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Hicks v. United States

June 03, 1999


Before Farrell and Ruiz, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Associate Judge Farrell.

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia

(Hon. Noel A. Kramer, Trial Judge)

Argued January 26, 199

Concurring opinion by Associate Judge Ruiz, at p. _____.

Farrell, Associate Judge: Found guilty by a jury of two counts of armed robbery and related weapons offenses, appellant contends that a show-up identification of him by one of the victims and physical evidence (chiefly a sawed-off shotgun) seized from the car in which he was riding should have been suppressed as the fruits of a Fourth Amendment violation. Although we conclude that the search of the car was unlawful because done without probable cause, we agree with the trial Judge that the shotgun and the identification of appellant were both admissible under the doctrine of inevitable discovery. We therefore affirm.


The following facts were adduced at the suppression hearing. At about 12:40 a.m. on July 1, 1995, the complaining witness ("O'Malley") was walking home when he was grabbed from behind by a man who emerged from a car that had just passed O'Malley. Two other men stayed in the car. The assailant, who carried an object resembling a pipe with a cord around it, demanded O'Malley's money. O'Malley emptied the contents of his pockets on the ground, after which the assailant inspected the discarded items, took some and put them in his pocket, and told O'Malley to run away. O'Malley ran to his nearby apartment and called the police.

Metropolitan Police Officer Loepere responded to the scene. After interviewing O'Malley, he broadcast a lookout for the car carrying the assailant and the two other men. The car was an older model, light blue or gray, American-made station wagon with its missing rear window covered by plastic. At about 2:15 a.m. that day, Metropolitan Police Sergeant Morgan recognized a station wagon matching that description occupied by three males and driving in a location five blocks from the robbery. He summoned other police units, and together they stopped the station wagon and approached it with guns drawn. The three occupants were removed from the car, frisked, and placed on the ground. At some point they were handcuffed. *fn1 The police then searched the car and found a sawed-off shotgun concealed behind a child's car seat. They radioed to Officer Loepere that a car had been stopped matching the broadcast description, telling him to bring the robbery victim to the scene. They soon learned that Loepere "was getting the complainant and bringing him down there." The occupants, including appellant, were placed in a police van to await O'Malley's arrival. According to Sergeant Morgan, however, they "were going to be arrested regardless of any identification" because of their possession of the shotgun.

On hearing that the station wagon had been stopped, Officer Loepere had a police dispatcher contact O'Malley at his home, and Loepere then drove the victim to where the occupants were being held. Appellant and the others were removed from the police van one by one, and at about 2:30 a.m., O'Malley identified appellant positively as the man who had emerged from the station wagon and robbed him. A renewed search of the station wagon yielded a credit or debit card belonging to O'Malley. *fn2

In denying appellant's motion to suppress the identification and physical evidence, the trial Judge first found that the police had a reasonable basis for stopping the station wagon under Terry v. Ohio, 392 U.S. 1 (1968), and detaining the occupants for a showup identification. *fn3 At the same time, she rejected the government's position that the shotgun was in plain view from the officers' vantage point outside the vehicle; and thus, she ruled, the search of the car exceeded the bounds of a lawful Terry stop. She nonetheless held the shotgun and ensuing identification of appellant admissible on the basis of inevitable discovery. She rejected as "outside the realm of any reasonableness" appellant's contention that "it was somehow the discovery of the shotgun which caused the showup to occur." Rather, she had "no doubt that with the three people in the car and the report of the robbery, . . . the showup identification came about as a result of the earlier robbery report and completely independently of the discovery of the shotgun."


The government concedes that the search of the station wagon was without probable cause and thus unlawful. *fn4 It relies instead on the inevitable discovery doctrine. Appellant argues, in turn, that the predicate for applying that doctrine is missing, because there was no police investigation untainted by illegality that "inevitably" would have led to his identification and an ensuing search of the car incident to arrest. He contends that his stop and detention by the police was unlawful from the very outset because of the degree of force the police employed, converting what might have been a valid Terry stop into an arrest without probable cause; and that without this unlawful ...

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