August 25, 2011
KEVIN D. BENNETT, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF2-20268-08) (Hon. Rafael Diaz, Motions Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
(Argued June 16, 2011
Before FISHER and THOMPSON, Associate Judges, and KING, Senior Judge.
At a show-up identification, a robbery victim identified appellant Kevin Bennett as one of the assailants and Bennett was arrested. The robbery charge against Bennett eventually was dropped, but during a search incident to his arrest as a robbery suspect, police found cocaine in Bennett's pocket. Bennett subsequently entered a conditional guilty plea on a charge of attempted possession with intent to distribute cocaine, reserving the right to appeal the trial court's denial of his motion to suppress the cocaine. In this appeal, Bennett argues that the trial court erred in denying the suppression motion because the police seized him for the show-up identification without reasonable articulable suspicion or an exigent-circumstances basis to detain him, and because it was the unlawful seizure that enabled the chain of events that led to his arrest and search and thus to discovery of the cocaine. We are persuaded by appellant's argument and therefore reverse his conviction.
At the suppression hearing, held on March 30 and April 3, 2009, the trial court heard testimony from Metropolitan Police Department ("MPD") Officers Kevin Kirby and Nathan Clarke and Sergeant John McDonald. Kirby testified that on August 29, 2008, at 9:42 p.m., he and his partner Clarke heard over the MPD radio that a robbery had "just occurred" in the 1600 block of R Street, N.W. According to Kirby, this broadcast (the "first lookout") was for "five black males," one of whom was wearing a red hat and red shirt, and had braids or dreadlocks. Clarke testified that the first lookout contained information that the first suspect had a red hat, a red jacket and braids, and that a second suspect had on a blue shirt and dark jeans. Kirby and Clarke drove toward the area in an attempt to "cut . . . off" the perpetrators.
Meanwhile, Sergeant McDonald went to the scene of the robbery and found the victim, who was bleeding but "not incoherent." The victim told McDonald that he had been assaulted by "five black males" in their late teens or early twenties and that two of them were on bicycles acting as lookouts. The victim described two of the five men: one with dreadlocks wearing a red hat and "a red shirt or a red and white shirt," and one wearing "a blue shirt." McDonald did not recall the victim saying anything about the hairstyle or pants worn by the person in the blue shirt or about the direction in which the suspects were traveling. McDonald testified that on the basis of that information, he made the following broadcast (the "second lookout"): "Five black males, two on bicycle; one with a red hat, either red or red and white shirt with dreadlocks; and the second black male with the blue T-shirt." His lookout also included that the suspects were in their late teens or early twenties.
"[A]lmost immediately" after the second lookout, Kirby and Clarke
turned onto R Street about a block and a half east of the reported
crime scene and saw a black man with a red hat and red shirt, later
identified as Odessey Johnson, leaning against a car. Next to Johnson,
the officers saw appellant Bennett, also leaning against the car,
standing about a foot away from Johnson, and smoking a cigarette. A
third man was on the sidewalk near Johnson and appellant, and the
three men were "congregated, talking to one another."*fn1
The three men did not attempt to leave when the officers
arrived, but were just "standing there by that car." Appellant was
wearing a white shirt with a black squiggly design, a black jacket,
and blue jeans, and had braids or dreadlocks. He was not wearing a
The officers approached the men and told them that they "were investigating a crime" and "wanted to talk to them." The officers asked the men their names, "where they were coming from," and "[h]ow long they had been outside standing there," and asked for their cooperation with the officers' investigation. Appellant responded that he lived on the block and had just come outside, but then he "started exchanging words with [the officers]" and became "argumentative" and "very apprehensive." The officers let the third man go because he did not match the lookout and the officers did not think that he was involved in the robbery. Appellant and Johnson, on the other hand, were "deemed possible suspects," were "detained without handcuffs," and "were not free to go."
