Womack v. United States , 673 A.2d 603 ( 1996 )

Opinion for the court by Associate Judge SCHWELB.

Dissenting opinion by Associate Judge RUIZ at p. 614.

SCHWELB, Associate Judge:

On August 10,1993, following the denial of his motion to suppress an out-of-court identification, tangible evidence, and statements, appellant David Womack was convicted of rape while armed,¹ possession of a firearm during a crime of violence or a dangerous offense,² two counts of first-degree burglary while armed,³ two counts of kidnapping while armed,⁴ and three counts of armed robbery.⁵ On appeal, Womack contends that he was arrested without probable cause and that the trial judge erred in denying his motion to suppress the alleged fruits of that arrest. Although Womack concedes that his initial seizure by police was lawful, he claims that the officers’ action in handcuffing him exceeded the scope of a legitimate investigative detention and transformed the encounter into a full arrest requiring probable cause. The motions judge concluded that the seizure of Womack was effected to enable the complaining witness to identify him, and that it therefore constituted an investigative detention pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), rather than a full arrest. We agree and affirm.

I.

STATEMENT OF FACTS

Following an evidentiary hearing at which several police officers and the defendant’s grandmother testified, the motions judge denied Womack’s motion to suppress and made oral findings as set forth below. On the night of November 29, 1992, at about 11:00 p.m., the complaining witness, N.H.,⁶ was confronted at her home by a man who was armed with a handgun and whose face was covered by some type of hood or scarf. N.H. was in the intruder’s presence for up to two hours, during which time he raped her and committed a number of other unlawful acts.⁷ Although she was blindfolded for some of that time, N.H. was able to recognize her assailant based on his features and a scar around his left eye, which she could see through the eye holes in the attacker’s face covering.

N.H. called the police immediately after her assailant left. She advised the police that she believed that the man who had raped her was someone whom she had known since June 1992 as “D.” N.H. related that she did not know “D’s” full name, but that she had gone out with him on one occasion, and that she believed that he lived in the area. N.H. also gave the police a photograph of the man she knew as “D.”

Based on statements made by the attacker to N.H. as related by N.H. to the police, the officers had reason to believe that one of N.H.’s friends might know the man’s name and address. The friend was unable to provide the police with a full name, but she gave the officers two telephone numbers for the individual whom she knew as “D.” The police, using a Haines or a Criss-Cross Directory, traced one of the telephone numbers to an address on Taylor Street in northwest Washington, D.C. This address turned out to be the home of Womack’s grandmother, Ms. Sylvia Steele.

The officers went to Ms. Steele’s home approximately two to three hours after the assault ended.⁸ Ms. Steele answered the door and invited them into the house. One of the officers asked her whether or not she had a son named “D.” Ms. Steele responded that she did not have a son named “D,” but that she had a grandson named David.⁹ The motions judge concluded that, based on this conversation, it was reasonable for the officers to believe that Ms. Steele recognized the name “D” and that Ms. Steele’s grandson, David, was the individual known as “D.”

After the officers’ inquiry about “D,” Ms. Steele called to her grandson to come downstairs. Womack, who was wearing sleeping attire, came down the steps. Detective Co-bel placed handcuffs on Womack and took him outside the house to the porch. N.H., who was seated in a patrol car approximately thirty-five feet from the house, positively identified Womack as her assailant, and he was formally placed under arrest.

After the show-up identification, Ms. Steele went upstairs to retrieve clothing for her grandson. She brought down, among other things, a pair of boots. In her statement to the police, N.H. had described the rapist’s boots, and Detective Cobel suspected that the boots which Ms. Steele had brought might be the pair that N.H. had previously described. The officers told Ms. Steele that she would have to get some other shoes for Womack, and they seized the boots as evidence.

Having found the facts as described above, the motions judge ruled that, at the point when Womack came downstairs, the officers had reasonable and articulable suspicion that Womack was N.H.’s assailant. The judge found that the officers were legitimately on the premises by the invitation of Ms. Steele, and that the show-up procedure was reasonable because it would either clear Womack of suspicion or confirm that the police had found the right man. The judge specifically ruled that the police did not have probable cause to make an arrest before the show-up identification, but he concluded that articula-ble suspicion was sufficient at that stage. The judge held — and it is undisputed — that after N.H. had positively identified Womack, the police had probable cause to arrest him. The judge therefore denied Womack’s motion to suppress the out-of-court identification, the tangible evidence (including his boots), and certain statements which Womack made at the police station. Womack was tried and convicted as noted above, and this appeal followed.

