dissenting:
The majority’s admittedly irrational conclusion in this case is reached not because of the Supreme Court’s holding in Rakas v. Illinois,1 but because of an erroneous premise embraced by this court in Johnson 12 — that the outcome of Johnson’s motion to suppress a gun and ammunition found on his person should turn upon the legality *599or illegality of the seizure of the driver of the car in which Johnson had been seated prior to his apprehension. In fact, Rakas has no application to this case. In reshaping Rakas to fit the circumstances here, the majority has introduced into an already sufficiently tortuous law of Fourth Amendment standing a new and bizarre element: that a defendant can be required to prove an “expectation of privacy” (Rakas) in facts alleged to comprise the articulable basis for his apprehension by the police (Terry).
We are met here with a comedy of errors. In Johnson I, the majority found that the police had illegally seized Johnson’s companion, the driver of the car in which Johnson was seated when the police arrived. Since the driver had been illegally seized, his reaction to the police’s actions— his “flight” — was termed a “fruit” of that seizure. Describing the “flight” as a “fruit,” however, leads to the inexorable conclusion that as a “fruit” it can be “suppressed” (even though it is not tangible evidence that the government seeks to admit to prove a substantive offense, but is a mere element upon which reasonable suspicion is based). This was faulty reasoning.3 Now, on petition for rehearing, the Rakas analysis is applied (adding insult to injury): although “flight” as a “fruit” can be suppressed, only the person who flies has an “expectation of privacy” in his own flight, and therefore only the driver can “move to suppress” this particular “fruit.” The “flight as a fruit” analysis of Johnson I has thus paved the way (with the help of the government) for the majority’s conclusion here, that since Johnson has no “expectation of privacy” in the driver’s person, he cannot “suppress” his flight; and that the flight may therefore form the basis for a finding that the police had reasonable suspicion that Johnson was involved in illegal activity.
Rakas, however, held only that in order to suppress tangible evidence at trial, a defendant must have an expectation of privacy in the place from which that evidence is recovered. Johnson clearly had such an expectation in this case, since the tangible evidence was seized from his person and his bag. The majority’s reasoning has the effect of extending Rakas to require an expectation of privacy not only in the place from which evidence is recovered, but also in certain elements of “articulable suspicion” — i.e., events, or facts — relied upon by the police in their decision to make an investigative stop of the defendant.4
The majority has reached this strange result because it is building on a strange premise: that the seizure of the driver is at issue in Johnson’s challenge to the admission of evidence. A long line of Supreme Court precedents establishes, however, that the only seizure that a criminal defendant may challenge is his own. See, e.g., Alderman v. United States, 394 U.S. 165, 171, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969); Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960).5 Not surprisingly, the trial court made no findings regarding the interaction between the police and the driver, and *600Johnson did not even attempt to assert that the driver’s seizure was illegal at any stage of the proceedings, either in the trial court or on appeal. There is no question that had an action been brought against the driver, he could have challenged his own seizure, and if that seizure was found to be without support ab initio, of course his flight at police instigation could not be used to justify it after the fact. In this proceeding, however, the question of the seizure of the driver is irrelevant.
II.
The sole question for us to determine on this appeal is therefore whether the specific facts known to the police were sufficient to ground a stop of Johnson. The court held in Johnson I, and the majority today affirms the conclusion, that the police officers had no legitimate basis for detaining and searching Johnson before the driver’s flight. The implication flowing from the result now reached by the majority, that one man’s flight is “imputable” to another man whose behavior is entirely innocent, is untenable. It confers legitimacy upon an inference of guilt created entirely by association, a repugnant principle that until today has been rejected by this court. For example, in Lyons v. United States, 221 A.2d 711 (D.C.1966), we were faced with a similar scenario: the police were on the lookout for housebreakings, and they observed a stopped car containing three male passengers. One of the passengers, Spriggs, was known to the police as a thief and a narcotics user. The others, the appellant Lyons and the driver, were not known to the officers. The police observed Spriggs getting out of the car and looking about in a “suspicious” manner. He entered a building as the driver circled the block, and then returned to the car. As the officers pulled up alongside the ear, they observed Spriggs placing an envelope into his shoe. They arrested Spriggs and discovered narcotics on his person. They also seized the other passengers and charged Lyons after observing needle marks on his arm. We held that the seizure of Lyons was illegal since “Lyons’ only connection with Spriggs was that they were both occupants of the same car” and that “mere suspicion” was an insufficient basis to impute Spriggs’ conduct to Lyons. Id. at 712.6 Although in Lyons the companion’s conduct was independently suspicious, not provoked by the arrival of the police as in this case, the court held that the conduct could not be imputed to Lyons even though Spriggs and Lyons were occupants of the same car. Here, the driver was unknown to the police and engaged in no suspicious activity other than his flight up to a nearby house at police instigation. A fortiori there is no basis here to impute such ambiguous conduct to Johnson. Indeed, we have never held that an individual may be seized based solely on the flight of a companion at the approach of the police, and the cases cited by the majority for this proposition are inapposite since in each of those cases the appellant himself was engaged in suspicious activity.7 See also Sibron v. New *601York, 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968) (fact that defendant was observed talking to a number of known narcotics addicts over a period of a few hours is insufficient to justify seizure); Hinton v. United States, 137 U.S.App.D.C. 388, 391, 424 F.2d 876, 879 (1969) (“[cjourts have never countenanced arrest by association”); State v. Larson, 93 Wash.2d 638, 642, 611 P.2d 771, 774 (1980) (illegal act by driver insufficient to justify stop of passenger).
