Appeal from the Superior Court of the District of Columbia (F-4927-06) (Hon. John Ramsey Johnson, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge
Submitted February 3, 2010
Before RUIZ, GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges.
Opinion for the court by Associate Judge GLICKMAN.
Concurring opinion by Associate Judge RUIZ at p. 7.
Appellant Jeffrey Oxner entered a conditional guilty plea to unlawful distribution of cocaine, reserving the right to appeal the denial of his motion to suppress his show-up identification. Appellant argues that his identification should have been suppressed as the fruit of an illegal warrantless entry into his home. We disagree. The police acquired sufficient information to justify appellant's detention for the show-up identification before they entered his abode to seize him; they did not rely on any information gained during that entry. Under prevailing Fourth Amendment doctrine, appellant's identification therefore was not tainted by the putative illegality of the warrantless intrusion. Accordingly, we affirm appellant's conviction.
The relevant facts, elicited in an evidentiary hearing on appellant's suppression motion, are not in dispute. On the afternoon of March 3, 2006, a team of Metropolitan Police Department undercover officers conducted a "buy-bust" narcotics operation in Southeast Washington, D.C. Posing as interested buyers, Officers Marvin Washington and Carol Turner approached Valerie Williams on Wheeler Road and asked her if anyone was selling drugs. Williams introduced them to Brian Washington, who said "his man" was selling drugs on Valley Avenue. Williams and Brian Washington led the two undercover officers to the third floor of an apartment building at 1201 Valley Avenue, S.E. The officers waited with Williams in the stairwell while Brian Washington entered Apartment 301. After a few minutes, he came out of the apartment with appellant. In the transaction that followed, Officer Washington handed $30 to Williams, who passed it to Brian Washington, who gave it to appellant in exchange for two ziplock bags of cocaine. Brian Washington handed the bags to Officer Washington. Everyone but appellant then left the building.
Officer Washington promptly went to the undercover police car that had been following his movements. From there he directed an arrest team to Apartment 301 and described the person to be apprehended there as a black, heavy-set male, about 6'1" or 6'3" tall, wearing blue jeans, a long- sleeve black T-shirt, and tan Timberland boots. Within minutes, three police officers arrived at the apartment. In response to their knock, a woman opened the door and the officers observed appellant standing approximately two feet inside. The officers, who were still in the hall, recognized that appellant matched the description given by Officer Washington. The officers then entered the apartment and told appellant he would have to come with them. Neither of the occupants consented to the intrusion. The police escorted appellant downstairs and walked him past the undercover police vehicle. Officers Washington and Turner positively identified appellant and he was placed under arrest.*fn1
Appellant moved to suppress his show-up identification as the fruit of a Fourth Amendment violation, namely the warrantless, nonconsensual entry into his home. After an evidentiary hearing, the trial judge denied the motion. Although the judge rejected the government's argument that exigent circumstances existed to justify intrusion without a warrant,*fn2 he ruled that the police acted lawfully. Given the "detailed lookout, including that the person described was in Apartment 301," the judge concluded that "simply stepping across the threshold for a Terry*fn3 stop [to pursue] an on-scene ID was entirely reasonable. . . . Saying to the police . . . you just have to stand there and try to coax the person out just didn't . . . make sense."
Appellant contends the police violated his Fourth Amendment rights by entering his home without a warrant or consent in order to seize him there, and that this violation required suppression of the ensuing show-up identification outside the home by the officers who conducted the undercover drug purchase. The government argues that the warrantless entry was justified by exigent circumstances, and that even if it was not, appellant's identification was not excludable as a fruit of the illegality. We agree with the government's second argument and do not reach the first.*fn4
The Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest."*fn5 In New York v. Harris,*fn6 the Supreme Court considered whether the exclusionary rule required suppression of evidence (a confession, in that case) obtained from an arrestee by the police after they removed him from his home following such a violation. The answer to that question, the Court said, depended on whether the police had probable cause to make the arrest prior to their unlawful intrusion. If so, the Court reasoned, then notwithstanding the illegality of the arrest inside the home, the arrestee's subsequent detention outside the home was lawful,*fn7 and the evidence then obtained from him therefore was "not the product of being in unlawful custody."*fn8 Accordingly, unlike evidence obtained inside the home or derived from information gained there, Harris's subsequent confession was "not the fruit of the fact that the arrest was made in the house rather than someplace else."*fn9 As the confession was "not an exploitation of the illegal entry into [the arrestee's] home," the exclusionary rule did not require its suppression.*fn10
Harris involved a confession, but its analysis applies to other forms of evidence -- including eyewitness identifications. Like a confession, an identification of a suspect procured during his lawful detention outside the home is not subject to suppression merely because the suspect was seized inside the home in violation of the Fourth Amendment warrant requirement.*fn11 For the detention to be lawful, it must be justified by evidence independent of the constitutional violation of warrantless entry; it cannot be based on new information obtained inside the home as a result of the illegal intrusion.*fn12 Although the detention in Harris was a custodial arrest based on probable cause, under Terry a limited investigative detention of a suspect short of an arrest may be justified on less than probable cause by reasonable articulable suspicion. Harris's principles apply equally to such a detention, so long as it is based on information ...