Before Schwelb, Farrell, and Reid, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appeals from the Superior Court of the District of Columbia Hon. Stephanie Duncan-Peters, Hon. Gregory E. Mize, Trial Judges
These consolidated appeals arise from separate trials having in common only the fact that the defendant McFerguson was convicted in both for burglaries committed in roughly the same part of Northwest Washington, D.C. In No. 98-CF-1129, McFerguson was found guilty by a jury of burglary in the second degree. In Nos. 98-CF-1124 and 98-CF-1273, McFerguson and Worthington were each convicted by a jury of burglary in the second degree and theft in the second degree. The only issue warranting this published opinion is Worthington's contention that the trial court erroneously denied his motion to suppress physical evidence and an identification stemming from what he claims was an illegal seizure of his person and search of a plastic bag he was carrying when the police stopped him and McFerguson. We conclude that resolution of this issue requires a remand to the trial court for additional findings relevant to the government's argument of inevitable discovery. We affirm all of McFerguson's convictions.
I. Facts Relevant to the Suppression Issue
Officer Tonya Toler of the Metropolitan Police Department (MPD) and her partner were in a police car patrolling the area of upper Massachusetts Avenue, N.W., near the Naval Observatory. Just before 10:00 a.m., she heard a radio report of a burglary that had occurred in the 3400 block of Garfield Street, N.W., not far from Massachusetts Avenue. The radio run described the suspected burglars as two black males, one wearing a white shirt and red pants, and one of them "tall." As her car drove up Massachusetts Avenue approaching 34th Street, Toler saw two black men walking together on the other side of Massachusetts Avenue in the opposite direction, leading downhill toward Rock Creek Parkway and Dupont Circle. The taller of the two men, whom Toler later identified as Worthington, was wearing red pants and a white shirt (she could not recall what the other man was wearing). Both men were walking "pretty fast" and appeared to have "bulge[s]" in the front of their jackets. By the time the officers could turn their car around and begin driving down Massachusetts Avenue looking for the suspects, the two men had disappeared.
At that point Toler heard a radio run stating that two men had been stopped by U.S. Secret Service officers on Rock Creek Parkway near the exit to P Street. She went directly to the place of the stop, taking about five minutes to do so, and saw that Secret Service officers had detained the two men she had seen minutes before. "[T]hey were the same two [men]," she testified, except that "the clothes were different": Worthington was wearing a white shirt but gray instead of red pants.
Officer Kevin Porter of the U.S. Secret Service, while driving north on Rock Creek Parkway with his partner, had monitored the same lookout report Toler heard. Along with his partner, he saw two black males later identified as Worthington and McFerguson running southbound on the Parkway from Waterside Drive, which connects Massachusetts Avenue with the Parkway. What "caught [his] attention" was that
they were running on the right-hand side of the northbound lane [where] there is no sidewalk . . . . [I]t's where the hill comes down and meets the road. And just as I was getting up to them, they cut right in front of my vehicle to the other side of the road, causing us to stop . . . .
a full-blown run. They were running directly at me, . . . trying to stay up on the hill and avoid being hit by traffic, and dodging in and out of traffic, and then [they] cut right in front of my vehicle.
One of the men - Worthington - was tall and had what appeared to be a red bag in his hand; both "were sweating profusely . . . and out of breath" from having "run hard . . . from a distance," and appeared "frantic." Although Worthington was wearing a white shirt and gray pants rather than red pants, Porter believed the pair to be the suspects wanted for the burglary. He did so because of "their proximity to the [burglary] location," their general match to "the one basic description" of two black males, one tall and wearing a white shirt; and the fact that "[n]obody runs through the Parkway like that" - "[t]hey had an appearance . . . of fleeing something."
Porter therefore turned his car around and caught up with the suspects at the entrance ramp to the Parkway at P Street, a distance he estimated at half a mile from the burglary site. *fn1 Porter and his partner stopped the pair (the other man was McFerguson), took the red bag from Worthington and put it on the ground, and frisked both men. Porter then notified the Secret Service Control Center of the stop and told "them to notify [MPD] Second District officers to respond down" to the scene. After doing this, he reached into the red bag ("a plastic type of designer shopping bag") and, opening it wider "so I could see what was in there," saw what appeared to be a couple of cameras and a CD player in it. *fn2 Soon afterwards MPD officers arrived and Porter briefed them. The MPD officers "were communicating back and forth" on their radios until "[s]omewhere down the line they indicated that the [burglary] complainant was going to be responding down for identification purposes." Porter's broadcast of the stop was made at 10:05 a.m., six minutes after the burglary lookout report by MPD and twenty minutes after the victim had reported seeing the burglars flee.
A third officer had also seen Worthington and McFerguson running. MPD Officer Hicks was driving northbound on Waterside Drive when he saw them turn from Massachusetts Avenue down onto ...