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Armstrong v. United States

Court of Appeals of Columbia District

July 20, 2017

Tony Armstrong & Floyd Joiner, Appellants,
United States, Appellee.

          Argued November 17, 2016

         Appeals from the Superior Court of the District of Columbia (CF3-2355-13 & CF3-2354-13) (Hon. William M. Jackson, Trial Judge)

          Lee T. Friedman, with whom Matthew M. Madden, was on the brief, for appellant Tony Armstrong.

          Gabriel Diaz, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellant Floyd Joiner.

          Priya Naik, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Elizabeth H. Dannelo, Clayton O 'Connor, and Matthew E. Kahn, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge [*] and Washington" [**] and BELSON, Senior Judges.


          Washington, Senior Judge

         On February 12, 2013, Michael Prince and Ezell Whitaker were robbed fifteen minutes apart and in different locations by two armed black males, who fled in a white vehicle. Officers spotted appellants Tony Armstrong ("Armstrong"), Floyd Joiner[1] ("Joiner"), and their co-defendant Patrick Buckmon ("Buckmon") three to five minutes after the second robbery and eight blocks away in a white vehicle. Officers stopped, seized, and searched appellants and their vehicle. Inside the vehicle, officers found an imitation firearm and Ezell Whitaker's ("Whitaker") personal effects. Appellants were then arrested and indicted for one count of conspiracy to commit robbery while armed, [2] two counts of robbery while armed, [3] and two counts of possession of a firearm during the commission of a crime of violence or dangerous offense.[4] Appellants were subsequently convicted by a jury for the armed robbery of Whitaker, the associated robbery while armed and possession of a firearm during the commission of a crime of violence or dangerous offense, and for conspiracy. They were acquitted of the Prince robbery.

         Prior to trial, appellants moved to suppress the fruits of the officers' search on the grounds that the officers lacked particularized, articulable suspicion to believe appellants were engaged in criminal activity based on generalized lookout descriptions. The trial court denied appellants' motion due to the close spatial and temporal connection between the robberies and stop of appellants' vehicle. On appeal, appellants argue that the denial of their motion violated their Fourth Amendment rights. Appellants raise additional arguments, which need not be addressed in this appeal because, for the reasons set forth below, we reverse appellant Armstrong's conviction and reverse and remand appellant Joiner's conviction.


         The Prince Robbery

         At approximately 12:05 p.m. on Tuesday, February 12, 2013, Michael Prince ("Prince"), who was selling illegal cigarettes in a park at 1500 Maryland Avenue, N.E., was approached by two men offering to purchase his wares.

         Prince testified that the "bigger" of the two men grabbed him and hit him over the head with a gun. The "smaller" man then grabbed Prince's black briefcase-like bag containing Newport cigarettes off a nearby table. Prince then watched as the bigger man got into the driver seat and the smaller man got into the passenger seat of a white four-door car. Prince did not see anyone else in the vehicle.

         Prince flagged down Lieutenant Duncan Bedlion and gave a description of the two men. He described the bigger man as tall and stocky, dark complexion black male, in his forties, wearing a blue sweater and blue jeans, and the smaller man as a medium complexion black male, also in his forties, wearing a light green jacket and blue jeans. Prince initially described the make and model of the suspects' vehicle as a Mercury Sable, and then later on as a Pontiac, and finally as a white four-door sedan. He indicated that the suspects fled eastbound towards the Sixth District police station.

         Lieutenant Bedlion issued the following lookout at 12:10 p.m., approximately one minute after receiving the information from Prince:

All units listen to a simulcast out of 5D [Fifth District] in reference to a robbery hold up gun that just occurred. Morse and Maryland Avenue, Northeast. I have a lookout for two black males. First stocky build wearing a blue sweater; second subject black male wearing a green jacket. Last seen leaving east bound on Maryland Avenue driving possibly in a white Mercury Sable at this time. Possibly a white Mercury Sable. What was taken was U.S. currency, and also a black handgun was used in the robbery. Again, last seen heading in the direction of 6D [Sixth District].

         Roughly ten minutes after Lieutenant Bedlion's lookout was broadcasted, Detective Christopher Bastian arrived on the scene and spoke with Prince. Detective Bastian learned from Prince that the suspects' vehicle was an older model four-door white sedan, possibly a Mercury Sable, but that it could also be a Chevrolet.[5] Prince also told the detective that the car had some body damage, possibly a dent in the side, and was missing a piece of molding on the side.