II.

LEGAL DISCUSSION

A Scope of Review.

On appeal from the denial of a motion to suppress, the scope of our review is limited. Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991); Lawrence v. United States, 566 A.2d 57, 60 (D.C.1989). We must defer to the trial judge’s findings of eviden-tiary fact. Lawrence, supra, 566 A.2d at 60. We view the evidence presented at the suppression hearing in the light most favorable to the party prevailing below, and we draw all reasonable inferences in that party’s favor. Peay v. United States, 597 A.2d 1818, 1320 (D.C.1991) (en banc); United States v. Pannell, 883 A.2d 1078, 1080 (D.C.1978). Whether the evidence, as found by the mo-

tions judge, establishes that Womack was seized in violation of his Fourth Amendment rights is a question of law, which we consider de novo. See Brown, supra, 590 A.2d at 1020.

B. Reasonableness, Proportionality, and the Fourth Amendment.

Womack’s claims in this case are grounded in the Fourth Amendment exclusionary rule, which vindicates the constitutional proscription against unreasonable searches and seizures. The basic question presented is whether, under all of the circumstances, the seizure and handcuffing of Womack were reasonable.

We do not assess reasonableness in a vacuum. The risk to the safety of the officers might not seem very great to a judge reviewing a transcript years after the fact, but the situation may reasonably have appeared far more dangerous to an officer who had just come into contact with a suspect in an armed rape and kidnapping which occurred only hours before. The evidence must be “weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

Even though we, sitting in the relative calm of a court or library, may have concluded otherwise, we are bound to give deference to the officer’s decision if it was reasonable under the facts as viewed by him.

Arrington v. United States, 311 A.2d 838, 839 (D.C.1973).

When courts are called upon to decide whether the force used by an officer to restrain a suspect was excessive, “[t]he calculus of reasonableness must [also] embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). When Detective Cobel and his colleagues arrived at Ms. Steele’s home and saw a sus-peeted armed rapist and Mdnapper coming downstairs, they had to act immediately, without the luxury of extended thoughtful reflection regarding the question whether it would be absolutely necessary to place the suspect in handcuffs. From the officers’ perspective — not an unreasonable one — it was better to be safe than sorry.

The use in the Fourth Amendment of the adjective “unreasonable” imports a command of proportionality to that Amendment’s jurisprudence. Brown, supra, 590 A.2d at 1013. The greater the restriction on the seized individual’s liberty, the more substantial the justification for such a restriction must be. “A lesser intrusion, on the other hand, requires a correspondingly lesser showing.” Id.

We must also accord appropriate weight to the safety of the officers, as well as to their obligation to assure that a dangerous suspect does not flee. We recently adopted as our own these compelling words written by Judge Harold Leventhal:

As a society, we routinely expect police officers to risk their lives in apprehending dangerous people. We should not bicker if in bringing potentially dangerous situations under control they issue commands and take precautions which reasonable men are warranted in taking.

Cousart v. United States, 618 A.2d 96, 101 (D.C.1992) (en banc), cert. denied, 507 U.S. 1042, 113 S.Ct. 1878, 123 L.Ed.2d 496 (1993) (quoting Bailey v. United States, 128 U.S.App.D.C. 354, 364, 389 F.2d 305, 315 (1967) (concurring opinion)). Where the intrusion upon the suspect’s liberty is comparatively minor and of brief duration, officers are not constitutionally compelled to take even a modest risk of harm.

