Tony Armstrong & Floyd Joiner v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 15-CF-128 & 15-CF-276

TONY ARMSTRONG & FLOYD JOINER, APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(CF3-2355-13 & CF3-2354-13)

(Hon. William M. Jackson, Trial Judge)

(Argued November 17, 2016 Decided July 20, 2017)

Lee T. Friedman, with whom Matthew M. Madden, was on the brief, for

appellant Tony Armstrong.

Gabriel Diaz, Public Defender Service, with whom Samia Fam, Public

Defender Service, was on the brief, for appellant Floyd Joiner.

Priya Naik, Assistant United States Attorney, with whom Channing D.

Phillips, United States Attorney, and Elizabeth Trosman, Elizabeth H. Dannelo,

Clayton O’Connor, and Matthew E. Kahn, Assistant United States Attorneys, were

on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge,* and WASHINGTON** and

*

Chief Judge Blackburne-Rigsby was an Associate Judge at the time of

argument. Her status changed to Chief Judge on March 18, 2017.

**

Judge Washington was Chief Judge at the time of argument. His status

(. . . continued)

2

BELSON, Senior Judges.

Opinion for the court by Senior Judge WASHINGTON.

Dissenting opinion by Senior Judge BELSON at page 28.

WASHINGTON, Senior Judge: On February 12, 2013, Michael Prince and

Ezell Whitaker were robbed fifteen minutes apart and in different locations by two

armed black males, who fled in a white vehicle. Officers spotted appellants Tony

Armstrong (―Armstrong‖), Floyd Joiner1 (―Joiner‖), and their co-defendant Patrick

Buckmon (―Buckmon‖) three to five minutes after the second robbery and eight

blocks away in a white vehicle. Officers stopped, seized, and searched appellants

and their vehicle. Inside the vehicle, officers found an imitation firearm and Ezell

Whitaker‘s (―Whitaker‖) personal effects. Appellants were then arrested and

indicted for one count of conspiracy to commit robbery while armed,2 two counts

of robbery while armed,3 and two counts of possession of a firearm during the

commission of a crime of violence or dangerous offense.4 Appellants were

(. . . continued)

changed to Senior Judge on March 20, 2017.

1

Appellant Joiner notes that the correct spelling of his last name is Joyner.

2

D.C. Code § 22-1805a (2016).

3

D.C. Code §§ 22-2801, -4502 (2016).

4

D.C. Code § 22-4504 (b) (2016).

3

subsequently convicted by a jury for the armed robbery of Whitaker, the associated

robbery while armed and possession of a firearm during the commission of a crime

of violence or dangerous offense, and for conspiracy. They were acquitted of the

Prince robbery.

Prior to trial, appellants moved to suppress the fruits of the officers‘ search

on the grounds that the officers lacked particularized, articulable suspicion to

believe appellants were engaged in criminal activity based on generalized lookout

descriptions. The trial court denied appellants‘ motion due to the close spatial and

temporal connection between the robberies and stop of appellants‘ vehicle. On

appeal, appellants argue that the denial of their motion violated their Fourth

Amendment rights. Appellants raise additional arguments, which need not be

addressed in this appeal because, for the reasons set forth below, we reverse

appellant Armstrong‘s conviction and reverse and remand appellant Joiner‘s

conviction.

FACTUAL SUMMARY

The Prince Robbery

4

At approximately 12:05 p.m. on Tuesday, February 12, 2013, Michael

Prince (―Prince‖), who was selling illegal cigarettes in a park at 1500 Maryland

Avenue, N.E., was approached by two men offering to purchase his wares.

Prince testified that the ―bigger‖ of the two men grabbed him and hit him

over the head with a gun. The ―smaller‖ man then grabbed Prince‘s black

briefcase-like bag containing Newport cigarettes off a nearby table. Prince then

watched as the bigger man got into the driver seat and the smaller man got into the

passenger seat of a white four-door car. Prince did not see anyone else in the

vehicle.

Prince flagged down Lieutenant Duncan Bedlion and gave a description of

the two men. He described the bigger man as tall and stocky, dark complexion

black male, in his forties, wearing a blue sweater and blue jeans, and the smaller

man as a medium complexion black male, also in his forties, wearing a light green

jacket and blue jeans. Prince initially described the make and model of the

suspects‘ vehicle as a Mercury Sable, and then later on as a Pontiac, and finally as

a white four-door sedan. He indicated that the suspects fled eastbound towards the

Sixth District police station.

5

Lieutenant Bedlion issued the following lookout at 12:10 p.m.,

approximately one minute after receiving the information from Prince:

All units listen to a simulcast out of 5D [Fifth District] in

reference to a robbery hold up gun that just occurred.

Morse and Maryland Avenue, Northeast. I have a

lookout for two black males. First stocky build wearing a

blue sweater; second subject black male wearing a green

jacket. Last seen leaving east bound on Maryland

Avenue driving possibly in a white Mercury Sable at this

time. Possibly a white Mercury Sable. What was taken

was U.S. currency, and also a black handgun was used in

the robbery. Again, last seen heading in the direction of

6D [Sixth District].

Roughly ten minutes after Lieutenant Bedlion‘s lookout was broadcasted,

Detective Christopher Bastian arrived on the scene and spoke with Prince.

Detective Bastian learned from Prince that the suspects‘ vehicle was an older

model four-door white sedan, possibly a Mercury Sable, but that it could also be a

Chevrolet.5 Prince also told the detective that the car had some body damage,

possibly a dent in the side, and was missing a piece of molding on the side.

The Whitaker Robbery

5

Detective Bastian was impeached on the fact that his notes from the

conversation with Prince do not include any reference to a Chevrolet.

