ziplock bags of crack cocaine on Leonard Meadows' person.
The police then searched the other two defendants. From Larry Meadows, Officer Barlow recovered eight ziplock bags of crack cocaine, one ziplock bag of marijuana, cash and a key to Room 102 at the Inn. The police also searched Peay and found a key to Room 255 at the Inn
and 30 ziplock bags of crack. As the police removed the hotel key from Peay, he volunteered, "We found it in the hallway near the ice machine."
After the police recovered the drugs, they became excited. Officer Robinson testified that they were all smiling and patting each other on the back.
At that point, according to Officer Robinson, Larry Meadows spontaneously exclaimed over and over, "That ain't shit. You ain't seen nothing yet. You'll find out sooner or later, there's more in the room." He apparently added that the "shit" was his even though some of it was found on the others. Officer James Effler also testified that he heard this statement and that it was not in response to any questions.
Officer Effler then asked Larry Meadows to sign a consent form to give the police permission to search Room 102. Officer Effler explained the form to Larry Meadows three times and told him each time that he did not have to sign it, and the form itself indicates that it does not have to be signed. See Government's Exhibit 4 (consent to search form). Larry Meadows did sign the consent to search form and Officer Effler testified that Larry Meadows was extremely cooperative. See id. Officer Effler also received permission from the hotel manager to search the room.
The police used the key found on Larry Meadows to open Room 102. Inside the room the officers found a duffel bag containing just under 400 grams of crack cocaine (some packaged, some unpackaged), two scales, empty ziplocks, ammunition and a high capacity ammunition clip for a .45 caliber handgun.
While the police searched the room, the complaining witness was brought to the crime scene for a "show-up". This witness indicated that Larry Meadows was not the armed robber. The three defendants were then brought to the Fifth District police station for processing. At that point, for the very first time, the three defendants were informed of their Miranda rights.
In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the Supreme Court noted that "not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has taken place." Id. at 19 n.16; see United States v. Lewis, 287 U.S. App. D.C. 306, 921 F.2d 1294, 1297 (D.C. Cir. 1990); United States v. Winston, 282 U.S. App. D.C. 96, 892 F.2d 112 (D.C. Cir. 1989). Indeed, "police officers 'do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some question [or] by putting questions to him if he is willing to answer.'" United States v. Maragh, 282 U.S. App. D.C. 256, 894 F.2d 415, 418 (D.C. Cir. 1990), cert. denied, 498 U.S. 880, 112 L. Ed. 2d 174, 111 S. Ct. 214 (1990) (quoting Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983)). This Court's first task, therefore, is to determine at what point Larry Meadows was "seized".
To determine whether a "seizure" has occurred, "the ultimate issue . . . [is] whether [the police officer's] conduct constitutes a show of authority that would lead a reasonable person to conclude that he is not free to go." Gomez v. Turner, 217 U.S. App. D.C. 281, 672 F.2d 134, 141 (D.C. Cir. 1982) (quoted in Winston, 892 F.2d at 115). In other words, a seizure takes place when "a reasonable person would conclude from the circumstances, and the show of authority, that he was not free to leave the officers's presence." United States v. Brady, 269 U.S. App. D.C. 18, 842 F.2d 1313, 1314 (D.C. Cir. 1988); see United States v. Lloyd, 276 U.S. App. D.C. 118, 868 F.2d 447, 450 (D.C. Cir. 1989). This test is, of course, "predicated on a 'reasonable person' who is 'innocent of any crime,' United States v. Savage, 281 U.S. App. D.C. 280, 889 F.2d 1113, 1116 (D.C. Cir. 1989), (because) law enforcement officers are not expected to tailor their conduct to a 'guilty mind, which is especially prone to apprehensions of confinement.' Brady, 842 F.2d at 1315 n.3." Winston, 892 F.2d at 115-16.
In the instant case, the government attempts to cast Officer Robinson's initial encounter with Larry Meadows as a mere consensual conversation. The government asserts that Larry Meadows was not seized until after the officers replayed the lookout broadcast. This position, however, is undercut by the testimony of the government's own witness, Officer Robinson. Officer Robinson testified that Larry Meadows was not free to leave at any point during the encounter. The officer further testified that he intended to patdown Larry Meadows from the outset of their encounter. Larry Meadows, therefore, was "seized" at the moment Officers Robinson and Barlow encountered him.
Having determined at what point Larry Meadows was "seized", the question then becomes whether the officers had reasonable articulable suspicion for this seizure. The Terry standard is one of "objective reasonableness." McKie, 292 U.S. App. D.C. 419, 951 F.2d 399, 402 (D.C. Cir. 1991). Consequently, a court is:
not limited to what the stopping officer says or to evidence of his subjective rationale; rather, we look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been suspicious.
Id.; see United States v. Bonner, 277 U.S. App. D.C. 271, 874 F.2d 822, 829 (D.C. Cir. 1989).