C. Terry Seizures, Arrests, and the Handcuffing of Suspects.

In Terry, the Supreme Court held that, consistent with the Fourth Amendment, the police may briefly detain an individual for investigative purposes, even if they lack probable cause to arrest, so long as the officers have a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. 392 U.S. at 21-22, 88 S.Ct. at 1879-81. Terry thus carved out a narrow exception to the Fourth Amendment’s probable cause requirement. To come within the purview of the Terry exception, police action must be justified at its inception, and must also be reasonably related in scope to the circumstances which initially justified the detention. Id. at 19-20, 88 S.Ct. at 1878-79. Thus, when officers subject a detained suspect to a greater restraint on his liberty than is permissible in a legitimate Terry seizure, articulable suspicion is not sufficient, and the Constitution requires a showing of probable cause. See, e.g., In re M.E.B., 638 A.2d 1123, 1126 (D.C.1993), cert. denied, — U.S. -, 115 S.Ct. 221, 130 L.Ed.2d 148 (1994).

The question presented in this case is whether the use of handcuffs, which is a familiar feature of arrests, precluded the judge from finding that the seizure was no more than a permissible Terry stop. In M.E.B., which also involved the handcuffing of suspects prior to a show-up identification, we described the difference between a full arrest and a Terry seizure in terms of their distinct purposes:

Generally, an arrest is effected when the police have made a determination to charge the suspect with a criminal offense and custody is maintained to permit the arrestee to be formally charged and brought before the court_ A Terry seizure, on the other hand, involves a more temporary detention, designed to last only until a preliminary investigation either generates probable cause or results in the release of the suspect.

Id. (citations omitted).

“The measure of the scope of permissible police action in any investigative stop depends on whether the police conduct was reasonable under the circumstances.” Id. at 1127 (citing United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985)). “[H]andcuffing the detainee, like length of detention, place of detention, and other considerations, is simply one factor, among many, that the trial judge must consider in weighing whether a detention for investigation crossed the line into the realm of arrest.” Id. at 1128.

In the appellant and another individual were detained by two police officers because they matched a radio description of two men seen at the site of a murder. Id. at 1124-25. The two suspects were handcuffed, placed in the rear of a police vehicle, and transported to other locations for identification. The entire detention lasted between twelve and seventeen minutes. Id. at 1127. The appellant contended that the handcuffing was unnecessary and that it converted the seizure into a full arrest. This court disagreed. We held that, given the seriousness of the crime under investigation, the brevity of the detention, and the fact that the suspects were to be transported in a patrol car for several blocks, “handcuffing was a reasonable precaution under the circumstances.” Id. at 1128. We reiterated that the “protection of the officer making the stop ... is of paramount importance. It has been called the rationale of Terry.” Id. at 1127 (quoting United States v. Mason, 450 A.2d 464, 466 (D.C.1982) (per curiam)).

Decisions in other jurisdictions are to the same effect. As we noted in M.E.B., courts generally have approved the use of handcuffs “where it was reasonably necessary to protect the officers’ safety or to thwart a suspect’s attempt to flee.” Id. at 1128 (quoting Reynolds v. State, 592 So.2d 1082, 1084 (Fla. 1992)); see also United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982) (“police conducting on-the-scene investigations involving potentially dangerous suspects may take precautionary measures if they are reasonably necessary”), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983); People v. Weeams, 665 P.2d 619, 622 (Colo. 1983) (en banc) (“Officers conducting an investigatory stop may use that amount of force which is reasonably related in scope and character to ensuring their safety during the period of detention.”).

The foregoing standard is an objective one. The question is whether the handcuffing of the suspect was an “objectively reasonable use of force in light of the totality of the circumstances.” Tom v. Voida, 963 F.2d 952, 958 (7th Cir.1992) (emphasis added); see also Graham, supra, 490 U.S. at 397, 109 S.Ct. at 1872-73. To determine if the Fourth Amendment was violated, the court must decide “whether the officers’ actions [were] ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, supra, 490 U.S. at 397, 109 S.Ct. at 1872. Thus, whether police officers in fact feared for their safety during an encounter with a suspect is not dispositive.¹⁰ The critical question is whether a reasonably prudent officer would have been justified in using handcuffs to neutralize potential threats to his or her safety or to inhibit any attempt by the suspect to escape.

