Crews v. United States

• Decision Date: 14 June 1978
• Docket Number: No. 8507.,8507.
• Citation: 389 A.2d 277
• Parties: Keith CREWS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 277

389 A.2d 277

Keith CREWS, Appellant, v. UNITED STATES, Appellee.

No. 8507.

District of Columbia Court of Appeals.

Argued En Banc October 5, 1977.

Decided June 14, 1978.

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W. Gary Kohlman, Public Defender Service, Washington, D. C., for appellant.

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

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, YEAGLEY, HARRIS, MACK and FARREN, Associate Judges.

FERREN, Associate Judge:

On February 16, 1977, a division of this court, by a vote of 2-1, affirmed appellant Keith Crews' conviction for armed robbery (D.C.Code 1973, §§ 22-2901 and -3202). Crews v. United States, D.C.App., 369 A.2d 1063 (1977). On May 12, 1977, we granted appellant's petition for rehearing en banc and vacated the judgment of February 16. The sole question at the first hearing, and upon rehearing en banc, is whether the robbery victim's in-court identification of appellant Crews should have been suppressed as evidence obtained by official exploitation of an unlawful arrest, in violation of his Fourth Amendment rights.

On the facts of this case, we hold that the in-court identification should have been excluded from appellant's trial. His conviction accordingly must be reversed.

Our analysis proceeds, in Part I, with an explication of the facts and the trial court proceedings, followed in Part II with a discussion of the threshold issue: whether the case concerns merely the suppression of evidence (as appellant contends) or actually amounts to an untenable request for dismissal of the charges (as the government maintains). After concluding that "suppression of evidence" is the correct characterization, we turn to the question of the appropriateness of suppression. Part III addresses the Fourth Amendment exclusionary rule — its history (Section A) and relevance to the facts of this case (Section B), followed by analysis and application of the three commonly advanced exceptions to the rule: "independent source" (Section C), "inevitable discovery" or "hypothetical independent source" (Section D), and "attenuation" (Section E). After finding these exceptions to be inapplicable, we conclude by holding that the police conducted an unconstitutional "investigatory arrest." The evidentiary results of such an arrest — including the contested identification testimony here — cannot lawfully be admitted at trial.

I. FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS

On January 3, 1974, at approximately 11:30 a. m., a woman was accosted in a restroom in the vicinity of the Washington Monument. The assailant, a 15- to 18-year-old, slender, black male with a smooth complexion, approached the victim's stall and demanded $10.00. The victim initially refused, but she surrendered the sum when the robber revealed a gun. After requesting $10.00 more and ascertaining that the woman did not have it, the young man gained entry to the stall and made sexual advances and requests. The victim pleaded with the assailant to stop and to leave. He soon did, warning her as he departed not to emerge from the restroom for 20 minutes; otherwise, he said, he would shoot her. The woman complied, then reported the incident to the police.

Two other woman were similarly robbed and assaulted in the same Monument restroom during the mid-afternoon hours of January 6, 1974. Threatening the women with a broken bottle, the assailant (whose description matched the January 3 robber) compelled them to turn over $20.00, then departed, again advising the victims not to leave for 20 minutes. The women reported this incident to the police.

Three days later, in the early afternoon of January 9, 1974, Officer David Rayfield of the United States Park Police observed appellant in the area of the Washington Monument concession stand. Aware of the January 3 and 6 robberies and of a police "lookout" describing the perpetrator as a young black man 15-18 years old and slender in build — and believing that appellant resembled this description — the officer and his partner, Officer Barg, approached appellant. Upon being questioned, appellant disclosed that his name was Keith Crews, his age was sixteen, and he was not in school because he had "walked away." After this three-to-five-minute encounter, during which the officers apprised Mr. Crews of his likeness to the robbery suspect's description, the officers allowed him to go on his way. They watched him enter a nearby men's room.