The conclusion is inescapable that the seizure of Johnson was not grounded on articulable facts. The driver’s act in running up to a nearby building as the police approached, without any other circumstances to give the police cause to believe that a crime had been or was about to be committed, is simply insufficient to justify the seizure of Johnson. • Even if the driver’s conduct could be imputed to Johnson, flight at the arrival of the police alone does not provide the police with a reasonable basis for a Terry stop.
Viewed from a purely objective level of observation, the act of running a short distance to a nearby building ... is an action so universal in character that one can only speculate as to its motivating source. Even when the act of running is motivated by an effort to avoid contact with the police, it still does not constitute the type of specific and articulable fact that is constitutionally sufficient to justify a stop.
People v. Thomas, 660 P.2d 1272, 1275 (Col.1983) (en banc). Every court to consider the issue has held that actions that may be interpreted as avoidance of the police, without more, cannot serve to justify an investigatory stop.8 Although there is no *602case directly on point from this jurisdiction, in Coleman v. United States, 337 A.2d 767, 770-71 (D.C.1975), we held that the police were not justified in frisking the appellant based on the fact that he was observed knocking on the door ton a home in an area known for burglaries at 10:00 p.m., notwithstanding the fact that he hurriedly walked away from the door as the police approached. And the highest court of Maryland has stated that weight may be given to a suspect’s flight from police only if this conduct is “corroborated by other suspicious circumstances”; flight alone is insufficiently indicative of criminal activity to justify an investigatory stop solely on that basis. Watkins v. State, 288 Md. 597, 603-04, 420 A.2d 270, 273-74 (1980). In keeping with this principle, this court has upheld findings of reasonable suspicion that are based upon flight only when there are other articulable facts that allow a reasonable inference that a crime has been or is about to be committed.9 For flight is not “a reliable indicator of guilt without other circumstances to make its import less ambiguous.” Hinton v. United States, supra, 137 U.S.App.D.C. at 391, 424 F.2d at 879.
The majority argues, however, that there are “other circumstances” here indicating that the driver’s “flight from authority implies [Johnson’s] consciousness of guilt as well.” Ante, at 597. These other circumstances — the same circumstances that were rejected as insubstantial in Johnson 110 — are reduced to the fact that that appellant was sitting with two other men in a Cadillac with chipped paint and body damage — a car “unfamiliar” to the police— parked in a “high crime” area at 10:30 p.m. We have repeatedly rejected all of these factors as legal bases for a Terry stop. For example, in Jones v. United States, 391 A.2d 1188 (D.C.1978), we held that the police had insufficient articulable facts to order appellant out of a car, where the facts
showed only that two men were seen sitting in an automobile late at night in an area where there had been illicit drug activity and robberies, and that when the officer moved close to their vehicle in his darkened patrol car, one of the men attempted to hide something under the seat. The officer had no complaint or report of crime, had never seen appellant or his companion before, and did not see them engage in criminal conduct. In short, the record contains little if any evidence from which one might conclude that the officer had reasonable grounds to believe that criminal activity was afoot. The fact that the officer encountered the two men during the early morning hours in an area where there had been robberies and drug trafficking certainly did not provide a basis for the “seizure.” Nor did the fact that the passenger moved in a manner which led the officer to suspect that he might be hiding a weapon under the seat. In this case, the officer seized the two men on the basis of suspicion, rather than on the specific and articulable facts necessary to justify a “seizure.” In so doing, he violated the Fourth Amendment’s proscription against unreasonable searches and seizures.