Courts have routinely held the use of handcuffs in the Terry context to be reasonable in situations where suspects attempted to resist police, made furtive gestures, ignored police commands, attempted to flee, or otherwise frustrated police inquiry. See, e.g., United States v. Taylor, 716 F.2d 701, 709 (9th Cir.1983); Bautista, supra, 684 F.2d at 1289; United States v. Purry, 178 U.S.App. D.C. 139, 141-42, 545 F.2d 217, 219-20 (1976); 3 Wayne R. LaFave, Search and SEIZURE § 9.2(d), at 366-67 (2d ed. 1987 & 1995 Supp.). Such conduct on the part of a particular suspect is not, however, a sine qua non. Indeed, there was no evidence in M.E.B. that either suspect did anything untoward after the two young men were detained. We nevertheless concluded in that case that “ ‘the handcuffing of [defendant] was reasonable, as a corollary of the lawful [Terry ] stop,’ in order to maintain the status quo while the officer sought more information.” 638 A.2d at 1128 (quoting Purry, supra, 178 U.S.App.D.C. at 142, 545 F.2d at 220) (alteration in original). Other courts have likewise held that the use of handcuffs was justified where, as here, the crime of which the defendant was suspected was a violent one and the defendant was reported to have been armed. See, e.g., United States v. Tilmon, 19 F.3d 1221, 1228 & n. 4 (7th Cir.1994) (“handcuffing — once highly problematical — is becoming quite acceptable in the context of a Terry analysis”); Weeams, supra, 665 P.2d at 622; People v. Allen, 73 N.Y.2d 378, 540 N.Y.S.2d 971, 971-72, 538 N.E.2d 323, 323-24 (1989) (per curiam).

D. The Seizure of Womack.

We conclude that the foregoing authorities compel us to affirm the trial court’s decision. This is not a ease in which the police had decided, prior to Womack’s identification by N.H., to take him into custody and charge him with a crime — the conventional scenario when police make an arrest. supra, 638 A.2d at 1126. On the contrary, the police were effecting a “temporary detention, designed to last only until a preliminary investigation [here, the show-up identification procedure] either generate[d] probable cause or result[ed] in the release of the suspect.” Id. See also Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983), in which the Court noted that if the officers had used a more expeditious investigative procedure consistent with Terry, rather than ushering Royer to an interrogation room for questioning, “[a] negative result would have freed Royer in short order; [while discovery of contraband] would have resulted in his justifiable arrest on probable cause.” Detective Cobel testified on direct examination that “once Mr. Wom-ack was identified, he was then placed under arrest.” (Emphasis added). The motions judge evidently credited his testimony.¹¹ Putting to one side the legal issue presented by the handcuffing, the detention of Womack prior to N.H.’s identification of him constituted the classic — perhaps even paradigmatic— Terry seizure. Womack concedes, and the motions judge found, that the officers had articulable suspicion in the Terry sense.

We conclude that the handcuffing of Wom-ack did not change the result. The incremental intrusion on Womack’s liberty effect ed by the handcuffs was minimal. Even if Womack had not been placed in handcuffs, he would not have been free to leave until after N.H. had had an opportunity to identify him. The time that elapsed from the moment that he was handcuffed until the identification procedure was completed was, at most, a few minutes. The sum total of the restraint on Womack’s freedom now alleged to be excessive boils down to the complaint that, during a concededly lawful detention by the police, he was in handcuffs for a very short time.¹²

Like the motions judge, we are not disposed to second-guess the officers who were on the scene with respect to a comparatively modest security measure which had only a brief and minimal effect on Womack’s freedom of action. The authorities cited in Part II.B of this opinion require us to consider the issue from the perspective of a reasonably prudent officer who had just arrived on the scene. The officers in this case were on Womack’s home turf. Womack was suspected of having committed violent and extremely serious crimes, including rape, kidnapping, and robbery, all while armed with a handgun. These offenses had been completed only a few hours earlier. The officers were not acquainted with Womack or with his family. They had no idea where his handgun might be, or whether there were other individuals on the scene who might endeavor to thwart his apprehension. The complaining witness was outside, and it would be necessary to take the suspect out on the porch so that an identification could be accomplished; it would obviously have been easier for him to attempt to escape from the porch than from inside the house.¹³ All of these circumstances could lead a reasonably prudent police officer to believe that, in the interest of safety, the most reasonable course of action would be to handcuff Womack, at least until N.H. could determine whether he was the right man.

