Crews v. United States

FICKLING, and Before NEBEKER HARRIS, Judges. Associate Judge: HARRIS, Associate Appellant challenges his conviction of armed (D.C.Code §§ -3202) grounds his in- on the the “fruit” of an illegal arrest, hence should have as evidence. excluded We affirm. I 3, 1974, morning January On gunpoint woman the la- was robbed grounds of dies’ on the restroom Monument, assailant, Washington Her peering through the crack between the door and the stall she oc- the side of cupied, requested admission demanded refused, whereupon pointed She $10. appellant into pistol repeated tography, demands. Detective Ore took at her and suspected truant trans- $10, custody that she gave him but he insisted She so, ported Headquarters. open she did him Park Police the stall door. When advances, including approximately there for gunman sexual He was detained per- hour, during her the detective touching asking her which time breasts school, youth pleaded appellant’s telephoned form fellatio. She resisted and leave, Ap- finally photographed he did. and interviewed.2 with him to was pellant then was released. A similar incident occurred on the after- day, noon January restroom, following of On the the first victim 6. In the same array eight two other was shown an photographs, women were forced to surrender youth including appellant. to a Although pre- who was that of $20 a broken wielding viously suspect bottle. All she had three victims described selected no after their assailant viewing to the 15-to-18-year- mugshots, as a several hundred she im- Negro mediately old appellant male light of slender identified as her build and assail- complexion. ant. One of the other two victims made a similar appellant identification of from the days later, Three Rayfield Officers Later, photographs. first again victim Barg of the United States Park Police ob- appellant lineup. identified at a appellant served in the vicinity of the They Appellant Monument. stopped pretrial filed a sup- him motion to and asked age. press his name and all gave testimony, He identification his contend- name and his age, ing that was 16.1 his detention truancy had The officers been' asked why he school, pretext was not in robbery to seek and said that evidence for the bore a investigation, likeness to descriptions being product and that given by robbery detention, Appellant replied victims. the identification tes- just he had “walked away school”, timony Following ex- inadmissible. and the officers testimony by appellant, allowed him tensive go to on his the three way. victims, They then Dickens, Rayfield asked Officer and Detec- James tour guide who Ore, believed tive the trial he had court seen found that the sec- the assailant of ond arrest, first detention victim on constituted an Janu- ary appellant if looked as such it familiar. Dickens defective for lack of responded that he thought appellant cause. had The court ruled that the been in the area day. photographic lineup The Park Police stopped appellant officers second time excluded. on the Ore, grounds summoned Detective that the victims’ ability identify Metro- to politan Police officer in charge (based robber on their rob- en- face-to-face bery investigation. The counters with assailant) detective' arrived their was unaf- a few minutes attempted by later and fected conduct, to take a it concluded picture appellant robbery to show that in-court per- identifications should be victims. When it was jury mitted. appellant realized that convicted precluded clement weather acceptable pho- armed victim, of the first but Appellant prosecuted pur- ancy adult cases. There was conflict between 16-2301(3) (A). testimony appellant suant to D.C.Code § and that of the officers years’ probation He stopped was sentenced to four as to whether at the time he was any under the Youth Corrections Act. 18 U.S.C. offered sub to 5010(a) § stantiate his claim that he was sixteen and thus, by definition, not a truant. Bates Cf. requires States, D.C.App., D.C.Code § school at- v. United 327 A.2d ages (on appeal tendance all children between 543 & n. from a convic tion, light seven and 16. The officers testified that the evidence is viewed placed appellant government). had not had under most favorable merely procedures followed standard tru- charges.3 primary illegality, the evi- him all ment guilty found other objection instant dence which Appellant that the trial now contends exploitation has been the in-court identifica- come permitting erred sufficiently instead means illegality or tions. pri- purged distinguishable to be II Maguire, mary taint.” Evidence Guilt, 221 (1959). Appellant’s challenge to identifica- tion by the three women rests Wade, upon poisonous the “fruit of the tree” doc- 240-41, 87 developed trine in Silverthorne Lumber Co. (1967); see Nardone v. United also 84 L.Ed. 182, 64 L.Ed. 319 Wong Sun v. Accepting the trial court’s finding appellant’s detention constitut- progeny. their an the ed for which lacked arrest He contends that the in-court identifica- cause, the for our deter- tions were result or “fruit” of an ille- the mination the in-court is whether identifica- gal detention, arrest and therefore robbery testimony by prop- tion victims reject were inadmissible. We both his may as erly characterized evidence premise and his conclusion. impermissible from an which resulted “ex- ploitation” arrest. We conclude Wong Sun, Court held may that it not. circumstances, certain evidence government which the acquired either challenged directly indirectly as a result of viola upon concurrence of (1) rested tion of an accused’s Fourth Amendment ability to render such evi of the witnesses rights may not be used to secure his con e., upon (i. knowledge dence Mapp Ohio, viction. See based), their 81 S.Ct. (1961); Sil opportunity presentation of the in for the States, verthorne Lumber v.Co. United su e., presence criminating testimony (i. pra; States, Weeks v. United accused in of both witnesses and the 34 S.Ct. (1914). L.Ed. 652 While testimony may trial). A witness’ principle applies to testimonial well upon rests held inadmissible when tangible as to evidence [Wong Sun v. underly knowledge or recollections States, supra, United 485-86, U.S. provided ing transaction which have 407; 83 S.Ct. see also Bond v. United improper supplemented by or significantly States, D.C.App., 310 A.2d 224-25 Wade, activity. States United Cf. (1973)], the Wong emphasized Sun Court 1926; 239-40, 87 S.Ct. exclusionary reach of the rule is Stoner, People v. Cal. 65 Cal.2d not (371 487-88, unlimited 83 S.Ct. 897, 901, Rptr. (1967). 422 P.2d 417): Here, however, fatal there was no such need not hold that Pender v. D. all infection. United evidence is “fruit of poisonous C.App., The trial simply be- A.2d tree” cause it light would not ruled that the identification testimo have come to independent illegal but for basis of the police. ny upon rested actions Rather, their apt question the more victims’ encounters face-to-face assailant, “whether, amply case is find its conclusion granting the establish- we charge tempted robbery, 3. In addition to counts of and three of armed armed .the upon appellant weapon. convicted, dangerous D.C.Code the in- assault with 22-2901; 22-2901, ; 22-2901, dictment included another count of armed rob- -3202 §§ bery, robbery, -3202, two counts of count of at- and 22-502. supported by the denied, record.4 See D.C.Code 34 L. 1973, 17-305(a). (1972); Pettis, Ed.2d 513 People 12 Ill. §