6

At approximately 12:12 p.m. or less than ten minutes after the Prince

robbery, Whitaker was robbed by two men at the intersection of 8th and H Streets,

N.E. Whitaker testified that he was standing on the corner of 8th and H Streets,

selling illegal cigarettes, when he felt a person reaching for him. He turned

around, swung at the person, and fell to the ground. While on the ground,

Whitaker saw two men. When one of the men grabbed his gray-and-green

backpack, Whitaker stood up and launched himself towards them. That is when

one of the men brandished a pistol. Whitaker, at the same time, saw Officer Frank

Brown, who had witnessed the altercation, coming from across the street.

Whitaker yelled to Officer Brown, ―Brown, he has a gun.‖

Officer Brown testified he witnessed only one male struggling with

Whitaker and did not observe a second male, a gun, or Whitaker‘s backpack.

Officer Brown did observe one light-skinned male, wearing a tan jacket, blue

jeans, a red hat, and Timberland boots, run into an alley where he got into the rear

of a white car with dark tinted windows.6 While Officer Brown testified that the

6

There is a factual issue as to whether Officer Brown identified the vehicle

as having tinted windows at the time of the robbery. The government never argued

at the suppression hearing that appellants‘ vehicle had tinted windows; however,

the government now raises this fact to support its argument on appeal.

Additionally, the trial court did not rely on the tinted windows description in

denying appellants‘ motion to suppress.

7

vehicle was traveling south on 7th Street, this differed from the northbound

direction indicated in his report, filed at the time of the arrest, and the direction he

gave as part of his lookout. Officer Brown saw no weapon but testified the fleeing

suspect was running with his arm close to his waist like he was holding something.

Officer Brown issued the following lookout, ―I got a black male with a gun;

he‘s running through the alley. Black male, blue jeans. He‘s getting in a car,

white car in the south alley. See if you can get someone to 7th and H.‖ Officer

Brown broadcasted additional information concerning the suspect‘s appearance,

describing the suspect as black male, wearing blue jeans, a tan coat, and a red hat.

Officer Brown also broadcasted that the white vehicle was last seen traveling

―Northbound on 7th.‖

Seizure and Search of Appellant’s Vehicle

Officers made four stops based on the lookout information broadcasted.

Two of those stops involved black male pedestrians. A third involved a white

Toyota, in which the officer spotted a red cap. The final stop involved appellants

at roughly 12:18 p.m., three to five minutes after Officer Brown‘s lookout.

8

Officer Jonathan Klipa originally spotted appellant‘s white vehicle, a 1998

Chevrolet Lumina, which co-defendant Buckmon owned, at the intersection of 4th

and D Street, eight blocks from the Whitaker robbery and fifteen blocks from the

Prince robbery. Officer Klipa followed the vehicle for five minutes until it reached

the intersection of 11th Street and Independence Avenue, S.E., roughly ten blocks

away, where it was stopped. The court below found that the vehicle did not ―flee

or make any sort of conduct that would give rise to a traffic stop.‖ 7

Appellant Joiner rode in the rear passenger seat and wore a black fleece top,

a black knit cap, and blue jeans. Joiner‘s black coat covered a backpack in the

7

The government disputes this finding on appeal. Namely, the government

claims the trial court did not have the ―benefit of Officer Klipa‘s later trial

testimony, which this court may consider.‖ Officer Klipa testified at trial he

believed appellants‘ vehicle was attempting to flee because it attempted a left turn

on a green light at the same time a second MPD cruiser was traveling in the

opposite direction, roughly a block away, with its lights and siren on. According

to Officer Klipa, people normally pull to the right when an emergency vehicle is

coming, not to the left. The trial court, however, heard Klipa‘s belief through

Detective Bastian‘s testimony at the suppression hearing. The court gave no

weight to this testimony in its suppression ruling. Officer Klipa‘s testimony on

this point was also thoroughly cross-examined at trial. This court overturns factual

findings if they are clearly erroneous. See (Alex) Robinson v. United States, 76

A.3d 329, 335 (D.C. 2013). ―Undisputed trial testimony‖ may be considered in

determining whether error was committed in ruling on a pretrial motion to

suppress. West v. United States, 604 A.2d 422, 427 (D.C. 1992) (emphasis added).

Because the trial court‘s finding that appellants‘ vehicle did not ―flee or make any

sort of conduct that would give rise to a traffic stop‖ was made in consideration of

the facts the government now raises and those facts were disputed at trial, the

factual finding is not clearly erroneous and will not be disturbed on appeal.

9

backseat next to him. Appellant Armstrong rode in the front passenger seat and

wore a polo shirt and blue jeans. Co-defendant Buckmon drove and had on a grey-

hooded sweatshirt. No tan jacket, red cap, blue sweater, or green coat was found

on appellants or in the vehicle. Officers removed the men from the vehicle, placed

them in handcuffs, moved them to the other side of the street 25 to 30 feet away

from the vehicle, and positioned three officers to secure them.

After appellants were removed from the vehicle but prior to any of the

appellants being identified as having been involved in either robbery, Officer Riley

arrived and searched the vehicle. She recovered one grey-and-green backpack

from the backseat, which contained various packs of cigarettes and personal effects

of Whitaker. Officer Riley also recovered a second black backpack from the

backseat, which was partially covered by appellant Joiner‘s jacket. Inside was

found a black BB gun in plastic packaging.

Subsequently, the police conducted show-up identifications. Detective

Bastian took Michael Prince to the stop around 12:49 p.m. Prince identified

appellant Armstrong as the bigger man with the gun and appellant Joiner as the

little man, who took his bag. Officer Brown along with Whitaker arrived later.

Officer Brown identified appellant Joiner as the man he chased into the alley.

10

Officer Brown testified at trial that he identified appellant Joiner at the scene and

thereafter made an in-court identification of appellant Joiner. Whitaker did not

identify any of the men at the show-up and refused to acknowledge the backpack

in the vehicle as his despite the fact that his personal effects were found in the bag.

