Hicks v. US

• Decision Date: 03 June 1999
• Docket Number: No. 96-CF-956.,96-CF-956.
• Citation: 730 A.2d 657
• Parties: Willie L. HICKS, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

730 A.2d 657

Willie L. HICKS, Jr., Appellant, v. UNITED STATES, Appellee.

No. 96-CF-956.

District of Columbia Court of Appeals.

Argued January 26, 1999.

Decided June 3, 1999.

Severina B. Rivera, Washington, DC, for appellant.

L. Jackson Thomas II, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Roger L. Kemp, Assistant United States Attorneys, were on the brief, for appellee.

Before FARRELL and RUIZ, Associate Judges, and PRYOR, Senior Judge.

FARRELL, Associate Judge:

Found guilty by a jury of two counts of armed robbery and related weapons offenses, appellant contends that a show-up identification of him by one of the victims and physical evidence (chiefly a sawed-off shotgun) seized from the car in which he was riding should have been suppressed as the fruits of a Fourth Amendment violation. Although we conclude that the search of the car was unlawful because done without probable cause, we agree with the trial judge that the shotgun and the identification of appellant were both admissible under the doctrine of inevitable discovery. We therefore affirm.

I.

The following facts were adduced at the suppression hearing. At about 12:40 a.m. on July 1, 1995, the complaining witness ("O'Malley") was walking home when he was grabbed from behind by a man who emerged from a car that had just passed O'Malley. Two other men stayed in the car. The assailant, who carried an object resembling a pipe with a cord around it, demanded O'Malley's money. O'Malley emptied the contents of his pockets on the ground, after which the assailant inspected the discarded items, took some and put them in his pocket, and told O'Malley to run away. O'Malley ran to his nearby apartment and called the police.

Metropolitan Police Officer Loepere responded to the scene. After interviewing O'Malley, he broadcast a lookout for the car carrying the assailant and the two other men. The car was an older model, light blue or gray, American-made station wagon with its missing rear window covered by plastic. At about 2:15 a.m. that day, Metropolitan Police Sergeant Morgan recognized a station wagon matching that description occupied by three males and driving in a location five blocks from the robbery. He summoned other police units, and together they stopped the station wagon and approached it with guns drawn. The three occupants were removed from the car, frisked, and placed on the ground. At some point they were handcuffed.¹ The police then searched the car and found a sawed-off shotgun concealed behind a child's car seat. They radioed to Officer Loepere that a car had been stopped matching the broadcast description, telling him to bring the robbery victim to the scene. They soon learned that Loepere "was getting the complainant and bringing him down there." The occupants, including appellant, were placed in a police van to await O'Malley's arrival. According to Sergeant Morgan, however, they "were going to be arrested regardless of any identification" because of their possession of the shotgun.

On hearing that the station wagon had been stopped, Officer Loepere had a police dispatcher contact O'Malley at his home, and Loepere then drove the victim to where the occupants were being held. Appellant and the others were removed from the police van one by one, and at about 2:30 a.m., O'Malley identified appellant positively as the man who had emerged from the station wagon and robbed him. A renewed search of the station wagon yielded a credit or debit card belonging to O'Malley.²

In denying appellant's motion to suppress the identification and physical evidence, the trial judge first found that the police had a reasonable basis for stopping the station wagon under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and detaining the occupants for a showup identification.³ At the same time, she rejected the government's position that the shotgun was in plain view from the officers' vantage point outside the vehicle; and thus, she ruled, the search of the car exceeded the bounds of a lawful Terry stop. She nonetheless held the shotgun and ensuing identification of appellant admissible on the basis of inevitable discovery. She rejected as "outside the realm of any reasonableness" appellant's contention that "it was somehow the discovery of the shotgun which caused the showup to occur." Rather, she had "no doubt that with the three people in the car and the report of the robbery, . . . the showup identification came about as a result of the earlier robbery report and completely independently of the discovery of the shotgun."

II.

The government concedes that the search of the station wagon was without probable cause and thus unlawful.⁴ It relies instead on the inevitable discovery doctrine. Appellant argues, in turn, that the predicate for applying that doctrine is missing, because there was no police investigation untainted by illegality that "inevitably" would have led to his identification and an ensuing search of the car incident to arrest. He contends that his stop and detention by the police was unlawful from the very outset because of the degree of force the police employed, converting what might have been a valid Terry stop into an arrest without probable cause; and that without this unlawful arrest there was missing the required "actuality" that an independent police investigation would ultimately have brought O'Malley together with appellant for an identification.

The inevitable discovery doctrine provides that, even though the police have obtained evidence as a result of illegal conduct, the evidence still may be admitted "[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). If "the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible." Id. at 448, 104 S.Ct. 2501. Importantly, however, the doctrine "involves no speculative elements but focuses [instead] on demonstrated historical facts capable of ready verification or impeachment." Id. at 444-45 n. 5, 104 S.Ct. 2501. That is, "the lawful process which would have ended in the inevitable discovery [must] have ... commenced before the constitutionally invalid seizure," Douglas-Bey v. United States, 490 A.2d 1137, 1139 n. 6 (D.C.1985), and there must be "the requisite actuality" that the discovery would have ultimately been made by lawful means. Hilliard v. United States, 638 A.2d 698, 707 (D.C.1994) (internal quotation marks omitted); see also District of Columbia v. M.M., 407 A.2d 698, 702 (D.C. 1979). If appellant were correct that he was arrested immediately upon being stopped by the police, the necessary "actuality" that the police would ultimately have secured the identification by lawful means would indeed be missing. Before that arrest, the investigation would have consisted only of Officer Loepere's interview with the complaining witness and broadcast of a description of the car carrying the robber and his companions. The likelihood that a valid Terry stop and detention (rather than the unlawful arrest appellant says took place) would have brought appellant face-to-face with the victim for identification would be speculative. We therefore must consider appellant's argument that the police arrested him from the outset without probable cause. We reject the argument.

A.

"The last decade," a court observed in 1994,

has witnessed a multifaceted expansion of Terry [v. Ohio], including the trend granting officers greater latitude in using force in order to "neutralize" potentially dangerous suspects during an investigatory detention. For better or for worse, the trend has led to the permitting of the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.

United States v. Tilmon, 19 F.3d 1221, 1224-25 (7th Cir.1994) (citation omitted; internal quotation marks partly omitted). In good part this trend stems from the Supreme Court's recognition that Terry stops "involve[ ] a police investigation `at close range'" in which an officer "must make a `quick decision as to how to protect himself and others from possible danger,'" with the result that courts are reluctant to second-guess police failure to "adopt alternative" — and less restrictive — "means to ensure their safety" in that context. Michigan v. Long, 463 U.S. 1032, 1052, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (quoting Terry, 392 U.S. at 24, 28, 88 S.Ct. 1868).

"[T]he scope of permissible police action in any investigative stop depends on whether the police conduct was reasonable under the circumstances." In re M.E.B., 638 A.2d 1123, 1127 (D.C.1993). Applying that standard, our own decisions have recognized that "handcuffing 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; see also Womack v. United States, 673 A.2d 603, 608-11 (D.C.1996). We next consider the relevant features of appellant's stop to decide whether they crossed the line into an arrest.

The police, consisting of officers from "about three [scout] cars," blocked the station wagon and approached it with guns drawn. They removed the three occupants, frisked them, placed them on the ground, and handcuffed them. See note 1, supra. The detention took place at 2:15 in the morning and stemmed from a report of a robbery involving "three subjects." Its purpose, until the shotgun was found, was investigative: to...