Kirby and Clarke both testified that they had no reason to believe that either appellant or Johnson was armed. Kirby explained that he "didn't have any knowledge of weapons used" during the reported crime. He also agreed that he did not have a description that matched appellant. Instead, Kirby stated, the officers stopped both men because "they were both right next to each other," and because "just based on our descriptions of what he had . . . we'd been told there was five and I knew that if there's a group of five, then I have one that matches exactly and then, you know, I still have three unknowns at this point. So we're just looking to separate, I.D. and, see what happens, see how it comes from that."
The officers determined that they should "separate the two [men]." Kirby took Johnson aside,*fn2 while Clarke "stayed with" appellant while he paced back and forth and spoke on the phone. One of appellant's phone calls was to his mother, who then arrived and talked with appellant. At one point, Clarke asked appellant for identification, which appellant refused to provide, but other officers who arrived on the scene later obtained appellant's identification.
Kirby and Clarke radioed McDonald and said that "they had an individual stopped matching the description." McDonald told them not to "let him go" because McDonald was bringing the victim to their location to conduct a show-up identification.*fn3 McDonald drove the victim to the location, where, from the back seat of the car, the victim identified Johnson. The officers then brought appellant to a location about thirty feet from the car, and shone a light on him. The victim identified appellant, stating that appellant "was there, too." That identification occurred at 10:05 p.m. Appellant was arrested, handcuffed, and placed in a squad car. In a search conducted at the police station, police found crack cocaine in the pocket of his jeans.
A tape recording of MPD radio transmissions from that night was admitted at the hearing without objection. The tapeincluded the 911 call reporting the robbery as well as "twenty-four minutes of radio run." The tape revealed that the 911 caller stated that a man had been attacked and beaten up, with "fists," fifteen to thirty minutes earlier (the victim's estimate) by five black people, one in a red shirt. No mention was made of any weapons being involved. The tape also included the first lookout for suspects in their late teens, one with a red cap, and "no last known direction." However, the tape did not contain McDonald's lookout because the "dispatcher's voice [was] talking over [his] on the tape."
At the close of the suppression hearing, the court credited McDonald's testimony that he broadcast a lookout for five black males in their late teens or early twenties, including one with dreadlocks, a red hat, a red or red and white shirt, and one with a blue T-shirt. The court observed that it appeared that the officers had no information about the assailants' direction of travel.*fn4 In
addition, the court found that less than fifteen minutes elapsed between the first lookout and the officers' initial encounter with Johnson and appellant, and that it was in fact "maybe close to five, maybe six, seven minutes." The court made no finding as to the time that elapsed between the robbery and the lookouts.
In announcing its conclusions of law, the trial court did not address whether the officers had a reasonable articulable suspicion that appellant was involved in the robbery. Rather, referring to this court's decision in Trice v. United States, 849 A.2d 1002 (D.C. 2004), the court reasoned that it was permissible for the officers to "detain [appellant] for purposes of asking questions" even though he did not match the lookout, because he was "standing next to a suspect whose description [had] been satisfied."*fn5 The court therefore denied the suppression motion. There followed appellant's conditional guilty plea and this appeal from the denial of his suppression motion.
To recap, appellant contends that the officers seized him in violation of his Fourth Amendment rights; that the drugs that were found (after he had been identified at the ensuing show-up, arrested, and then searched incident to arrest) were the fruits of the illegal seizure; and that the trial court erred in denying his motion to suppress the cocaine.
Where a defendant shows that "a warrantless search or seizure produced evidence that the government seeks to introduce at trial," such as the cocaine evidence here, "the burden is on the government to . . . justify the search based on facts that could bring it within certain recognized, limited exceptions to the warrant requirement." Womack v. United States, 673 A.2d 603, 617 (D.C. 1996) (citations omitted). One exception is that "[t]he police may briefly detain a person for an investigatory or Terry stop, even if they lack probable cause, if the officers have a reasonable suspicion based on specific and articulable facts" that the person has "just committed a crime." Pinkney v. United States, 851 A.2d 479, 493 (D.C. 2004) (citations and internal quotation marks omitted). An articulable suspicion is "substantially less than probable cause, but more than a mere 'hunch' or 'gut feeling.'" James v. United States, 829 A.2d 963, 966 (D.C. 2003) (citation and internal quotation marks omitted); United States v. Turner, 699 A.2d 1125, 1128 (D.C. 1997) (explaining that a police officer's "inchoate and unparticularized suspicion or 'hunch'" is not sufficient) (emphasis removed). "[R]easonableness" is based on the "totality of the circumstances . . . view[ed] . . . through the lens of a reasonable police officer, guided by his training and experience." Pinkney, 851 A.2d at 493 (citation and internal quotation marks omitted).