Appellants’ Trial

On May 14, 2013, appellants along with co-defendant Buckmon were

indicted for one count of conspiracy to commit robbery while armed, two counts of

robbery while armed, and two counts of possession of a firearm during the

commission of a crime of violence or dangerous offense for the Prince and

Whitaker robberies.

A hearing was held on October 1, 2013, to resolve appellants‘ motion to

suppress evidence seized from the Terry stop and warrantless search of co-

defendant Buckmon‘s vehicle, namely the backpacks, the BB gun, and the

subsequent show-up identifications. The trial court denied appellants‘ motion,

holding that the stop was reasonable under the circumstances because the seizure

occurred ―not that far and not that spatially [removed] in terms of time and

distance from both robberies.‖

11

On November 4, 2014, appellants were convicted of the armed robbery of

Whitaker, the associated robbery while armed and possession of a firearm during

the commission of a crime of violence count, and the conspiracy count. They were

acquitted on the remaining counts for the armed robbery of Prince. Following trial,

the court granted Buckmon‘s motion for judgment of acquittal, finding insufficient

evidence to support his convictions. On February 27, 2015, appellants were each

sentenced to a term of sixty months incarceration.

ANALYSIS

This court reviews motions to suppress de novo and the hearing court‘s

factual findings for clear error. See (Alex) Robinson, 76 A.3d at 335. We view the

―evidence in the light most favorable to the prevailing party,‖ Bennett v. United

States, 26 A.3d 745, 751 (D.C. 2011), and draw all reasonable inferences ―in favor

of sustaining the trial court‘s ruling,‖ Milline v. United States, 856 A.2d 616, 618

(D.C. 2004). When the trial court wrongfully denies a motion to suppress, reversal

is necessary unless the error was harmless beyond a reasonable doubt. Shelton v.

United States, 929 A.2d 420, 427 (D.C. 2007).

12

On appeal, appellants argue the trial court erred in denying their motion to

suppress. Namely, the information available to the seizing officers lacked

sufficient specificity to provide the particularized reasonable suspicion necessary

to suspect that appellants were engaged in criminal activity and, therefore, was

tantamount to nothing more than a dragnet seizure. Appellants further argue that

their vehicle was far removed in space and time from the reported robberies so the

trial court‘s conclusion that the police had reasonable suspicion to stop the vehicle

in which appellants were riding based on its temporal and spatial proximity to the

crimes was error.

It is firmly established that the ―police may briefly detain a person for an

investigatory or Terry8 stop if the officers have a reasonable suspicion based on

specific and articulable facts that criminal activity may be occurring.‖ Morgan v.

United States, 121 A.3d 1235, 1237 (D.C. 2015) (citing Pinkney v. United States,

851 A.2d 479, 493 (D.C. 2004)). ―Reasonable suspicion is a less demanding

standard than probable cause. . . .‖ Morgan, 121 A.3d at 1237 (citing Illinois v.

Wardlow, 120 S. Ct. 673, 675 (2000)). Reasonable suspicion, however, must be

particularized and objective as to the individual stopped. See In re A.S., 614 A.2d

534, 537-38 (D.C. 1992). Courts look to the totality of the circumstances in

8

Terry v. Ohio, 88 S. Ct. 1868 (1968).

13

determining whether there was sufficient reasonable suspicion to warrant a stop,

but non-particularized suspicion and inarticulate hunches will not sustain a stop.

See (Alex) Robinson, 76 A.3d at 336. In the absence of other circumstances that

provide sufficient particularity, a generalized description applicable to large

numbers of people contradicts the Fourth Amendment‘s jurisprudence demanding

specificity and will not suffice to justify the seizure of any individual. See In re

T.L.L., 729 A.2d 334, 340 (D.C. 1999) (citing Turner v. United States, 699 A.2d

1125, 1128 (D.C. 1997)); In re A.S., 614 A.2d at 540.

In this case, Lieutenant Bedlion‘s and Officer Brown‘s lookouts with

subsequent additional facts described the suspects‘ fleeing vehicle as a white car,

possibly a Mercury Sable, with tinted windows and two black males.9 This

description, without more, lacks the particularized specificity necessary to warrant

the stopping of any vehicle within the District. For the most part, our cases have

9

We note that there were clothing descriptions provided as part of the

lookouts, which differed markedly from the clothes that appellants‘ were wearing

when they were stopped. There was also vehicle body damage described by Prince

to Detective Bastian that was never broadcasted in the lookouts. That damage was

also absent from the vehicle in which appellants were riding. Appellants urge us to

consider these facts as being known by all of the officers involved using the

collective knowledge doctrine and argue therefore, that the trial court erred in not

considering them as undermining reasonable suspicion in this case. While

appellants raise an interesting argument, we need not determine in this case

whether the collective knowledge doctrine applies because neither of those facts is

necessary to our analysis or conclusion.

14

made clear the difficulty we have supporting a finding of particularized reasonable

suspicion when a lookout description is limited to a person‘s race and a generic

clothing color description, especially when more than one suspect is indicated or

there are other persons in the vicinity. See, e.g., In re S.B., 44 A.3d 948, 951 (D.C.

