Tony Armstrong & Floyd Joiner v. United States , 164 A.3d 102 ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 15-CF-128 & 15-CF-276
TONY ARMSTRONG & FLOYD JOINER, APPELLANTS,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CF3-2355-13 & CF3-2354-13)
(Hon. William M. Jackson, Trial Judge)
(Argued November 17, 2016 Decided July 20, 2017)
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
*
Chief Judge Blackburne-Rigsby was an Associate Judge at the time of
argument. Her status changed to Chief Judge on March 18, 2017.
**
Judge Washington was Chief Judge at the time of argument. His status
(. . . continued)
2
BELSON, Senior Judges.
Opinion for the court by Senior Judge WASHINGTON.
Dissenting opinion by Senior Judge BELSON at page 28.
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 Joiner1 (―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
(. . . continued)
changed to Senior Judge on March 20, 2017.
1
Appellant Joiner notes that the correct spelling of his last name is Joyner.
2
D.C. Code § 22-1805a (2016).
3
D.C. Code §§ 22-2801, -4502 (2016).
4
D.C. Code § 22-4504 (b) (2016).
3
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.
FACTUAL SUMMARY
The Prince Robbery
4
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.
5
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
5
Detective Bastian was impeached on the fact that his notes from the
conversation with Prince do not include any reference to a Chevrolet.
6
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
6
There is a factual issue as to whether Officer Brown identified the vehicle
as having tinted windows at the time of the robbery. The government never argued
at the suppression hearing that appellants‘ vehicle had tinted windows; however,
the government now raises this fact to support its argument on appeal.
Additionally, the trial court did not rely on the tinted windows description in
denying appellants‘ motion to suppress.
7
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.
8
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
7
The government disputes this finding on appeal. Namely, the government
claims the trial court did not have the ―benefit of Officer Klipa‘s later trial
testimony, which this court may consider.‖ Officer Klipa testified at trial he
believed appellants‘ vehicle was attempting to flee because it attempted a left turn
on a green light at the same time a second MPD cruiser was traveling in the
opposite direction, roughly a block away, with its lights and siren on. According
to Officer Klipa, people normally pull to the right when an emergency vehicle is
coming, not to the left. The trial court, however, heard Klipa‘s belief through
Detective Bastian‘s testimony at the suppression hearing. The court gave no
weight to this testimony in its suppression ruling. Officer Klipa‘s testimony on
this point was also thoroughly cross-examined at trial. This court overturns factual
findings if they are clearly erroneous. See (Alex) Robinson v. United States, 76
A.3d 329, 335 (D.C. 2013). ―Undisputed trial testimony‖ may be considered in
determining whether error was committed in ruling on a pretrial motion to
suppress. West v. United States, 604 A.2d 422, 427 (D.C. 1992) (emphasis added).
Because the trial court‘s finding that appellants‘ vehicle did not ―flee or make any
sort of conduct that would give rise to a traffic stop‖ was made in consideration of
the facts the government now raises and those facts were disputed at trial, the
factual finding is not clearly erroneous and will not be disturbed on appeal.
9
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.
10
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 violence or dangerous offense for the Prince and
Whitaker robberies.
A hearing was held on October 1, 2013, to resolve appellants‘ motion to
suppress evidence seized from the Terry stop and warrantless search of co-
defendant Buckmon‘s vehicle, namely the backpacks, the BB gun, and the
subsequent show-up identifications. The trial court denied appellants‘ motion,
holding that the stop was reasonable under the circumstances because the seizure
occurred ―not that far and not that spatially [removed] in terms of time and
distance from both robberies.‖
11
On November 4, 2014, appellants were convicted of the armed robbery of
Whitaker, the associated robbery while armed and possession of a firearm during
the commission of a crime of violence count, and the conspiracy count. They were
acquitted on the remaining counts for the armed robbery of Prince. Following trial,
the court granted Buckmon‘s motion for judgment of acquittal, finding insufficient
evidence to support his convictions. On February 27, 2015, appellants were each
sentenced to a term of sixty months incarceration.
ANALYSIS
This court reviews motions to suppress de novo and the hearing court‘s
factual findings for clear error. See (Alex) Robinson, 76 A.3d at 335. We view the
―evidence in the light most favorable to the prevailing party,‖ Bennett v. United
States, 26 A.3d 745, 751 (D.C. 2011), and draw all reasonable inferences ―in favor
of sustaining the trial court‘s ruling,‖ Milline v. United States, 856 A.2d 616, 618
(D.C. 2004). When the trial court wrongfully denies a motion to suppress, reversal
is necessary unless the error was harmless beyond a reasonable doubt. Shelton v.
United States, 929 A.2d 420, 427 (D.C. 2007).
