United States v. Burroughs

• Decision Date: 21 January 2016
• Docket Number: No. 13–3031.,13–3031.
• Citation: 810 F.3d 833
• Parties: UNITED STATES of America, Appellee v. Eddie P. BURROUGHS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

810 F.3d 833

UNITED STATES of America, Appellee

v.Eddie P. BURROUGHS, Appellant.

No. 13–3031.

United States Court of Appeals, District of Columbia Circuit.

Jan. 21, 2016.

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.

Lauren R. Bates, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Vincent H. Cohen, Acting U.S. Attorney, and Elizabeth Trosman, George Eliopoulos, and David B. Goodhand, Assistant U.S. Attorneys.

Before: GRIFFITH, MILLETT and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge:

Eddie Burroughs appeals the district court's denial of his motion to suppress drug-related evidence police discovered in his home. District of Columbia police officers initially arrested Burroughs for carjacking. They searched Burroughs incident to the carjacking arrest and discovered evidence implicating him in a robbery. As part of their investigation of the robbery, officers searched Burroughs's home pursuant to a warrant and found drugs. The United States then prosecuted and convicted Burroughs of three counts of possession of illegal drugs with intent to distribute them. Burroughs was never prosecuted for carjacking; in a preliminary hearing after his warrantless arrest, the Superior Court of the District of Columbia found that the police lacked probable cause for that arrest. Burroughs contends that because the police lacked probable cause for the arrest that led to the search warrant, the district court should have suppressed the drug evidence as the fruit of an illegal arrest.

Burroughs makes two arguments in support of suppression. First, he argues that the district court was bound by the superior court's no-probable-cause determination. Because Burroughs did not raise that issue before the trial court and did not demonstrate good cause for that failure, we assume that plain-error review applies and find none. Second, Burroughs argues that the district court clearly erred in finding that Burroughs was one of four suspects who fled from the stolen car. That finding was not clearly erroneous, for it was supported by testimony from an officer whose credibility Burroughs does not contest. The district court's finding supplied probable cause for Burroughs's arrest.

I.

Just after midnight on November 26, 2011, Officer James Haskel of the Metropolitan Police Department flew in a police helicopter in pursuit of a suspected stolen car. He tracked the car to a parking lot ("the upper parking lot") in a block in southeast Washington.¹ Officer Haskel watched from the air as four men bailed out of and fled the car. He gave clothing descriptions for three of the four fleeing suspects and directed officers on the ground toward them. He reported over the radio that all the men were running southeast toward a wood line and that one of them made it to another parking lot within the block ("the lower parking lot"), which lies southeast of where the car had stopped. That man was attempting to walk nonchalantly in the lower parking lot.

Police officers on the ground soon arrested three men within the block: Burroughs, Cody Hartsfield, and a juvenile. The juvenile was arrested in the woods between the upper and lower parking lots. Burroughs was arrested in the lower parking lot. Hartsfield was arrested east of the upper parking lot in front of a building identified as either 3425 Sixth Street or 3425 Fifth Street (the precise street is not relevant). Haskel facilitated two of the three arrests—that of the juvenile and one other—by shining light on the suspects from the helicopter and directing officers on the ground to stop them. The parties dispute whether the second person Officer Haskel tracked was Burroughs or Hartsfield. The parties do not dispute that if Haskel continuously observed Burroughs, the police had probable cause to arrest Burroughs for carjacking.

II.

After Burroughs was arrested for carjacking but before he was charged with federal drug offenses, he appeared with fellow arrestee Hartsfield for a preliminary hearing before a magistrate judge of the Superior Court of the District of Columbia. The government's only witness at that hearing was Officer Karane Williams, one of the officers who responded to the suspected carjacking. (She did not testify at the later suppression hearing in district court.) Officer Williams did not personally observe Burroughs's arrest, but she testified that the suspects' clothing matched the descriptions of the suspects Officer Haskel had given from the helicopter, and that another officer had seen Hartsfield jump over a fence just before he stopped him. The superior court found that the police had probable cause to arrest Hartsfield, but not Burroughs.