2012) (reversing conviction when lookout was for juvenile black male with white

pants, messing about in a public park); In re T.L.L., 729 A.2d at 340. (The court

reversed T.L.L.‘s conviction when his arrest was based on a lookout for black

teenagers wearing dark clothing; one medium complexion, another dark brown

complexion. ―Without identifying information with respect to height, weight,

facial hair or other distinguishing features, this description could have fit many if

not most young black men.‖); In re A.S., 614 A.2d at 540 (reversing conviction

when lookout was for five young males all dressed alike); see also Bennett, 26

A.3d at 752-53 (rejecting particularized suspicion when lookout described clothing

of two suspects with particular detail, but no meaningful similarities existed

between appellant and the description besides his skin color); Hampleton v. United

States, 10 A.3d 137, 144-45 (D.C. 2010) (rejecting lookout for black males in dark

clothing, but affirming on totality of circumstances); but see Carpenter v. United

States, 144 A.3d 1141, 1148-49 (D.C. 2016) (affirming conviction when lookout

for two African American males, both with hats on, one with a gray hoody and

white shirt and the other with a blue hoody and cane matched the description of the

15

suspects apprehended one minute later); United States v. Turner, 699 A.2d 1125,

1128 (D.C. 1997) (affirming conviction when lookout for a black male wearing a

black jacket and blue jeans matched suspect‘s clothing, coupled with arrival on the

scene within a minute); see also (Flossie) Robinson v. United States, 756 A.2d 448,

455-56 (D.C. 2000) (noting minor difference in descriptions of defendant‘s jump

suit—red trim or piping versus gold speckles—was insufficient to dispel

particularized suspicion). Appellant Joiner contends that our decision in In re S.B.

―could be applied to this case verbatim, with [Chevrolet] Lumina as S.B. and

substituting white cars for juveniles in white pants.‖

The government, for its part, suggests that the description of the car as a

―possible Mercury Sable‖ could reasonably be understood to be a description for

an ―American sedan,‖ which the government then argues justifies the

particularized suspicion of appellants‘ Chevrolet Lumina. While it is

understandable that the description of a getaway vehicle may lack specificity or

that a witness may err with respect to the make and/or model of the car, it is

difficult to see how ―American sedan‖ provides more particularity to justify the

stopping of appellants‘ vehicle than ―Mercury Sable.‖ The government cites for

support Groves v. United States, 504 A.2d 602 (D.C. 1986), a case where

individualized reasonable suspicion was sustained when an officer pulled over a

16

Chevrolet even though the lookout was for a Pontiac. Id. at 602-03. However, the

government fails to note that in addition to the officer‘s testimony during the

suppression hearing that the two cars were similar in look, there was evidence

presented that the stopped vehicle had a distinctly ―white-over-green‖ appearance

that matched the lookout description and the officer had received a second lookout

moments before the stop that the complainant had at that very moment observed

the suspect‘s vehicle pass by the officer‘s own cruiser. Both of those factors were

critical to this court‘s determination that reasonable articulable suspicion existed in

that case. Id. at 603. The Maryland Court of Appeals also addressed a very similar

argument in Cartnail v. State, 753 A.2d 519, 531 (Md. 2000). There, the officers

involved were on the lookout for a gold or tan Mazda but stopped the appellant‘s

gold Nissan. The State argued that the Mazda designation sufficiently narrowed

the group of innocent travelers such that the stop of a Nissan vehicle was justified.

Id. In rejecting the State‘s argument the Court noted:

Under this premise, the police, with solely a gold or

tan Mazda manufacturer description, would have

unfettered discretion to pull over seemingly infinite

combinations of drivers. Within this assumptive

universe would be any gold or tan (or other similar

color—yellow, beige, light brown, ―champagne‖)

vehicle, be it early model or late model; two door, four

door, or five door; sub-compact, compact, convertible,

sedan, station wagon, van, SUV, pick up truck, or sport

car; and, whether attributed to any so-called

17

―Japanese‖ manufacturer such as Honda, Subaru,

Toyota, Isuzu, Mitsubishi, Nissan, Suzuki, and perhaps

affiliated luxury manufacturers such as Lexus, Infiniti,

or Acura, as well as vehicles manufactured by

Japanese automakers and sold under non-Japanese

manufacturer logos such as General Motors, Daimler–

Chrysler, or Ford.

Id. We agree with the reasoning of the Maryland Court of Appeals and similarly

reject the idea that the designation of a ―white Mercury Sable‖ as the getaway car

provides police with sufficient particularized suspicion to justify the stop of any

white ―American sedan.‖ To conclude otherwise would give police officers

―unfettered discretion to pull over an infinite number‖ of white vehicles. Id.

The presence of a generalized lookout description applicable to a large

number of people is not in-and-of-itself dispositive to the reasonable suspicion

analysis. Due to the totality of the circumstances requirement, ―an imperfect

description, coupled with close spatial and temporal proximity between the

reported crime and seizure,‖ can justify a Terry stop. United States v. Turner, 699

A.2d 1125, 1129 (D.C. 1997); see also In re T.L.L., 729 A.2d at 340-41 (finding

that a generalized description ―might not have been fatal if the suspects were

apprehended immediately after the robbery at the location where the crime

occurred‖). Besides spatial and temporal proximity, there are a number of other

18

important factors to consider when looking at the totality of the circumstances: the

number of people about in the area, multiple other stops, ―the time of day, flight,

the high crime nature of the location, furtive hand movements, an informant‘s tip, a

person‘s reaction to questioning, a report of criminal activity or gunshots, and the

viewing of an object or bulge indicating a weapon.‖ Umanzor v. United States,

803 A.2d 983, 993 (D.C. 2002) (citing Anderson v. United States, 658 A.2d 1036,

1038 (D.C. 1995)); see also Hampleton, 10 A.3d at 145 (suspect alone in area); In

re T.L.L., 729 A.2d at 340 (multiple other stops). ―[T]hese factors are not elements

of a conjunctive test, and no one fact is outcome determinative.‖ Umanzor, 803

A.2d at 993 (internal citations omitted). While never creating nor endorsing a

balancing test per se, when looking at the totality of the circumstances, courts

essentially weigh facts that contract the relevant universe of potential suspects

against facts that expand it, in order to determine whether there is particularized

reasonable suspicion in any one person. See In re T.L.L., 729 A.2d at 341 (citing 4

WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 9.4 (g) at 198 (3d ed. 1996)

(―Sometimes, the universe will be small enough that no description at all will be

required to justify a stopping for investigation.‖).

