Before Steadman and Ruiz, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Steadman, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Robert E. Morin, Trial Judge)
Appellant was convicted of threats to do bodily harm, D.C. Code § 22-507 (1996), based on statements he made to a police officer. He argues on appeal that the statements should have been suppressed because they were made during the course of an unlawful arrest. Alternatively, he contends that there was insufficient evidence to support the conviction. We affirm.
The complainant, Officer Gwendolyn Mapp, was the sole witness in the trial court. According to her testimony, *fn1 Officer Mapp was patrolling the grounds of a public housing complex on March 21, 1997, when she saw appellant and several other men involved in what she believed to be the beginnings of a drug transaction. The group broke up when they noticed her. Shortly thereafter, Officer Mapp saw appellant crossing the street from the complex. She approached him to ask "why he was on the property and what was going on," since only residents and visitors who had signed in at the guard house were supposed to be on the property. Three other officers eventually joined her.
Appellant and Officer Mapp spoke for about four or five minutes at this location. When appellant admitted that he did not live in the complex, the officers decided to take him to the main office to issue a "barring notice" to keep him off the property in the future. This involved taking a photograph and giving him a written notice. They explained this to appellant, another officer handcuffed him, and all four officers escorted him toward the office. Although appellant had been "agitated" and "uncooperative" at first, he "calmed down" when he was told that he was going to be barred from the property and stated that he needed to be able to come on the grounds to take care of his grandmother who lived in the complex's senior citizen building. Appellant had not been in the "proper area" to go to that building when Officer Mapp saw him on the property, but she planned to check this information at the office.
Before reaching the office, however, appellant made the following statement to Officer Mapp, who was standing directly beside him: "You won't work here again, wait until I tell the boys, they will take care of you." When Officer Mapp "stopped dead in [her] tracks" and looked up at appellant (who was taller than she was), he continued,"You think I'm playing, just watch and see." Surprised, Officer Mapp asked, "What did you say?" *fn2 to which appellant replied, "You won't work anywhere after I tell the boys." Officer Mapp took these statements to mean that appellant would arrange for boys in the neighborhood to do something to her so that she would be physically incapacitated from working. The statements were made in a "serious" and "threatening" tone, appellant looked Officer Mapp "straight in [the] eye," and she did not think he was joking. She immediately placed appellant under arrest.
Appellant first contends that the trial court should have suppressed his threatening statements because he was unlawfully arrested at the time he made them. Although Officer Mapp did not consider appellant under arrest, the trial court concluded that appellant was objectively under arrest and that such arrest was unlawful because it was not based on probable cause. Since this issue is not critical to our disposition, we assume arguendo that appellant was unlawfully arrested when he made the statements. We are thus faced with the question, apparently one of first impression in this jurisdiction, whether evidence of a separate and distinct crime must be suppressed under the "fruit of the poisonous tree" doctrine if the crime was committed while in unlawful police custody.
As a general rule, evidence discovered pursuant to an illegal search or seizure must be suppressed as "fruit of the poisonous tree," whether the evidence is physical or testimonial in nature. See Patton v. United States, 633 A.2d 800, 816 (D.C. 1993). However, if "an intervening event or other attenuating circumstance purges the taint of the initial illegality, the evidence need not be suppressed." Id. According to the United States Supreme Court, the proper test is not simply whether the evidence would not have been obtained "but for" the initial illegal police action, but rather "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488 (1963).
Many other federal and state appellate courts have already considered whether commission of a separate and distinct crime constitutes the kind of independent act that purges the primary taint of illegal custody. These courts have almost uniformly held that it does. The leading case is United States v. Bailey, 691 F.2d 1009 (11th Cir. 1982), cert. denied, 461 U.S. 933 (1983). *fn3 Federal agents approached Bailey and another man in an airport because they fit the profile for drug couriers. Id. at 1011. The two men initially agreed to go to the police station for a drug search, but Bailey suddenly dropped his luggage and fled. Id. at 1012. As he tried to climb over a gate, one of the agents caught up with him, a struggle ensued, and Bailey was ultimately arrested. Id. Assuming arguendo that the officers' initial actions constituted an unlawful arrest, the Eleventh Circuit held that the "second" arrest was nonetheless valid and that any evidence subsequently acquired was therefore admissible because:
[N]otwithstanding a strong causal connection in fact between lawless police conduct and a defendant's response, if the defendant's response is itself a new, distinct crime, then the police constitutionally may arrest the defendant for that crime. . . . Where the defendant's response is itself a new, distinct crime, there are strong policy reasons for permitting the police to arrest him [or her] for that crime. A contrary rule would virtually immunize a defendant from prosecution for all crimes he [or she] might commit that have a sufficient causal connection to the police misconduct. . . . Unlike the situation where in response to the unlawful police action the defendant merely reveals a crime that already has been or is being committed, extending the fruits doctrine to immunize a defendant from arrest for new crimes gives a defendant an intolerable carte blanche to commit further criminal acts so long as they are sufficiently connected to the chain of causation started by the police misconduct. This result is too far reaching and too high a price for society to pay in order to deter police misconduct. Bailey, supra, 691 F.2d at 1016-17.
In reaching its conclusion, the court emphasized that the critical factor was that Bailey's response to the police seizure, i.e. flight and resisting ...