United States v. Lewis

room, and a blouse started to burn Slye STATES, in her closet. warned Robinson Appellant, UNITED anyone that he would she dated. hurt Robinson claims the trial LEWIS, Appellee. Gerald A. by admitting its discretion this

abused evi No. 84-101. prior govern of his dence bad acts. Appeals. Court of District of Columbia proper asserts that ment the evidence was ly admissible under the motive and intent 1, 1984. Argued Aug. States, of Drew v. su exceptions United 16, 1985. Decided Jan. States, pra; supra. Wooten v. United We States, agree. See Gezmu v. United (D.C.1977); Bruce v. United

A.2d

States, (D.C.1984); 471 A.2d States,

Willcher United

(D.C.1979). However, government fur asserts

ther that the evidence was admissi explain to

ble the circumstances surround

ing the offenses with States,

charged. See Fairbanks United Jackson v. cites denied, rt. ce 46 L.Ed.2d 74 proposition for the introduction of evidence of surround

ing circumstances is limited not to circum immediately surrounding

stances the of of Jackson charged. reading

fense This

incorrect; prior the evidence of crimes in

Jackson was admitted under the motive States, supra, to Drew v. United

exception any surrounding to establish cir surrounding

cumstances. circum exception

stances refers circumstances

immediately surrounding offense

charged. Green v. United 1005, 1007 (D.C.1982). The trial court admitting correctly by the evidence

acted crimes under motive and intent prior

exceptions, but the sur establish

rounding circumstances.

Affirmed.