It may be that, in the relative calm of his or her chambers, years after the fact, a judge might reasonably conclude that the risk that Womack would harm the officers or would flee was not very great. But especially in this area of the law, second-guessing of split-second decisions made by the officers on the scene is fraught with peril, and every effort must be made to “eliminate the distorting effects of hindsight.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

On the night in question, Detective Cobel and his colleagues had no idea of what might happen when they entered the house, nor could they foresee what a man suspected of armed rape and kidnapping might try to do to avoid apprehension. From their perspective, even a modest risk would reasonably appear altogether unacceptable. To hold, as Womack demands, that the handcuffing in this case was unreasonable and unconstitutional would be to require police officers confronting potentially dangerous suspects in unfamiliar surroundings to jeopardize their own safety, and the safety of the public, in order to avoid only a very brief and minimal incremental restraint on the liberty of a suspect who has already been legitimately detained. Such a result would be entirely out of keeping with the command of proportionality which is central to our Fourth Amendment jurisprudence. Brown, supra, 590 A.2d at 1013.

III.

RESPONSE TO DISSENT

A Seizure in the Home.

Judge Ruiz bases her dissenting opinion largely on the fact that Womack was seized in the home in which he lived with his grandmother. She maintains that “the exception to the constitutional probable cause requirement established in Terry v. Ohio, [supra ], do[es] not easily extend to seizures in one’s home.” Dissenting op. at 615. She asserts that a felony arrest based on probable cause, when effected in a public place, is a recognized exception to the Fourth Amendment’s warrant requirement, but that “the Supreme Court has not been similarly tolerant of seizures of suspects occurring in the suspect’s home.” Id. at 618. Further, according to Judge Ruiz, “[t]he fact that the seizure occurred in Womack’s home ... undermines, rather than helps justify, the police’s use of handcuffs under the circumstances presented in this case.”¹⁴ Id. at 629. The point Judge Ruiz raises is an interesting one, but it is not properly before us.

Womack did not base his suppression motion or his appeal on any claim relating to the “respect for the sanctity of the home.” The principle that animates Judge Ruiz’ opinion — namely, that the Terry doctrine does not apply, or applies with substantially less force, to seizures in a home which officers have entered with the homeowner’s consent — was introduced into this case by our dissenting colleague. Womack, who is represented in this ease by able counsel from the Public Defender Service, did not include such a contention — we will call it the “diminished Terry exception” claim¹⁵ — in his motion to suppress, in his brief on appeal, in his reply brief, or at oral argument. He dted none of the cases on which Judge Ruiz relies for her “diminished Terry exception” theory. Indeed, Womack relied in his brief on decisions addressing Terry-type issues which arose at a Greyhound bus station,¹⁶ during a traffic stop,¹⁷ on the street,¹⁸ and, in one case, in an apartment,¹⁹ without any suggestion that greater restrictions should be placed on the police where the seizure followed a consensual entry into a home. Furthermore, in the memorandum in support of his motion to suppress, Womack asserted in the trial court that, according to Terry, the Fourth Amendment right to be free from unreasonable searches and seizures “belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.” 392 U.S. at 8-9, 88 S.Ct. at 1873. He thus equated a seizure in the home with a seizure on the street, and thereby affirmatively invited the purported error which our dissenting colleague finds in the trial court’s disposition. See District of Columbia v. Wical Ltd. Partnership, 630 A.2d 174, 182-83 (D.C.1993) (discussing “invited error” doctrine).

Under these circumstances, the “diminished Terry exception” claim has not been preserved. “Questions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party’s thesis, will normally be spurned on appeal.” Miller v. Avirom, 127 U.S.App.D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967) (emphasis added) (footnotes omitr ted). Even if Womack had raised the issue in this court, which he did not, he would have to demonstrate that the trial judge committed plain error (or, indeed, invited error) by failing, on his own initiative, to grant the motion to suppress on the basis of a theory which was not presented to him by the defense. See, e.g., Irick v. United States, 565 A.2d 26, 32-33 (D.C.1989). To establish plain error, Womack would have to show that the application of conventional Terry principles in a seizure following a consensual entry into a home was “obviously” wrong, and that the failure of the judge, sua sponte, to adopt the “diminished Terry exception” theory would' result in a clear miscarriáge of justice. See Baxter v. United States, 640 A.2d 714, 717 (D.C.1994) (citing United States v. Olano, 507 U.S. 725, 730-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993)). Because the correctness of that theory is anything but obvious,²⁰ and because the result in this case is not unjust,²¹ Womack would not have even a remote prospect of sustaining his burden under the plain error doctrine.

