committed. Such a stop is reasonable and, further, the police may execute a protective frisk if they believe the person is armed.¹² A Terry stop often discloses probable cause to arrest and thus justifies a full search incident to a lawful arrest.

In this case, however, we are not confronted with the traditional Terry stop. The search and seizure complained of occurred before any contact between Johnson and Boswell. It is, of course, fruitless to speculate what Johnson might have discovered if he had stopped Boswell, identified himself as a police officer, and asked what he was carrying. We comment on what did not happen because this court has consistently upheld the admissibility of evidence which is obtained as a result of an on-the-street investigative stop conducted within constitutional guidelines.¹³ We have also upheld the exclusion of evidence obtained in violation of such guidelines.¹⁴

Here, Johnson was faced with two courses of action: one constitutional, the other expedient. He chose expediency. Since the television was not abandoned and since a person carrying a covered object on the street has a reasonable expectation of privacy, if the court were to uphold Johnson’s conduct it would by implication sanction on-the-street warrantless searches of a person’s effects based on a police officer’s suspicion or hunch. Such a justification for a search was flatly rejected in Terry v. Ohio, supra at 22, 88 S.Ct. 1868. Certainly street encounters are one of the recognized exceptions to the warrant requirements of the Fourth Amendment, but the Supreme Court has cautioned:

The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. [Footnote and citation omitted.]¹⁵

We see no necessity to expand the right of the police to safely investigate suspicious behavior to include the power to conduct a warrantless exploratory search for evidence based on suspicion alone. For as the Court stated of the Fourth Amendment in Terry v. Ohio, supra at 8-9, 88 S.Ct. at 1873:

This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. .

The court’s ruling granting appellee’s motion to suppress is ¹⁶

Affirmed.

1 .D.C.Code 1973, § 23-104(a)(1) provides:

The United States or the District of Columbia may appeal an order, entered before the trial of a person charged with a criminal offense, which directs the return of seized property, suppresses evidence, or otherwise denies the prosecutor the use of evidence at trial, if the United States Attorney or the Corporation Counsel conducting the prosecution for such violation certifies to the judge who granted such motion that the appeal is not taken for purpose of delay and the evidence is a substantial proof of the charge pending against the defendant.

2 . The man was appellee’s cousin, Earl Griffith. He was originally a codefendant but charges against him were dropped.

3 . It is not clear from the record whether the television was ever recovered.

4 . Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967).

5 . United States v. Sokolow, 450 F.2d 324 (5th Cir. 1971) (copying the serial numbers of air conditioners is a seizure) ; United States v. Gray, 484 F.2d 352 (6th Cir. 1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974) (copying rifle serial numbers is a seizure).

6 . Friedman v. United States, 347 F.2d 697, 704 (8th Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965). Accord, Peyton v. United States, D.C.App., 275 A.2d 229, 230 (1971); Parman v. United States, 130 U.S.App.D.C. 188, 194, 399 F.2d 559, 565, cert. denied, 393 U.S. 858, 89 S.Ct. 109, 21 L.Ed.2d 126 (1968).

7 . United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973).

8 . Katz v. United States, supra at 351, 88 S.Ct. at 511.

9 . Id. at 361, 88 S.Ct. 507 (Mr. Justice Harlan, concurring).

10 .The dissent, citing Smith v. United States, D.C.App., 292 A.2d 150 (1972), states that intent is an irrelevant factor in determining abandonment. However, in that case, and in others cited by the dissent, objects were thrown away or discarded in anticipation of a police arrest or interrogation. The thesis rejected in Smith was that appellant’s subjective intention to later retrieve a pistol hurled away during a police chase was irrelevant. Appellant’s actions viewed objectively evidenced an intent to abandon the pistol.

The court further stated in Smith at 151 n. 4 that:

It is clear in this jurisdiction that where incriminating evidence is discarded in a public area in anticipation of a police investigation, the fourth amendment does not set limits on its recovery by the police, even where what is exposed to public view is not itself evidence of a crime. [Citations omitted.]

Thus, the circumstances in this case are factually distinct from Smith v. United States, supra.

11 . Terry v. Ohio, supra at 22, 88 S.Ct. 1868.

12 . Id. at 30, 88 S.Ct. 1868.

13 . Wray v. United States, D.C.App., 315 A.2d 843 (1974); Stephenson v. United States, D.C.App., 296 A.2d 606, cert. denied, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973); Jones v. United States, D.C.App., 286 A.2d 861 (1972).

14 . Coleman v. United States, D.C.App., 337 A.2d 767 (1975).

15 . Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

16 .The class ring bearing complainant’s initials was obtained as a direct consequence of the illegal search and seizure on Christmas Day and must be suppressed under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).