12
On appeal, appellants argue the trial court erred in denying their motion to
suppress. Namely, the information available to the seizing officers lacked
sufficient specificity to provide the particularized reasonable suspicion necessary
to suspect that appellants were engaged in criminal activity and, therefore, was
tantamount to nothing more than a dragnet seizure. Appellants further argue that
their vehicle was far removed in space and time from the reported robberies so the
trial court‘s conclusion that the police had reasonable suspicion to stop the vehicle
in which appellants were riding based on its temporal and spatial proximity to the
crimes was error.
It is firmly established that the ―police may briefly detain a person for an
investigatory or Terry8 stop if the officers have a reasonable suspicion based on
specific and articulable facts that criminal activity may be occurring.‖ Morgan v.
United States, 121 A.3d 1235, 1237 (D.C. 2015) (citing Pinkney v. United States,
851 A.2d 479, 493 (D.C. 2004)). ―Reasonable suspicion is a less demanding
standard than probable cause. . . .‖ Morgan, 121 A.3d at 1237 (citing Illinois v.
Wardlow, 120 S. Ct. 673, 675 (2000)). Reasonable suspicion, however, must be
particularized and objective as to the individual stopped. See In re A.S., 614 A.2d
534, 537-38 (D.C. 1992). Courts look to the totality of the circumstances in
8
Terry v. Ohio, 88 S. Ct. 1868 (1968).
13
determining whether there was sufficient reasonable suspicion to warrant a stop,
but non-particularized suspicion and inarticulate hunches will not sustain a stop.
See (Alex) Robinson, 76 A.3d at 336. In the absence of other circumstances that
provide sufficient particularity, a generalized description applicable to large
numbers of people contradicts the Fourth Amendment‘s jurisprudence demanding
specificity and will not suffice to justify the seizure of any individual. See In re
T.L.L., 729 A.2d 334, 340 (D.C. 1999) (citing Turner v. United States, 699 A.2d
1125, 1128 (D.C. 1997)); In re A.S., 614 A.2d at 540.
In this case, Lieutenant Bedlion‘s and Officer Brown‘s lookouts with
subsequent additional facts described the suspects‘ fleeing vehicle as a white car,
possibly a Mercury Sable, with tinted windows and two black males.9 This
description, without more, lacks the particularized specificity necessary to warrant
the stopping of any vehicle within the District. For the most part, our cases have
9
We note that there were clothing descriptions provided as part of the
lookouts, which differed markedly from the clothes that appellants‘ were wearing
when they were stopped. There was also vehicle body damage described by Prince
to Detective Bastian that was never broadcasted in the lookouts. That damage was
also absent from the vehicle in which appellants were riding. Appellants urge us to
consider these facts as being known by all of the officers involved using the
collective knowledge doctrine and argue therefore, that the trial court erred in not
considering them as undermining reasonable suspicion in this case. While
appellants raise an interesting argument, we need not determine in this case
whether the collective knowledge doctrine applies because neither of those facts is
necessary to our analysis or conclusion.
14
made clear the difficulty we have supporting a finding of particularized reasonable
suspicion when a lookout description is limited to a person‘s race and a generic
clothing color description, especially when more than one suspect is indicated or
there are other persons in the vicinity. See, e.g., In re S.B., 44 A.3d 948, 951 (D.C.
2012) (reversing conviction when lookout was for juvenile black male with white
pants, messing about in a public park); In re T.L.L., 729 A.2d at 340. (The court
reversed T.L.L.‘s conviction when his arrest was based on a lookout for black
teenagers wearing dark clothing; one medium complexion, another dark brown
complexion. ―Without identifying information with respect to height, weight,
facial hair or other distinguishing features, this description could have fit many if
not most young black men.‖); In re A.S., 614 A.2d at 540 (reversing conviction
when lookout was for five young males all dressed alike); see also Bennett, 26
A.3d at 752-53 (rejecting particularized suspicion when lookout described clothing
of two suspects with particular detail, but no meaningful similarities existed
between appellant and the description besides his skin color); Hampleton v. United
States, 10 A.3d 137, 144-45 (D.C. 2010) (rejecting lookout for black males in dark
clothing, but affirming on totality of circumstances); but see Carpenter v. United
States, 144 A.3d 1141, 1148-49 (D.C. 2016) (affirming conviction when lookout
for two African American males, both with hats on, one with a gray hoody and
white shirt and the other with a blue hoody and cane matched the description of the
15
suspects apprehended one minute later); United States v. Turner, 699 A.2d 1125,
1128 (D.C. 1997) (affirming conviction when lookout for a black male wearing a
black jacket and blue jeans matched suspect‘s clothing, coupled with arrival on the
scene within a minute); see also (Flossie) Robinson v. United States, 756 A.2d 448,
455-56 (D.C. 2000) (noting minor difference in descriptions of defendant‘s jump
suit—red trim or piping versus gold speckles—was insufficient to dispel
particularized suspicion). Appellant Joiner contends that our decision in In re S.B.
