At a show-up identification, a robbery victim identified appellant Kevin Bennett as one of the assailants and Bennett was arrested. The robbery charge against Bennett eventually was dropped, -but during a search incident to his arrest as a robbery suspect, police found cocaine in Bennett’s pocket. Bennett subsequently entered a conditional guilty plea on a charge of attempted possession with intent to distribute cocaine, reserving the right to appeal the trial court’s denial of his motion to suppress the cocaine. In this appeal, Bennett argues that the trial court erred in denying the suppression motion because the police seized him for the show-up identification without reasonable articulable suspicion or an exigent-circumstances basis to detain him, and because it was the unlawful seizure that enabled the chain of events that led to his arrest and search and thus to discovery of the cocaine. We are persuaded by appellant’s argument and therefore reverse his conviction.
I.
At the suppression hearing, held on March 30 and April 3, 2009, the trial court heard testimony from Metropolitan Police Department (“MPD”) Officers Kevin Kirby and Nathan Clarke and Sergeant John McDonald. Kirby testified that on August 29, 2008, at 9:42 p.m., he and his partner Clarke heard over the MPD radio that a robbery had “just occurred” in the 1600 block of R Street, N.W. According to Kirby, this broadcast (the “first lookout”) was for “five black males,” one of whom was wearing a red hat and red shirt, and had braids or dreadlocks. Clarke testified that the first lookout contained information that the first suspect had a red hat, a red jacket and braids, and that a second suspect had on a blue shirt and dark jeans. Kirby and Clarke drove toward the area in an attempt to “cut ... off’ the perpetrators.
Meanwhile, Sergeant McDonald went to the scene of the robbery and found the victim, who was bleeding but “not incoherent.” The victim told McDonald that he had been assaulted by “five black males” in their late teens or early twenties and that two of them were on bicycles acting as lookouts. The victim described two of the five men: one with dreadlocks wearing a red hat and “a red shirt or a red and white shirt,” and one wearing “a blue shirt.” McDonald did not recall the victim saying anything about the hairstyle or pants worn by the person in the blue shirt or about the direction in which the suspects were
“[A]lmost immediately” after the second lookout, Kirby and Clarke turned onto R Street about a block and a half east of the reported crime scene and saw a black man with a red hat and red shirt, later identified as Odessey Johnson, leaning against a car. Next to Johnson, the officers saw appellant Bennett, also leaning against the car, standing about a foot away from Johnson, and smoking a cigarette. A third man was on the sidewalk near Johnson and appellant, and the three men were “congregated, talking to one another.”
The officers approached the men and told them that they “were investigating a crime” and “wanted to talk to them.” The officers asked the men their names, “where they were coming from,” and “[h]ow long they had been outside standing there,” and asked for their cooperation with the officers’ investigation. Appellant responded that he lived on the block and had just come outside, but then he “started exchanging words with [the officers]” and became “argumentative” and “very apprehensive.” The officers let the third man go because he did not match the lookout and the officers did not think that he was involved in the robbery. Appellant and Johnson, on the other hand, were “deemed possible suspects,” were “detained without handcuffs,” and “were not free to go.”
Kirby and Clarke both testified that they had no reason to believe that either appellant or Johnson was armed. Kirby explained that he “didn’t have any knowledge of weapons used” during the reported crime. He also agreed that he did not have a description that matched appellant. Instead, Kirby stated, the officers stopped both men because “they were both right next to each other,” and because “just based on our descriptions of what he had ... we’d been told there was five and I knew that if there’s a group of five, then I have one that matches exactly and then, you know, I still have three unknowns at this point. So we’re just looking to separate, I.D. and, see what happens, see how it comes from that.”
The officers determined that they should “separate[] the two [men].” Kirby took Johnson aside,
Kirby and Clarke radioed McDonald and said that “they had an individual stopped matching the description.” McDonald told them not to “let him go” because Mc
A tape recording of MPD radio transmissions from that night was admitted at the hearing without objection. The tape included the 911 call reporting the robbery as well as “twenty-four minutes of radio run.” The tape revealed that the 911 caller stated that a man had been attacked and beaten up, with “fists,” fifteen to thirty minutes earlier (the victim’s estimate) by five black people, one in a red shirt. No mention was made of any weapons being involved. The tape also included the first lookout for suspects in their late teens, one with a red cap, and “no last known direction.” However, the tape did not contain McDonald’s lookout because the “dispatcher’s voice [was] talking over [his] on the tape.”