*603Id. at 1191 (citations omitted).11 Similarly here, none of the facts articulated by the police provide a basis for a seizure of Johnson. There is no need to apprise the majority of the fact that in a city the size of Washington, any particular vehicle more often than not will be unknown to the police. See Brown v. Texas, 443 U.S. 47, 49, 52, 99 S.Ct. 2687, 2639, 2641, 61 L.Ed.2d 357 (1979) (articulable suspicion cannot be founded on fact that suspect had never before been seen by police in area). The spectrum of legitimate human behavior occurs every day in so-called “high crime” areas, see Brown, 443 U.S. at 52, 99 S.Ct. at 2641 (“high crime” neighborhood factor cannot give rise to reasonable suspicion); see also Curtis v. United States, 349 A.2d 469, 472 (D.C.1975); Jones v. United States, supra, 391 A.2d at 1191. Moreover, the time — 10:30 p.m. — is not a sufficiently late or unusual hour to give rise to suspicion of some likely criminality. See Robinson v. United States, supra; Tyler v. United States, supra; Jones v. United States, supra. If sitting in such a vehicle in the evening in a “high crime” neighborhood were legitimate grounds for the type of police action we are here reviewing, the police would be able to impose a de facto curfew on a large percentage of this city’s residents. Furthermore, if a ear’s body damage and chipped paint were accorded significance in the assessment of “reasonable suspicion,” the automobiles of quite a number of Washingtonians — including several members of this court — would put their owners at risk. Finally, the suggestion that likely criminality can be inferred from the presence of three men together hardly deserves comment. None of these factors individually has any legal signifi-canee, and their whole does not exceed the sum of the parts.
In sum, I believe that the police had no ground to stop Johnson on these facts, and that the result reached in Johnson I — the suppression of Johnson’s gun and ammunition — was correct. In addition, I predict that the application of the Rakas analysis to the issue presented here will utterly— and needlessly — confuse the law of Fourth Amendment standing. For these reasons, I respectfully dissent.
. 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
. Johnson v. United States, 468 A.2d 1325 (D.C.1983).
. Admittedly, the dissenting author in the instant case supplied the deciding vote for the majority holding in Johnson I.
. Even operating within the majority’s paradigm, the majority’s irrational result well illustrates the infirmity of its entire reasoning process: that even though the driver's flight may not be used to seize the driver (since he may "suppress” his own flight), that flight may still be used to seize a companion whose behavior is otherwise innocent. A common sense approach to the problem under even the majority’s first principles should reach exactly the opposite re-suit: we should give less weight to the driver’s flight in assessing cause to seize a passenger whose behavior was entirely innocent, than in assessing cause to seize the driver who took flight at the approach of the police.
. Rakas, however, does not stand for this principle, since the defendants there disavowed any intention to challenge the government’s seizure of their persons. See 439 U.S. at 150-51, 99 S.Ct. at 434 (Powell, J., concurring): id. at 160 n. 5, 99 S.Ct. at 439 n. 5 (White, J., dissenting).
. Although Lyons was a probable cause case, applying a Terry analysis to its facts would not lead to a different result on the question of whether the police could legitimately impute Spriggs’ conduct to Lyons and then stop Lyons on that basis alone.
. In Smith v. United States, 295 A.2d 64 (D.C.1972), cert. denied, 411 U.S. 951, 93 S.Ct. 1932, 36 L.Ed.2d 414 (1973), the arresting officer had observed the defendant and a companion looking in car windows for an hour in an area known for car thefts. He then watched as they entered the zoo, and saw them emerge holding a hag they were not carrying when they walked in. When the officer attempted to stop them for questioning, the companion ran, and we held that based upon this entire sequence of events, the officer was justified in seizing the defendant. In Franklin v. United States, 382 A.2d 20 (D.C.1978) (on rehearing, 392 A.2d 516 (D.C.1978), cert. denied, 440 U.S. 948, 99 S.Ct. 1428, 59 L.Ed.2d 637 (1979)), appellants were suspects in an armed robbery that had just occurred. All of the appellants fled by car when the police attempted to question them. And in Stephenson v. United States, 296 A.2d 606 (D.C.1972), cert. denied, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973), the defendants did not run at the arrival of the police, but were merely observed by the authorities running down a street at 4:30 *601in the morning, a sufficiently unusual hour to justify a stop for questioning.
