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February 22, 1995


The opinion of the court was delivered by: JOYCE HENS GREEN

 On December 1, 1994, a grand jury returned a twelve-count indictment charging defendants Larry G. Meadows, Andrew K. Peay and Leonard Meadows with various violations of federal narcotics and firearms laws and District of Columbia firearms and theft offenses. All three defendants subsequently moved to suppress the physical evidence against them and any statements they made to police officers. A hearing was held on these motions to suppress on February 21, 1995 and a jury trial was to commence upon resolution of the motions, if appropriate. For the reasons expressed below, defendants' motions to suppress are granted.

 I. Background

 On November 10, 1994, at approximately 7:10 p.m., Metropolitan Police Department ("MPD") Officers Darryn Robinson and Vincent Barlow were on patrol in the 1900 block of Bladensburg Road, N.E., several blocks from the Fifth District police station. The officers were in plain clothes and an unmarked car. At that time, a lookout for an armed robbery suspect was voiced over the radio.

 The radio transmission instructed the officers to be on the lookout for a black male, five feet nine inches tall and 140 pounds with a medium brown complexion, who had committed an armed robbery approximately twenty minutes before. The suspect, who was described as wearing a brown leather jacket, jeans, brown suede boots and a black knit "ski-type" hat, was last seen in the 800 block of 21st Street, N.W. He was armed with a .38 caliber handgun and in possession of $ 45 in cash and a brown leather jacket with a green collar stolen from the complainant. The complaining witness was in the police station with Sergeant Sullivan. See Government's Exhibit 1 (tape of radio runs). The officers did not write down the description, and Officer Robinson testified that he remembered the clothing description but not the physical build of the suspect.

 Although the lookout indicated that the armed robbery suspect was in the 800 block of 21st Street, N.W., Officer Robinson believed that the suspect was in the 800 block of 21st, N.E. There were two bases for this assumption. First, Officers Robinson and Barlow are members of the MPD's Fifth District. Officer Robinson, who had been with the MPD for five years, testified that members of the Fifth District would not receive a radio lookout for a suspect believed to be in the 800 block of 21st Street, N.W., but could receive a radio lookout for a suspect believed to be in the 800 block of 21st Street, N.E. Second, the lookout indicated that the complaining witness was in the police station with Sergeant Sullivan and there is a Sergeant Sullivan in the Fifth District. Although the officers did not attempt to verify their assumption with the dispatcher, the assumption was clearly reasonable.

 The officers drove through the parking lot of the Master Hosts Inn ("Inn"), located near the corner of New York Ave. and Bladensburg Road, N.E. This location is approximately nine blocks from the scene of the robbery. As they drove, they noticed an individual (later identified as Larry Meadows) whom Officer Robinson believed matched the lookout. That individual was about to get into the driver's side of a car parked in the Inn's parking lot. Larry Meadows, a black male of medium brown complexion, is six feet one inch tall and weighed 247 pounds on November 10, 1994. He was wearing a black leather jacket, "light colored pants", brown suede boots and a black knit cap. Two other men were with the suspect. One of these two men (later identified as Leonard Meadows) was carrying a green duffel bag. The duffel bag was 18-24 inches long with a handle on either side and a zipper that did not work. In addition, Officer Robinson testified at the motions hearing that one of the men, whom he could not identify, was carrying a bag of food and that the three men were heading into the parking lot from the area of the restaurant of the Inn.

 The officers emerged from their car and identified themselves. Officer Robinson, who is five feet ten inches tall and weighed 185-190 pounds on November 10, 1994, approached Larry Meadows and asked him where he was coming from, and Larry Meadows responded "Room 102." Officer Barlow asked the other two men where they were coming from and Officer Robinson testified that the response was, "Room 102 also." Leonard Meadows testified that he told Officer Barlow that he was "visiting" someone in the hotel. Officer Robinson then told Larry Meadows that he matched a lookout for an armed robbery suspect and that he would be patted down and brought to a "show-up". Officer Robinson, who testified that Larry Meadows was not free to leave at any time, detained Larry Meadows while Officer Barlow asked the dispatcher to repeat the lookout. Larry Meadows was brought near the radio so that he could hear the lookout replayed. The dispatcher then repeated the lookout to the officers and Larry Meadows. This lookout was similar to the first lookout in all material ways except that it did not include the height and weight description and described the suspect's leather jacket as black in color. See Government's Exhibit 1. Officer Robinson testified that after Larry Meadows heard the lookout he said words to the effect of "Yes, I match the description." *fn1"

 Officer Robinson then informed Larry Meadows that he was going to pat him down. Before the patdown began, Larry Meadows spontaneously said, "I'm dirty." Officer Robinson asked what this meant and Larry Meadows replied, "I have a gun, but it's not a .38." In response to another question, Larry Meadows indicated where the officer could find the gun. Officer Robinson found a loaded .45 caliber handgun in Larry Meadows' right waist band and Officer Barlow handcuffed Larry Meadows. All of this interaction between Larry Meadows and Officer Robinson occurred over approximately two minutes time.

 Next, Officer Robinson approached the second man (later identified as defendant Peay) and told him he was going to be frisked for the officers' safety. The officer testified that Peay was not free to leave now that a gun had been recovered from Larry Meadows. Before the patdown began, Peay spontaneously said, "I'm dirty too." Robinson then handcuffed Peay and found a loaded .38 caliber handgun in his waistband.

 After recovering the handgun from Peay, Officer Robinson placed both handguns that had been recovered on top of a car. He then ordered Leonard Meadows to get on the ground and told him he would be patted down. Leonard Meadows said that he did not have a gun, which the patdown confirmed. Leonard Meadows was neither handcuffed nor arrested. He was, however, escorted 10-15 feet away from the arrest scene by another officer because the two guns were atop the car. *fn2" The duffel bag that Leonard Meadows was carrying remained on the ground by the location of the patdown. Officer Robinson testified that Leonard Meadows was free to leave at this point, but Leonard Meadows did not believe he was free to leave.

 Thereafter, the manager of the Inn walked into the parking lot. He saw a telephone from the Inn sticking out of Leonard Meadows' duffel bag. *fn3" Leonard Meadows was arrested for second degree theft. During the search incident to this arrest, police found 83 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 *fn4" 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. *fn5" 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 ...

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