―could be applied to this case verbatim, with [Chevrolet] Lumina as S.B. and
substituting white cars for juveniles in white pants.‖
The government, for its part, suggests that the description of the car as a
―possible Mercury Sable‖ could reasonably be understood to be a description for
an ―American sedan,‖ which the government then argues justifies the
particularized suspicion of appellants‘ Chevrolet Lumina. While it is
understandable that the description of a getaway vehicle may lack specificity or
that a witness may err with respect to the make and/or model of the car, it is
difficult to see how ―American sedan‖ provides more particularity to justify the
stopping of appellants‘ vehicle than ―Mercury Sable.‖ The government cites for
support Groves v. United States, 504 A.2d 602 (D.C. 1986), a case where
individualized reasonable suspicion was sustained when an officer pulled over a
16
Chevrolet even though the lookout was for a Pontiac. Id. at 602-03. However, the
government fails to note that in addition to the officer‘s testimony during the
suppression hearing that the two cars were similar in look, there was evidence
presented that the stopped vehicle had a distinctly ―white-over-green‖ appearance
that matched the lookout description and the officer had received a second lookout
moments before the stop that the complainant had at that very moment observed
the suspect‘s vehicle pass by the officer‘s own cruiser. Both of those factors were
critical to this court‘s determination that reasonable articulable suspicion existed in
that case. Id. at 603. The Maryland Court of Appeals also addressed a very similar
argument in Cartnail v. State, 753 A.2d 519, 531 (Md. 2000). There, the officers
involved were on the lookout for a gold or tan Mazda but stopped the appellant‘s
gold Nissan. The State argued that the Mazda designation sufficiently narrowed
the group of innocent travelers such that the stop of a Nissan vehicle was justified.
Id. In rejecting the State‘s argument the Court noted:
Under this premise, the police, with solely a gold or
tan Mazda manufacturer description, would have
unfettered discretion to pull over seemingly infinite
combinations of drivers. Within this assumptive
universe would be any gold or tan (or other similar
color—yellow, beige, light brown, ―champagne‖)
vehicle, be it early model or late model; two door, four
door, or five door; sub-compact, compact, convertible,
sedan, station wagon, van, SUV, pick up truck, or sport
car; and, whether attributed to any so-called
17
―Japanese‖ manufacturer such as Honda, Subaru,
Toyota, Isuzu, Mitsubishi, Nissan, Suzuki, and perhaps
affiliated luxury manufacturers such as Lexus, Infiniti,
or Acura, as well as vehicles manufactured by
Japanese automakers and sold under non-Japanese
manufacturer logos such as General Motors, Daimler–
Chrysler, or Ford.
Id. We agree with the reasoning of the Maryland Court of Appeals and similarly
reject the idea that the designation of a ―white Mercury Sable‖ as the getaway car
provides police with sufficient particularized suspicion to justify the stop of any
white ―American sedan.‖ To conclude otherwise would give police officers
―unfettered discretion to pull over an infinite number‖ of white vehicles. Id.
The presence of a generalized lookout description applicable to a large
number of people is not in-and-of-itself dispositive to the reasonable suspicion
analysis. Due to the totality of the circumstances requirement, ―an imperfect
description, coupled with close spatial and temporal proximity between the
reported crime and seizure,‖ can justify a Terry stop. United States v. Turner, 699
A.2d 1125, 1129 (D.C. 1997); see also In re T.L.L., 729 A.2d at 340-41 (finding
that a generalized description ―might not have been fatal if the suspects were
apprehended immediately after the robbery at the location where the crime
occurred‖). Besides spatial and temporal proximity, there are a number of other
18
important factors to consider when looking at the totality of the circumstances: the
number of people about in the area, multiple other stops, ―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 the
viewing of an object or bulge indicating a weapon.‖ Umanzor v. United States,
803 A.2d 983, 993 (D.C. 2002) (citing Anderson v. United States, 658 A.2d 1036,
1038 (D.C. 1995)); see also Hampleton, 10 A.3d at 145 (suspect alone in area); In
re T.L.L., 729 A.2d at 340 (multiple other stops). ―[T]hese factors are not elements
of a conjunctive test, and no one fact is outcome determinative.‖ Umanzor, 803
A.2d at 993 (internal citations omitted). While never creating nor endorsing a
balancing test per se, when looking at the totality of the circumstances, courts
essentially weigh facts that contract the relevant universe of potential suspects
against facts that expand it, in order to determine whether there is particularized
reasonable suspicion in any one person. See In re T.L.L., 729 A.2d at 341 (citing 4
WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 9.4 (g) at 198 (3d ed. 1996)
(―Sometimes, the universe will be small enough that no description at all will be
required to justify a stopping for investigation.‖).
