Crews v. United States

Decision Date16 February 1977
Docket NumberNo. 8507.,8507.
PartiesKeith CREWS, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

W. Gary Kohlman, Public Defender Service, Washington, D. C., for appellant. Frederick H. Weisberg, Public Defender Service, Washington, D. C., also entered an appearance on behalf of appellant.

John W. Polk, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Stuart M. Gerson, and Harry R. Benner, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before FICKLING, NEBEKER and HARRIS, Associate Judges.

HARRIS, Associate Judge:

Appellant challenges his conviction of armed robbery (D.C.Code 1973, §§ 22-2901 and -3202) on the grounds that his in-court identification was the "fruit" of an illegal arrest, which hence should have been excluded as evidence. We affirm.

I

On the morning of January 3, 1974, a woman was robbed at gunpoint in the ladies' restroom on the grounds of the Washington Monument. Her assailant, peering through the crack between the door and the side of the stall that she occupied, requested admission and demanded $10. She refused, whereupon he pointed a pistol at her and repeated his demands. She gave him $10, but he insisted that she open the stall door. When she did so, the gunman made sexual advances, including touching her breasts and asking her to perform fellatio. She resisted and pleaded with him to leave, which he finally did.

A similar incident occurred on the afternoon of January 6. In the same restroom, two other women were forced to surrender $20 to a youth who was wielding a broken bottle. All three victims described their assailant to the police as a 15-to-18-year-old Negro male of slender build and light complexion.

Three days later, Officers Rayfield and Barg of the United States Park Police observed appellant in the vicinity of the Monument. They stopped him and asked his name and age. He gave his name and his age, which was 16.1 The officers asked why he was not in school, and said that he bore a likeness to the descriptions given by the robbery victims. Appellant replied that he had just "walked away from school", and the officers allowed him to go on his way. They then asked James Dickens, a tour guide who believed that he had seen the assailant of the first victim on January 3, if appellant looked familiar. Dickens responded that he thought appellant had been in the area that day. The Park Police officers stopped appellant a second time and summoned Detective Ore, the Metropolitan Police officer in charge of the robbery investigation. The detective arrived a few minutes later and attempted to take a picture of appellant to show to the robbery victims. When it was realized that inclement weather precluded acceptable photography, Detective Ore took appellant into custody as a suspected truant and transported him to Park Police Headquarters. He was detained there for approximately one hour, during which time the detective telephoned appellant's school, and the youth was photographed and interviewed.2 Appellant then was released.

On the following day, the first victim was shown an array of eight photographs, including that of appellant. Although previously she had selected no suspect after viewing several hundred mugshots, she immediately identified appellant as her assailant. One of the other two victims made a similar identification of appellant from the photographs. Later, the first victim again identified appellant at a lineup.

Appellant filed a pretrial motion to suppress all identification testimony, contending that his detention for truancy had been a pretext to seek evidence for the robbery investigation, and that being the product of his illegal detention, the identification testimony was inadmissible. Following extensive testimony by appellant, the three victims, and Officer Rayfield and Detective Ore, the trial court found that the second detention constituted an arrest, and that as such it was defective for lack of probable cause. The court ruled that the photographic and lineup identifications would be excluded. However, on the grounds that the victims' ability to identify the robber (based on their face-to-face encounters with their assailant) was unaffected by the police conduct, it concluded that in-court identifications should be permitted. The jury convicted appellant of the armed robbery of the first victim, but found him not guilty of all other charges.3 Appellant now contends that the trial court erred in permitting the in-court identifications.

II

Appellant's challenge to the identification testimony by the three women rests upon the "fruit of the poisonous tree" doctrine developed in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and their progeny. He contends that the in-court identifications were the result or "fruit" of an illegal arrest and detention, and therefore were inadmissible. We reject both his premise and his conclusion.

In Wong Sun, the Supreme Court held that in certain circumstances, evidence which the government has acquired either directly or indirectly as a result of a violation of an accused's Fourth Amendment rights may not be used to secure his conviction. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Silverthorne Lumber Co. v. United States, supra; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). While the principle applies to testimonial as well as to tangible evidence [Wong Sun v. United States, supra, 371 U.S. at 485-86, 83 S.Ct. 407; see also Bond v. United States, D.C.App., 310 A.2d 221, 224-25 (1973)], the Wong Sun Court emphasized that the reach of the exclusionary rule is not unlimited (371 U.S. at 487-88, 83 S.Ct. at 417):

We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting the establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt, 221 (1959).