Burroughs contends that the federal district judge should not have decided anew whether there was probable cause for Burroughs's arrest because the superior court judge's finding that the police lacked probable cause was binding on the district court. He invokes collateral estoppel and law of the case. The government argues that Burroughs failed to preserve any such argument and that therefore we may not consider it.

We agree that Burroughs did not preserve his preclusion and law of the case arguments, but take no position on the consequence of that failure. Whether we are wholly barred from reviewing unpreserved suppression arguments absent a showing of good cause or whether we may review them for plain error is an open question. We need not resolve that question here, however, because Burroughs has made no attempt at showing good cause, and even assuming plain-error review is available, Burroughs has not established that denying preclusive effect to the superior court's determination was plain error.

A.

Burroughs did not timely assert that the district court was bound by the superior court's decision. "We have held that, ‘while a pretrial motion need not state explicitly the grounds upon which a motion is made, it must contain facts and arguments that make clear the basis of defendant's objections.’ " United States v. Hewlett, 395 F.3d 458, 460 (D.C.Cir.2005) (quoting United States v. Mitchell, 951 F.2d 1291, 1296 (D.C.Cir.1991) ). In the district court, Burroughs did not argue, much less "make clear," that the superior court's probable-cause determination should be accorded binding effect. Burroughs characterized his disagreement with the government as one based on facts, not law. As he put it, "[t]he government does not disagree on the law asserted by Mr. Burroughs to support his motion to suppress based upon an illegal stop. Instead, the government asserts facts in evidence to support probable cause." See Reply to Opposition to Motion to Suppress at 1, United States v. Burroughs, No. 1:12–cr–00033–JEB–1 (D.D.C. Oct. 31, 2012), ECF No. 52. Burroughs's counsel contested the probable cause for the carjacking arrest by re-canvassing the facts and asserting that: Burroughs matched only a general suspect description; at the time Burroughs moved to suppress, no officer had seen him either in or exiting the stolen car; he did not behave suspiciously; and he was not in close physical proximity to the stolen car when he was arrested.

It is true that Burroughs and his counsel mentioned the superior court's probable-cause determination in each of their three filings (including Burroughs's supplemental, pro se reply), but never did they mention "collateral estoppel," "issue preclusion," "law of the case," or any of the elements of those doctrines, or otherwise suggest that the superior court's probable-cause determination bound the federal district court. The closest Burroughs came to asserting preclusion was urging the district court to reach the same conclusion as the superior court—that there was insufficient evidence to support probable cause. He stated, for instance, "[t]here was no more probable cause to arrest him on the day he was arrested than there was on the day of his preliminary hearing." See Reply to Opposition to Motion to Suppress at 3. He also stated, "[t]here is no need to revisit the probable cause determination and the government still have not m[et] the standards for probable cause in their response." Supplemental Pro Se Reply Motion to Suppress at 8, United States v. Burroughs, No. 1:12–cr–00033–JEB–1 (D.D.C. Oct. 31, 2012), ECF No. 53, ex. 1. Those statements make plain that Burroughs pointed to the superior court's conclusion as potentially persuasive; he did not argue that it was preclusive.

B.

It is not settled whether Burroughs's failure to raise the preclusion argument in his suppression motion bars us altogether (in the absence of good cause) from reviewing it on appeal, or whether we may give it limited review for plain error. We have not expressed a consistent position on the standard of review of unpreserved claims, such as this one, that come within the ambit of Federal Rule of Criminal Procedure 12. Rule 12 requires parties to make certain motions in advance of trial, including motions identifying defects in an indictment (e.g., multiplicity) or instituting a prosecution (e.g., venue, delay), or motions seeking to suppress evidence. We have declined to review suppression arguments that defendants had not raised before trial when defendants failed to show good cause for their failure to do so. See Hewlett, 395 F.3d at 460–61 ; see also United States v. Peyton, 745 F.3d 546, 551–52 (D.C.Cir.2014) (describing this practice). But we have also considered whether unpreserved claims involve any plain error. See, e.g., United States v. Eiland, 738 F.3d 338, 350 (D.C.Cir.2013). Our treatment of other issues under Rule 12 has also been inconsistent. For instance, sometimes we have reviewed for plain error claims, not raised before trial, that a defendant was impermissibly charged more...