App.3d N.E.2d true, however, While correctly that a con ob sufficient serves that poisonous nection be found tree where the breach of doctrine provided confined to the accused’s rights direct “fruits” constitutional (e. government misconduct g., tangible might with what improper items be called ly seized, the “opportunity or a confession re during obtained incrimination” detention), vealing identity of a does not follow crucial witness that, simply [see, g., e. because his Smith v. ultimately 120 U. S.App.D.C. 160, followed F.2d 545 Ab by the women, three bott D.C.Mun.App., there was a sufficient relationship or, A.2d (1958)], cases, between two some re events to application warrant vealing fact of exclusionary offense itself. rule. The Wong e. Schipani, expressly F. de clined adopt Supp. a “but for” aff'd, test as ap (E.D.N.Y.1968), propriate analytical (2d F.2d 1262 (371 1969), mode U.S. at S.Ct. 407), subsequent case uniformly law (1970). Appellant has demanded apparently more than a seeks an ex superficial pansion demonstration of a Sun doctrine in this causal chain between improper posits act direction. He disputed that his absent arrest detention, evidence. e. State Miranda, identity v. would 104 have re 174, Ariz. 450 P.2d mained 364 (1969) (en unknown and banc); there would have People McInnis, v. opportunity 6 been no 821, Cal.3d 100 Cal. Rptr. 618, 494 P.2d (en Essentially, 690 identifications.5 banc), argues he cert. Appellant likely suppression Wong contends the less the trial under yield erred “as a applying matter Sun of law” in will the desired an deterrence. See “independent proffered Illinois, supra, basis” test Brown v. to the 422 tes- U.S. at timony. disagree. (Powell, J., concurring We As the 95 part) ; 2254 Seventh in Cir- S.C.t. recognized cuit see States ex rel. also Clemons v. Owens Twomey, 858, (7th U.S.App.D.C. 27, (1968) 508 F.2d 133 865 F.2d Cir. 408 1230 1974), disputed (en banc), denied, 964, whether evidence falls 394 U.S. 89 S.Ct. principle 1318, Wong within (1969) ; 22 567 by any general Reid, 380, answered ex rel. of three Pella v. F.2d tests: 527 “independent source”, (2d 1975). basis”, Cir. or “attenuated discovery”. “inevitable While it is true rigorous analysis 5. Even under less causal underlying exceptions the concern these test, appellant’s argument of the “but for” Wong e., to the Sun doctrine [i. the need for implausible, assumption requires for it possibility deterring improper govern- improper police that absent the detention .the activity, Illinois, ment see Brown v. 422 U.S. never would have been able to ascertain 590, 608-12, 2254, 95 S.Ct. identity robber. The record reveals (Powell, J., concurring part)] dif- disputed that before the arrest the officers’ fers from that at the bottom of the “inde- already appellant, had focused on attention and that pendent basis” test embraced United States identity at the had learned his Wade, supra (i. e., impact of such stop, validity time of the first reliability evidence), on the misconduct unwilling challenged. We are not been analytical ap- the doctrines share common stop suppose that had there been no second proach. Wade, supra, See United States v. posi pursue have failed to such 241, 388 87 S.Ct. 1926. Whether tive leads to their ultimate conclusion. reliability po- is that of or deterrent 1293, F.2d Gissendanner 482 ,the tential, pertinent inquiry is the relation- 1973). agree with the 1297 Cir. We ship proximity challenged govern- Pennsylvania Supreme ex views of the activity proffered ment evidence. The Garvin, pressed in Commonwealth v. 448 Pa. greater “independence” of the evidence 33, (1972) 258, 264, : 37 293 A.2d activity, likely from such the less it is that Although agree appellant as to we reliability impaired disagree thereby, illegality its has been we must of the arrest Perry, mis- District Columbia D.C. he “fruit” of the was the 845, App., (1966); Boucher unaccepta- 215 A.2d theory find this conduct. We 420, Warden, Md.App. A.2d