At the close of the suppression hearing, the court credited McDonald’s testimony that he broadcast a lookout for five black males in their late teens or early twenties, including one with dreadlocks, a red hat, a red or red and white shirt, and one with a blue T-shirt. The court observed that it appeared that the officers had no information about the assailants’ direction of travel.
In announcing its conclusions of law, the trial court did not address whether the officers had a reasonable articulable suspicion that appellant was involved in the robbery. Rather, referring to this court’s decision in Trice v. United States,
II.
To recap, appellant contends that the officers seized him in violation of his Fourth Amendment rights; that the drugs that were found (after he had been identified at the ensuing show-up, arrested, and then searched incident to arrest) were the fruits of the illegal seizure; and that the trial court erred in denying his motion to suppress the cocaine.
To justify a Terry
In reviewing the trial court’s ruling on a motion to suppress, this court “must view the evidence in the light most favorable to the prevailing party.” Barrie v. United States,
We have little trouble concluding that the police officers seized appellant well before his show-up identification and arrest. “The crucial test for determining whether a person has been seized is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” In re J.F.,
We also agree with appellant that when the officers stopped him, they lacked the requisite particularized and reasonable articulable suspicion that he had committed a crime. First and foremost, appellant did not match the lookout broadcast by the police. The lookout for five black males in their teens or early twenties described two men — one with dreadlocks wearing a red hat and a red or red and white shirt, and one wearing a blue shirt. Appellant was standing next to a man wearing a red hat and red shirt, but he did not match the description of the other suspect because he was wearing a white shirt, not a blue shirt.
Other factors that may warrant a conclusion that a stop was justified include “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 viewing of an object or bulge indicating a weapon.” Singleton v. United States,
Further, as noted, the trial court found that there was no broadcast of the direction toward which the assailants fled. For that reason, and because many other people were out and about on the same block, appellant’s location in relation to the scene of the robbery could not create particularized suspicion about him. Further, the lapse in time between when the robbery occurred and when the stop occurred was long enough that it did not reasonably support an inference .that appellant was involved in the robbery because of either his proximity to the crime scene or his proximity to the man in the red shirt and hat. The only factual finding the trial court made regarding timing was that the time that elapsed between the broadcast of the first lookout and the stop was “maybe close to five, maybe six, seven minutes.”
In support of its position that the facts known to the officers and elicited at appellant’s suppression hearing do support a conclusion that the officers had reasonable articulable suspicion, the government cites Pinkney v. United States,
But Pinkney is readily distinguishable from the instant case. There, the officer made visual contact with the two men “moments” after the lookout was broadcast, whereas here, the visual contact was made several minutes after the lookout; the Pinkney lookout pinpointed the suspects’ exact location, whereas here, the location was unknown; and most importantly, in Pinkney, the defendant and the man in the distinctive jacket were running, whereas here, appellant and Johnson were standing still, resting against a car and conversing, on the same block on which appellant lived. Id. at 493-94. Further, in Pink-ney, the officer could not recall the description of the second suspect, whereas here, the officers remembered that the second suspect was described as wearing a
In sum, the government did not meet its burden of showing that when the officers stopped appellant, they had reasonable ar-ticulable suspicion that was “particularized as to the individual stopped.” In re A.S.,
IV.
That does not end our analysis, because we must consider whether, as the trial court concluded, the stop nevertheless was justified under the rationale of Trice. We hold that it was not.
In Trice, police officers heard a lookout for a suspect in a stabbing at a hospital. The lookout described the suspect as a “[bjlack male wearing a black, red and white shirt” who “had left the hospital between one and five minutes ago and was heading towards Elmira Street.” Trice,
We explained that two narrow exceptions allowed the officers to “ ‘freeze the situation’ briefly by forcibly detaining Trice along with Castle until help arrived.”
Second, we held that Trice could be detained for questioning as an eyewitness, even if there was no reasonable suspicion that he was culpable, under the rationale of Williamson v. United States,
Neither of the narrow exceptions discussed in Trice applies to appellant’s case. The lookout was about an unarmed robbery, the officers acknowledged having no reason to believe that either appellant or Johnson was armed, they did not claim to have safety concerns, and the government did not even attempt to justify the detention in that way.
The eyewitness exception is similarly inapposite here. We have emphasized that “the police are justified in stopping witnesses only where exigent circumstances are present,” Williamson,
Here, the police detained appellant in the absence of exigent circumstances that
V.
Appellant’s detention was not based on particularized, reasonable articu-lable suspicion and was not justified by either of the narrow exceptions to Terry allowing for a brief stop under exigent circumstances. ■ Because the police detained appellant for a show-up identification on the sole basis that he was standing next to a person who was reasonably suspected of committing a robbery, his detention, subsequent arrest, and incident search violated the Fourth Amendment. We therefore reverse the trial court’s ruling denying appellant’s motion to suppress the drugs found in that search. Because appellant’s guilty plea was conditioned on that ruling, his conviction likewise is
Reversed.