But even the “plain error” scenario is more favorable to Womack than the present record. Here, Womack failed to present his “diminished Terry exception” claim not only in the trial court, but also on appeal. Where counsel has made no attempt to address an issue, an appellate court will generally decline to consider it. Rose v. United States, 629 A.2d 626, 536 (D.C.1993); Carducci v. Regan, 230 U.S.App.D.C. 80, 86, 714 F.2d 171, 177 (1983). As Judge (now Justice) Scalia reiterated in Carducci,

[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.

Id.; accord, Rose, 629 A.2d at 536-37 (quoting Carducci ).²² The “diminished Terry exception” issue has not been briefed by counsel. The government has never had any occasion or opportunity to address it.²³ Accordingly, we decline to consider it.²⁴

B. “Least Intrusive Means. ”

Our dissenting colleague refers to the government’s obligation, under these circumstances, to “use the least intrusive means reasonable in light of the facts before the officers.” Dissenting op. at 620.²⁵ Whether handcuffing was the “least intrusive” alternative available to the officers, however, is not the appropriate Fourth Amendment inquiry. Indeed, the Supreme Court has repeatedly rejected this type of analysis. “The logic of such elaborate less-restrictive-altemative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers.” United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n. 12, 96 S.Ct. 3074, 3082 n. 12, 49 L.Ed.2d 1116 (1976); see also Bell v. Wolfish, 441 U.S. 520, 559-60 n. 40, 99 S.Ct. 1861, 1885 n. 40, 60 L.Ed.2d 447 (1979); United States v. Montoya De Hernandez, 473 U.S. 531, 542, 105 S.Ct. 3304, 3311, 87 L.Ed.2d 381 (1985). “A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.” Sharpe, supra, 470 U.S. at 686-87, 105 S.Ct. at 1575-76. “The fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by itself, render the search [or seizure] unreasonable.” Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973); see also Sharpe, supra, 470 U.S. at 687, 105 S.Ct. at 1576 (quoting Cady)-, Tilmon, supra, 19 F.3d at 1225 (explaining the “least intrusive means” language in Florida v. Royer, supra, 460 U.S. at 500, 103 S.Ct. at 1325-26, on which Judge Ruiz relies).

As Professor LaFave has indicated, “a ‘least intrusive means’ inquiry has a great potential for mischief. It is likely to result in unrealistic second-guessing of the police.” 3 LaFave, supra, § 9.2(f), at 389. We have concluded that the handcuffing of Womack was a reasonable seizure permitted by the Fourth Amendment. This being the decisive issue, we decline to engage in the kind of armchair quarterbacking against which the Supreme Court has warned.

C. “Appellate Fact-Finding. ”

Judge Ruiz asserts that the majority has engaged in “de novo fact-finding to justify its reasoning where the government has failed to prove its case.” Dissenting op. at 630. She complains that we have “observ[ed] without support in the record” that the officers “had no idea where Womack’s handgun might be, or whether there were other individuals on the scene who might endeavor to thwart his apprehension.” We respectfully disagree with our dissenting colleague’s characterization.

The motions judge having denied Wom-ack’s motion to suppress, we must view the evidence, and all reasonable inferences from the evidence, in the light most favorable to the government. See Pannell, supra, 383 A.2d at 1080. Moreover, “[w]hen we take our seats on the bench we are not struck with blindness, and forbidden to know as judges What we see as men [or women].” Poulnot v. District of Columbia, 608 A.2d 134, 141 (D.C.1992) (quoting Edwards v. Habib, 130 U.S.App.D.C. 126, 140, 397 F.2d 687, 701 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969)) (second alteration in original). Black robes are not supposed to eviscerate our common sense.