ble. Ryan, M. A. P. v. D. 423-24 (1968). Cf. argument rejected a similar Bond (1971). Our C.App., 285 A.2d States, supra, it was as- upon the well-established rested conclusion serted that had focused their trial, that, given a fair the fact of principle vestigation of game a confidence on not vitiate a convic illegal arrest will photograph defendant ob- as result of Collins, 519, 72 tion. Frisbie v. during tained alleged what was to have Illi (1952); Ker v. L.Ed. pretextual been a for a traffic viola- nois, 225, 30 L.Ed. 7 S.Ct. tion. we concluded that the traffic While true, as While focus, arrest had resulted in no notes, Ker-Frisbie doctrine has “exploitation” there hence had no [see, criticism e. subject some been the misconduct, alleged expressed doubt we Toscanino, 500 F.2d g., United States v. Sun doctrine reached the denied, en banc rehearing essentially nonevidentiary circumstance Ed 1974); United States v. (2d presence accused’s later court- 1970)], mons, (2d Cir. F.2d (310 224-25): room A.2d at its valid as to continued we no doubt Powell, ity. See Stone assuming illegality Even arrest, prior regard po [appellant’s] we Pugh, Gerstein v. (1976); place, In first sition as untenable. 43 L.Ed.2d points this particular “fruit” of no Mathews, Stevenson v. alleged “poisonous in tree” which (7th Cir.), cert. against evidence him. troduced into 49 L.Ed.2d operate This so broad doctrine does not ly subsequent prosecutions. bar all States, 111 U. Payne United particular operates Rather on evi 723, cert. 94, and, S.App.D.C. 294 F.2d testimonial, dence, tangible either or 131, 83 7 L.Ed.2d 82 invoked, S.Ct. properly if the exclusion causes Appeals of the States Court (1961), only Wong See Sun of such evidence. Frisbie, admis sustained, analogy the by to Here, [supra]. given pursu testimony eyewitness sion of us seem would have dur occurred ant to a confrontation hold that he himself is “fruit” the detention, approved, ing an unlawful accordingly he should have been exclud defendant’s however, of the the exclusion ed than have ruled on more “[w]e during the had been statement inquire one occasion that a will not its custody. support To illegal period into in the manner which an accused part upon relied rulings, the court it, legality brought and that the before decisions, 104 Bynum v. United two illegality only on of an arrest material ap 262 F.2d 465 U.S.App.D.C. question suppressing evidence ob retrial, peal by District [Quoting tained the arrest.” after I, Bynum 274 F.2d 767 Jordan, D.C.App., A. Columbia v. finger- suppression court ordered (1967).] 2d il- effect that the we conclude with his contention that legal the inevitable abiding society hasten suppressed. to be No law must could its out- ,that to influence presumption and not but for confrontation tolerate suspect illegal come. would never arrest the Thus, required his to face accusors. [be] doctrine, Wong prints contemplated by obtained following an arrest. Accord, Mills admissibility of our conclusion as Mississippi, see Davis unchanged. would be such evidence ju emphasized has Supreme S.Ct. Court Bynum’s trial, gov At is not exclusionary rule dicially-created second indi redressing ernment introduced in an older harm to an evidence aimed fingerprints rights set of unrelated to the unlaw constitutional whose vidual arrest, ful and the its deter invaded, second conviction was but rather seeks preserve affirmed. also so We note that the whole of rent effect to to Wade, supra, United States v. Court in Fourth cit interests ciety the secured Powell, Sun’s See Stone v. analy ed attenuation-of-taint Amendment.6 support sis as 49 L.Ed.2d independent its source Calandra, citing rule. 388 U.S. at States v. U. (1976); S.Ct. con 338, 347-48, 38 L.Ed.2d S. poisonous exclusionary clude that the fruit doctrine does adjunct (1974). As Ohio, su not reach far so as to identifica Mapp exclude principles embraced tion illegal ar connected with an tree doc pra, poisonous fruit of if, here, rest adequate there is an inde ex automatic trine not mandate the does pendent See source the evidence. linked all evidence which clusion of Louisiana, Johnson v. tenuously) misconduct. (however 1620, 32 Steven Powell, supra, Stone v. Mathews, supra; Miranda, son v. State v. Rather, appro 96 S.Ct. at supra, 450 P.2d 371-72. inquiry involves an examination priate particular case circumstances likeli and the both the need for

