Appeal from the Superior Court of the District of Columbia; (Hon. Mary Ellen Abrecht, Trial Judge)
Before Rogers, Chief Judge, Ferren, Associate Judge, and Newman, Senior Judge.
The opinion of the court was delivered by: Rogers
Appellant A.S., adjudicated delinquent because of his involvement in distribution of cocaine, a controlled substance, in violation of D.C. Code § 33-541 (1988 Repl.), appeals on the ground that the trial Judge erred by denying his motion to suppress tangible evidence, a pre-recorded twenty dollar bill. Because the police lacked particularized articulable suspicion when they stopped three suspects, one of whom was appellant, their seizure of appellant was not reasonable under the Fourth Amendment, and therefore the money should have been suppressed. Accordingly, we reverse and remand.
Appellant filed a pretrial motion to suppress all physical evidence -- a pre-recorded twenty dollar bill which had been seized from him by the police -- as the fruit of an arrest in violation of his Fourth Amendment rights. *fn1 At the suppression hearing the government's evidence showed that at approximately 7:40 p.m. on January 31, 1991, Officer Chante Brodie of the Metropolitan Police Department, assigned to the Rapid Deployment Unit and working undercover, went to the area of 4th and Decatur Streets, N.W., in an effort to purchase illegal drugs. Officer Brodie approached appellant, who was standing with approximately four other youths on the northeast corner of 4th and Decatur Streets, and asked him whether he was "in business." Appellant asked Officer Brodie, "what do you want?" and she replied "a twenty." Appellant left, running north up 4th Street, and "his friends then told [Officer Brodie] to stand by, . . . stay here and he'll be right back." Appellant returned a short time later with a ziplock bag, containing a rock-like substance, which he gave to Officer Brodie in exchange for a pre-recorded $20 bill. *fn2
Officer Brodie then left the area and broadcast a "lookout" to the arrest team in which she stated that there were "five subjects standing on the corner, all of them seemed to be dressed alike." Nevertheless, Officer Brodie described appellant only as "a black male, had on a blue jacket, gray sweatshirt, dark jeans with black skull cap." *fn3 Officer Brodie's "lookout" contained no information of height, weight, build, facial hair or features of the drug seller. Nor did it contain any information as to possible roles in the drug transaction which might have been played by the other young men standing on the corner.
Officer Manuel Suber testified that on the evening of January 31, 1991, he was working on the Rapid Deployment Unit as a member of the arrest team located near 5th and Decatur Streets, N.W. After hearing the "lookout" broadcast by Officer Brodie, Officer Suber proceeded to 4th and Decatur Streets. From approximately half a block away, Officer Suber noticed three young men and, as he approached, he determined that "it had to be one of the three." *fn4 All three men fit the description broadcast by Officer Brodie; no one from the arrest team radioed back to Officer Brodie to request additional information that would distinguish the alleged drug seller from the others. *fn5 Officer Suber testified that he believed that the individual for whom the broadcast was issued could have been "any of the three," and that he "just happened to grab and the other officers stopped the other two people."
The officers frisked the three youths for weapons, but none were found. The arrest team then notified the undercover officer that they had "several subjects stopped and to drive by for a positive identification for the one that actually sold to the undercover officer." Officer Brodie drove by and identified appellant as the youth who had sold her drugs "based . . . on the facial description that I remember, the body build and the clothing." An officer then searched appellant and recovered the pre-recorded $20 bill. *fn6
The trial Judge denied appellant's motion to suppress the twenty dollar bill. The Judge found that there was no
indication that the respondent in this case had the missing tooth or the -- the red arrow on his forehead or the scar or -- or something that in an easy shorthand quick way of describing in a fast moving situation over the radio would allow the undercover to quickly communicate to other people which of the similarly attired people it was precisely.
The Judge further found that Officer Brodie "did include a complexion description," and that the officer "indicated that he was young and -- and gave a much more specific clothing description than you often see in these and other kind of fast moving situations." [Id.] Thus, the trial Judge found "that the police in this case did have reasonable articulable suspicion to stop this respondent. And I will go so far as to say that they also had reasonable articulable suspicion to stop the other two." [Id.] Finally, the Judge stated that:
it would be totally unreasonable to expect arrest teams working with undercover officers on narcotics cases to ride in and if -- and if they ever see more than one person meeting the description to then pause and radio for additional information because any suspect -- I mean anybody who really was involved would surely recognize their arrival immediately . . . . Arrest teams simply don't have those moments to radio for additional distinguishing ...