It is problematic to discuss any one of these factors independent of the others

as they are always considered in sum, but some important trends have developed

19

regarding individual factors that are relevant to our analysis here. Beginning with

spatial and temporal proximity, which undoubtedly are the two most significant

factors justifying the stop in this case, a finding of particularized suspicion is

frequently affirmed when these factors are at their nadir, limiting the relevant

universe of potential suspects. See In re T.L.L., 729 A.2d at 340-41. With regards

to temporal proximity, particularized reasonable suspicion is usually found when

the passage of time between the occurrence of a crime and a subsequent stop is

immediate or within only a few minutes; a longer passage of time, however, does

not negate particularized suspicion as long as other factors are present. Compare

Umanzor, 803 A.2d at 994 (affirming reasonableness of vehicle stop that occurred

twenty-five minutes after a stabbing but only a few seconds following the lookout

broadcast; time of day, similarity of vehicle, and proximity to Maryland border

factored into determination), and Turner, 699 A.2d at 1126-30 (affirming

reasonable suspicion when officers responded to a particular location within one

minute and found defendant matching lookout for a black male wearing blue jacket

and blue jeans), with In re T.L.L., 729 A.2d at 341 n.6 (finding that fifty-five

minutes was far too long to support any inference that the robbers who had a

vehicle would still be at or near the crime scene), In re A.S., 614 A.2d at 538

(reversing denial of motion to suppress where the passage of a few minutes was

enough time for two of the five suspects to walk away from the group), and

20

Cauthen v. United States, 592 A.2d 1021, 1023 (D.C. 1991) (recognizing that the

passage of fifteen minutes was ―considerably longer than the delay involved in [the

Court‘s] past decisions on point‖). These cases also highlight how flight affects a

court‘s view of the impact of the passage of time on the reasonableness of any

subsequent stop. For instance when a potential suspect is reported to be standing

on a corner or walking down a particular street, this permits a slightly longer

passage of time as the suspect is unlikely to be far from the location of the crime

and his or her location accurately determined. Conversely, fleeing in a vehicle has

the ability to encompass the entire District into the relevant universe in a matter of

minutes and so a shorter period of time is necessarily important to the

determination of whether a stop is reasonable.

Spatial proximity is typically considered along with the time of day and

number of people about in a given area. See In re T.L.L., 729 A.2d at 341 (The

relevant universe is ―determined primarily by the size of the area within which the

offender might now be found (as indicated primarily by the amount of time which

has passed since the offense) and the number of people about in that area.‖). Being

alone in the area of the reported crime limits the universe of potential persons

ensnared by a general description and strengthens individualized suspicion in any

one person. See Hampleton, 10 A.3d at 145 (―In the midst of this chaotic and

21

ongoing criminal investigation, [the defendant] appeared, walking alone on a

deserted grassy area along North Capitol Street at 10:30 p.m. Not only did he

match the description of the robbery suspects as a black male in dark clothing, but

[the defendant] was the only person in the area that [the officer] saw at all.‖).

Presence in a populated area, though, does the opposite. See In re S.B., 44 A.3d at

956 (rejecting particularized suspicion in part because the relevant universe

included a popular playground that was part of a larger park area and included a

field area and a number of basketball and tennis courts).

Likewise, a lack of information in a lookout indicating the direction in which

a suspect may have fled, coupled with the fact that many other people are out and

about in the area, has led this court to conclude that the police lacked particularized

suspicion to stop an individual based on the suspect‘s location in relation to the

scene of a robbery. See Bennett, 26 A.3d at 753-54 (explaining that seeing

appellant seven or more minutes after the robbery, a block and half away from the

scene of the robbery in a fashion that did not suggest that he had just arrived at that

location, ―did not afford the officers a reasonable basis for a particularized

suspicion that appellant was one of the robbers.‖); In re K.P., 951 A.2d 793, 797-

98 (D.C. 2008) (finding a description that indicated a group of juveniles had

walked either north or south before turning west gave too much leeway for the

22

police to stop any group of juveniles walking in that area).

Lastly, time of day helps determine the scope of the relevant universe. Less

specificity in a lookout suffices in the early morning hours when fewer persons are

about than is required for stopping a person at high noon. See In re T.L.L., 729

A.2d at 347 (King, J. dissenting) (quoting 4 WAYNE R. LAFAVE, SEARCH AND

SEIZURES § 9.4 (g) at 198 (3d ed. 1996)) (arguing that the early morning hour in a

residential area on a cold April night limits the universe of potential people about);

see also In re K.P., 951 A.2d at 798 (factoring in the location where the suspects

were reported to be is busy at 10:00 p.m.); Umanzor, 803 A.2d at 994 (factoring in

the early morning hours when traffic is light).

Here, the trial court determined appellants‘ stop was reasonable under a

totality of the circumstances because the vehicle was ―stopped not that far and not

that spatially in terms of time and distance from both robberies.‖ The facts cited

by the court in its analysis of the spatial and temporal proximity are the time of the

second robbery and the time and location where Officer Klipa observed appellants‘

vehicle, which occurred three to five minutes after the second robbery. The trial

court does not expand on the facts any further merely saying that the stop occurred

―moments after the second robbery and moments after the first robbery.‖

23

Appellants argue that a stop fifteen minutes after the Prince robbery is far

too great an amount of time for the stop to be temporally connected to the crime.