Notes
. There were also other people on the block, mostly black men.
. Kirby told Johnson “that there was a fight or, you know, somebody was beat up,” and that if he would “just sit here for a minute or two and let [the officers] do whatever [they had] to do,” then if it was "not [him], then [he’d] just be on [his] way.”
. During the wait for the show-up, officers obtained and checked appellant’s identification and discovered that he did not have any current warrants.
. This was notwithstanding Officer Kirby's testimony that the first lookout stated that the robbers were "last seen on foot going eastbound.”
.The court reasoned that the evidence against appellant matched "more than three-quarters [of] the facts in Trice."
. Terry v. Ohio,
. Florida v. Bostick,
. Cf. United States v. Coggins,
. Relying on Officer Clarke's testimony that Sergeant McDonald’s lookout described the second suspect as having braids and as wearing dark jeans in addition to a blue shirt, the government argues that appellant did match the description, since he was a young black male with braids and dark jeans. However, the trial court credited McDonald’s testimony regarding “the information he got from the complaining witness,” i.e., that the victim could describe the second individual only by reference to his "blue shirt,” and that the only information about the second suspect in the lookout McDonald gave after speaking with the victim was that the suspect was a black male in his late teens or early twenties wearing a blue T-shirt.
. Appellant argues, however, that the record "established with clarity” that the time lapse between the robbery and the officers’ encounter with Johnson and appellant was "fifteen to thirty minutes.” He bases this calculation on the tape of the 911 call. On the tape, the dispatcher asked the caller how long it had been since the robbery occurred, after which the victim could be heard in the background telling the caller that the robbery happened "fifteen minutes or half an hour” prior to the call. (Although neither party provided us with the tape, appellant’s counsel recounted the contents of the tape to the trial court after having heard it, and McDonald, who had also listened to the tape, confirmed that the information was accurate.) Appellant adds the trial court’s “five, maybe six, severi’-minute finding to the victim’s fifteen-to-thirty minute estimate and arrives at the conclusion that the police encountered appellant twenty-one to thirty-seven minutes after the robbery occurred. Even if this estimate is reasonable, it is not particularly helpful to our analysis, because we are required to assess the existence of reasonable articulable suspicion by considering the information that the officers possessed at the time they made the stop. See Joseph v. United States,
The government asserts that the victim’s fifteen-to-thirty minute estimate is "implausible,” given that he was bleeding and "woozy” when McDonald arrived. The government also cites Kirby’s testimony about hearing a call about a robbery that had "just occurred” within "minutes” before the first lookout, Clarke's testimony that the crime occurred "[wjithin five minutes” before the first lookout, and McDonald’s testimony that the crime had "just occurred” when he arrived at the victim's location after the first lookout (even though the record suggests no basis upon which the officers made those statements). In the government’s estimation, seven to twelve minutes passed between the time of the robbery and the time when the officers encountered appellant.
. The government also cites several other cases to support its position, but each involved elapsed time between the crime and the stop that was much shorter than the time involved here. See, e.g., United States v. Turner,
. At least arguably, the officer's totality-of-the circumstances basis for stopping appellant grew somewhat stronger after the victim identified Johnson as one of the assailants. But even if we assume arguendo that "the identification of Mr. Johnson ... justified] the momentary detention [of appellant] that preceded [appellant’s] own identification,” the relevant point is that we cannot assume that, without the earlier unjustified seizure, appellant would have remained on the scene with cocaine in his pocket, setting into motion the developments that resulted in his conviction for.possession with intent to distribute.
. For the first time on appeal, the government claims that appellant "posed a potential threat” to the officers. But it never made that argument to the trial court, and the record does not support such an argument.
. These limitations are illustrated by Williamson, on which the Trice court relied. Unlike Kirby and Clarke in the instant case, the officers in Williamson were confronted with "a rapidly moving street occurrence ... involving a dangerous weapon.”
. Even if arguendo a witness rationale existed at the time the officers initially approached appellant, that rationale disappeared once they finished questioning him, ascertained nothing connecting him to the robbery, and obtained his identifying information. Once the questioning was complete, appellant was held as a "possible suspect[]” in the robbery until the victim arrived to conduct the show-up identification. But at that point, absent a reasonable suspicion to believe that appellant had a weapon, police had no basis to extend appellant’s detention until the show-up identification could be conducted. See Hawkins,