Appeal from the Superior Court of the District of Columbia, (F4447-02), (Hon. Rhonda Reid Winston, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before FARRELL and REID, Associate Judges and TERRY, Senior Judge.*fn1
In this case, appellee Daron McMillian has been charged with several crimes, including the murders of Ricardo Minnis and Burl Lawson on July 6, 2000. By separate indictment, he was charged with other crimes, including the murder of Charles Lesane on August 31, 2000. His arrest for all three murders took place on August 31, 2000, and he confessed to all three murders on that day. However, the July 6 and August 31 murders have been handled as separate cases. In the case involving the Lesane murder, Mr. McMillian filed a motion to suppress statements which he made to the police on the day of his arrest. The Honorable Shellie Bowers granted his motion in 2003, and the government did not file an appeal.
In the case before us, Mr. McMillian also filed a motion to suppress -- on both Fourth and Fifth Amendment grounds -- the statements he had made on the day of his arrest, and that motion was granted by the Honorable Rhonda Reid Winston after finding that Mr. McMillian had been unlawfully detained earlier that day. (The judge did not reach the issue of whether Mr. McMillian's statements had been obtained in violation of the Fifth Amendment.). The government filed an appeal.
The government primarily argues that the trial court erred by (1) failing to apply the "collective knowledge" doctrine concerning the basis for stopping Mr. McMillian for investigation; and (2) applying a "simple 'but for'" test to determine whether Mr. McMillian's statements that he committed the murders should be excluded from evidence under the "fruit of the poisonous tree" doctrine. Mr. McMillian argues that, having failed to appeal the decision granting his motion to suppress in the first case (the Lesane murder), the government is collaterally estopped from challenging his suppression motion in the second case (the Minnis/Lawson murders). We hold that the government was not collaterally estopped from litigating Mr. McMillian's suppression motion in this case because the ruling in the Lesane murder case did not constitute a final judgment, and because there are policy considerations unique to criminal cases that make application of that doctrine inappropriate here. We also hold that the trial court was correct in concluding that Mr. McMillian was illegally seized. Nevertheless, applying the attenuation doctrine to the particular facts of this case, we hold that the generation of probable cause to arrest Mr. McMillian within minutes of the detention broke the causal link between his illegal seizure and his confession.*fn2
The record before us shows that Mr. McMillian was arrested on August 31, 2000, at approximately 2:35 p.m., and was later questioned about three murders (the Lesane, Minnis, and Lawson murders) between 6:30 p.m. on the same day, and continuing until12:40 a.m. the following morning, September 1, 2000. At the suppression hearing in this case, held in February 2005, the government introduced the testimony of Sergeant Michael Dodgson of the United States Capitol Police ("Capitol Police" or "USCP"). Sergeant Dodgson and his partner, Officer Christopher Paradis were assigned to the K-9 patrol car. While they were placing the dog in their car, they "monitored a call on [a First District] [M]etropolitan [Police Department] radio that there was a shooting in the 900 block of 14th Street, Southeast." They needed gas for the car, and proceeded to a gas station at 4th Street and Pennsylvania Avenue, in the Southeast quadrant of the District of Columbia. Their attention soon focused on another crime.
As Sergeant Dodgson and his partner were filling their vehicle with gasoline, a manager of a Kinko's reproduction center, located in the 300 block of Pennsylvania Avenue, Southeast, approached and informed them "that two individuals snatched a lady's purse at Kinkos [and that] some [of his] employees [were] chasing the individuals eastbound on Pennsylvania Avenue." The manager described the purse snatchers as "two black males [in their] twenties, . . . [wearing] a black T-shirt and the other one a yellow T-shirt." He stated that one of the chasers returned to say that the men had "boarded a [M]etro bus heading westbound . . . [on] Pennsylvania Avenue." When Sergeant Dodgson and his partner saw a stationary bus, in the westbound direction on Pennsylvania Avenue, they got into their vehicle, turned on the "emergency equipment" and drove in front of the bus so that it would not pull away from the curb. It was 2:26 p.m.
Sergeant Dodgson informed the bus driver about the purse snatching and asked him to keep everyone on the bus. The driver "misunderstood [Sergeant Dodgson] and told people to get off the bus." People began to get off the bus at 2:27 p.m. Approximately thirty passengers exited from the front door. The last person off the bus was Mr. McMillian who "probably stayed on the bus maybe 40 or 50 seconds after everybody else." The first person to leave the bus was an elderly lady, who walked away. Another female person, who had been seated next to the elderly woman on the bus, told the sergeant that the elderly lady "said to [her] that she witnessed a shooting in the Potomac Gardens area," which is the area a few blocks away from the 900 block of 14th Street, Southeast, in which Charles Lesane was murdered. Upon hearing this information, Sergeant Dodgson used his Capitol Police radio to request that the elderly lady be stopped.