In those fifteen minutes, a vehicle obeying all traffic laws could likely have

traveled up to thirty-six blocks from the scene of the crime.10 Appellants were in

fact spotted seventeen blocks southwest from the Prince robbery. However, the

Prince robbery did not happen in isolation. The Whitaker robbery occurred twelve

minutes later and a second lookout was broadcasted. Appellants were then

observed roughly three to five minutes after the lookout.11 Case law supports

restarting the spatial and temporal analysis following subsequent lookouts,

especially when new information shrinks the relevant universe. See Umanzor, 803

A.2d at 996 (observing suspects two seconds after lookout, which came twenty-

five minutes after reported stabbing, supported affirming reasonable suspicion);

McFerguson v. United States, 770 A.2d 66, 73 (D.C. 2001) (affirming stop five

minutes after subsequent sighting and twenty minutes after the crime itself);

Groves v. United States, 504 A.2d 602, 604-05 (D.C. 1986) (affirming stop after

10

Officer Klipa followed appellants for three to five minutes, and while

obeying all traffic laws, they were able to travel from 4th and D Streets, N.E., to

11th Street and Independence Avenue, S.E., roughly 12 blocks away.

11

Furthermore, Officer Klipa‘s testimony at trial indicates that his

involvement in the search occurred after and in response to Officer Brown‘s

lookout from the Whitaker robbery.

24

second lookout reported that suspect‘s vehicle had just passed a police cruiser).

Here, appellants were spotted eight blocks from the Whitaker robbery, which took

place on the corner of 8th and H Streets, N.E. However, if the reported direction

of the perpetrator‘s flight is factored into the reasonableness evaluation, a search

area of roughly one square mile is created. That search area contains everything

between Florida and Massachusetts Avenues and between Union Station and 14th

Street. It also contains the busy H and 8th Street corridors.

Appellants highlight extensively the large search area, the time of day, and

the population of cars in this area. The government counters that, given the

―residential character of the neighborhood‖ where appellants were stopped, it

would be surprising to see a vast number of cars driving around that hour,

particularly white sedans. However, the residential character of the neighborhood

where appellants were finally stopped is not really relevant to our analysis. The

character of the neighborhood where the crime was committed and, more

importantly, the location where appellants‘ vehicle was first sighted are more

relevant to our consideration of whether sufficient particularized suspicion existed

to justify a stop of appellants‘ vehicle. Here, appellants‘ car was first seen in an

area that was four blocks south and west of the busy H Street corridor and one

block north of Massachusetts Avenue. Although no evidence was presented of the

25

number of white cars on the road at the time of the robbery, it is the government‘s

burden to show that the stop of appellants‘ car was reasonable under the totality of

the circumstances and the time of the stop and day of the week does not appear to

help the government‘s position. Appellants were sighted on a weekday at 12:18

p.m. It would not seem to be unusual for there to be a number of white cars on the

road at that time of day, within a few blocks of the Capitol and Union Station. We

have been unable to find a case where reasonable particularized suspicion was

found to exist based on a generalized lookout at a time of day when a large number

of cars and/or people are likely to be present, let alone at high noon on a Tuesday

in a major metropolitan area. But see In re K.P., 951 A.2d at 798 (reversing the

stop and search of a group of juveniles based on a lookout, which lacked a

description of the individuals being sought, and where the juveniles were stopped

at 10:00 p.m. on a busy street).

The government further argues it was reasonable for officers to think that the

suspects might have been found within a four block radius of the robbery, three

minutes thereafter thus increasing the likelihood that the stop was sufficiently

particularized to meet the demands of the Fourth Amendment. While that may be

true, the relevant question for determining whether particularized suspicion exists

is not whether it was reasonable to think the robbers might be in this area. The

26

question is does the information provide the officers with sufficient particularized

suspicion to believe that appellants‘ white car was the one being sought as opposed

to any other white cars in the area. While it is certainly reasonable for an officer to

believe that the suspects could be within a four block radius of the robbery a few

minutes after the robbery, it is just as likely that other white cars are also being

driven in that same area around noon on a weekday who have absolutely nothing to

do with any criminal activity. Without more, this amounts to a prohibited dragnet

search which we cannot endorse. See In re A.S., 614 A.2d at 540 (―[I]t is clear that

the kind of dragnet seizure of three youths who resembled a generalized

description cannot be squared with the long standing requirement for

particularized, individual suspicion.‖).

The government suggests that Officer Klipa‘s call to the dispatcher where he

learned that the fleeing car was still at large ―precluded a dragnet seizure‖ because

Officer Klipa ―confirm[ed] or dispel[ed] his suspicions‖ before stopping the

appellants. Although this court has credited the value of corroborating suspicions

prior to making a stop, the only suspicion corroborated here by Officer Klipa was

that the fleeing car was still at large, not that appellant‘s vehicle was in fact that

fleeing car. See, e.g., In re S.B., 44 A.3d at 956-57 (recognizing that officers failed

to corroborate tip prior to stop). The government also emphasizes that the lookout

27

tip came from Officer Brown who witnessed the robbery and not secondarily from

a citizen, which might demand further corroboration. That fact, however, does not

excuse the generalized nature of Officer Brown‘s lookout, which itself demanded

further corroboration.

We are not blind to the difficulties faced by law enforcement officer in

collecting and distributing competent information immediately following reports of

criminal activity; however, the Fourth Amendment‘s requirement for

particularized, reasonable, and articulable suspicion is not ―toothless‖ either.

(Alex) Robinson, 76 A.3d at 336. Looking at the totality of the circumstances, the

lookouts, which boiled down to two black men in a white car, at high noon on a

weekday, in downtown D.C., were simply insufficient to generate any

particularized suspicion that the appellants here were the suspects being sought in

connection with the Prince and Whitaker robberies.

CONCLUSION

Because the stop of appellants‘ vehicle lacked particularized, reasonable

suspicion, the seizure and subsequent search were invalid. Thus the trial court

erred in denying appellants‘ motion to suppress evidence of that unlawful search—

28

including: Whitaker‘s backpack, the BB gun, and the show-up identifications.