To justify a Terry*fn6 stop, "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Umanzor v. United States, 803 A.2d 983, 992 (D.C. 2002)(emphasis added); see also Ybarra v. Illinois, 444 U.S. 85, 91-92 (1979). Seizures based on "guilt by association" run afoul of the bedrock Fourth Amendment requirement of particularized suspicion to conduct a Terry stop. Trice, 849 A.2d at 1006; see also Carr v. United States, 758 A.2d 944, 945-47 (D.C. 2000) (finding no reasonable articulable suspicion to stop defendant when he was standing beside car and talking to its occupants while person standing on other side of car was smoking marijuana); Smith v. United States, 558 A.2d 312, 315 (D.C. 1989) (en banc) (finding defendant's conversation with suspected drug dealer insufficient to support stop); cf. Ybarra, 444 U.S. at 91 ("[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.").
In reviewing the trial court's ruling on a motion to suppress, this court "must view the evidence in the light most favorable to the prevailing party." Barrie v. United States, 887 A.2d 29, 31 (D.C. 2005) (citations omitted). As a result, "the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Milline v. United States, 856 A.2d 616, 618 (D.C. 2004) (citation and internal quotation marks omitted). We "defer to the motions court's findings of fact as to the circumstances surrounding the appellant's encounter with the police and [must] uphold them unless they are clearly erroneous." Porter v. United States, 7 A.3d 1021, 1024 (D.C. 2010) (citations and internal quotation marks omitted; brackets in original). However, legal conclusions on Fourth Amendment issues, including whether a seizure has occurred and, if so, whether it was justified by reasonable articulable suspicion, are legal questions that we review de novo. Jacobs v. United States, 981 A.2d 579, 582 (D.C. 2009).
We have little trouble concluding that the police officers seized appellant well before his show-up identification and arrest. "The crucial test for determining whether a person has been seized is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." In re J.F., 19 A.3d 304, 308 (D.C. 2011) (citation and internal quotation marks omitted). The government concedes that there was a "momentary detention" of appellant that "preceded his own identification," but the facts lead us to conclude that the police "restrained [appellant's] liberty"*fn7 earlier than that. Officer Kirby testified on cross-examination that appellant wasn't free to leave because "I mean, we had stopped him." Officer Clarke agreed that appellant and Johnson "were not free to go" while the officers waited for the show-up. Referring specifically to "the point [in time] when appellant was pacing" back and forth, Clarke testified that appellant "was not free to leave." Clarke could not recall verbatim what he said to appellant, but he conveyed to appellant the message that appellant should "stay here and let us do what we're doing."*fn8
We think the officers conveyed that same message through their conduct when - having let a third man go - they physically separated appellant from Johnson and Officer Clarke took up the task of "stay[ing] with" appellant as appellant paced back and forth and spoke on his phone. Under these circumstances - and notwithstanding that the several officers on the scene did not draw their weapons or otherwise make a display of force - no reasonable person in appellant's position would have believed that he was "free to decline the officers' requests or otherwise terminate the encounter," Bostick, 501 U.S. at 438, or that he was "at liberty to ignore the police presence and go about his business." In re J.F., 19 A.3d at 308.