The record discloses that the officers came to the home owned by Womack’s grandmother only a few hours after the commission of a brutal armed rape and kidnapping. The officers had reason to suspect that Womack was the man responsible. There is absolutely nothing in the record to suggest, if Womack was indeed the guilty party, how the officers could have had any information regarding the location of Womack’s handgun, or whether he might have received assistance from others if the officers attempted to take him into custody. How could they possibly have known? The truth of the statement in our opinion for which Judge Ruiz finds no support in the record is, in our view, obvious. Our recognition of the obvious does not constitute “appellate fact-finding.”²⁶

IY.

For the foregoing reasons, the motions judge correctly denied Womack’s motion to suppress evidence. Womack’s convictions must be and each is hereby

Affirmed. ²⁷

1 . D.C.Code §§ 22-2801, -3202 (1989 & 1995 Supp.).

2 . D.C.Code § 22-3204(b) (1995 Supp.).

3 . D.C.Code §§ 22-1801(a), -3202 (1989 & 1995 Supp.).

4 . D.C.Code §§ 22-2101, -3202 (1989 & 1995 Supp.).

5 . D.C.Code §§ 22-2901, -3202 (1989 & 1995 Supp.).

6 . In order to preserve the complainant’s privacy, we identify her only by initials.

7 . According to the testimony of Detective Tyson Cobel at the suppression hearing, the following events occurred during this two-hour period. The intruder woke N.H. in her bed, covered her mouth with his hand, and told her to "shut up” and "not to say anything or he would kill her.” He forced N.H. to have sexual intercourse with him on the floor of her bedroom. He later ordered N.H. into her mother’s bedroom, where he demanded that the mother give him money. The attacker ordered both women into the basement and forced the mother to tie up and blindfold her daughter. He then forced the mother to drive to an ATM machine and withdraw four hundred dollars. When they returned to the house, the attacker ordered N.H. to take a bath. Finally, to eliminate his fingerprints, he forced both women to wash all the surfaces in the house and car that he believed he had touched.

8 . The police arrived at the Taylor Street address at approximately 4:00 a.m. According to Ms. Steele’s testimony at the suppression hearing, Detective Cobel was accompanied by two additional police officers when he lmocked on her door.

9 . Although her son Darrell also resided at the Taylor Street address, Ms. Steele referred to her grandson, David Womack, and not to her son, Darrell, in response to the officer’s inquiry about “D.”

10 . Detective Cobel was not asked whether he felt threatened during his encounter with Womack. Although inquiry into this subject might have been helpful to explain the context of the encounter from Cobel’s point of view, the cited authorities establish that the lack of such testimony does not negate the motions judge’s finding.

11 . On cross-examination, Cobel was asked: "And you didn’t actually arrest Mr. Womack until you placed the handcuffs on him, right?” Detective Cobel responded: "Correct.” Given the detective's testimony on direct examination, it appears that he may have treated the word "until” as meaning "before” or "prior to.” In any event, viewing the evidence, as we must, in the light most favorable to the prosecution, Peay, supra, 597 A.2d at 1320, we treat Cobel's testimony as supporting the judge’s finding that the arrest came after the identification, not before.

12 . Significantly, the pre-identification period during which Womack was in handcuffs was far shorter than the corresponding period for the appellant in M.E.B., a case in which we held that the handcuffing did not convert the Terry seizure into an arrest. It goes without saying that this-case ”involve[s] neither the inconvenience nor the indignity associated with a compelled visit to the police station,” Michigan v. Summers, 452 U.S. 692, 702, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981), and is therefore unlike both Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985), on which Judge Ruiz repeatedly relies.

13 . Detective Cobel also testified that Womack "attempted to resist,” but it is not at all clear from his testimony that this occurred prior to the handcuffing. The motions judge made no finding on the issue and, because the prosecutor failed to "nail down" the timing, this testimony should be accorded little if any weight.

14 . Indeed, Judge Ruiz quotes from a famous address by a British prime minister in which he insisted that even the King of England cannot enter a poor man's frail cottage without the poor man's consent. Dissenting op. at - n. 7 (quoting Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 1194-95, 2 L.Ed.2d 1332 (1958)). The principle is a noble one, but its application to the present case must surely be tempered by the undisputed fact, recognized by Judge Ruiz, that the officers entered the home with the consent of its owner, Womack's grandmother.

15 . We use this phrase solely as an abbreviated reference to Judge Ruiz' contention that the officers were subject to greater constraints in the home of Womack's grandmother than they would have faced if the encounter had occurred on the street.