It is problematic to discuss any one of these factors independent of the others
as they are always considered in sum, but some important trends have developed
19
regarding individual factors that are relevant to our analysis here. Beginning with
spatial and temporal proximity, which undoubtedly are the two most significant
factors justifying the stop in this case, a finding of particularized suspicion is
frequently affirmed when these factors are at their nadir, limiting the relevant
universe of potential suspects. See In re T.L.L., 729 A.2d at 340-41. With regards
to temporal proximity, particularized reasonable suspicion is usually found when
the passage of time between the occurrence of a crime and a subsequent stop is
immediate or within only a few minutes; a longer passage of time, however, does
not negate particularized suspicion as long as other factors are present. Compare
Umanzor, 803 A.2d at 994 (affirming reasonableness of vehicle stop that occurred
twenty-five minutes after a stabbing but only a few seconds following the lookout
broadcast; time of day, similarity of vehicle, and proximity to Maryland border
factored into determination), and Turner, 699 A.2d at 1126-30 (affirming
reasonable suspicion when officers responded to a particular location within one
minute and found defendant matching lookout for a black male wearing blue jacket
and blue jeans), with In re T.L.L., 729 A.2d at 341 n.6 (finding that fifty-five
minutes was far too long to support any inference that the robbers who had a
vehicle would still be at or near the crime scene), In re A.S., 614 A.2d at 538
(reversing denial of motion to suppress where the passage of a few minutes was
enough time for two of the five suspects to walk away from the group), and
20
Cauthen v. United States, 592 A.2d 1021, 1023 (D.C. 1991) (recognizing that the
passage of fifteen minutes was ―considerably longer than the delay involved in [the
Court‘s] past decisions on point‖). These cases also highlight how flight affects a
court‘s view of the impact of the passage of time on the reasonableness of any
subsequent stop. For instance when a potential suspect is reported to be standing
on a corner or walking down a particular street, this permits a slightly longer
passage of time as the suspect is unlikely to be far from the location of the crime
and his or her location accurately determined. Conversely, fleeing in a vehicle has
the ability to encompass the entire District into the relevant universe in a matter of
minutes and so a shorter period of time is necessarily important to the
determination of whether a stop is reasonable.
Spatial proximity is typically considered along with the time of day and
number of people about in a given area. See In re T.L.L., 729 A.2d at 341 (The
relevant universe is ―determined primarily by the size of the area within which the
offender might now be found (as indicated primarily by the amount of time which
has passed since the offense) and the number of people about in that area.‖). Being
alone in the area of the reported crime limits the universe of potential persons
ensnared by a general description and strengthens individualized suspicion in any
one person. See Hampleton, 10 A.3d at 145 (―In the midst of this chaotic and
21
ongoing criminal investigation, [the defendant] appeared, walking alone on a
deserted grassy area along North Capitol Street at 10:30 p.m. Not only did he
match the description of the robbery suspects as a black male in dark clothing, but
[the defendant] was the only person in the area that [the officer] saw at all.‖).
Presence in a populated area, though, does the opposite. See In re S.B., 44 A.3d at
956 (rejecting particularized suspicion in part because the relevant universe
included a popular playground that was part of a larger park area and included a
field area and a number of basketball and tennis courts).
Likewise, a lack of information in a lookout indicating the direction in which
a suspect may have fled, coupled with the fact that many other people are out and
about in the area, has led this court to conclude that the police lacked particularized
suspicion to stop an individual based on the suspect‘s location in relation to the
scene of a robbery. See Bennett, 26 A.3d at 753-54 (explaining that seeing
appellant seven or more minutes after the robbery, a block and half away from the
scene of the robbery 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 re K.P., 951 A.2d 793, 797-
98 (D.C. 2008) (finding a description that indicated a group of juveniles had
walked either north or south before turning west gave too much leeway for the
22
police to stop any group of juveniles walking in that area).
Lastly, time of day helps determine the scope of the relevant universe. Less
specificity in a lookout suffices in the early morning hours when fewer persons are
about than is required for stopping a person at high noon. See In re T.L.L., 729
A.2d at 347 (King, J. dissenting) (quoting 4 WAYNE R. LAFAVE, SEARCH AND
SEIZURES § 9.4 (g) at 198 (3d ed. 1996)) (arguing that the early morning hour in a
residential area on a cold April night limits the universe of potential people about);
see also In re K.P., 951 A.2d at 798 (factoring in the location where the suspects
were reported to be is busy at 10:00 p.m.); Umanzor, 803 A.2d at 994 (factoring in
the early morning hours when traffic is light).
