The opinion of the court was delivered by: Associate Judge Schwelb
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Appeal from the Superior Court of the District of Columbia (Hon. John H. Bayly, Jr., Trial Judge)
Before Schwelb and Farrell, Associate Judges, and King, Senior Judge.
Dissenting opinion by Senior Judge King at p. _.
Schwelb, Associate Judge: Following a bench trial, T.L.L., a juvenile,*fn1 was found guilty of armed robbery. On appeal, he contends that the trial Judge erred by denying T.L.L.'s motion to suppress identification evidence. More particularly, T.L.L. claims that the police lacked reasonable articulable suspicion to detain him for purposes of a show-up identification by the complaining witness. In light of the limited evidence presented by the District at the hearing on T.L.L.'s motion, we are compelled to reverse.
At the motions hearing, which was held on February 2, 1996, the only witnesses for the District were the complainant, John Hatcher, and one of the arresting officers, Elizabeth Sharp-Hamlet. The District did not call Officer Gregory Phifer, who played the lead role in investigating the case, and who had testified extensively at the probable cause hearing, which was held on the day of T.L.L.'s arrest.*fn2
Mr. Hatcher testified that at approximately 1 a.m. on April 5, 1995, he was robbed at gunpoint in the 500 block of 48th Street N.E. in Washington, D.C. Hatcher stated that a small station wagon occupied by four young men passed him and came to a halt. Two of the occupants got out of the car and rushed at him. One of the robbers was armed with a handgun and pointed it at Hatcher. The other robber -- allegedly T.L.L. -- went through Hatcher's pockets. Finding no money or valuables, the robbers took Hatcher's sweatshirt. The men then fled, and the gunman fired his weapon as they did so.
Shortly after the robbery, Hatcher flagged down a police car and reported the robbery to Officer Phifer. Hatcher gave Phifer a general description of his assailants. At the motions hearing on February 5, 1995, ten months after the robbery, Hatcher recalled the description as follows:
"I told him the one with the gun, I told him he was light complexion, kind of slim, maybe about 5'10" or something. But he had the bandanna or some kind of cloth covering his face, the only thing I knew is he was light complexion. . . . And I couldn't give him a real good description maybe of the clothes, maybe dark clothing . . . . [T]he second guy . . . he was maybe about four foot something. I don't know if I told him 4'10" or 4'11" . . . just so young looking, maybe about 15, 16, and just clear cut face. He just looked so young."
Mr. Hatcher described the assailants' car as
"a smaller version of a station wagon, but maybe a blue or green, some dark color . . . it had . . . more or less a luggage rack or something on top of it . . . older model."
Some undisclosed period of time after Hatcher provided these descriptions, officers drove Hatcher to a location near 44th Street and showed him a station wagon "that seemed like the vehicle the guy was in." Hatcher was then transported to 4427 Hayes Street for a "show-up," and police officers brought out four or five individuals, one at a time, to determine whether Hatcher could identify any of them. Hatcher positively identified the first suspect -- T.L.L. -- as the robber who had gone through his pockets. Hatcher was unable to identify any of the other men.
Officer Sharp-Hamlet testified that between 1 a.m. and 2 a.m. on April 5, 1995, she monitored a broadcast lookout for suspects in a robbery. According to Officer Sharp-Hamlet, the lookout was for three or four black males. One of the robbers was described as "approximately 14 to 18 years of age, medium complexion, dark-colored clothing." A second suspect was described as "another black male in his early teens to late teens, with dark brown complexion, wearing dark-colored clothing." The descriptions included no information regarding height, weight, presence or absence of facial hair, or any other distinctive characteristic. Officer Sharp-Hamlet testified that "a location was given [in the broadcast] as to the whereabouts of possible suspects." The specified location was 4427 Hayes Street N.E.
Upon receiving this information, Officer Sharp-Hamlet proceeded to the Hayes Street address. She testified that four or five*fn3 young men were standing on the stoop, some of whom matched the "general description" in the broadcast lookout.*fn4 When Officer Sharp-Hamlet and several other officers got out of their police cars, the young men all ran inside the building. The officers apprehended most of the suspects and exhibited them, one at a time, to the complaining witness.
The District made no attempt to explain the significant differences between Hatcher's description of the suspects and the lookout monitored by Officer Sharp-Hamlet. There was no testimony that T.L.L. individually matched even the very general description reported by Officer Sharp-Hamlet. Indeed, at the motions hearing, Officer Sharp-Hamlet did not remember T.L.L. at all, and she could not identify him in court. Moreover, there is no information in the record as to why the lookout directed officers to the address on Hayes Street at which T.L.L. was apprehended (and at which, as it turned out, he also lived).
THE TRIAL JUDGE'S DECISION
The trial Judge denied the motion to suppress identification. He ruled, in pertinent part, as follows:
"It seems to me that . . . Officer [Sharp-Hamlet], when she focused her attention on the Respondent and the other young men with him, when she kind of zeroed in on them, had before her information that was sufficiently particularized for her to take the measures and the steps that she did. "I think that she was justified in so doing because she recognized that the young men or older boys -- however you want to style it -- that she saw were close both in place and time to the offense which happened early in the morning, about 1:00 in the morning. "* * * "But she did have a description of at least two people involved in the robbery, and she had a description by race, by age, by sex, by complexion, and by location within time and place, as I say. She also knew that there were two people, at the very least, involved. "And when she saw these young men in front of the apartment building, she suspected that they may have been the people involved because, at the very least, one, and probably two, met the description given by these factors here."
The Judge also noted that the vehicle identified by the complainant was located near the apartment building at which T.L.L. was apprehended. He did not consider this information, however, because the District had not established that, at the time that T.L.L. was detained, the police were aware that a vehicle was involved in the robbery. The Judge described T.L.L.'s quick entry into the building as an "ambiguous" gesture, but he concluded that this conduct was incriminating at least to a modest degree.
After the motion to suppress identification was denied, the parties proceeded to trial. The Judge credited Hatcher's identification of T.L.L. as extremely reliable and found ...