In the context of a Terry stop that flows from a suspect's description by a crime victim or a tipster, a court must compare the description to the defendant with regard to such factors as clothing, age, race, physical build and proximity to the crime scene. United States v. Simpson, 301 U.S. App. D.C. 203, 992 F.2d 1224, 1226 (D.C. Cir.), cert. denied, 126 L. Ed. 2d 236, 114 S. Ct. 286 (1993). A "confluence of such factors will be sufficient to justify a Terry stop." Id.; see United States v. Clipper, 297 U.S. App. D.C. 372, 973 F.2d 944, 951 (D.C. Cir. 1992), cert. denied, 122 L. Ed. 2d 171, 113 S. Ct. 1025 (1993) (stop reasonable where "police received anonymous tip providing detailed description of appearance, clothing, and location of a man").
There is simply not the confluence of factors necessary to justify the stop in this case. Larry Meadows did match the clothing description fairly closely. He was wearing a black knit "ski type" hat, brown suede boots and a dark color leather jacket. His pants, which were described as "jeans" in the lookout, were light colored pants that could readily be confused with jeans from even a short distance. See Government's Exhibit 5 (photograph of Larry Meadows on the night of the arrest). Larry Meadows also matched some of the physical descriptions of the suspect because he is a black male whose complexion could be considered medium brown.
After these several factors, however, the similarities between Larry Meadows and the description on the lookout fade. Larry Meadows was seen nine blocks from the crime scene. While this is not unusually far to traverse in twenty minutes, it does begin to suggest that Larry Meadows is not the robber. See Simpson, 992 F.2d at 1225 (suspect arrested within one block of the crime scene); United States v. Short, 187 U.S. App. D.C. 142, 570 F.2d 1051, 1054 & n.7 (D.C. Cir. 1978) (suspect arrested within two blocks of the crime scene). Further, the lookout was for a lone man on foot; Larry Meadows was with two companions and headed for an automobile.
These relatively minor discrepancies could be overlooked in light of the similarity in clothing, race and complexion. When viewed in conjunction with the physical build of Larry Meadows, however, these factors mandate suppression. The lookout was absolutely clear: the suspect was a black man who was five feet nine inches tall and weighed 140 pounds.
Larry Meadows is six feet one inch tall black man who, on the night of his arrest, weighed 247 pounds. This is a difference of four inches in height and 107 pounds in weight. It is impossible to conclude that a reasonable officer could have believed that Larry Meadows matched the lookout based on these factors alone. The gross disparity between the lookout and Larry Meadows on these two factors is particularly critical because, unlike clothing and location, height and weight cannot be altered in twenty minutes time.
Officer Robinson may not be a good judge of height and weight from a distance.
He may, therefore, have been justified in approaching Larry Meadows initially due to the clothing description alone. However, once he stood next to Larry Meadows, Officer Robinson had to realize that the lookout was for a man shorter and 45-50 pounds lighter than the officer himself, and Larry Meadows is three inches taller and 57-62 pounds heavier than the officer himself. At that point, Officer Robinson should have let Larry Meadows go and the interaction between the police and these defendants should have ceased.
Having concluded that the initial stop of Larry Meadows was not justified by reasonable articulable suspicion, all of the evidence or statements seized by the officers as to all three defendants must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 484, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963) ("the exclusionary prohibition extends as well to the indirect as the direct products of such [unlawful] invasions"), and its progeny; United States v. Dawkins, 305 U.S. App. D.C. 83, 17 F.3d 399, 407-08 (D.C. Cir. 1994). The officers would never have recovered any of the evidence, be it the drugs and guns on the defendants themselves or the drugs and ammunition in the hotel room, without the benefit of the constitutionally offensive stop. As a result, all of the evidence is the "fruit" of this unlawful stop and must be suppressed. See Dawkins, 17 F.3d at 408 ("The rule mandating suppression encompasses all indirectly derivative evidence, until the point at which the connection with the unlawful search becomes 'so attenuated as to dissipate the taint.'" (quoting Nardone v. United States, 308 U.S. 338, 341, 84 L. Ed. 307, 60 S. Ct. 266 (1939))).
The Court is not oblivious to the realities of the world and the serious action it takes this day. It is fully aware of the problems that face our country; particularly the incredibly awful problems that drugs and guns have wrought on countless persons who live in and visit cities such as Washington, D.C.
Viewed in this context, it is indeed a most difficult decision for this judicial officer to suppress evidence in a case in which two loaded guns (one on each of two defendants) and tremendous amounts of narcotics have been recovered. This is not a case of innocence. Nonetheless, while the Fourth Amendment has been narrowed substantially over time, it has not been eliminated. This Court's inquiry, therefore, ends at the beginning with the initial encounter between the police and Larry Meadows. Since the initial Terry stop fully violated the constitution, it cannot be sanctioned. The Fourth Amendment demands more.
Accordingly, it is hereby
ORDERED that defendant Larry Meadows' motions to suppress are granted; it is
FURTHER ORDERED that defendant Andrew Peay's motion to suppress is granted; and it is
FURTHER ORDERED that defendant Leonard Meadows' motion to suppress is granted.
IT IS SO ORDERED.
February 22, 1995
JOYCE HENS GREEN
United States District Judge