We also agree with appellant that when the officers stopped him, they lacked the requisite particularized and reasonable articulable suspicion that he had committed a crime. First and foremost, appellant did not match the lookout broadcast by the police. The lookout for five black males in their teens or early twenties described two men - one with dreadlocks wearing a red hat and a red or red and white shirt, and one wearing a blue shirt. Appellant was standing next to a man wearing a red hat and red shirt, but he did not match the description of the other suspect because he was wearing a white shirt, not a blue shirt.*fn9 The government therefore established "no meaningful similarities" between appellant and the second suspects "except that [appellant], like the [other suspect], [was] a black male." Brown v. United States, 590 A.2d 1008, 1019 (D.C. 1991); see also In re T.L.L., 729 A.2d 334, 340 (D.C. 1999) ("[A] description applicable to large numbers of people will not suffice to justify the seizure of an individual.") (citation and internal quotation marks omitted).
Other factors that may warrant a conclusion that astop was justified include "the time of day, flight, the high crime nature of the location, furtive hand movements, an informant's tip, a person's reaction to questioning, a report of criminal activity or gunshots, and viewing of an object or bulge indicating a weapon." Singleton v. United States, 998 A.2d 295, 299 (D.C. 2010) (citation and internal quotation marks omitted). In this case, none of these factors justified the stop, as there was no evidence that appellant was found in a high crime area; he did not attempt to flee from the officers; he answered questions, telling the officers where he had came from and where he lived; he turned over his identification (albeit after initially refusing); and there was no evidence that he made any furtive gestures or inculpatory statements or that the officers saw a bulge indicating a weapon. Although Kirby and Clarke testified that appellant was "argumentative," "apprehensive," and "uncooperative," this did not provide the reasonable articulable suspicion to detain him.
"Citizens have no legal obligation to talk to the police," and an individual's "attempt to exercise his right not to participate in an encounter" with police officers does not "constitute the kind of conduct on the scene that could significantly bolster the government's showing of . . . articulable suspicion." Brown, 590 A.2d at 1019, 1020.
Further, as noted, the trial court found that there was no broadcast of the direction toward which the assailants fled. For that reason, and because many other people were out and about on the same block, appellant's location in relation to the scene of the robbery could not create particularized suspicion about him. Further, the lapse in time between when the robbery occurred and when the stop occurred was long enough that it did not reasonably support an inference that appellant was involved in the robbery because of either his proximity to the crime scene or his proximity to the man in the red shirt and hat. The only factual finding the trial court made regarding timing was that the time that elapsed between the broadcast of the first lookout and the stop was "maybe close to five, maybe six, seven minutes."*fn10 Of course, the events before the first lookout did not all occur simultaneously; each step - the assault and robbery, the passerby finding the victim, the passerby phoning 911, the length of the 911 call, and the time it took the 911 dispatcher to translate that call into the first lookout - took some amount of time.
For that reason, and viewing the record in the light most favorable to the government, we will assume for the sake of our analysis (relying on the upper range of the trial court's "five, maybe six, seven minutes" estimate) that when the officers encountered and first questioned appellant, they were aware that seven or more minutes had passed since the robbery. Seeing appellant seven or more minutes after the robbery, standing outside his home located a block and half away from the scene of the robbery and standing in a fashion that did not suggest that he had just arrived at that location, did not afford the officers a reasonable basis for a particularized suspicion that appellant was one of the robbers.
In support of its position that the facts known to the officers and elicited at appellant's suppression hearing do support a conclusion that the officers had reasonable articulable suspicion, the government cites Pinkney v. United States, 851 A.2d 479 (D.C. 2004). In Pinkney, "within seven minutes" after a shooting, a lookout was broadcast for two suspects, one wearing a black jacket and blue jeans and one wearing a blue and gold Notre Dame jacket. Id. at 483. An officer driving in the same block where the shooting occurred saw the defendant running with a man wearing a blue and gold Notre Dame jacket and stopped them. Id. at 483-84. The stop occurred less than twelve minutes after the shooting. Id. Although the officer could not remember the lookout description of the second assailant, we upheld the stop of defendant because the officer saw the defendant in the described location running with a man wearing the "very distinctive jacket" described in the lookout "so soon after the shooting and in such close proximity to its site." Id. at 494.
