Appeal from the Superior Court of the District of Columbia, Criminal Division. (F 9039-96) (Hon. Rhonda Reid Winston, Judge).
Before Ruiz and Glickman, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
An undercover police officer witnessed a drug transaction and radioed a "lookout" for the suspects involved. Within one minute, officers responding to the scene stopped appellant Maurice Milline and his companion. After the undercover officer confirmed Milline's identity as one of the subjects of his lookout, the police searched Milline and recovered heroin and cocaine. Milline was arrested and eventually tried and convicted of possession with intent to distribute heroin and possession of cocaine.
Milline claims in this appeal that the trial court should have granted his Fourth Amendment motion to suppress evidence (the drugs and the identification by the undercover officer) because the government failed to establish that the lookout broadcast was particularized and accurate enough to justify the police in stopping him. The broadcast was neither recorded nor transcribed, and at the hearing on Milline's motion, neither the undercover officer nor the arresting officer could recall any part of the lookout description that Milline allegedly matched. Milline argues that without knowing the details of this description, the trial court could not evaluate whether the lookout furnished the police with sufficient reason to stop him. This argument would have merit if the description in the lookout were the critical piece of information on which the stop's validity depended. But that is not in fact the case. Apart from the description of Milline, the lookout contained other information that independently supported his stop, namely, his location and a description of the person he was with. As this other information was provided at the hearing on Milline's motion, we conclude that the trial court properly ruled that there was no Fourth Amendment violation.
According to the government's evidence, at approximately 12:30 in the afternoon on October 12, 1996, undercover Metropolitan Police Officer Harry Sowers walked into a corner store at Twelfth and G Streets, Southeast, to purchase a bottle of juice. Inside the store, Officer Sowers observed a man sitting on a bench about two to three feet away from him "reach into his rear pants area." As Officer Sowers then turned away to order his juice, he heard a voice coming from the man's direction saying, "How many do you want?" Officer Sowers then "looked back, looked down [at] the lap of Mr. Milline" and saw a "bunch of zip-locks in his lap, clear zip-locks with white substances," which Officer Sowers believed to be either powder cocaine or heroin.
To maintain his cover, Officer Sowers did not arrest Milline on the spot. Instead, he completed his purchase and returned to his car, which was parked in front of the store. Since "none of the arrest teams were in the area yet," Officer Sowers waited for them to arrive. While he was waiting, he saw Milline exit the store and walk with two other men down G Street.
Officer Sowers got out of his car and followed the three men on foot. When the men arrived at the corner of Eleventh and G Streets, Officer Sowers saw one of them, whom he later identified as Charles Hawkins, come from the back of a Nissan 300ZX and toss a small object toward Milline. Milline picked the object up and "stuffed [it] in the front inside pants area, the crotch area." Hawkins then handed something to the third man, after which Milline and Hawkins began walking back toward Twelfth and G Streets while the third man went down Eleventh Street. Officer Sowers followed Milline and Hawkins, returned to his car, and transmitted a lookout for all three men over an unrecorded surveillance channel.
With respect to Milline and Hawkins, the lookout was for two men walking into the 500 block of Twelfth Street (where Officer Sowers had seen them go after they arrived at Twelfth and G). Officer Sowers could not remember at the motions hearing how he described Milline in the lookout, but he did recall that his description of Hawkins was for a black man wearing "shades" and a black baseball cap.
Within thirty seconds to a minute after they heard the lookout, Officer Stanley Farmer and a second officer stopped Milline and Hawkins in the 500 block of Twelfth Street. Officer Farmer testified that the two men were walking together and were the only persons in the area who matched the descriptions in the lookout, though he could no longer recall what those descriptions were. Officer Sowers observed the stop from a distance of about forty to fifty feet and promptly confirmed in a radio communication with Officer Farmer that Milline and Hawkins were the two individuals on Twelfth Street for whom he had broadcast the lookout.*fn1
Officer Farmer then took Milline to an alley and asked him if he had any narcotics on him. When Milline denied it, Officer Farmer conducted a "field search" and recovered a packet of twenty-two zip-lock bags from between Milline's buttocks. One of the zip-locks contained cocaine; all the rest contained heroin.
On appeal from the denial of a motion to suppress evidence, "the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc). Taking that perspective, "we review de novo the trial court's legal conclusions, . . . and make our own independent determination of whether there was either probable cause to arrest or reasonable ...