         The Whitaker Robbery

         At approximately 12:12 p.m. or less than ten minutes after the Prince robbery, Whitaker was robbed by two men at the intersection of 8th and H Streets, N.E. Whitaker testified that he was standing on the corner of 8th and H Streets, selling illegal cigarettes, when he felt a person reaching for him. He turned around, swung at the person, and fell to the ground. While on the ground, Whitaker saw two men. When one of the men grabbed his gray-and-green backpack, Whitaker stood up and launched himself towards them. That is when one of the men brandished a pistol. Whitaker, at the same time, saw Officer Frank Brown, who had witnessed the altercation, coming from across the street. Whitaker yelled to Officer Brown, "Brown, he has a gun."

         Officer Brown testified he witnessed only one male struggling with Whitaker and did not observe a second male, a gun, or Whitaker's backpack. Officer Brown did observe one light-skinned male, wearing a tan jacket, blue jeans, a red hat, and Timberland boots, run into an alley where he got into the rear of a white car with dark tinted windows.[6] While Officer Brown testified that the vehicle was traveling south on 7th Street, this differed from the northbound direction indicated in his report, filed at the time of the arrest, and the direction he gave as part of his lookout. Officer Brown saw no weapon but testified the fleeing suspect was running with his arm close to his waist like he was holding something.

         Officer Brown issued the following lookout, "I got a black male with a gun; he's running through the alley. Black male, blue jeans. He's getting in a car, white car in the south alley. See if you can get someone to 7th and H." Officer Brown broadcasted additional information concerning the suspect's appearance, describing the suspect as black male, wearing blue jeans, a tan coat, and a red hat. Officer Brown also broadcasted that the white vehicle was last seen traveling "Northbound on 7th."

         Seizure and Search of Appellant's Vehicle

         Officers made four stops based on the lookout information broadcasted. Two of those stops involved black male pedestrians. A third involved a white Toyota, in which the officer spotted a red cap. The final stop involved appellants at roughly 12:18 p.m., three to five minutes after Officer Brown's lookout.

         Officer Jonathan Klipa originally spotted appellant's white vehicle, a 1998 Chevrolet Lumina, which co-defendant Buckmon owned, at the intersection of 4th and D Street, eight blocks from the Whitaker robbery and fifteen blocks from the Prince robbery. Officer Klipa followed the vehicle for five minutes until it reached the intersection of 11th Street and Independence Avenue, S.E., roughly ten blocks away, where it was stopped. The court below found that the vehicle did not "flee or make any sort of conduct that would give rise to a traffic stop." [7]

         Appellant Joiner rode in the rear passenger seat and wore a black fleece top, a black knit cap, and blue jeans. Joiner's black coat covered a backpack in the backseat next to him. Appellant Armstrong rode in the front passenger seat and wore a polo shirt and blue jeans. Co-defendant Buckmon drove and had on a grey-hooded sweatshirt. No tan jacket, red cap, blue sweater, or green coat was found on appellants or in the vehicle. Officers removed the men from the vehicle, placed them in handcuffs, moved them to the other side of the street 25 to 30 feet away from the vehicle, and positioned three officers to secure them.

         After appellants were removed from the vehicle but prior to any of the appellants being identified as having been involved in either robbery, Officer Riley arrived and searched the vehicle. She recovered one grey-and-green backpack from the backseat, which contained various packs of cigarettes and personal effects of Whitaker. Officer Riley also recovered a second black backpack from the backseat, which was partially covered by appellant Joiner's jacket. Inside was found a black BB gun in plastic packaging.

         Subsequently, the police conducted show-up identifications. Detective Bastian took Michael Prince to the stop around 12:49 p.m. Prince identified appellant Armstrong as the bigger man with the gun and appellant Joiner as the little man, who took his bag. Officer Brown along with Whitaker arrived later. Officer Brown identified appellant Joiner as the man he chased into the alley. Officer Brown testified at trial that he identified appellant Joiner at the scene and thereafter made an in-court identification of appellant Joiner. Whitaker did not identify any of the men at the show-up and refused to acknowledge the backpack in the vehicle as his despite the fact that his personal effects were found in the bag.

         Appellants' Trial

         On May 14, 2013, appellants along with co-defendant Buckmon were indicted for one count of conspiracy to commit robbery while armed, two counts of robbery while armed, and two counts of possession of a firearm during the commission of a crime of ...

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