Ill determine misconduct agree ap Even if we of deterrence were to hood pellant penalty his of exclusion should expressed by the three Fifth Cir causally imposed.7 women re As lated to unlawful arrest the sense cuit: citing objective

6. In. addition to illegally, of deter- arrested was acceptable perversion strikes us as an un- rence, Mapp Ohio, supra, judicial also of the notion of recognized preserve the need integrity. what later “imperative judicial described as exclusionary 7.The rule come under integrity.” Peltier, See United States v. sharp creasingly criticism, 531, for its social both 2313, 95 U.S. S.Ct. 45 L.Ed.2d achieving efficacy and for its costs limited However, 374 recent decisions have purpose the avowed of deterrence. See Brown primarily question on focused the deter- of Illinois, supra 4, n. 465, note 422 at v. 5, U.S. 600 Powell, In v. rence. 485, Stone supra, Powell, In Stone v. 3037, 95 S.Ct. 3047, 1067 96 S.Ct. 49 L.Ed.2d 490, observed, 96 at the Court 428 (1976), U.S. the Court observed: at 3050: courts, course, S.Ct. of must While ever Application of the . . deflects rule . preserving integrity concerned the finding process frees truth judicial process, often this concern has limited guilty. disparity particular justification force as a highly of- for the exclusion cases between error committed probative [Footnote evidence. police afforded a officer the windfall omitted.] by application guilty rule defendant Michigan 433, Tucker, v. 446- See ,to contrary proportionality is idea of ; 2357, (1974) 182 94 S.Ct. 41 L.Ed.2d justice. concept to is essential that Peltier, supra. although thought Thus, deter is to rule before there is no On the facts us ,the activity part through disputed unlawful nurturing probative iden- value of respect Amendment for Fourth deny testimony. Moreover, to tification may applied indiscriminately values, it place if opportunity to a crime the victim of generating opposite wrongdoer have the effect against well her accusation his or disrespect law and administration for the simply law, is de- it because a court before justice. omitted.] [Footnotes retrospectively defendant termined 1070 probable detain appellant, cause to their