Without this evidence, no reasonable juror could find that appellant Armstrong

robbed Whitaker, and, thus, we reverse his convictions.

As to appellant Joiner, we cannot say the evidence was insufficient given

Officer Brown‘s in-court identification of him as the individual he saw fighting

with Whitaker and Whitaker‘s testimony concerning the robbery. Therefore, we

reverse Joiner‘s conviction and remand the case for further proceedings consistent

with this opinion. See Ellis v. United States, 941 A.2d 1042, 1048-51 (D.C. 2008)

(remanding factually similar matter for further proceedings).

So ordered.

BELSON, Senior Judge, dissenting: I respectfully dissent from the holding

that the police did not have a reasonable, particularized, articulable suspicion that

the car they stopped was transporting persons who had committed a robbery a few

minutes before. I will begin by briefly restating the facts.

29

I.

Shortly after noon on Tuesday, February 12, 2013, Jonathan Klipa, an

officer of the United States Capitol with twelve years of experience patrolling the

streets of the Capitol Hill area, heard a Metropolitan Police Department (MPD)

radio call that alerted him to a recent street robbery with a gun. Officer Klipa

testified that ―I heard the location of which way he was headed, and I just went

down D Street, thinking that if he comes south he‘s going to come up around 4th

— 4th or 5th Street.‖ He further testified that he was looking for ―[a] white car

with tinted windows.‖ Following up on his appraisal of what the robbers might do,

he was proceeding east on D Street, N.E., around Third and Fourth Streets, at about

12:15 p.m., when he spotted at Fifth and D Streets, N.E., a white Chevrolet Lumina

with four doors and tinted windows headed south.

There had been, in fact, two highly similar robberies that had been the

subject of radio lookouts minutes before Officer Klipa spotted the white Chevrolet

Lumina. The first robbery took place in the 1500 block of Maryland Avenue, N.E.,

near where Maryland Avenue, H Street, Fifteenth Street and Benning Road, N.E.,

meet, shortly after 12:00 noon, and the second at Eighth and H Streets, N.E., at

about 12:12 p.m.

30

The first street robbery of a man selling single cigarettes, Michael Prince,

led to an alert at 12:05 p.m. for ―possibly a white Mercury Sable‖ which had left

eastbound on Maryland Avenue. It is reasonable to infer from what happened next

that the car soon changed directions and went to Eighth and H Streets, N.E., less

than ten blocks west of the scene of the first robbery. After the subsequent 12:12

p.m. robbery at Eighth and H Streets, N.E., of Ezell Whitaker, a second man

selling single cigarettes, Officer Frank Brown, a witness to that robbery,

broadcasted a second lookout for a white car with tinted windows headed

northbound on Seventh Street, N.E. Inferentially, and as Officer Klipa had

anticipated, the white car with tinted windows changed directions again before

Officer Klipa first saw it, a Chevrolet Lumina, as it headed south on Fifth Street at

D Street, N.E., approximately three minutes after the second robbery. Officer

Klipa followed it until, another three minutes later, at 12:18 p.m., the police

stopped the white Chevrolet Lumina with tinted windows at the corner of Eleventh

Street and Independence Avenue, S.E. Appellants were in it, as well as the driver,

Patrick Buckmon, and victim Whitaker‘s backpack.

II.

A.

31

The brief foregoing statement of undisputed facts of record contradicts

appellant Armstrong‘s contention that the police quickly launched a ―dragnet‖

search of a large part of the District of Columbia.1 The entire area covered by the

above description of events from the robberies to the spotting of the white vehicle

is only about twelve blocks from east to west and six blocks from north to south.

Even if appellants‘ vehicle travelled a bit beyond that area before doubling back, it

could not have been very far beyond it because of the extremely short time that

elapsed from crime to crime to stop.

It is doubtless true, as the majority opinion states, that the sum of the two

vehicle lookouts given by Lieutenant Bedlion and Officer Brown, ―describ[ing] the

suspects‘ fleeing vehicle as a white car, possibly Mercury Sable, with tinted

windows and two black males . . . . without more, lacks the particularized

1

The stop of the white car in this case was not a ―dragnet‖ search in the

sense in which that term was used in In re A.S., 614 A.2d 534 (D.C. 1992), which

dealt with the seizure of three youths who resembled a generalized

description. The stop here was of a white American car with tinted windows, as

mentioned in a lookout, which was traveling away from the scene of an armed

robbery that had occurred about three minutes earlier some seven blocks away.

We add that the term ―dragnet,‖ as defined in dictionaries in reference to police

work, does not connote overly aggressive or unconstitutional police work — rather

it means ―a system in which the police look for criminals using systematic and

thorough methods.‖ Black‘s Law Dictionary 601 (10th ed. 2014).

32

specificity necessary to warrant the stopping of any vehicle within the District.‖2

Majority Op. at 13. But here there was much more.

First, when Officer Klipa caught sight of the car approximately three

minutes after the second robbery, it was being driven south on Fifth Street, N.E.,

just where and when it would have been if the driver had headed north a short

distance on Seventh Street3 immediately after second robbery, turned west for a

few blocks, and then proceeded south on Fifth Street.

Second, the above description does not take into account additional details

known to the police that matched the car that Officer Klipa spotted at Fifth and D

Streets, N.E. Specifically, the police had also learned that the white car that was

―possibly a Mercury Sable‖ was an older four-door model.4 Although the record

2

The majority states that the government first raised the tinted windows

feature on appeal. Majority Op. at 6 n.6. But the record shows otherwise. The

government in its September 18, 2013, Opposition to Defendant‘s Motions to

Suppress, argued that ―[t]he officers here had reasonable and articulable suspicion

to justify stopping the vehicle as it matched the two lookouts broadcast over MPD

radio of a white four-door sedan with tinted windows.‖ (Emphasis added).