While Sergeant Dodgson was trying to keep the bus passengers together, he "noticed" Mr. McMillian walking away and "went over to him and . . . asked him to come back and just . . . stick around for a little while [because he] wanted to talk to everybody. . . ." Mr. McMillian complied. Sergeant Dodgson then returned to the female bus passenger to obtain "more information from her." When he realized that Mr. McMillian "was leaving a second time when everybody else was for the most part sticking around [and that he had reached] just beyond the bank at 6th and C Street," he proceeded to follow Mr. McMillian. As he did so, "another individual that was standing there stated to [him]. . .[,] be careful he's a bad ass." Sergeant Dodgson approached Mr. McMillian and said, "excuse me, . . . I need your help . . . . I'm looking for two suspects that snatched a lady's purse, I know you were on that bus, if you would come back with me[,] . . . I'll ask you a few questions and that will be it." Sergeant Dodgson spoke in a "firm" voice, but did not draw his gun. Mr. McMillian again complied with the sergeant's request. The two returned to the bus "side by side." By that time, most of the bus passengers had left the area, including the woman who had provided information about her elderly seat mate.
Around this time, which was approximately nine minutes from the time Sergeant Dodgson's vehicle positioned itself in front of the bus, Officer Pond of the Capitol Police had arrived. Sergeant Dodgson asked Officers Paradis and Pond to "keep an eye on [Mr. McMillian] . . . ." The sergeant then boarded the bus, went to "the back of the bus about where [he] had seen Mr. McMillian sitting prior to [his] exiting the bus and [saw] a blue T-shirt sitting on the seat." The bus driver, who had followed Sergeant Dodgson, "said the guy that you brought back from behind the bank in the white T-shirt boarded my bus in the Potomac Gardens area and was wearing that shirt [meaning the blue T-shirt]." And, "at that point and time, [Sergeant Dodgson] thought that it's a possibility that Mr. McMillian could be the shooter," for the crime he was monitoring earlier. The bus driver said "when [Mr. McMillian] boarded the bus in the Potomac Gardens area he was wearing a blue T-shirt and he didn't pay the fare." When Mr. McMillian had exited the bus, he wore a white T-shirt. Sergeant Dodgson left the bus "and told Officer Paradis to handcuff Mr. McMillian."
Sergeant Dodgson saw a Metropolitan Police Department ("MPD") officer, later identified as Sergeant Edward Smith, get on the bus, but apparently neither spoke at that time. Sergeant Dodgson asked Officer Paradis to secure Mr. McMillian.
Earlier on the same day, Sergeant Edward Smith, then attached to the MPD First District substation, had "monitored a radio run for . . . a shooting" in the 900 block of 14th Street, Southeast. The radio broadcast occurred around 2:27 p.m., and stated that "a possible suspect" was believed to be on a bus at 6th and Pennsylvania Avenue. He went to the location of the Metro bus and "observed two Capitol Police officers who were already there." Initially, he thought they also were investigating the shooting in the 900 block of 14th Street, S.E., but learned that they "were investigating a separate crime . . . ." An officer was standing outside the bus "near a male subject," who "was standing in the tree box area that [was] almost directly in front of the front entrance or exit of the Metro bus." At approximately 2:32 p.m., Sergeant Smith learned from the bus driver that the man the Capitol Police had secured outside of the bus earlier "was moving around and up to something in the back of the bus and had in fact changed his clothes in the rear of the bus and left his shirt back there." The bus driver directed Sergeant Smith to the rear of the bus where Sergeant Smith saw "a dark blue shirt on the seat." There was nothing under the T-shirt, but when he "looked under the seat [Sergeant Smith] observed a semiautomatic pistol." He called for "transport" for Mr. McMillian around 2:33 p.m. When Sergeant Smith got off the bus, he told USCP Sergeant Dodgson and USCP Officer Paradis that "there was a gun . . . under the seat in the bus in the back." Sergeant Dodgson "got back on the portable radio and voiced the urgency to get the elderly lady stopped."
After listening to dispatcher tapes the week before his testimony at the suppression hearing, USCP Sergeant Dodgson made some notes concerning time lines on August 31, 2000. His notes revealed that the bus was stopped at 2:25 p.m., and Mr. McMillian was "secured" "for investigative purposes" at 2:34 p.m. Sergeant Dodgson also stated that he signed and filed a PD-252 report which was prepared by someone else, and that some of the information on that document was incorrect. In response to the question whether Mr. McMillian was "cuffed before [Sergeant Dodgson] learned that the gun was found by the [M]etropolitan police officer," the sergeant responded: "Yes." He stated that there were only "[s]econds" between the handcuffing of Mr. McMillian and the moment the gun was found. "Seconds after [Mr. McMillian] was handcuffed, MPD Sergeant Smith c[a]me off the bus and mention[ed] the gun."*fn3
Sergeant Mark Moore of the MPD was at the crime scene in the 900 block of 14th Street, S.E., when he received a call that took him to the site of the bus stopped at 6th and Pennsylvania Avenue, S.E. He arrived at the bus at 2:34 p.m. and saw Sergeant Smith on the bus. When Sergeant Moore boarded the bus, Sergeant Smith "said that he had found a weapon on the back of the bus under the seat"; Sergeant Moore also saw the gun. As Sergeant Moore got off the bus, another officer was on the scene, Lieutenant McGill, who observed three 9mm rounds or bullets "in [t]he tree box space which was adjacent to the bus as you exit the front door."