Here, the trial court determined appellants‘ stop was reasonable under a
totality of the circumstances because the vehicle was ―stopped not that far and not
that spatially in terms of time and distance from both robberies.‖ The facts cited
by the court in its analysis of the spatial and temporal proximity are the time of the
second robbery and the time and location where Officer Klipa observed appellants‘
vehicle, which occurred three to five minutes after the second robbery. The trial
court does not expand on the facts any further merely saying that the stop occurred
―moments after the second robbery and moments after the first robbery.‖
23
Appellants argue that a stop fifteen minutes after the Prince robbery is far
too great an amount of time for the stop to be temporally connected to the crime.
In those fifteen minutes, a vehicle obeying all traffic laws could likely have
traveled up to thirty-six blocks from the scene of the crime.10 Appellants were in
fact spotted seventeen blocks southwest from the Prince robbery. However, the
Prince robbery did not happen in isolation. The Whitaker robbery occurred twelve
minutes later and a second lookout was broadcasted. Appellants were then
observed roughly three to five minutes after the lookout.11 Case law supports
restarting the spatial and temporal analysis following subsequent lookouts,
especially when new information shrinks the relevant universe. See Umanzor, 803
A.2d at 996 (observing suspects two seconds after lookout, which came twenty-
five minutes after reported stabbing, supported affirming reasonable suspicion);
McFerguson v. United States, 770 A.2d 66, 73 (D.C. 2001) (affirming stop five
minutes after subsequent sighting and twenty minutes after the crime itself);
Groves v. United States, 504 A.2d 602, 604-05 (D.C. 1986) (affirming stop after
10
Officer Klipa followed appellants for three to five minutes, and while
obeying all traffic laws, they were able to travel from 4th and D Streets, N.E., to
11th Street and Independence Avenue, S.E., roughly 12 blocks away.
11
Furthermore, Officer Klipa‘s testimony at trial indicates that his
involvement in the search occurred after and in response to Officer Brown‘s
lookout from the Whitaker robbery.
24
second lookout reported that suspect‘s vehicle had just passed a police cruiser).
Here, appellants were spotted eight blocks from the Whitaker robbery, which took
place on the corner of 8th and H Streets, N.E. However, if the reported direction
of the perpetrator‘s flight is factored into the reasonableness evaluation, a search
area of roughly one square mile is created. That search area contains everything
between Florida and Massachusetts Avenues and between Union Station and 14th
Street. It also contains the busy H and 8th Street corridors.
Appellants highlight extensively the large search area, the time of day, and
the population of cars in this area. The government counters that, given the
―residential character of the neighborhood‖ where appellants were stopped, it
would be surprising to see a vast number of cars driving around that hour,
particularly white sedans. However, the residential character of the neighborhood
where appellants were finally stopped is not really relevant to our analysis. The
character of the neighborhood where the crime was committed and, more
importantly, the location where appellants‘ vehicle was first sighted are more
relevant to our consideration of whether sufficient particularized suspicion existed
to justify a stop of appellants‘ vehicle. Here, appellants‘ car was first seen in an
area that was four blocks south and west of the busy H Street corridor and one
block north of Massachusetts Avenue. Although no evidence was presented of the
25
number of white cars on the road at the time of the robbery, it is the government‘s
burden to show that the stop of appellants‘ car was reasonable under the totality of
the circumstances and the time of the stop and day of the week does not appear to
help the government‘s position. Appellants were sighted on a weekday at 12:18
p.m. It would not seem to be unusual for there to be a number of white cars on the
road at that time of day, within a few blocks of the Capitol and Union Station. We
have been unable to find a case where reasonable particularized suspicion was
found to exist based on a generalized lookout at a time of day when a large number
of cars and/or people are likely to be present, let alone at high noon on a Tuesday
in a major metropolitan area. But see In re K.P., 951 A.2d at 798 (reversing the
stop and search of a group of juveniles based on a lookout, which lacked a
description of the individuals being sought, and where the juveniles were stopped
at 10:00 p.m. on a busy street).