3

The robbery of the victim Whitaker took place at Eighth and H Street,

N.E., but appellant Joiner fled to Seventh Street before getting in the white car.

4

The majority points out that other testimony — namely that the car could

have been a Chevrolet — was impeached. Majority Op. at 5 n.5. But, ―in deciding

(. . . continued)

33

does not establish conclusively whether Officer Klipa knew of this information or

which lookouts — or parts thereof — he heard over the MPD radio, this court has

held that even when officers making a stop ―did not themselves possess sufficient

information to justify a Terry stop,‖ the collective knowledge of the police

―provided the requisite reasonable grounds for the stop.‖ In re M.E.B., 638 A.2d

1123, 1129, 1131 (D.C. 1993) (also stating that ―[t]he collective knowledge

doctrine is firmly established in this jurisdiction in a line of cases going back at

least thirty years‖ (internal quotation marks omitted)).

Third, the reasoning of the majority is premised in part on the supposition

that there was a substantial probability that other similar white older American cars

were being driven south on that street at that very time and place. That assumption

does not contribute to a basis for a reversal. Fifth Street, N.E., at that point is a

street in a residential neighborhood, rather than a thoroughfare, even though it may

be proximate to ―the busy H Street corridor.‖ Majority Op. at 25. Moreover, there

is no reason to conclude based on the record or on common knowledge that older

midsized white American sedans like a Sable or a Lumina with tinted windows and

(. . . continued)

whether the motion to suppress was properly denied, we may of course consider all

the evidence at the suppression hearing as well as the undisputed trial testimony.‖

West v. United States, 604 A.2d 422, 427 (D.C. 1992).

34

four doors constituted a sizeable percentage of cars traveling south in that place

and at that time of day. Cars of American makes constitute only a portion of the

cars seen driving on the streets of the District of Columbia, and older white

American sedans with tinted windows and four doors are only a subset of such

vehicles.

Fourth, only one other car was stopped during the minutes that the lookouts

were in play, and that car was a Toyota Camry. No other American car was pulled

over during the so-called ―dragnet.‖ This fact too supports a conclusion that the

police response to two street robberies was reasonable.

B.

The majority cites the opinion of the Maryland Court of Appeals in Cartnail

v. State, 753 A.2d 519, 531 (Md. 2000), in support of its decision to ―reject the

idea that the designation of a ‗white Mercury Sable‘ as the getaway car provides

police with sufficient particularized suspicion to justify the stop of any white

‗American sedan.‘‖ Majority Op. at 16-17. The stark contrast between the facts in

Cartnail and those in this case serves to demonstrate why the stop of the car

involved here was in accordance with law.

35

Cartnail dealt with the stop of a gold-colored Nissan by Frederick,

Maryland, police who received a report that a motel in that city had been robbed

and that three suspects were fleeing from the scene of the robbery ―in an unknown

direction driving a gold or tan Mazda.‖ Id. at 522. More than an hour and fifteen

minutes after the robbery police stopped a gold-colored Nissan with two occupants

in a different part of the city about two miles from the scene of the robbery. Id. at

522 n.1, 524. The court rejected the state‘s argument that the description of the

make and color of the vehicle sufficiently narrowed the group of travelers who

might be suspected.

In doing so, the court stressed the importance of the large size of the area in

which the suspects might have been found one hour and fifteen minutes after the

robbery, and also pointed out that LaFave ―has noted that a significant difference

exists between spotting a suspect within minutes of a crime, as opposed to an hour

later, because ‗‗the time and spatial relation of the ‗stop‘ to the crime‘ is an

important consideration in determining the lawfulness of the stop.‘‖ Id. at 531-32

(quoting 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH

AMENDMENT § 9.4 (g), at 204 (3d ed. 1996 and 2000 Supp.)).

36

This observation by the Maryland Court of Appeals underscores the

strongest factor that supports our sustaining the trial court‘s ruling before us, a

reason that distinguishes sharply this case from the case before the Maryland court.

Officer Klipa spotted the white American sedan with tinted windows traveling

south away from the scene of the second robbery about three minutes after the

robbery took place and about seven blocks to the southwest of the robbery scene

that the white sedan had left while, at that moment, going north. The fact that the

white car with tinted windows left the scene of the second robbery going north

from H Street on Seventh Street, N.E., fits well with the fact that three minutes

later it was seen going south on Fifth Street, N.E., a concrete fact that the

experienced Officer Klipa had anticipated. It cannot be assumed that fleeing

robbers will travel in a straight line. Driving north for a short distance, turning

west a few blocks, and then turning south on Fifth Street, would have put, and

obviously did put, the white American car just where Officer Klipa spotted it some

three minutes later.

The route the white American car took after being spotted demonstrates that

it was not being driven in a straight line. However, as the trial judge found, it did

not appear to be fleeing or engaging in any conduct that itself would give rise to a

traffic stop. In other words, it can readily be inferred that the car was being driven

37

in the way the driver had planned — which was not in a straight line away from the

scene of the second robbery.

It is also pointed out that Officer Klipa did not identify the car when he

spotted it by alluding to the race of the occupants. He referred only to the number

of occupants he saw through the tinted windows of the white car. It is thus clear

from the record that the car was spotted and followed not on the basis of the race of

the occupants of the car, but on the basis of the description of the car and the time,

distance and direction from the second robbery.5

The facts of this case were highly incriminating, and afforded ample grounds

for stopping the car.

I respectfully dissent.

5

Cartnail, 753 A.2d at 530 (stating that ―[i]n looking at the description of

the suspects, undoubtedly physical characteristics, such as race, gender, ethnicity,

hair color, facial features, age, body build, or apparel of a suspect permits

winnowing of innocent travelers‖ (citing LAFAVE, supra, § 9.4(g), at 195-96)).