. See People v. Aldridge, 35 Cal.3d 473, 479, 198 Cal.Rptr. 538, 541, 674 P.2d 240, 243 (1984) ("The departure of defendant and others from an imminent intrusion [by the police] cannot bootstrap an illegal detention into one that is legal.”); McClain v. State, 408 So.2d 721, 722 (Fla.App.) (where defendant's "behavior ... taken for its most insidious implications, indicated only that he wanted to avoid police,” such conduct is insufficient to justify a stop), app. dism’d mem., 415 So.2d 1361 (Fla.1982); Kearse v. State, 384 So.2d 272, 274 (Fla.App.1980) (act of walking away briskly after observing police approaching is insufficient to justify investigatory stop); State v. Kupihea, 59 Haw. 386, 387, 581 P.2d 765, 766 (1978) (avoidance of police alone insufficient to justify stop); People v. Fox, 97 Ill.App.3d 58, 64, 52 Ill.Dec. 219, 223, 421 N.E.2d 1082, 1086 (1981) (accelerating away at approach of marked police vehicle insufficient); State v. Hathaway, 411 So.2d 1074, 1079 (La.1982) ("Flight does not always indicate guilt; it may result from fear and possibly other causes. Even where flight does reasonably appear designed to avoid apprehension, reasonable cause will not arise unless flight, combined with other information upon which officers are entitled to rely, would indicate to a reasonable mind that the combination of circumstances is inconsistent with any innocent pursuit."); People v. Tebedo, 81 Mich.App. 535, 539, 265 N.W.2d 406, 408 (1978) (fact that defendant ran as police approached does not justify investigative stop, "particularly when, as here, defendant’s running is not flight from the scene of a reported crime. The police must positively relate the flight to commission of a crime."); Commonwealth v. Barnett, 484 Pa. 211, 212-15, 398 A.2d 1019, 1020-21 (1979) (flight alone is insufficient even for a limited investigatory stop); Commonwealth v. Jeffries, 454 Pa. 320, 324, 311 A.2d 914, 917 (1973) (fact that defendant quickened his pace when he saw police officer and started to run when officer began to chase him "is not enough to justify a seizure under Terry ... absent some other factor which would give rise to suspicion of criminal conduct”); Commonwealth v. Stratton, 231 Pa.Super. 91, 95, 331 A.2d 741, 742 (1974) (“[t]here is no question that flight alone, even upon seeing a police officer, would not be sufficient to justify stopping and searching the defendant"). See also Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963) (to allow flight to serve as basis for probable cause for a seizure "would mean that a vague suspicion could be transformed into probable cause for arrest by reason of ambiguous conduct which the arresting officers themselves have provoked”); Hickory v. United States, 160 U.S. 408, 417, 16 S.Ct. 327, 830, 40 L.Ed. 474 (1896) (in determination of guilt, flight is a "mere circumstance[ ] to be considered and weighed in connection with other proof with that caution and circumspection which their inconclusiveness when standing alone require”; cf. Wong Sun, 371 U.S. at 483 n. 10, 83 S.Ct. at 415 n. 10 {Hickory-type analysis applies equally to probable cause determinations)).
. Tobias v. United States, 375 A.2d 491, 494 (D.C.1977) (defendant also observed engaging in what appeared to be a number of drug transactions); Edwards v. United States, 379 A.2d 976, 978 (D.C.1977) (en banc) (suspects observed carrying what appeared to be fruits of a crime); see Hinton v. United States, supra, 137 U.S.App. D.C. at 391, 424 F.2d at 879 (defendant was in company of known drug dealer and was about to enter a narcotics "pad," which the police had a warrant to search). See also cases cited in note 7, supra.
. “[W]e reaffirm [] that a situation, in which persons unfamiliar to the police are parked in a car late at night in a high crime area does not, without more, present specific, articulable facts warranting suspicion of criminal activity, and thus does not justify a Terry seizure.” Johnson v. United States, 468 A.2d 1325, 1327 (D.C.1983). "Lacking specific, articulable facts, including rational inferences, warranting suspicion of criminal activity before the driver’s flight, the police had no legitimate basis for seizing the driver, let alone the passengers of the car.” Id. at 1328-29.
. In addition, in Robinson v. United States, 278 A.2d 458,, 459 (D.C.1971), we held that the police were unjustified in searching appellant, who walked down the street at 2:00 a.m. and ignored a request by the police to "wait,” because "the officers had no complaint or report of a crime, had never seen appellant before and did not observe him engage in unlawful conduct.” We held that although “[i]t may be that presence on the streets of this city at an early hour in the morning is suspicious conduct, given present crime statistics, [ ] something more than that is required to justify police detention and interrogation.” And in Tyler v. United States, 302 A.2d 748, 749, 752 (D.C.1973), we held that a warrant-less search was unjustified when it was based solely on the fact that appellant was sitting in a car parked in an alley at 3:30 a.m., despite the fact that appellant or a companion engaged in what appeared to be furtive acts as the officers approached.