The government further argues it was reasonable for officers to think that the
suspects might have been found within a four block radius of the robbery, three
minutes thereafter thus increasing the likelihood that the stop was sufficiently
particularized to meet the demands of the Fourth Amendment. While that may be
true, the relevant question for determining whether particularized suspicion exists
is not whether it was reasonable to think the robbers might be in this area. The
26
question is does the information provide the officers with sufficient particularized
suspicion to believe that appellants‘ white car was the one being sought as opposed
to any other white cars in the area. While it is certainly reasonable for an officer to
believe that the suspects could be within a four block radius of the robbery a few
minutes after the robbery, it is just as likely that other white cars are also being
driven in that same area around noon on a weekday who have absolutely nothing to
do with any criminal activity. Without more, this amounts to a prohibited dragnet
search which we cannot endorse. See In re A.S., 614 A.2d at 540 (―[I]t is clear that
the kind of dragnet seizure of three youths who resembled a generalized
description cannot be squared with the long standing requirement for
particularized, individual suspicion.‖).
The government suggests that Officer Klipa‘s call to the dispatcher where he
learned that the fleeing car was still at large ―precluded a dragnet seizure‖ because
Officer Klipa ―confirm[ed] or dispel[ed] his suspicions‖ before stopping the
appellants. Although this court has credited the value of corroborating suspicions
prior to making a stop, the only suspicion corroborated here by Officer Klipa was
that the fleeing car was still at large, not that appellant‘s vehicle was in fact that
fleeing car. See, e.g., In re S.B., 44 A.3d at 956-57 (recognizing that officers failed
to corroborate tip prior to stop). The government also emphasizes that the lookout
27
tip came from Officer Brown who witnessed the robbery and not secondarily from
a citizen, which might demand further corroboration. That fact, however, does not
excuse the generalized nature of Officer Brown‘s lookout, which itself demanded
further corroboration.
We are not blind to the difficulties faced by law enforcement officer in
collecting and distributing competent information immediately following reports of
criminal activity; however, the Fourth Amendment‘s requirement for
particularized, reasonable, and articulable suspicion is not ―toothless‖ either.
(Alex) Robinson, 76 A.3d at 336. Looking at the totality of the circumstances, the
lookouts, which boiled down to two black men in a white car, at high noon on a
weekday, in downtown D.C., were simply insufficient to generate any
particularized suspicion that the appellants here were the suspects being sought in
connection with the Prince and Whitaker robberies.
CONCLUSION
Because the stop of appellants‘ vehicle lacked particularized, reasonable
suspicion, the seizure and subsequent search were invalid. Thus the trial court
erred in denying appellants‘ motion to suppress evidence of that unlawful search—
28
including: Whitaker‘s backpack, the BB gun, and the show-up identifications.
Without this evidence, no reasonable juror could find that appellant Armstrong
robbed Whitaker, and, thus, we reverse his convictions.
As to appellant Joiner, we cannot say the evidence was insufficient given
Officer Brown‘s in-court identification of him as the individual he saw fighting
with Whitaker and Whitaker‘s testimony concerning the robbery. Therefore, we
reverse Joiner‘s conviction and remand the case for further proceedings consistent
with this opinion. See Ellis v. United States, 941 A.2d 1042, 1048-51 (D.C. 2008)
(remanding factually similar matter for further proceedings).
So ordered.
BELSON, Senior Judge, dissenting: I respectfully dissent from the holding
that the police did not have a reasonable, particularized, articulable suspicion that
the car they stopped was transporting persons who had committed a robbery a few
minutes before. I will begin by briefly restating the facts.
29
I.
Shortly after noon on Tuesday, February 12, 2013, Jonathan Klipa, an
officer of the United States Capitol with twelve years of experience patrolling the
streets of the Capitol Hill area, heard a Metropolitan Police Department (MPD)
radio call that alerted him to a recent street robbery with a gun. Officer Klipa
testified that ―I heard the location of which way he was headed, and I just went
down D Street, thinking that if he comes south he‘s going to come up around 4th
— 4th or 5th Street.‖ He further testified that he was looking for ―[a] white car
with tinted windows.‖ Following up on his appraisal of what the robbers might do,
he was proceeding east on D Street, N.E., around Third and Fourth Streets, at about
12:15 p.m., when he spotted at Fifth and D Streets, N.E., a white Chevrolet Lumina
with four doors and tinted windows headed south.
There had been, in fact, two highly similar robberies that had been the
subject of radio lookouts minutes before Officer Klipa spotted the white Chevrolet
Lumina. The first robbery took place in the 1500 block of Maryland Avenue, N.E.,
near where Maryland Avenue, H Street, Fifteenth Street and Benning Road, N.E.,
meet, shortly after 12:00 noon, and the second at Eighth and H Streets, N.E., at
about 12:12 p.m.