Evidence should excluded in the society suspicions as to his involvement rob accruing benefit truancy possible were against un beries from the additional deterrent Ohio, police practices equals soundly based Beck v. 379 lawful exceeds U.S. [cf. (1964); 13 142 85 S.Ct. L.Ed.2d society the detriment caused States, D.C.App., Johnson 349 release of criminals. States v. [United Houltin, Stephenson v. (5th A.2d 458 Cir. Powell, supra, D.C.App., 296 A.2d 606 See Stone 1976). denied, S.Ct. at Unit cert. 484-489, 96 S.Ct. at 3047-49; U.S. Calandra, (1973)], and he was supra, 414 at L.Ed.2d 197 released ed States v. U.S. photographed 613; Il soon after had been see Brown also it linois, 590, 608-12, was determined he was not Gatlin truant.8 J., (1975) (Powell, 123, 128, 326 F.2d 670- concurring in part)]. D.C.App., 71 (1963); Murphy, Wise v. (en banc). Without A.2d 205 us, the case before more, faith good incident reflects mis arresting misconduct consisted of and de officers, part on judgment taining appellant approximately for result scarcely warranting urged the severe hour on the information which fell basis of ex by appellant.9 rel. United States See short constituting probable cause with Reid, 1975). (2d Pella F.2d 380 Cir. respect sug do not robberies. We gest episode insig that the to an amounted thrust, Appellant’s principal how appellant’s

nificant invasion of constitu ever, of the error gravity is com tionally protected interests. mitted officers com subsequent well settled that while a deter pounded by he was de while fact original mination that arrest was truancy, pur the true ostensibly tained give without cause rise to pose gain his detention was informa the exclusion incriminating evidence re robbery investigation. tion for the At sulting arrest, provide from the not does Ray and De suppression hearing, Officer immunity the arrested individual with had followed tective Ore testified that prosecution question. for the transaction cases, truancy procedure routine e. Bond v. United principal they acknowledged that their 25; Gissendanner v. 224 — charges. more was in the serious interest F.2d 1293 no recognize where the arrest Friedland, Cir.), (2d the safe more than a sham to circumvent Amendment, guards some of the Fourth the trial While sought courts have to deter such miscon- not concluded the officers did Michigan Powell, supra, noted also As Stone v. supra Tucker, (Burger J., concurring). note C. does re as the law at 2365: “Just Mississippi, In Davis trial, perfect quire a a receive that defendant fingerprints Court barred the use of ob- realistically require one, only a fair cannot (as part during illegal tained an detention investigating policemen crimes serious that dragnet general operation). The Court was pressures of errors whatsoever. make no point out: “We have no occasion careful vagaries of human and law enforcement case, however, to determine whether this expectation make such an would nature requirements Amendment Fourth error, penalize we Before unrealistic. by narrowly pro- met be circumscribed would therefore, whether consider we must obtaining, during course of for cedures purpose.” useful valid and serves a sanction fingerprints investigation, in- criminal probable cause there is no dividuals whom at 1398. to arrest.” 28, 59-60, 478 F.2d U.S.App.D.C. identification tes barring in-court duct denied, 414 cert. fruits of as the more direct timony as well men Five 38 L.Ed.2d violation. the constitutional Cf. pretext,11 and four on the Edmons, ex were arrested supra; States Tagla subsequently convicted. Reid, supra.10 were identified and See also Pella v. rel. arrests to have (9th The trial court found their F.2d 262 vore F.Supp. that the illegal, been but concluded Eyman, 339 Blazak v. in upon the Dibble, testimony 46 identification rested People v. (D.Ariz.1971); cf. agents’ observations dependent bases of App.Div.2d 361 N.Y.S.2d The Second time the assaults. that at the the mere fact (see this conclusion did not disturb charge individual on one Circuit arresting an but, 582-83), concerned with 432 F.2d at opportunity an to advance gain officers misconduct, rea agents’ gravity investigation their of another offense does had been evidentiary illegal that the arrests imposition of soned not mandate the testimony and “necessary of such cause” sanctions. In a case which principles of concluded that the deterrent suspect that an individual has violated two laws, required that the indictments they probable Wong have do they cause to arrest one for which dismissed.12 not, suggest absurd to that distinguish readily us is The case before forego must enforcement of the former Appel dragnet. is no Here there able. simply primary their is in because interest ran of a result lant’s arrest was the latter. possible roundup of dom or indiscriminate

Appellant’s suspects. reliance on Ellis v. United United States v. Edmons, de supra, misplaced. There, more agents swept neighborhood nied, than SOFBI Lee,

