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In Re S.B.

May 31, 2012

IN RE S.B., APPELLANT.


Appeal from the Superior Court of the District of Columbia (DEL-1301-10) (Hon. Julie Breslow, Hearing Judge) (Hon. Hiram Puig-Longo, Hearing Judge) (Hon. Zoe Bush, Hearing Judge)

The opinion of the court was delivered by: Washington, Chief Judge

Submitted March 14, 2012

Before WASHINGTON, Chief Judge, OBERLY, Associate Judge, and PRYOR, Senior Judge.

After denying S.B.'s motion to suppress evidence, the trial court found him guilty of possession of a B-B gun, in violation of 24 DCMR § 2301.3 (2008). On appeal, S.B. argues, as he did before the trial court, that the police officers did not have reasonable suspicion to stop and frisk him. For the reasons stated below, we agree and reverse.

I.

On the night of May 30, 2010, at 9:30 p.m., Officer Travis Reed was on duty at the corner of 6th Street and Alabama Avenue in Southeast, Washington, D.C., recovering a stolen automobile. A male citizen approached Officer Reed and stated that there was a black male wearing white pants, possibly a juvenile, that had a gun in his possession and was "messing around" with a female on the playground in the 600 block of Alabama Avenue. After speaking with the citizen for about thirty seconds, Officer Reed broadcasted a lookout for a black male with white pants, possibly a juvenile, armed with a handgun at the rear of the 600 block of Alabama Avenue on the playground. Officer Reed did not ask the citizen for his name.

At the time Officer Reed broadcast the lookout, Officer Douglas Sarsfield was on patrol in a scout car. Officer Sarsfield made his way toward the 600 block of Savannah Street near the park referenced in the lookout. It took Officer Sarsfield two minutes to arrive at that location. Officer Sarsfield went to the rear of the field where there were about four black males, juveniles, congregated in the park area. One of them had white colored clothing on. Officer Sarsfield was by himself for about a minute and a half before other officers arrived on the scene. Officer Sarsfield told the group of juveniles to stop, and he conducted a protective pat down. Finding no weapons, Officer Sarsfield let the juveniles go.

Officer Sarsfield testified that he and the other officers remained in the area, and that about three or four minutes later, a number of juveniles came walking through the tennis court area, one of whom was a black male wearing white pants. At the motion hearing, which was incorporated into a bench trial, Officer Sarsfield identified that individual as S.B. Officer Sarsfield approached S.B. from behind and told him to stop. He began to conduct a protective pat down on him. At the same time, Officer Robinson approached S.B. from the front and recovered a B-B gun from S.B.'s front waistband.

S.B. was charged with possession of a B-B gun in violation of 24 DCMR § 2301.3. Prior to trial, S.B. filed a motion to suppress evidence of the B-B gun, arguing that the officers lacked probable cause or reasonable suspicion to stop and frisk him. The trial court denied S.B.'s motion to suppress and found him guilty as charged. This appeal followed.

II.

S.B. claims that the tip in this case was unreliable, likening the citizen tipster here to the unknown caller in Florida v. J.L., 529 U.S. 266 (2000). S.B. points out that the police did not obtain any identifying information about the citizen, that Officer Reed spoke to the citizen for just thirty seconds, and that there is no indication Officer Reed even noted the citizen's physical appearance. The government responds that J.L. does not apply in cases involving in-person tips and cites cases in which we concluded that an in-person tip provided officers with reasonable suspicion to conduct a Terry*fn1 stop. The government also maintains that the citizen in this case appears to have personally observed the crime, adding to the tip's reliability.

We hold that the officers lacked reasonable suspicion to stop S.B. Although the tip in this case was somewhat more reliable than the tip in J.L., the tip did not provide the officers with the particularized, individualized suspicion needed to stop and frisk S.B. Therefore we reverse.

A.

"In reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Green v. United States, 974 A.2d 248, 255 (D.C. 2009) (quoting Shelton v. United States, 929 A.2d 420, 423 (D.C. 2007)) (quotation marks omitted). This court "must give deference to the trial court's findings of fact as to the circumstances surrounding the appellant's encounter with the police and uphold them unless they are clearly erroneous." Id. (quotation marks omitted). "However, we review de novo the trial court's legal conclusions and make our own independent determination of whether there was either ...


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