Appeal from the Superior Court of the District of Columbia; (Hon. Robert S. Tignor, Trial Judge)
Before Terry, Steadman, and Schwelb, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge : Appellant was convicted of distributing cocaine, in violation of D.C. Code § 33-541 (a)(1) (1988). He contends on appeal that the trial Judge erroneously applied the inevitable discovery exception to the exclusionary rule, thereby permitting illegally seized evidence -- a $20 bill whose serial number had been pre-recorded -- to be introduced at trial. Appellant also argues that the trial court's supplementary charge to the jury deprived him of a fair trial and jury unanimity. Because we conclude on other grounds that the $20 bill was lawfully seized, we need not decide whether the trial court erred in its application of the inevitable discovery doctrine. We reject appellant's other argument and affirm his conviction.
Appellant Hill was arrested for selling two $10 packets of cocaine to Officer Victor Graves, a member of the Metropolitan Police Narcotic Task Force. As Officer Graves, working under cover, was walking in the vicinity of 57th Place and 57th Street, S.E., Hill called to him and motioned for the officer to come in his direction. When Graves asked Hill if he had any "shake" (cocaine), Hill replied that he did and led Officer Graves down an alley behind 57th Place. Hill then produced a brown paper bag containing several small ziplock bags of white powder. The officer used a $20 bill whose serial number he had pre-recorded to purchase two of the ziplock bags. *fn1 He then returned to his car and radioed information about the drug sale to an arrest team waiting nearby, describing the seller as "wearing a black cap, orange or rust colored shirt, dark colored pants." *fn2
The arrest team at first was unable to find anyone in the immediate area matching this description, so after five or ten minutes Officer Graves himself joined in the search. He soon spotted Hill standing on 57th Street with a woman (later identified as Sophia Bullard, Hill's fiancee) and another man. He immediately broadcast the location to his colleagues on the arrest team, and they went there, detained Hill, and notified Officer Graves that they had stopped a man who matched his description. Graves then drove past the spot where they were holding Hill and informed the arrest team by a pre-arranged signal that Hill was the man who had sold him the cocaine.
The testimony was in conflict about the circumstances of Hill's arrest. Officer Wayne Knox, a member of the arrest team, testified that he and his teammates came upon Hill, who matched the lookout, and stopped him. They walked him down the street toward the corner of 57th Street and 57th Place so that Officer Graves, who was not then on the scene, could make an identification. After Graves drove by and positively identified him, Officer Knox placed Hill under arrest and searched him. From Hill's pants pocket Knox recovered $56 in cash, which included a $20 bill with the same serial number as the one that Officer Graves had previously recorded. On cross-examination Officer Knox acknowledged that he had written incorrect information on a form known as PD-81. He said that although he filled out the form within hours of arresting Hill, he incorrectly wrote that he had searched Hill before (not after) Graves made his positive identification. *fn3
Hill testified that he was leaning on a gate in front of a house at 57th Street and 57th Place when Officer Knox got out of a car, "jogged" over to him, and suddenly "pulled his gun out and told me not to move or he'd blow my head off." The officer searched him and found "fifty-six dollars and some change." Knox then directed him to walk toward a nearby intersection, but before they reached it, Knox told him to stop and look in a certain direction, "and the guy nodded his head, like that, and they put me in the car."
During the hearing on the motion to suppress, defense counsel argued that the officer's act of pulling out his gun made his seizure more like an arrest than a stop, that this arrest was made without probable cause, and that the evidence obtained as a result of that unlawful arrest -- the $20 bill -- must be suppressed. The prosecutor argued in response that Officer Knox had merely effected a stop, not an arrest; in the alternative, the prosecutor maintained that there was probable cause to arrest Hill. The court accepted Hill's version of the facts and initially suppressed the evidence, but later reversed itself and denied the motion on the ground that the $20 bill would inevitably have been discovered.
At trial Hill maintained that the police had arrested the wrong man. He testified that after attending a basketball game at the East Capitol Street Recreation Center, he headed toward his fiancee's house on 57th Place. As he walked down the street, he was approached by Officer Graves, who requested some "shake." *fn4 Hill told Graves he had none, to which Graves replied that someone down the street had told him that Hill would have drugs to sell. According to Hill, Graves then led him down the street to a man named Joe, who he said was the person who had reported that Hill could sell him some "shake." At this point, Hill testified, he left Officer Graves with Joe and walked away. After a few minutes Joe came up the street and repaid Hill some money he owed him on an earlier debt. *fn5 Moments later, several police cars pulled up, and Officer Knox ran up to Hill, "put [his gun] to the back of [Hill's] head and clicked it, and said, 'If you move, I'll blow your damn head off.'" *fn6 Knox then searched Hill's shoes, socks, underwear, and pants and found the incriminating $20 bill.
Hill argues that the search of his person by Officer Knox before the positive identification by Officer Graves was impermissible, and that the $20 bill seized from his pants pocket should have been suppressed. This argument mirrors the initial position taken by the trial court when it first ruled on Hill's motion to suppress. It was on the next day, just prior to trial, that the court reconsidered its ruling and held that, although the evidence had been seized incident to an unlawful arrest, it would nevertheless be admissible under the "inevitable discovery doctrine" as set forth by the Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Accepting the government's newly-made argument, the court said that because Officer Graves' positive identification, made only moments after the unlawful search, did in fact establish probable cause, Hill would then have been lawfully arrested and searched, and the money inevitably would have been discovered. See District of Columbia v. M.M., 407 A.2d 698, 701-702 (D.C. 1979).
We hold that the trial court erred in concluding, in the first instance, that probable cause to arrest Hill was lacking. The particularized description transmitted to the arrest team, together with the fact that the arrest team found Hill at the exact location stated by Officer Graves, certainly gave them probable cause to make an arrest. We therefore need not address the trial court's application of the inevitable discovery doctrine.
The trial court, in ruling on the motion to suppress, found that the police had "detained" Hill because "they believed that he matched the clothing description given by the undercover officer," but that "in the circumstances of this case [a positive identification] was a prerequisite to the acquisition of probable cause." Thus, while the court found the detention proper, it believed that the search, which preceded the identification, was illegal. Although Officer Knox testified that Hill was not searched until after the positive identification, the court rejected this testimony in favor of Hill's account of what happened, a factual determination which we have no reason to disturb. See note 3, (supra) . The court therefore ...