# Crews v. United States > District of Columbia Court of Appeals · June 14, 1978 · 389 A.2d 277 URL: https://www.frixlaw.com/law-library/cases/9711087 ## Case - **Full name:** Keith CREWS, Appellant, v. UNITED STATES, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** June 14, 1978 - **Citations:** 389 A.2d 277; 1978 D.C. App. LEXIS 542 - **Precedential status:** Published - **Opinion:** Dissent by Harris - **Judges:** Ferren, Newman, Kelly, Kern, Gallagher, Nebeker, Yeagley, Harris, MacK, Farren - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by United States v. Crews, 445 U.S. 463 (1980). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711087 ## How later opinions describe it (automated extraction) - discussing burdens in context of fourth amendment ## Opinion text HARRIS, Associate Judge, dissenting: I shall not enlarge upon the views set forth in the original (but now vacated) majority opinion which affirmed appellant’s conviction. Crews v. United States, D.C. App., 369 A.2d 1063 (1977). I do, however, *305 assert my continued belief in their validity. I make but a few further observations. A new student of the Fourth Amendment and the exclusionary rule which has been developed thereunder soon learns a number of truisms. Among them are: (1) there is an infinite variety of factual situations in search and seizure cases, with virtually no two ever being identical; (2) appellate courts have — notwithstanding the best of efforts and intentions — established a related body of law which regrettably is imprecise and frequently inconsistent; and (3) rational authority readily can be found both for and against the admissibility of challenged evidence in any questionable Fourth Amendment case. The majority opinion, despite the obviously conscientious efforts of its able author to justify the result chosen by the majority, constitutes a legal smorgasbord of Fourth Amendment concepts. A large percentage of the factual situations and principles presented by the cases relied upon in the majority opinion readily may be distinguished from this case. In effect, the majority opinion fires an artillery shell at a target that calls for a marksman’s rifle. With the majority opinion constituting 55 pages in length in slip opinion form, however, a detailed refutation thereof would be wholly infeasible. In this case, in effect for want of a flashbulb, a convicted armed robber will evade justice. Suspicion was focusing upon appellant as the perpetrator of at least two assaultive thefts in the women’s rest room at the Washington Monument. The detective in charge of investigating the offenses was summoned to the Monument grounds to see and photograph appellant, who had identified himself by name to other officers. Bad weather precluded acceptable photography, and appellant was taken to Park Police Headquarters. While there, he was photographed, an officer telephoned his school, and he was released. To turn to the underlying proposition, the Fourth Amendment provides in pertinent part: “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated . . ..” Despite the suspicions which justified the investigative intrusion on appellant’s wanderings at the Monument grounds that day, see, e. g., Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), there is no question but that there then was no probable cause for his seizure. Thus, his Fourth Amendment rights were violated. If any incriminating evidence had resulted from a search of appellant during his one-hour detention, assuredly it properly would have been suppressed as evidence. However, no evidence was seized; only appellant was. The majority thus initially faced an intractable dilemma: Appellant could not be suppressed. See e. g., Bond v. United States, D.C.App., 310 A.2d 221 , 224—25 (1973). The trial court did suppress evidence of the photographic and lineup identifications of appellant which later were made. 1 Thus, the majority was left with only one remaining avenue of ordaining an adverse legal consequence to its disapproval of the conduct of the police: Suppress the testimony of the victim of the armed robbery, who had nothing to do with the improper detention and whose independent ability to identify her assailant was wholly unaffected thereby. 2 The majority opinion is disingenuous in various respects. Illustrative of this is footnote 7 of the majority opinion. After citing (and quoting from) a case which is contrary to the majority’s position, the majority seeks to distinguish it by stating: “Appellant receives no immunity by virtue of our *306 decision in this case.” In a hyperteehnical, semantic sense, it might be arguable that “immunity” is not what the majority confers upon appellant. But as a practical matter, inescapably that is precisely what the majority does. If there were any valid authority or plausible rationale for the majority’s ruling, it would not be necessary for the majority to lead us through such a misty Fourth Amendment wonderland. Stripped of its often anfractuous reasoning, the majority opinion reaches an extraordinary and unprecedented result. The innocent victim of a crime, whose independent ability to identify her assailant has been and remains undeniable, is to be deprived of her day in court because the constable blundered in a way which did not lead to the discovery or seizure of any evidence which was admitted at appellant’s trial. In United States v. Ceccolini, 435 U.S. 268 , 98 S.Ct. 1054 , 55 L.Ed.2d 268 (1978), an unconstitutional search ultimately led to the use of uncoerced testimony by an independent witness. The defendant sought to suppress that testimony. The Supreme Court held that the testimony was admissible, stating in part: The cost of permanently silencing [the witness] is too great for an even-handed system of law enforcement to bear in order to secure ... a speculative and very likely negligible deterrent effect. 3 [Id, at 1062.] Today, this court does not silence a disinterested witness whose testimony was indeed a consequence of an unconstitutional search (a result which the Supreme Court refused to sanction in Ceccolini), but rather permanently silences the victim of a crime whose ability to testify was unrelated in any way to the unconstitutional seizure of appellant. I join my Brother NEBEKER in expressing the hope that the only remaining reviewing authority will both have and seize the opportunity to reject the majority’s manifestly unwarranted extension of the exclusionary rule. I am authorized to state that Associate Judge NEBEKER shares these views. . Having properly learned appellant’s identity through their initial inquiry on the Monument grounds, the police readily could have photographed him at a later time in a number of permissible ways. . The dissent to the original majority opinion had as its basic theme the apparent belief that appellant’s unwarranted investigative detention was a sham arrest. The current majority opinion affirmatively disavows the existence of a sham arrest. Additionally, it is noteworthy that the new majority opinion does not even hint (nor could it) that the victim’s ability to identify her assailant resulted from any improper suggestivity. . In Ceccolini , the Court specifically reaffirmed what it said more than 50 years ago in McGuire v. United States, 273 U.S. 95, 99 , 47 S.Ct. 259 , 71 L.Ed. 556 (1927): A criminal prosecution is more than a game in which the Government may be checkmated and the game lost merely because its officers have not played according to rule. [ 98 S.Ct. at 1061 .] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711087. Public record. Not legal advice.