16 . See United States v. Jones, 297 U.S.App.D.C. 356, 973 F.2d 928 (1992).

17 . See United States v. Thompson, 597 F.2d 187 (9th Cir.1979).

18 . See Terry, supra.

19 . See Prophet v. United States, 602 A.2d 1087 (D.C.1992).

20 . Because the parties have neither briefed nor argued the issue, the present case is not the appropriate occasion to debate the merits of the "diminished Terry exception" theory. We note only that "[t]he risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investi-gatoiy encounter." Maryland v. Buie, 494 U.S. 325, 333, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276 (1990). Our dissenting colleague’s observation to the contrary notwithstanding, the truth of this common-sense observation cannot logically depend on whether the police are effecting an arrest or a more limited seizure. See also Michigan v. Summers, supra, 452 U.S. at 700-05, 101 S.Ct. at 2593-96 (discussing applicability of Terry principles to the detention of a defendant in his home pending a search pursuant to a warrant); see also United States v. Brooks, 2 F.3d 838, 841-42 (8th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1117, 127 L.Ed.2d 427 (1994) (applying Terry standards “following a consensual or otherwise lawful entry into a private dwelling”); Hill v. United States, 664 A.2d 347, 354 (D.C. 1995), cert. denied, - U.S. -, 116 S.Ct. 749, 133 L.Ed.2d 697 (1996) (citing Summers and Brooks).

21 .As we have noted in Part II. of this opinion, the sole claimed intrusion was the handcuffing of Womack for, at most, a few minutes, at a time when he was concededly lawfully detained.

22 .In Carducci, the court lucidly explicated the reasons for this premise:

Rule 28(a)(4) of the Federal Rules of Appellate Procedure requires that the appellant’s brief contain "the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." Failure to enforce this requirement will ultimately deprive us in substantial measure of that assistance of counsel which the system assumes — a deficiency that we can perhaps supply by other means, but not without altering the character of our institution. Of course not all legal arguments bearing upon the issue in question will always be identified by counsel, and we are not precluded from supplementing the contentions of counsel through our own deliberation and research. But where counsel has made no attempt to address the issue, we will not remedy the defect, especially where, as here, "important questions of far-reaching significance” are involved.

230 U.S.App.D.C. at 86, 714 F.2d at 177 (emphasis added) (citations omitted).

23 . Our dissenting colleague complains that the government "did not cite any case, from any jurisdiction” refuting the “diminished Terry exception” theory. Dissenting op. at 622. We do not believe that a party can reasonably be faulted for failing to address an issue which its adversary conceded in the trial court and never raised on appeal.

24 . Judge Ruiz also asserts that "this case does not present a true Terry stop [because] ... [t]he officers ... were investigating a completed crime, rather than observing ongoing criminal activity_" Dissenting op. at 621. This issue, like the “diminished Terry exception" claim, was never raised or argued by Womack. Moreover, in M.E.B., as in this case, the officers were investigating a completed crime, but their seizure of the suspects and the use of handcuffs were sustained as a legitimate Terry stop.

25 . Judge Ruiz points out that the officers did not frisk Womack before handcuffing him, but “even a frisk does not ensure that weapons will be discovered.” M.E.B., supra, 638 A.2d at 1127-28 (citing authorities).

26 . Our dissenting colleague also criticizes as “without support in or reference to the testimony” our observation that the officers could not “foresee what a man suspected of armed rape and kidnapping might try to do to avoid apprehension.” Dissenting op. at 628. We are at a loss to understand on what basis the officers could be expected to assume that Womack would respond peacefully to their arrival, or how they could anticipate what his reaction to possible apprehension would be. The most significant fact which the officers knew at the time of their seizure of Womack was that if he was the right man, then he had apparently committed rape, kidnapping and robbery a few hours earlier, and that he had used a handgun to force his victims to submit. Such a man was surely dangerous, and any failure by the officers to take immediate steps to protect themselves in such a situation would surely have been foolhardy to say the least.

27 . In light of our disposition, we do not reach the government’s alternative contentions that the evidence sought to be suppressed was not the fruit of the allegedly unlawful seizure and that, in any event, the officers had probable cause to arrest Womack.