The motions court found that a woman was assaulted on November approximately a.m., 11:40 in Rock Creek assailant, man, Park. Her committed an dragging indecent act her after her park, into a wooded area of the and strik- ing her several times the face. He also yellow knapsack stole her gold and brace- let. A appellee lookout was broadcast and stopped was about twenty fifteen to min- utes later about half a mile from the scene Appellee’s the assault. knapsack blue complainant’s was searched and yellow knapsack was found Appellee inside. was police returned in a car to the scene where eventually was arrested.1 Klonoff, Robert H. Atty., Asst. U.S. Testifying hearing at the on the motion D.C., Washington, with Joseph whom diGe- suppress were Park Police Officer Lau- nova, Atty., Farrell, U.S. and Michael W. ro, complainant gave to whom the a de- Atty., D.C., Asst. Washington, were assailant, scription Metropolitan of her Po- brief, appellant. on for Green, lice Officer stopped appel- who first Sullivan, D.C., Frederick Washington, lee about half a mile from the scene of the appellee. attack, appellee. Appellee disputed Of- testimony ficer Green’s about whether his PRYOR, Before Judge, Chief NE- knapsack blue opened was or closed and ROGERS, BEKER and Judges. Associate whether Green had taken anything out of knapsack. his hearing blue After the testi- ROGERS, Judge: Associate mony argument counsel, the mo- government appeals tions court found that when initially Green suppressing yellow court’s order knap- stopped appellee knapsack his blue was sack seized without a appel- warrant from zipped shut and yellow knap- therefore the reversal, lee’s blue In seeking plain view; sack was not in that Green contends the court erred in appellee either ordered to remove the items (1) finding yellow knapsack was knapsack from the blue or removed them view, (2) plain not in Officer Green himself; appellee and that while probable appellee cause to arrest under arrest at that time he was at least yellow knap- the time he discovered the supervision under the of the officer. The sack, (3) yellow knapsack would court also found although there was inevitably Upon not have been discovered. suspicion reasonable to justify stop, record, a review we hold that the Green did not have findings motions court’s factual cause to arrest are not clearly appellee erroneous and find no error until yellow Green discovered the law. Accordingly, we affirm. knapsack.2 The court then concluded that scene, complainant, eye 1. At the transported police whose one cuffed and "processing.” station for completely eye swollen shut and other shut, partially positively identify appel- failed to 2. The court found: Appellee placed lee. police in the back of a "Now, cruiser and after Officer Green showed says Officer [defense counsel] his memoran- yellow knapsack, appellee Lauro the judge was hand- dum that no would have issued an ar- knapsack to A. yellow for the in order admitted, to determine it would have first determined knapsack inevita- yellow would whether inadmissible discovered, exception to the plain and to make that view war bly have been under the Brown, See Texas requirement. rant it had to find with substan- determination (based certainty that the officers tial (1983); Coolidge v. New scene) at the their collective information 468-69, Hampshire, thought had would 2039-40, 29 L.Ed.2d 564 Offi appellee he stopped cer testified that when knapsack and known about place the he asked him to blue him. arrested The court would have fact carrying on the hood of appel- convinced that that it was not ruled cruiser and so when did certainly have been arrested had lee yellow knapsack see the Green could inside yellow police not known about The partially opened knapsack. mo concluded that that tions court found a fact blue prove to failed that zipped knapsack shut and therefore was knapsack inevitably have yellow knapsack in Green did not see the discovered. been plain One of the factors mentioned view. by the court as a basis for this conclusion that a was its view thief who knows II. watching policeman is him would leave appellee’s knapsack The search of govern yellow knapsack visible.3 a warrant and war- was conducted without ment contends that this “common sense” per se unreasonable searches are rantless conclusion the motions court was con Fourth Amendment unless under the law, citing United States Min clusion of few, carefully one of delineat fall within ick, banc), (D.C.) (en cert. A.2d 874 455 States, 389 v. United Katz exceptions. ed — denied, 111, -, U.S. 104 S.Ct. 78 507, 514, 347, 357, 88 19 L.Ed.2d 17), (1983) (Appellant’s 112 Brief L.Ed.2d States, (1967); (John) Smith 576 and incorrect. was de 1066, (D.C.1981), cert. A.2d 1068 435 Upon reviewing the record we conclude nied, 1454, 71 102 S.Ct. Minick, supra, 880-81, that 455 A.2d at (1982); Jackson v. United 665 L.Ed.2d plain dispositive. motions court’s (D.C.1979). A.2d 918 Lewis v. finding, United view findings of fact and court made motions (D.C.1977), pri A.2d was based that the of law and determined conclusions the demeanor marily on its assessment of not admissible at issue here was evidence credibility appel- and and of Officer Green mo exception this rule. The any under testimony lee in conflict. Bear whose was may determinations court’s factual tions ing in mind that the motions court has clearly are unless disturbed not be testimony heard the and observed wit States, Brooks nesses, say cannot erroneous. we (D.C.1976); conflicting testimony D.C.Code court’s resolution findings sup § and factual lacked substantial police description. appellee was aware of kind of cruiser and that on that rest warrant Appellee think presence. no doubt about this.... don’t entered a There’s Green’s then store say probably myste- you could that he was the open. briefly emerged when he a soda Green and with So, bag until the [miscreant?] riant for him to over to the cruiser. motioned come think cause to I don’t there that it The court