in an (1959); People effort to locate individuals who had Misc.2d agents (Sup.Ct.1975). assaulted interfered with other 375 N.Y.S.2d attempting supra. Although the Mississippi, who had been to execute an ar- Davis v. rest officers that the circum warrant. The knew trial court concluded suspects “young black”, provide the officers with were and stances did not cause, probable were instructed reveals up persons to round record supported by charge on of failure to have their selec- their focus on found near possession, (1) tive cards in he was service their the facts robberies, (2) he hope the recent the victims of the assault scene description provided pick general would be able out their assailants. matched victims, he was tenta- the three Murphy, Id. Sullivan v. 580-81. Cf. rejected limit its careful to 10. In Pella the Edmons court was Second Circuit 12. The pattern argument be extreme factual its earlier in Edmons conclusion to the decision (432 584) required are not ob : “We the exclusion of the in-court iden- fore it F.2d at liged an arrest ar- hold that when of an who had been here to tification individual illegal probable good have been faith turns out to rested without cause. reasoned independent an identifi cause lack of rested on the because of custody consequent resulting from the basis of the first-hand observations cation witness’ inevitably distinguished in a ease crime, But be excluded. Edmons on must this, flagrantly arrests were arrested like that Pella had not been the basis securing precise purpose upon iden part dragnet a deliberate- made for the of a ly pretense. not otherwise tifications that would false F.2d at 382-83. barring any nothing obtained, use less than govern- 11. The circuit court observed that adequately deterrent serve of them can purpose point ment could no case exclusionary [Footnote rule.” carry required iden- advertent failure to the ex rel. Pella See United omitted.] actually prosecuted. 432 had been tification Reid, supra, at 882-83. F.2d at 682. tively by light poli identified competing the witness Dickens. be evaluated in Powell, Johnson supra; supra, cies.” Stone v. Unit at Cf. Hall, ed States v. Against 96 S.Ct. at 3049. whatever 15-16, 857, 859-60 arguably might incremental deterrence be

provided barring by the victims’ in-court testimony, photographic addition to Nor was the alleged pretext upon lineup identification which were ex appellant was detained the violation court, must weighed the trial cluded rarely statute, of a enforced investiga penalty.14 See Brown of such costs tion of which was abandoned as soon as Illinois, supra, 95 S. apprehension was effected.13 While part). (Powell, J., Ct. 2254 concurring express we approval no of the in officers’ vestigatory tactics, we do not view the seriously contend that Appellant does not facts as presenting egregious the sort of robberies of the the women’s recollections misconduct the deterrence which would of the by the fact warrant became tainted extreme barring sanction of the in-court deny identification of the not He does arrest. victims. United States ex rel. Pella v. of the assaults the fact' Cf. of both were aware Reid, supra, 382-83; State, Paulson v. complaining wit- of the and the identities 257 So.2d 305 (Fla.App.1972), federal disputed detention. prior nesses corpus habeas denied sub nom. Paulson v. Rather, for the.deten- argues that but