Cf. United States v. Wade, 388 U.S. 218, 240-41, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); see also Nardone v. United States, 308 U.S. 338, 340-41, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Accepting the trial court's finding that appellant's detention constituted an arrest for which the police lacked probable cause, the question for our determination is whether the in-court identification testimony by the robbery victims properly may be characterized as evidence which resulted from an impermissible "exploitation" of that arrest. We conclude that it may not.

The challenged identifications rested upon the concurrence of (1) the ability of the witnesses to render such evidence (i. e., the knowledge upon which their testimony was based), and (2) the opportunity for the presentation of the incriminating testimony (i. e., the presence of both the witnesses and the accused in the trial). A witness' testimony may be held inadmissible when it rests upon knowledge or recollections of the underlying transaction which have been provided or significantly supplemented by improper police activity. Cf. United States v. Wade, supra, 388 U.S. at 239-40, 87 S.Ct. 1926; People v. Stoner, 65 Cal.2d 595, 55 Cal. Rptr. 897, 901, 422 P.2d 585, 589 (1967). Here, however, there was no such fatal infection. Cf. Pender v. United States, D. C.App., 310 A.2d 252 (1973). The trial court ruled that the identification testimony rested upon the independent basis of the victims' face-to-face encounters with their assailant, and we find its conclusion amply supported by the record.4 See D.C.Code 1973, § 17-305(a).

While appellant correctly observes that the poisonous tree doctrine is not confined to the direct "fruits" of police misconduct (e. g., tangible items improperly seized, or a confession obtained during an illegal detention), it does not follow that, simply because his arrest ultimately was followed by his in-court identification by the three women, there was a sufficient relationship between the two events to warrant application of the exclusionary rule. The Wong Sun Court expressly declined to adopt a "but for" test as the appropriate analytical mode (371 U.S. at 487-88, 83 S.Ct. 407), and subsequent case law uniformly has demanded more than a superficial demonstration of a causal chain between the improper act and the disputed evidence. See, e. g., State v. Miranda, 104 Ariz. 174, 450 P.2d 364 (1969) (en banc); People v. McInnis, 6 Cal.3d 821, 100 Cal. Rptr. 618, 494 P.2d 690 (en banc), cert. denied, 409 U.S. 1061, 93 S.Ct. 562, 34 L. Ed.2d 513 (1972); People v. Pettis, 12 Ill. App.3d 123, 298 N.E.2d 372, 375 (1973). It is true, however, that a sufficient connection may be found where the breach of the accused's constitutional rights provided the government with what might be called the "opportunity for incrimination" by revealing the identity of a crucial witness [see, e. g., Smith v. United States, 120 U. S.App.D.C. 160, 344 F.2d 545 (1965); Abbott v. United States, D.C.Mun.App., 138 A.2d 485 (1958)], or, in some cases, by revealing the fact of the offense itself. See, e. g., United States v. Schipani, 289 F. Supp. 43, 61-63 (E.D.N.Y.1968), aff'd, 414 F.2d 1262 (2d Cir. 1969), cert. denied, 397 U.S. 922, 90 S.Ct. 902, 25 L.Ed.2d 102 (1970). Appellant apparently seeks an expansion of the Wong Sun doctrine in this direction. He posits that absent his arrest and detention, his identity would have remained unknown and there would have been no opportunity for the in-court identifications.5 Essentially, he argues that he was the "frui...

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  • Crews v. United States
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  • Baker v. State
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    ...to hasten the inevitable confrontation and not to influence its outcome." Id. at 264, 293 A.2d at 37. Similarly, in Crews v. United States, 369 A.2d 1063, 1068 (D.C.App.1977), involving another situation like that before this Court, it was said, quoting in part from Bond v. United States, 3......
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    ...victim's in-court identification. 7 On February 16, 1977, a division of the Court of Appeals originally affirmed respondent's conviction, 369 A.2d 1063. Three months later, however, the full court granted respondent's motion for rehearing and vacated its earlier judgment. Record 356. 8 See ......
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