30
The first street robbery of a man selling single cigarettes, Michael Prince,
led to an alert at 12:05 p.m. for ―possibly a white Mercury Sable‖ which had left
eastbound on Maryland Avenue. It is reasonable to infer from what happened next
that the car soon changed directions and went to Eighth and H Streets, N.E., less
than ten blocks west of the scene of the first robbery. After the subsequent 12:12
p.m. robbery at Eighth and H Streets, N.E., of Ezell Whitaker, a second man
selling single cigarettes, Officer Frank Brown, a witness to that robbery,
broadcasted a second lookout for a white car with tinted windows headed
northbound on Seventh Street, N.E. Inferentially, and as Officer Klipa had
anticipated, the white car with tinted windows changed directions again before
Officer Klipa first saw it, a Chevrolet Lumina, as it headed south on Fifth Street at
D Street, N.E., approximately three minutes after the second robbery. Officer
Klipa followed it until, another three minutes later, at 12:18 p.m., the police
stopped the white Chevrolet Lumina with tinted windows at the corner of Eleventh
Street and Independence Avenue, S.E. Appellants were in it, as well as the driver,
Patrick Buckmon, and victim Whitaker‘s backpack.
II.
A.
31
The brief foregoing statement of undisputed facts of record contradicts
appellant Armstrong‘s contention that the police quickly launched a ―dragnet‖
search of a large part of the District of Columbia.1 The entire area covered by the
above description of events from the robberies to the spotting of the white vehicle
is only about twelve blocks from east to west and six blocks from north to south.
Even if appellants‘ vehicle travelled a bit beyond that area before doubling back, it
could not have been very far beyond it because of the extremely short time that
elapsed from crime to crime to stop.
It is doubtless true, as the majority opinion states, that the sum of the two
vehicle lookouts given by Lieutenant Bedlion and Officer Brown, ―describ[ing] the
suspects‘ fleeing vehicle as a white car, possibly Mercury Sable, with tinted
windows and two black males . . . . without more, lacks the particularized
1
The stop of the white car in this case was not a ―dragnet‖ search in the
sense in which that term was used in In re A.S., 614 A.2d 534 (D.C. 1992), which
dealt with the seizure of three youths who resembled a generalized
description. The stop here was of a white American car with tinted windows, as
mentioned in a lookout, which was traveling away from the scene of an armed
robbery that had occurred about three minutes earlier some seven blocks away.
We add that the term ―dragnet,‖ as defined in dictionaries in reference to police
work, does not connote overly aggressive or unconstitutional police work — rather
it means ―a system in which the police look for criminals using systematic and
thorough methods.‖ Black‘s Law Dictionary 601 (10th ed. 2014).
32
specificity necessary to warrant the stopping of any vehicle within the District.‖2
Majority Op. at 13. But here there was much more.
First, when Officer Klipa caught sight of the car approximately three
minutes after the second robbery, it was being driven south on Fifth Street, N.E.,
just where and when it would have been if the driver had headed north a short
distance on Seventh Street3 immediately after second robbery, turned west for a
few blocks, and then proceeded south on Fifth Street.
Second, the above description does not take into account additional details
known to the police that matched the car that Officer Klipa spotted at Fifth and D
Streets, N.E. Specifically, the police had also learned that the white car that was
―possibly a Mercury Sable‖ was an older four-door model.4 Although the record
2
The majority states that the government first raised the tinted windows
feature on appeal. Majority Op. at 6 n.6. But the record shows otherwise. The
government in its September 18, 2013, Opposition to Defendant‘s Motions to
Suppress, argued that ―[t]he officers here had reasonable and articulable suspicion
to justify stopping the vehicle as it matched the two lookouts broadcast over MPD
radio of a white four-door sedan with tinted windows.‖ (Emphasis added).
3
The robbery of the victim Whitaker took place at Eighth and H Street,
N.E., but appellant Joiner fled to Seventh Street before getting in the white car.
4
The majority points out that other testimony — namely that the car could
have been a Chevrolet — was impeached. Majority Op. at 5 n.5. But, ―in deciding
(. . . continued)
33
does not establish conclusively whether Officer Klipa knew of this information or
which lookouts — or parts thereof — he heard over the MPD radio, this court has
held that even when officers making a stop ―did not themselves possess sufficient
information to justify a Terry stop,‖ the collective knowledge of the police
―provided the requisite reasonable grounds for the stop.‖ In re M.E.B., 638 A.2d
1123, 1129, 1131 (D.C. 1993) (also stating that ―[t]he collective knowledge
doctrine is firmly established in this jurisdiction in a line of cases going back at
least thirty years‖ (internal quotation marks omitted)).
