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:
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 ...