Moments later, Officer Rayfield saw and summoned James Dickens, a tour guide. The officer knew that Mr. Dickens had seen "a subject" in the area on January 3, the date of the first robbery. When appellant exited from the men's room, Mr. Dickens told Officer Rayfield that appellant looked like the person he had observed on January 3. His suspicions bolstered by this report, the officer again stopped and detained Mr. Crews. This time, Officer Rayfield summoned Detective Ore of the United States Park Police, the investigator assigned to these robberies, in order to have him view the individual who resembled the lookout description. Detective Ore arrived ten to fifteen minutes later. When inhospitable weather frustrated the detective's intent to obtain on-the-scene photographs for display to the robbery victims, he transported Mr. Crews to headquarters. The police held him for one hour, obtained the desired photographs, and then released him.

At a photographic array session conducted the next day, the victim of the first crime identified appellant. One of the two January 6 victims made a like identification on January 13. On January 16, the court ordered appellant Crews (who apparently had been reapprehended) to appear in a lineup on January 21, where he was positively identified by the two women who had made the photographic identifications.

The grand jury returned an indictment on February 22, 1974, charging Keith Crews with two counts of armed robbery (D.C. Code 1973, §§ 22-2901, -3202), two counts of robbery (D.C.Code 1973, § 22-2901), one count of attempted armed robbery (D.C. Code 1973, §§ 22-2902, -3202), and three counts of assault with a dangerous weapon (D.C.Code 1973, § 22-502). On April 22, 1974, after a hearing on appellant's motion to suppress, the trial court determined that because the government lacked probable cause to arrest, it could not introduce the photographic or lineup identifications into evidence. The court, however, decided to permit the in-court identification.

Trial commenced immediately. Defendant Crews interposed alibi defenses to all charges. On the next day, April 23, the jury returned verdicts of not guilty on all counts but the first. He was convicted of armed robbery founded upon the events of January 3.¹ Pursuant to the Youth Corrections Act, 18 U.S.C. § 5010(a) (1970), the trial judge sentenced Keith Crews to four years' probation. He now appeals the conviction, maintaining that the first victim's in-court identification was tainted by the illegality of his arrest and, as a result, was necessarily subject to suppression by virtue of the Fourth Amendment to the Constitution of the United States.

II. SUPPRESSION OF EVIDENCE VERSUS DISMISSAL OF THE CHARGE

Appellant casts his appeal in suppression-of-evidence terms. The government, however maintains that there is no "evidence" to be suppressed; it argues that appellant's goal should be characterized, more realistically, as prevention of his prosecution with consequent dismissal of the charges. It follows, according to the government, that appellant's effort runs afoul of the longstanding, well-recognized, and still vital principle that an illegal arrest cannot serve to bar a prosecution or nullify a conviction that results from a fairly conducted trial. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Accordingly, we must first interpret the meaning and scope of the Frisbie-Ker doctrine and then determine whether the relief sought by appellant runs contrary to the constitutional authority of those two cases.

A. The Frisbie-Ker Doctrine

In Frisbie v. Collins, supra, and Ker v. Illinois, supra, the Supreme Court was confronted with claims that the forcible abduction of the defendants by government agents for the purpose of subjecting them to the jurisdiction of the respective trial courts violated due process. Defendants accordingly claimed that their convictions had to be voided. In both cases the Court held that the Constitution did not require the state courts to decline jurisdiction.

[T]he power of a court to try a person for a crime is not impaired by the fact that he [has] been brought within the court's jurisdiction by reason of a "forcible abduction." . . . [D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will. [Frisbie, supra, 342 U.S. at 522, 72 S.Ct. at 512 (footnote omitted).]

The holdings of the Court are actually quite clear and simple. "These cases established that a criminal court could exercise jurisdiction over a defendant however his presence has been obtained." 88 Harv.L.Rev. 813, 815 (1975).² Clarity and simplicity notwithstanding, the continuing validity of Frisbie-Ker is frequently questioned. We therefore must resolve the dispute over Frisbie-Ker's current status.

At least one commentator has maintained that developments in due...