Third, the reasoning of the majority is premised in part on the supposition
that there was a substantial probability that other similar white older American cars
were being driven south on that street at that very time and place. That assumption
does not contribute to a basis for a reversal. Fifth Street, N.E., at that point is a
street in a residential neighborhood, rather than a thoroughfare, even though it may
be proximate to ―the busy H Street corridor.‖ Majority Op. at 25. Moreover, there
is no reason to conclude based on the record or on common knowledge that older
midsized white American sedans like a Sable or a Lumina with tinted windows and
(. . . continued)
whether the motion to suppress was properly denied, we may of course consider all
the evidence at the suppression hearing as well as the undisputed trial testimony.‖
West v. United States, 604 A.2d 422, 427 (D.C. 1992).
34
four doors constituted a sizeable percentage of cars traveling south in that place
and at that time of day. Cars of American makes constitute only a portion of the
cars seen driving on the streets of the District of Columbia, and older white
American sedans with tinted windows and four doors are only a subset of such
vehicles.
Fourth, only one other car was stopped during the minutes that the lookouts
were in play, and that car was a Toyota Camry. No other American car was pulled
over during the so-called ―dragnet.‖ This fact too supports a conclusion that the
police response to two street robberies was reasonable.
B.
The majority cites the opinion of the Maryland Court of Appeals in Cartnail
v. State, 753 A.2d 519, 531 (Md. 2000), in support of its decision to ―reject the
idea that the designation of a ‗white Mercury Sable‘ as the getaway car provides
police with sufficient particularized suspicion to justify the stop of any white
‗American sedan.‘‖ Majority Op. at 16-17. The stark contrast between the facts in
Cartnail and those in this case serves to demonstrate why the stop of the car
involved here was in accordance with law.
35
Cartnail dealt with the stop of a gold-colored Nissan by Frederick,
Maryland, police who received a report that a motel in that city had been robbed
and that three suspects were fleeing from the scene of the robbery ―in an unknown
direction driving a gold or tan Mazda.‖ Id. at 522. More than an hour and fifteen
minutes after the robbery police stopped a gold-colored Nissan with two occupants
in a different part of the city about two miles from the scene of the robbery. Id. at
522 n.1, 524. The court rejected the state‘s argument that the description of the
make and color of the vehicle sufficiently narrowed the group of travelers who
might be suspected.
In doing so, the court stressed the importance of the large size of the area in
which the suspects might have been found one hour and fifteen minutes after the
robbery, and also pointed out that LaFave ―has noted that a significant difference
exists between spotting a suspect within minutes of a crime, as opposed to an hour
later, because ‗‗the time and spatial relation of the ‗stop‘ to the crime‘ is an
important consideration in determining the lawfulness of the stop.‘‖ Id. at 531-32
(quoting 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 9.4 (g), at 204 (3d ed. 1996 and 2000 Supp.)).
36
This observation by the Maryland Court of Appeals underscores the
strongest factor that supports our sustaining the trial court‘s ruling before us, a
reason that distinguishes sharply this case from the case before the Maryland court.
Officer Klipa spotted the white American sedan with tinted windows traveling
south away from the scene of the second robbery about three minutes after the
robbery took place and about seven blocks to the southwest of the robbery scene
that the white sedan had left while, at that moment, going north. The fact that the
white car with tinted windows left the scene of the second robbery going north
from H Street on Seventh Street, N.E., fits well with the fact that three minutes
later it was seen going south on Fifth Street, N.E., a concrete fact that the
experienced Officer Klipa had anticipated. It cannot be assumed that fleeing
robbers will travel in a straight line. Driving north for a short distance, turning
west a few blocks, and then turning south on Fifth Street, would have put, and
obviously did put, the white American car just where Officer Klipa spotted it some
three minutes later.
The route the white American car took after being spotted demonstrates that
it was not being driven in a straight line. However, as the trial judge found, it did
not appear to be fleeing or engaging in any conduct that itself would give rise to a
traffic stop. In other words, it can readily be inferred that the car was being driven
37
in the way the driver had planned — which was not in a straight line away from the
scene of the second robbery.
It is also pointed out that Officer Klipa did not identify the car when he
spotted it by alluding to the race of the occupants. He referred only to the number
of occupants he saw through the tinted windows of the white car. It is thus clear
from the record that the car was spotted and followed not on the basis of the race of
the occupants of the car, but on the basis of the description of the car and the time,
distance and direction from the second robbery.5
The facts of this case were highly incriminating, and afforded ample grounds
for stopping the car.
I respectfully dissent.
5
Cartnail, 753 A.2d at 530 (stating that ―[i]n looking at the description of
the suspects, undoubtedly physical characteristics, such as race, gender, ethnicity,
hair color, facial features, age, body build, or apparel of a suspect permits
winnowing of innocent travelers‖ (citing LAFAVE, supra, § 9.4(g), at 195-96)).