Detective Oliver Garvey of the MPD had been assigned to the investigation of the shooting on August 31, 2000. He testified at the suppression hearing that another MPD officer, Katrina Harris, "received a call from an anonymous caller." The caller stated that she observed a black male "wearing a white T-shirt and some blue jeans" board a bus "traveling westbound on Pennsylvania Avenue, Southeast." The man had taken off a blue shirt and used it to wrap a gun.
Detective Garvey interviewed the bus driver on August 31, 2000. After Mr. McMillian got on the bus, another passenger reported, based on information from an elderly passenger, that the man in the back wearing a blue T-shirt had "just shot somebody on 14th Street." The bus driver remembered that the man had on a white T-shirt when he got on the bus, but now was wearing a blue T-shirt. The bus driver radioed this information to his dispatcher, and pretended that the bus was having some engine problems, and hence, could not be driven.
Detective Garvey also testified that when he reached the bus stopped at 6th and Pennsylvania Avenue, S.E., it was somewhere around 3:15 or 3:20 p.m. He learned of the shell casings found in the tree box from Lieutenant McGill. Mr. McMillian was in a police transport vehicle at the time, and was then "transported to the first police district." After spending time at the bus site, Detective Garvey arrived at the police station around 5:45 p.m. Mr. McMillian had not been told that he was arrested for carrying a pistol without a license until Detective Garvey revealed the charge to him that evening. Detective Garvey's first contact with Mr. McMillian at the police station occurred around 6:30 p.m. Detective Fulton, who was involved in the investigation of the July 6, 2000 murders, also was present. Detective Garvey told Mr. McMillian that he "was going to read him his rights because [he] did not want to violate his rights . . . [but he] wanted [Mr. McMillian] to listen to what [he] had to say and just to listen, not interrupt [him], just to listen." Detective Garvey spoke about the August 31, 2000, shooting, the discovery of the gun on the bus, and the detectives' "belie[f] that [Mr. McMillian] was responsible for that." Detective Fulton also expressed his view that Mr. McMillian "was involved in the double homicide that occurred earlier that summer," the Minnis/Lawson murder.
In addition, Detective Garvey mentioned self-defense and Mr. McMillian's "right to defend himself," if he feared for his life. Mr. McMillian inquired whether the right to self-defense was "in black and white," and asked to be shown. The detectives then pulled out the D.C. Code, "highlighted the area of the self-defense issues [and] read it to [Mr. McMillian]." Mr. McMillian then said, "Give me a soda and some cigarettes and I'll tell you what you want to know." The detectives gave him a cigarette and soda, and then "read him his rights." Mr. McMillian "admitted his involvement in the double homicide, as well as his involvement in the homicide that occurred that day." It was approximately 7:35 p.m. when Mr. McMillian's rights were read to him. Mr. McMillian signed the PD-47 card, waiving his rights. Mr. McMillian was questioned for two hours, and allowed a break of one and one-half hours, followed by a repetition of the Miranda warnings and a videotaped statement which ended at 12:40 a.m.
Issues relating to the validity of the stop and subsequent arrest of Mr. McMillian on August 31, 2000, were first addressed in the case involving the Lesane murder. In that case, the Honorable Shellie Bowers granted Mr. McMillian's motion to suppress evidence, specifically the clothing Mr. McMillian was wearing on August 31, 2000, at the time of his arrest, as well as any statements he made to the police on that day, because under the Fourth Amendment to the Constitution of the United States the police lacked probable cause to arrest him. Judge Bowers emphasized that "the arrest took place at 2:35 p.m.[, and] [t]he gun was not found until 4:00 p.m." Moreover, Judge Bowers "[found] that this whole thing boils down to the little old lady," and she denied seeing a shooting in the Potomac Gardens area. The government later, on a motion to reopen, presented evidence to Judge Bowers that the gun had been discovered at around 2:33 p.m., but the judge declined to reopen the suppression hearing, finding in effect, that the government's failure to introduce the evidence earlier was not excusable. The government did not appeal Judge Bowers' ruling although the indictment was still pending trial at the time of the instant proceeding.
Early in the proceedings in the instant case concerning the Minnis/Lawson murders, Judge Winston, in response to Mr. McMillian's argument, considered whether the government was collaterally estopped from re-litigating the suppression motion. After hearing the argument and reviewing the case law, Judge Winston concluded that the government was not collaterally estopped from litigating the suppression motion under a Supreme Court case, Ashe v. Swenson, 397 U.S. 436 (1970), which examined a constitutional double jeopardy contention. With respect to the common law doctrine as discussed in Laughlin v. United States, 120 U.S. App. D.C. 93, 344 F.2d 187 (1965), Judge Winston determined that "there was a full and fair opportunity for this issue of the legitimacy of Mr. McMillian's arrest to have been litigated in the prior ...