Florida, F.Supp. (S.D.Fla.1973); learned not would tion the officers see also Lockridge Superior Court, 3 would consequently there identity, and Cal.3d 89 Cal.Rptr. 731, 734, 474 P.2d opportu- and no prosecution no have been (en banc), circum- separate chain nity for incriminating into the to coalesce stances In the final testimony.15 is no less seeks appellant analysis, what recently de any prosecution. immunity from than an clared policies that “the behind the exclu price case, such a sionary of this rule the facts are not absolute” and “must On far, goes for if 15. Appellant’s argument deny too While not officers did ,the robberies, offending is the knowl primarily link in the chain were interested in the particular identity indi .they pursued edge dutifully of the record reveals that truancy recollections the untainted whom matter after had been vidual to appropriate pertain, reme custody, taken into him other evidence and released soon require nontruancy response be to would after his dial had established. knowledge. unlike disgorge such statutes Unlike enforcement of dormant forever can be requiring possession other forms of evidence such as those government any identification, use selective mandate excluded service individual, improperly prosecution ages that all children between the of seven identity enforced, knowledge can regularly gained a felon’s attend school Etheridge easily and, us, possibility erased. as in the so ease before Cf. of its the officer’s atten- breach come to through 1967) (“the stopping facts obtained tion before the intrusion of ‘sacred become do not conduct unlawful dividual. ”). ridiculous be a inaccessible’ require appellant’s Michigan supra conviction Tucker, 14. See note charade attempt could so that aside at 2367: be set “[WJhen U.S. balancing investigation involved, offi robberies must we a new interests any system weigh strong tainted information. under cers unaware interest supra, justice at 1296. making to the trier Gissendanner available Mathews, trustworthy concededly Stevenson v. fact all relevant and party evidence which either seeks to adduce.” hearing, appellant was arrest high.16 under would be too See Gissendanner Lee, supra. People transported to Park Police Wainwright, supra; when was proce- Headquarters picture-taking for the observed in a As the court similar circuit States, this court noted in District case, supra, at dure. As Payne v. United Perry, D.C.App., 215 A.2d Columbia v. 294 F.2d at 727: States, (1966), quoting Price v. United suppression testimony The D.C.Mun.App., A.2d complaining right way witness is not the ‘is a restriction “the essence of an arrest police, to control or to the conduct of restraint of right or a locomotion justice. advance the administration ” person.’ rights like The of the accused a case present adequately protected are suspected appellant a The arrest of as complaining when the witness takes sham, solely designed patent truant was a court, open and stand for examination pos to obtain identification evidence of cross-examination. crimes, for in unrelated sible involvement probable cause.1 there existed no conclude that the trial did not pretextual arrests consistent Such sham denying appellant’s err in ex- motion to ly condemned. e. Hill v. have been clude the in-court States, U.S.App.D.C. United robbery victims. F.2d 449 Amador-Gonzalez Affirmed. (5th Cir. United Harris, 321 F.2d United States v. 1968); Taglavore v. (6th 1963); Cir. FICKLING, Judge, dissenting: Associate (9th F.2d 262 Cir. presented The issue this case is Charles v. United 278 F.2d 386 whether the in-court identification was States, 87 1960) McKnight illegal, direct “fruit” of an sham A U.S.App.D.C. 183 F.2d 977 and, such, appellant should been have indulge post facto court should not “ex suppressed. opinion majority is of the might extrapolations of all crimes that a the arrest here was not sham charged given on a of facts have been set therefore affirms ruling below. I disa- . at the moment of arrest . . [for] gree. might permit an arrest an exercise such outset, a sham or fraud at the was found, govern- The trial court and the for really unrelated to the crime during suppression ment conceded * * * high price. We are confident supra, a Gissendanner 16. In would Court] [that Fifth reached a similar conclusion. Circuit immunity life-long grant rejecting grant hold that what in effect be a would simply prosecution investigation be- immunity, 1297) (482 : it reasoned F.2d at Fourth a any consequences cause violation Amendment Certainly, so before ,to a man indicated society’s right protected first destructive of to be purported law-abiding citizen he motion, not the set in from violent crimes is to be exclusionary rule be- showing stretch the to he would respectable there have to be a yond tolerable bounds. solely through tha,t (i) invalid such it was ascertained, identity source that properly there found 1. The trial count (ii) it would there no likelihood to arrest through cause was no subsequently discovered lookout was a there other efforts. age 15-18, male, Negro a slender build Friedland, a Similarly, in Negro appellant, complexion, light ,the declared: Second Circuit days male, age 16, last after was seen [ex- narrow the must neither so Courts public place standing reported in a presumed incident impair clusionary] its rule as to nonconspicuous midday manner. in a expand deterrent effect nor marginal Gatlin way that, achieve order pay society deterrence, F.2d 666 too will increment Ortiz, 1043, 2 actually (3d v. 427 F.2d 1045 n. probable cause to arrest was lands present retroactively 1970). validated.” 