*fn1,The opinion of the court was delivered by: Ruiz, Associate Judge,Stacy L. Anderson, Assistant Attorney General, with whom Robert J. Spagnoletti, Attorney General for the District of Columbia, Edward E. Schwab, Deputy Attorney General, and Rosalyn Calbert Groce, Assistant Attorney General, were on the brief, for appellant.*fn2,IN RE I.J. DISTRICT OF COLUMBIA, APPELLANT." />

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In re I.J.

October 13, 2005 *fn1


Appeal from the Superior Court of the District of Columbia (J-588-03) (Hon. Hiram E. Puig-Lugo, Trial Judge).

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued December 3, 2004

Amended August 17, 2006

Before FARRELL, RUIZ and REID, Associate Judges.

Appellee was charged as a juvenile with possession of marijuana. Following an evidentiary hearing, certain statements made by appellee were suppressed after the trial judge found that appellee who had not been given Miranda warnings,*fn3 was in custody when questioned by the police. The judge dismissed the charge pending against appellee, and the government appealed the judge's suppression order. We agree that appellee was in custody when he was interrogated without benefit of the required Miranda warnings, and affirm the trial judge's dismissal.

I. Motion to Suppress

On March 31, 2003, Officer Michael Minor was dispatched to the Kennedy Youth Center, in the Northwest quadrant of the District. Staff members at the Center had called 911 earlier that morning to report that they were detaining one of the residents -- appellee -- because they had discovered what they suspected to be marijuana among his possessions. Appellee, who was sixteen years old at the time, was residing at the Center under a probation order of the Superior Court.

When Officer Minor arrived at the youth center, he was greeted by Mr. Rawlings, who identified himself as one of the counselors at the center. Officer Minor and Mr. Rawlings conversed briefly in the entry hall of the center. Mr. Rawlings informed the officer that after several residents of the center had told him that morning that appellee had marijuana, he searched under appellee's bed, and discovered two vials containing a green, leafy substance. He had then confronted appellee, who exclaimed, "damn, got my loot!" The staff of the center then placed appellee in a small office adjacent to the entry hall and called the police. Appellee remained in this room until Officer Minor arrived. The conversation between Officer Minor and Mr. Rawlings was conducted in a normal tone of voice, just outside the office where appellee had been asked to wait.

After this conversation, Officer Minor, in police uniform, went in to speak to appellee, who was alone in the office where he had been placed. The room measured about twelve by fourteen feet and had a desk and chairs. The two vials of marijuana that had been discovered by Mr. Rawlings were on the desk, within feet from appellee. As Officer Minor stepped into the office, he paused, looked down at the vials, and then asked, "What happened?," to which appellee immediately replied, "those two vials are mine, the two other guys got the other six, they are mine officer." Officer Minor left the room, and called for a crime scene officer, who tested the material in the vials and confirmed that it was marijuana. Officer Minor then placed appellee under arrest. He was thereafter charged with possession of marijuana.

Appellee brought a motion to suppress the statement he made to Officer Minor. Specifically, he argued that he was in custody when Officer Minor asked him "what happened?," and because the officer had not issued Miranda warnings, the statement was taken in violation of his Fifth Amendment right against compelled self-incrimination. After hearing testimony from Officer Minor, the trial court ruled that appellee was in custody when the statement was made, and therefore it was inadmissible in the government's case-in-chief.*fn4 Upon the government's request for a two-week continuance to reassess the case, the judge dismissed the charge against appellee for want of prosecution. In its appeal, the government challenges the judge's ruling suppressing the statement.*fn5

II. Jurisdiction

As an initial matter, appellee has challenged our jurisdiction to hear this appeal. The jurisdictional challenge stems from the specific sequence of events discussed above, where the trial judge suppressed the challenged statement and only moments later dismissed the charges against appellee for want of prosecution. Without making any further filings in the Superior Court, the government filed a notice of appeal challenging the trial judge's suppression of appellee's statement to Officer Minor.

"Government appeals in criminal cases, long disfavored, are possible only pursuant to express statutory authority." District of Columbia v. McConnell, 464 A.2d 126, 127 (D.C. 1983). Under D.C. Code § 23-104 (a)(1), the District of Columbia or the United States "may appeal an order, entered before the trial of a person charged with a criminal offense, which directs the return of seized property, suppresses evidence, or otherwise denies the prosecutor the use of evidence at trial." The statute includes a procedural requirement that "the United States Attorney or the [Attorney General for the District of Columbia] conducting the prosecution for such violation certif[y] to the judge who granted such motion that the appeal is not taken for purpose of delay and the evidence is a substantial proof of the charge pending against the defendant." Id. The government's ability to appeal a pretrial order under § 23-104 (a)(1) is conditioned on compliance with the terms of the statute. See McConnell, 464 A.2d at 128.

Appellee seizes on the language of the last sentence of § 23-104 (a)(1) -- that there be a "charge pending against the defendant"-- and premises his jurisdictional challenge on the notion that once the trial judge dismissed the charges, there was no "charge pending" at the time appeal was taken, and therefore this appeal falls outside the narrow scope of § 23-104 (a)(1). Although appellee's argument finds support in the text of the statute, cases construing this provision hold that even though charges have been dismissed, the government may appeal the suppression of evidence if there is the possibility that the government will again seek to prosecute the accused if the evidence is held to be admissible. See United States v. Cefaratti, 91 U.S. App. D.C. 297, 202 F.2d 13 (1952). In Cefaratti, after the trial court held that some evidence that had been seized was inadmissible, the government sought dismissal of two of four charged counts, and, following the acquittal on the remaining two counts, appealed the suppression order. See id. at 14. The court held that "the appeal is not moot" because, "if this [suppression] order is reversed before the statute of limitations runs, the government plans to reindict the appellee and try him." Id. We have relied on Cefaratti to allow government appeals where the charges against the defendant have been dismissed, but there still exists the possibility of charges being brought anew should the suppressed evidence be held to be admissible on appeal. See United States v. Hunter, 692 A.2d 1370, 1374 n.3 (D.C. 1997) (holding that even though the indictment had been dismissed "the government proposes to seek a new indictment, . . . and the case is not moot"); United States v. Oliver, 297 A.2d 778, 780 (D.C. 1972).

The charges against appellee are subject to a three-year statute of limitations, see D.C. Code ยง 23-113, and therefore the government is free to re-charge the defendant at any point before April 2006. The government represents that it intends to do so if the statements at issue are admissible. Accordingly, under the Cefaratti line of cases, this court has ...

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