But Pinkney is readily distinguishable from the instant case. There, the officer made visual contact with the two men "moments" after the lookout was broadcast, whereas here, the visual contact was made several minutes after the lookout; the Pinkney lookout pinpointed the suspects' exact location, whereas here, the location was unknown; and most importantly, in Pinkney, the defendant and the man in the distinctive jacket were running, whereas here, appellant and Johnson were standing still, resting against a car and conversing, on the same block on which appellant lived. Id. at 493-94. Further, in Pinkney, the officer could not recall the description of the second suspect, whereas here, the officers remembered that the second suspect was described as wearing a blue shirt, and it was apparent to them that appellant was not wearing a blue shirt.*fn11
In sum, the government did not meet its burden of showing that when the officers stopped appellant, they had reasonable articulable suspicion that was "particularized as to the individual stopped." In re A.S., 614 A.2d 534, 537 (D.C. 1992). They found appellant - who, other than being a young black male, did not match the description of the suspects - standing still and smoking a cigarette outside of his home, which was a block and a half from the scene of the robbery, at least seven minutes after the crime. Appellant did not attempt to flee, and he made no furtive gestures. He raised suspicion only because he was standing next to a man, Johnson, who did match the lookout description of one of the suspects. The officers had no basis for suspecting appellant other than a inference of "guilt by association," which does not justify a Terry stop.*fn12
That does not end our analysis, because we must consider whether, as the trial court concluded, the stop nevertheless was justified under the rationale of Trice. We hold that it was not.
In Trice, police officers heard a lookout for a suspect in a stabbing at a hospital. The lookout described the suspect as a "[b]lack male wearing a black, red and white shirt" who "had left the hospital between one and five minutes ago and was heading towards Elmira Street." Trice, 849 A.2d at 1004 (internal quotation marks omitted). Two minutes later, a detective saw two men walking side by side toward Elmira Street, which was a block or two away. Id. One of the men, Castle, fit the lookout description, but the other, Trice, did not. Id. The detective drew his weapon and ordered the men to stop and put their hands on his car. Id. Despite the conceded lack of reasonable articulable suspicion that Trice was involved in the stabbing, id., we upheld the stop. While recognizing the general rule that "legally sufficient grounds to stop a particular person who [the police] suspect has committed a crime . . . is usually not a sufficient justification in itself for stopping the suspect's companions or other bystanders too," we held that the "exigent circumstances" confronting the officers justified the stop of Trice along with Castle. 849 A.2d at 1004. Because the officers had "validly stopped a person whom they reasonably suspected of being armed, dangerous, and escaping from the scene of a violent crime, the police validly could stop the suspect's companion . . . as well." Id.
We explained that two narrow exceptions allowed the officers to "'freeze the situation' briefly by forcibly detaining Trice along with Castle until help arrived." 849 A.2d at 1008. First, "immediate safety concerns" justified the detective's actions. Id. at 1006 ("Despite the general rule [against 'guilt by association'], immediate safety concerns may justify police in stopping, or stopping and frisking, a person based on his association with someone else whom the police reasonably suspect of criminal activity."). We held that the suspicion that Castle was armed and dangerous justified the detective's actions: "A violent crime involving the use of a knife reportedly had just been committed nearby, and Castle matched the description of the criminal. . . . As he was walking with Castle, Trice appeared to be the companion of a potentially violent, fleeing criminal and not a mere bystander." 849 A.2d at 1008.
Second, we held that Trice could be detained for questioning as an eyewitness, even if there was no reasonable suspicion that he was culpable, under the rationale of Williamson v. United States, 607 A.2d 471, 477 (D.C. 1992) (per curiam) (holding that police could stop a car leaving the scene of a shooting in order to question witnesses because "[s]hort of the stop of [the] vehicle, there was no reasonable way in which the officer could obtain immediate information about the shooting which these occupants could reasonably be expected to provide"). Trice, 849 A.2d at 1008. We explained in Trice that "given the recency of the crime, it was reasonable to think that if Castle committed it, his companion Trice likely was aware of that fact and was a witness if not also an accomplice . . . who could furnish critical information about the stabbing," and thus it was constitutionally permissible for the detective to "freeze the situation briefly" to gather the necessary information. Id. (internal quotation marks omitted).