'be Cir. to 79, Martinez, 465 F.2d United States v. agree position cannot I find I with 1972), (2d quoting Cir. States admissibility by majority taken 835, Atkinson, (5th 450 838 Cir. F.2d con- in-court identification was valid Nor will an arrest be 1971). test. by “independent basis” trolled merely ploy pretext used when it was or in concern The Court’s stated opportunity to afford the time and 218, Wade, 388 U.S. 87 United States investigate and sufficient to to amass facts 1926, (1967), was 18 L.Ed.2d 1149 S.Ct. Martinez, probable constitute su- cause. reliability of Atkinson, pra; supra; Mills v. Wain- upon suggestive out-of- based which are 1969); Sta- wright, (5th 415 F.2d 787 Cir. greatly identifications. This differs ples States, v. United 320 F.2d 817 decision gravamen Court’s 1963). Cir. . States, supra gov- improper the deterrence of which was Illinois, majority The Ker v. relies on activity by exclusion of other- ernment 436, 225, L.Ed. 421 119 7 30 U.S. S.Ct. The be- wise reliable evidence. Collins, (1886), and Frisbie 342 U.S. the in-court not fore here is whether us 509, 519, 72 L.Ed. 541 S.Ct. 96 reliable, whether was but years, For these been the two cases have illegal, sham the fruit of the crux of a doctrine effect such, excluded and, should have been as government’s power a defend prosecute to reliability. notwithstanding impaired illegality is by ant not it acquires method control over greatly from case The instant differs process long him. Due satisfied so as use of dealt most that have the defendant had “a fair trial accord arrest here illegal The arrests. “fruits” procedural ance with safe constitutional so the Fourth violated Amendment Frisbie, 522, guards.” supra at S.Ct. 72 lacked officer because the much 512; Ker, 440, see 119 7 S. U.S. deliberately cause, because Frisbie, Ct. 225. since pretext for appellant on a mere seized has made an effort to deter photograph and obtaining his purpose of process misconduct. Due has been extend the rob displaying victims govern ed to exclude the fruits Edmons, su beries. See unnecessary ment’s own deliberate Hence, re my majority’s pra. view the bringing trial. lawlessness an accused to States, D.C.App., Bond v. liance on Russell, States See United Payne 221 310 A.2d 423, 1637, 430-31, 93 36 L.Ed.2d 366 S.Ct. 294 F.2d Arizona, (1973); Miranda v. 82 S.Ct. U.S. (1966); nei since (1961), misplaced is Wong Sun v. United pre- shama or ther of those cases involved Mapp (1963); textual arrest. Ohio, L. prescribed that Supreme Court has Ed.2d Silverman v. United ille- primary in cases where a inquiry our 5 L. must be gality has been demonstrated Moreover, Ed.2d in recent years whether, strong granting Ker-Frisbie rule has been establishment ly primary illegality, criticized. See United v. Toscan the evidence which ino, 1974); been come (2d objection Cir. instant Edmons, illegality exploitation United States v. distinguisha- (2d sufficiently Is- Virgin Government stead means primary best. The fact that 50 law enforcement taint. purged of ble to be Edmons, op- officers were involved States, supra, 371 Sun v. United [Wong here, posed no Ma moment. quoting at 417 officers Guilt, Edmons, As in here knew (1959).] the officers guire, Evidence and black.” suspect “young appellant for the Here, arrest of Moreover, in both cases were the arrests exhibiting obtaining and purpose of sole faith, pretexts mere in bad without victims, robbery photograph probable cause, truancy ostensibly for resulting identi- having any a view toward Act here violations Selective Service trial, clearly an is duplicated at fication Edmons, purpose in reality in “primary illegality.” exploitation of obtaining identification evidence un- Edmons, supra. also related crimes.3 Mississippi, Davis (1969); Bynum 22 L.Ed.2d 676 instructed, As the has States, exclusionary rule is calculated deter. (1960). illegal arrest Such Its compel respect function is “to precise purpose securing made for the guaranty constitutional in the effec that otherwise tively way by removing available in — view, epitomizes, my obtained have been disregard centive to Elkins it.” prevented' ex- sought to be evils States, clusionary rule. 1444, 4 is (1960). There also Generally, exclusionary has been rule rule, a second and that is function of the applied illegali cases the primary “imperative judicial integrity.” ty somehow the evi connected with Elkins, supra 222, 80 S.Ct. 1437. See dence-gathering investigative process. Peltier, also United States v. Wade, supra; States v. e. supra; Nar mainstay judicial integrity The the done v. United S. ory Ct. is that should not act “ac 84 L.Ed. Silverthorne courts Lumber Co. v. United complices in the willful disobedience 64 L.Ed. 319 Elkins, supra, 364 U. Constitution.” [the] within this context that the Second Circuit other 1447. S. Appeals explained Court of in United words, by suppressing evidence which Edmons, supra integrity a court’s illegally seized government “exploits” an illegal arrest perpetuate remains intact its refusal to when it obtains a conviction based on evi rights a violation of the constitutional gathered pursuant dence to its unconstitu an accused. tional act. majority’s attempt to distinguish reasons, I dis- Accordingly for the above Edmons from the instant case is tenuous at sent. charged suspect robbery Defendants were with failure cases tial in the have their Selective Service cards in their He tried to ex- he first saw him. moment possession 111; “customary plain photographing in violation of § U.S.C.A. Military Act, 12(b) truancy procedure” Selective Service § cases. U.S.C.A.App. 462(b)(6). flatly § the rob- contradicted photo- bery squad took detective who During pretrial pur- suppression hearing graphs acknowledged real that his case, arresting police pictures pose this to show com- officer acknowl- was to obtain pthat edged poten- plaining cases. considered in the witnesses

Case Details

Case Name: Crews v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Feb 16, 1977

Citation: 369 A.2d 1063

Docket Number: 8507

Court Abbreviation: D.C.