United States v. Stubblefield

• Decision Date: 29 April 2016
• Docket Number: No. 14–3051.,14–3051.
• Citation: 820 F.3d 445
• Parties: UNITED STATES of America, Appellee v. Mark STUBBLEFIELD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

820 F.3d 445

UNITED STATES of America, Appellee

v.Mark STUBBLEFIELD, Appellant.

No. 14–3051.

United States Court of Appeals, District of Columbia Circuit.

Argued March 4, 2016.

Decided April 29, 2016.

Rehearing En Banc Denied June 9, 2016.

Joshua M. Parker argued the cause for appellant. With him on the briefs was David W. DeBruin, appointed by the court.

Lena H. Hughes, Bristow Fellow, U.S. Department of Justice, argued the cause for appellee. With her on the brief was Elizabeth Trosman, Assistant U.S. Attorney. Suzanne G. Curt, Assistant U.S. Attorney, entered an appearance.

Before: TATEL, BROWN, and MILLETT, Circuit Judges.

Opinion of the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge:

This case is, at its core, a fact-intensive dispute over probable cause. Witness descriptions of a serial robber—a middle-aged black man of short build and facial disfigurement—helped produce a police sketch, which was then used in canvassing efforts, which netted an identification, which led police officers to the identified suspect, and their approach prompted that suspect, Mark Stubblefield, to flee for two blocks until he was apprehended and arrested. We are asked to decide whether, in view of this totality of circumstances, probable cause to arrest Stubblefield existed. We hold that it did.

I

Between January and April 2008, an unknown suspect committed a series of bank robberies in Washington, D.C. Witnesses described the robber as a thin, middle-aged black man, of short build—between 5'1? and 5'3?—and possessing an unusual facial complexion. Descriptions of his complexion varied slightly. Some used the word “scarring,” while others used terms like “markings,” “birthmarks,” “divots,” or “impressions ... under his cheeks.” However, all acknowledged the disfigurement.

Video surveillance showed a man, matching the robber's description, running down a nearby street and hopping in a taxi cab just minutes after one of the robberies. FBI Special Agent Luis DeJesus tracked down the cab driver, who had been paid with a marked $20 bill the day before. The driver recalled dropping the man at 7th Street and Florida Avenue.

Using a sketch produced from witness descriptions, FBI agents canvassed nearby areas and distributed “wanted” posters throughout Washington D.C. in search of anyone who might recognize the robber. In early May, one individual did. This person recognized the subject as a man who frequented the area of 7th Street and Florida Avenue NW, the same location identified by the cab driver. A few days later on the morning of May 12, this same individual informed the FBI that he or she had again spotted that same man, whom the informant referred to as “Mark,” this time at 7th and Rhode Island Avenue—a few blocks from Florida Avenue.

Some time after receiving this tip, two officers went to the intersection and approached a man who matched the robber's description. When the man saw them, he ran; they pursued and apprehended him two blocks away, where he was promptly arrested and searched. The search uncovered a small, inch-and-a-half long crack pipe in the suspect's pocket. The arresting officers made no mention of the bank robberies in their arrest report, listing possession of drug paraphernalia as the basis for the arrest.

The suspect, now identified as Mark Stubblefield, was booked, photographed, and processed. Agent DeJesus incorporated Stubblefield's booking photograph into a photo array containing pictures of eight other men. He showed the array to two of the seven eyewitnesses. One witness, a branch manager, positively identified Mr. Stubblefield based on the photograph. The other, a teller, initially stated the photo didn't match, but then added, “It really looks like him, I'm not sure, you know, I don't know.” Based on the manager's positive identification, Agent DeJesus obtained and executed a separate arrest warrant, this time charging Stubblefield with bank robbery.

Before trial, Stubblefield's attorney filed two motions to suppress—one, alleging in-court and out-of-court testimony stemmed from impermissibly suggestive identification procedures, and the other, concerning Stubblefield's post-arrest statements and actions at police headquarters. Neither motion alleged a Fourth Amendment violation.

At trial, the government called thirty-seven witnesses. None of the eyewitnesses identified Stubblefield in court. Their testimonies focused, instead, on their pre-trial identifications and descriptions of the robber. Only Detectives DeJesus and Elmer Baylor identified Stubblefield in court. And aside from these pre- and in-trial identifications, the government put on no other evidence directly linking Stubblefield to the bank robberies.