Neither of the narrow exceptions discussed in Trice applies to appellant's case. The lookout was about an unarmed robbery, the officers acknowledged having no reason to believe that either appellant or Johnson was armed, they did not claim to have safety concerns, and the government did not even attempt to justify the detention in that way.*fn13 The officers did not frisk either Johnson or appellant, and they allowed appellant to pace up and down, use his cell phone, and interact with his mother. We "cannot impute a safety concern to the trained officer[s] where [they] did not indicate in any way that [they] apprehended danger and where the evidence does not otherwise support such a claim." Jackson v. United States, 742 A.2d 883, 885 (D.C. 1999) (citation omitted). In short, the safety rationale of Trice is inapplicable in this case.
The eyewitness exception is similarly inapposite here. We have emphasized that "the police are justified in stopping witnesses only where exigent circumstances are present," Williamson, 607 A.2d at 476, and that the authority to detain witnesses "is much more narrowly circumscribed than the authority to stop suspects." Hawkins v. United States, 663 A.2d 1221, 1226 (D.C. 1995) (citation and internal quotation marks omitted). The law allows "the brief detention of potential witnesses in . . . certain situations" so that "an officer coming upon the scene of a recently committed crime [can] freeze the situation and obtain identifications and an account of the circumstances from the persons present." Williamson, 607 A.2d at 476 n.4 (quoting LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.2 (b)). But the exception under discussion does not permit police officers to detain someone simply because they believe the person is a potential witness to a crime; rather, it applies only in those exigent circumstances where police see a "fast-moving scenario" involving a potential witness in "flight" after a "just-completed crime," and where no other methods of investigation are readily available. Hawkins, 663 A.2d at 1226-27. See Williamson, 607 A.2d at 472, 476-77 (upholding a stop where potential witness was driving away from scene of shooting and police had no other way to question him). Further, the witness rationale cannot justify a detention whose scope exceeds what is "necessary to obtain [the witness's] prompt account of the [crime]." Id at 477; see also Mayes v. United States, 653 A.2d 856, 862 (D.C. 1995) ("A seizure must be reasonably related in scope to the justification for its initiation" because "proportionality is the key to reasonableness in Fourth Amendment jurisprudence") (citation, internal quotation marks, and brackets omitted). The witness exception allows a brief detention of a person suspected to be an eyewitness to a crime just committed by a perpetrator "reasonably suspected of being armed, dangerous, and escaping from the scene." Trice, 849 A.2d at 1004; see also Williamson, 607 A.2d at 472, 476-77 (applying exception to allow officers to conduct on-the-scene inquiry of witnesses who were driving away from scene of shooting).*fn14
Here, the police detained appellant in the absence of exigent circumstances that would have satisfied the "narrowly circumscribed" witness exception. The seizure of appellant was not a brief stop conducted to freeze a fast-moving and dangerous situation so that a witness could be questioned before he fled the scene of the crime. Appellant was not fleeing, but instead - over seven minutes after the robbery - was standing on his street smoking a cigarette. When the police approached him, he may have been argumentative, but he ultimately answered their questions and gave them his identifying information. He also spoke to his mother via cell phone and paced up and down the street, where she joined him. This controlled, relatively calm scenario is the opposite of the quick sequence of events that occurred in Trice following a violent crime involving a weapon. Further, there was no danger that the police would lose the opportunity to question appellant about the crime, since they obtained his identifying information and would have been able to locate him for further questioning if necessary. Cf. Hawkins, 663 A.2d at 1226-27 (declining to apply Williamson exception where other methods of investigation were "readily available").*fn15
Appellant's detention was not based on particularized, reasonable articulable suspicion and was not justified by either of the narrow exceptions to Terry allowing for a brief stop under exigent circumstances. Because the police detained appellant for a show-up identification on the sole basis that he was standing next to a person who was reasonably suspected of committing a robbery, his detention, subsequent arrest, and incident search violated the Fourth Amendment. We therefore reverse the trial court's ruling denying appellant's motion to suppress the drugs found in that search. Because appellant's guilty plea was conditioned on that ruling, his conviction likewise is Reversed.