In re D.M., 11–FS–1125.

• Decision Date: 10 July 2014
• Docket Number: No. 11–FS–1125.,11–FS–1125.
• Citation: 94 A.3d 760
• Court: D.C. Court of Appeals
• Parties: In re D.M., Appellant.

94 A.3d 760

In re D.M., Appellant.

No. 11–FS–1125.

District of Columbia Court of Appeals.

Argued Feb. 20, 2014.

Decided July 10, 2014.

Fleming Terrell, with whom James Klein and Jaclyn S. Frankfurt were on the brief, for appellant.

Janice Y. Sheppard, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee District of Columbia.

Before BLACKBURNE–RIGSBY, Associate Judge, and PRYOR and KING, Senior Judges.

KING, Senior Judge:

After a bench trial, D.M. was convicted of second-degree burglary, ¹ felony destruction of property,² and second-degree theft. ³ D.M. appeals the trial court's denial of his motion to suppress a show-up identification and evidence obtained pursuant to his arrest thereafter. Specifically, he contends his seventy-five minute detention was an unconstitutional seizure because (1) the length of his detention converted a temporary investigatory stop into a de facto arrest, and (2) the police could have used less intrusive means to accomplish their investigation. We disagree that the length of his detention or the possibility that the officers could have accomplished their objective by alternative means made his seizure unreasonable per se. However, concluding the trial court did not have sufficient evidence, as a matter of law, to find that the length of the detention was necessary and that the police acted diligently in pursuing the purpose of the stop, we reverse the order denying D.M.'s motion.

I.

Shortly after 10:00 a.m., on April 14, 2011, Anthony Pickett was in the kitchen at his mother's house on Jay Street, N.E. Through the kitchen window he observed five juveniles behind the next-door neighbor's home. He continued to watch as one of the juveniles broke a window on the neighbor's back door and enter the home. Two other juveniles, one of whom Pickett would later identify as D.M., followed the first inside. Pickett's mother called 911 and Pickett provided a description of the individuals. Pickett testified at D.M.'s trial ⁴ that D.M. had “some kind of hat or something across his face, but he took it off” at some point and Pickett could clearly see D.M.'s face. After a time, D.M. and the other two individuals came back out of the house and all five juveniles ran off down the alley.

Officer Demar Rodgers received a radio call for a burglary in process and responded to the scene. Pickett gave Rodgers a description of the teenaged males, including a description of their clothing. Rodgers broadcasted a lookout for the individuals over his radio. Officers Robert Munn and Calvin Awkward, and Detective Chad Howard, also responded to the radio call. They began to canvas the area, driving past the scene of the burglary on Jay Street, parallel to the alley down which the juveniles had run. As the police officers passed an apartment building directly across from where the alley opened onto Jay Street, they noticed a group of individuals standing out front. Munn and Awkward stopped at the building while Howard doubled back, having passed the building before noticing the group. The individuals looked at the police vehicle and hurried down the steps in the building and out of sight.

Munn and Awkward went into the building and found four young men gathered on the lower landing, D.M. among them. Once they stopped the group, the officers asked their names and some general questions. The officers “didn't really do an investigation” at that point, but just stopped the individuals “until the detective did his investigation.” After Howard arrived, he observed that D.M.'s clothing matched one of the lookout descriptions: a black jacket and tan pants. Howard and the other officers obtained information from each individual about where they lived and went to school. D.M. was detained further while the other juveniles were released to their school because they didn't match the lookout description as completely as D.M.

At some point after D.M. was stopped, Howard left the apartment building and returned to the scene of the burglary to contact Pickett. Howard testified that he interviewed Pickett, obtained a “description of whom he saw exiting the house and running down the alley,” placed Pickett in his car and took Pickett to the apartment to perform a show-up identification of D.M. Pickett testified that he had to return from work to meet Howard and perform the show-up identification. Neither Pickett or Howard testified about where Pickett worked, when or how Howard contacted Pickett, or the timetable of events leading up to the show-up identification. Pickett identified D.M. during the show-up as one of the youths who entered the house. Howard confirmed that the juveniles were stopped at 10:37 a.m. and the show-up occurred at 11:52 a.m.

In his pre-trial motions, D.M. argued, inter alia, that the police did not have reasonable suspicion to stop the individuals ⁵ and that, even if the stop was justified as an investigatory stop, his prolonged detention exceeded the allowable scope of such a stop. Following the testimony of the government's witnesses, the trial judge denied D.M.'s motion concluding that

what Detective Howard said was after stopping [D.M.], he returned to the event location, contacted the witness, got a description of what the witness saw and then took him back to the scene. So the entire time he was diligently pursuing the police investigation. So I do not find that the time was ill-spent or too long under the circumstances, particularly because Mr. Pickett indicated that he had to return to the scene.

II.

Our review of the denial of a motion to suppress is limited. Womack v. United States, 673 A.2d 603, 607 (D.C.1996). We must “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.” Id. We must also defer to the trial judge's factual findings, including resolution of conflicting testimony, unless “they are clearly erroneous, i.e., without substantial support in the record.” Lawrence v. United States, 566 A.2d 57, 60 (D.C.1989); see also In re T.L.L., 729 A.2d 334, 339 (D.C.1999) (“[W]e will not disturb the trial judge's findings of fact unless they lack evidentiary support in the record.”). The trial court's ultimate conclusion of the constitutionality of a seizure is a question of law that we review de novo. Womack, 673 A.2d at 607. That is, we review de novo whether the prosecution met its burden of proving by a preponderance of the evidence that a seizure was constitutionally permissible. See Mayes v. United States, 653 A.2d 856, 861 (D.C.1995); see also Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) (“It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.”).

The Fourth Amendment protects against unreasonable search and seizure. The touchstone of the Fourth Amendment is reasonableness. See, e.g., United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (“The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” (emphasis in original)); see also Womack, 673 A.2d at 607 (“The basic question presented is whether, under all the circumstances, the seizure ... was reasonable.”). “[C]onsistent with the Fourth Amendment, the police may briefly detain an individual for investigative purposes, even if they lack the 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.” Womack, 673 A.2d at 608 (citing Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.”).

The Supreme Court has articulated a “dual inquiry for evaluating the reasonableness of an investigative stop” in which we examine: (1) “whether the officer's action was justified at its inception,” and (2) whether the actions were “reasonably related in scope to the circumstances which justified interference in the first place.” Sharpe, 470 U.S. at 682, 105 S.Ct. 1568 (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). D.M. does not dispute on appeal that MPD officers had a reasonable, particularized, and articulable suspicion on which to justify stopping D.M. We are not, therefore, concerned with the first part of this inquiry. Instead, we focus on D.M.'s challenge under the second part of this analysis.

As we have observed, the “measure of the 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); see also Royer, 460 U.S. at 500, 103 S.Ct. 1319 (“The scope of detention must be carefully tailored to its underlying justification.”). Police conduct exceeds the scope permissible under Terry when “the police seek to verify their suspicions by means that approach the conditions of arrest.” Royer, 460 U.S. at 499, 103 S.Ct. 1319; see also Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cnty., 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). Criminal cases provide “endless variations in the facts and circumstances” such that there can be no clear “litmus-paper test” or bright line determining where police action has become unreasonable. Royer, 460 U.S. at 506, 103 S.Ct. 1319....