Nonetheless, a jury convicted Stubblefield of six counts of bank robbery and one count of attempted bank robbery, and he received a sentence of 180 months' imprisonment. This court affirmed his conviction on direct appeal, see United States v. Stubblefield, 643 F.3d 291 (D.C.Cir.2011), and Stubblefield comes before us now on a motion to vacate that conviction due to ineffective assistance of counsel (IAC), pursuant to 28 U.S.C. § 2255(a). The district court denied Stubblefield's motion and declined to issue a certificate of appealability. United States v. Stubblefield, 931 F.Supp.2d 118 (D.D.C.2013).

II

Stubblefield's ineffective assistance of counsel argument is relatively straightforward: He contends his booking photograph was obtained in violation of the Fourth Amendment, and had his counsel moved to suppress it, there wouldn't have been sufficient evidence to sustain a conviction. To prevail on an ineffective assistance of counsel motion premised on a Fourth Amendment claim, the defendant bears the burden of “prov[ing] that his Fourth Amendment claim is meritorious.” Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Attempting to carry that burden, Stubblefield, through court-appointed Amicus, asserts three separate, if overlapping, grounds for suppression: one, the police lacked reasonable suspicion to stop him; two, the crack pipe was discovered through an impermissible search; and three, the government lacked probable cause to arrest Stubblefield for bank robbery. As the foregoing recitation demonstrates, Stubblefield proffers “a substantial showing of the denial of a constitutional right,” and we grant his request for a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Accordingly, we review his IAC claim de novo. United States v. Abney, 812 F.3d 1079, 1087 (D.C.Cir.2016).

Affirming the district court's conclusion that there was probable cause to arrest Stubblefield for bank robbery would render inert his other two arguments, both of which are premised on a lack of reasonable suspicion. So we begin there. Determining probable cause requires examination of the totality of circumstances rather than facts in isolation. Illinois v. Gates, 462 U.S. 213, 231–32, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Like a mosaic formed from many pieces, it is the whole picture, viewed from the proper perspective, that deserves our attention. No single piece, no matter how colorful or ornate, can duplicate the impact of the image formed when the parts are viewed together. Here, proper attention to the totality of Stubblefield's case—to the entire pattern—creates a portrait that clearly supports the district court's finding of probable cause.

Three facts in particular shape the portrait. First, the witness descriptions of the robber uniquely identify and clearly match Stubblefield's characteristics. Witnesses described the robber as a middle-aged black man, of thin, short build and with some sort of facial disfigurement. Of these descriptions, two are particularly distinctive: the height and the facial disfigurement. As to the robber's height, witnesses identified the robber as between 5'1? and 5'2?.¹ Given that, for black men ages 40–59, a height even of 5'5? is considered the bottom fifth percentile,² the robber's height—which matched Stubblefield's height of 5'2?—is a unique identifier. In addition to the robber's unusually short build, he exhibited unique facial disfigurement. While it's true that witness descriptions toggled between “scarring” and “divots” and “markings,” many eyewitnesses readily noticed the robber's distinctive facial disfigurement. And again, the described disfigurement, another unique identifier, was consistent with Stubblefield's disfigurement. Second, two different sources put the robber at or very near the location where Stubblefield was arrested. The cab driver told police he dropped the robber off at the intersection of 7th and Florida Avenue. And a citizen-informant told the FBI that a man matching the robber's description frequented that exact same intersection. Stubblefield was ultimately apprehended a few blocks from there—7th and Rhode Island—after receiving another tip from the same informant. Third, when the police followed that tip to 7th and Rhode Island and approached Stubblefield, he fled and eluded the police's chase for two blocks. Whether any of these facts is sufficient alone for probable cause or whether reasonable suspicion ripened, at some point, to probable cause, we need not decide. Placed alongside each other, these three pieces—the witness descriptions matching Stubblefield's unusual visage and physique, Stubblefield's location at or near the place witnesses had previously seen him, and his flight from the police—form a convincing depiction of probable cause.

In an attempt to divide and minimize, Amicus responds by isolating and impeaching each fact. Regarding the witness descriptions, Amicus contends “the perpetrator's one distinctive feature” was his “scarring or mark[ings] on his face,” and asserts Stubblefield lacked that one feature. Amicus Br. 26. And absent that one feature, Amicus avers, Stubblefield matched only the generic descriptions, which is insufficient...