noted did not make sense for and search at that time." just who knows he stolen a someone following knapsack knows are and The evidence indicated that Green followed yellow knapsack top. visible him to leave on and a half in a marked block ever, the evidence. United States if did not notice the port even Green Alexander, enough D.C. scratches there was to warrant fur- § 17-305(a) (1981); United States investigation. Code ther Lyon, (D.C.1975). While point, At this Officer Green did testified the Officer Green blue however, not, grounds also have sufficient partially unzippered, imprecise he appellee’s knapsack for evidence details, key internally contradictory about Terry, supra, of a crime. points vague others. on some on is narrow changed testimony his wheth Green about York, scope, Dunaway v. New anything knap pulled er he out of the blue 2248, 2255, L.Ed.2d sack, initially appel- failed to mention (1979) (“Because Terry an ex involved lee’s swollen hand and the scratches on his ception general requiring proba rule hand. Nor did include in face and Green cause, this Court has been careful ble police report the details that he testified his scope.”) maintain its narrow itself significance were of his determination limited, on-the-street frisk for involved a fit the lookout weapons predicated by on-the-spot observa Appellee in his decision to him. testi by patting officer tion of the down Green asked him what was fied when garments; outer officer did not he told him clothes blue garments go underneath the outer until he out, and took some clothes when guns. felt The evidence before zipper to close the was about provide a judge basis pulled yellow knap in and out the reached officer the court could find the which Accordingly, sack. since there is substan believing ap- justified in would have been support in tial evidence the record to the pellee complainant The did not was armed. findings, motions court’s we affirm the tri gun a or other report her attacker had ruling that the initial search of al court’s not frisk weapon and Green testified he did illegal. appellee’s blue was ap- appellee any reason to or have believe posed danger or of his pellee was armed found, agree, The court also and we safety. appellee put the physical Since suspicion suffi there was articulable car, knapsack on the hood of the the exi justify investigatory stop cient to under gencies necessary for a search for Ohio, 1, 1868, 20 Terry v. 88 S.Ct. probable in cause weapons, the absence of (1968). District Co L.Ed.2d 889 present. Terry, supra, arrest, were M.M., 698, (D.C. lumbia v. 701 (An 25-26, 88 at 1882 392 U.S. at 1979). appellee, Officer Green observed limited to what is officer’s search be arguably description who fit the broadcast necessary strictly is circumscribed lookout,4 with mud and briars on his frisk). exigencies justify the vicinity pant legs, general in the same offense; appellee appeared to slow B. observing and was the officer down further conclud The motions court specifically perspiring. The court probable did not have ed that Officer Green Officer Green observed find whether originally appellee when appellee’s and face and a cause to arrest on hand scratches making probable its stopped him. stopped him. How- hand before he swollen Lauro, light When he weight, mustache. and had a According the broadcast de- to Officer wearing early police, stopped male in his assailant as a black scribed the was tall, build, twenties, approximately thin "beige/greyish” six feet was more brown sweater that hair, wearing pounds, no facial striped about 150 underneath grey a brown shirt with than grey raincoat and a tan checkered brown and jogging jeans, shoes with and "white and blue weighed Appellee tall and sweater. 6'43/V' carrying had a tan either or and was blue trim” time, although pounds the trial court at the 209 jacket in his lighter appeared appellee than that commented hearing. find no relied therefore revers- determination motions court We Brown, supra, Texas v. error_”); note 6. see infra the standard In the ible (a 742, practi- 1542-43 at 103 S.Ct. at U.S. absence cause to at the cal, probability). nontechnical stopped appellee time Officer Green knapsack, the searched the blue search can- Appellee was on the outskirts of Rock grounds that justified not be on the Park, quite noted is which the court Creek arrest. Chimel v. Cal- incident to a lawful people, including joggers, large. Other 2034, ifornia, 89 S.Ct. been in park. Anyone who had were New (1969); York L.Ed.2d 685 park wooded could any of the areas Belton, 457-58, pants. had burrs stuck to his 2862-63, (1981). number of coinci- court noted there were a insufficient but found were dences C. significant ap- .the differences view hair, (weight, height, facial cloth- pearance correctly noted knapsack) appellee ing, color of between justified detaining the officer description, and the fact the lookout returning appellee and him to scene of at appellee apprehended District Co show-up. crime for a logical compulsion there was no scene M.M., 701; supra, lumbia at conclude assailant would found Short, supra, 187 U.S. United States v. stopped. where 1054; App.D.C. 570 F.2d court concluded that without Wylie, U.S.App.D.C. 239- States knapsack, nothing there was conclusive to denied, cert. offense. See United link 1527, 55 L.Ed.2d 542 Short, 142,145,

States question whether the remained (no (1978) F.2d inevitably could lookout fit cause since appellee was re been discovered after young people in the area and victim many The motions court turned to scene. however, identify suf- appellant; could there phrased the as whether issue suspicion under ficient articulable certainty that offi substantial Encoun- (citing LaFave, Terry) “Street ultimately cers would have concluded that Terry, the ters” and Constitution: Si- probable appellee had to arrest cause bron, Beyond, Peters 67 Mich.L.Rev. in him. The and would fact have arrested (John) (1968));5 Smith cf. under United States concluded, court (D.C.1981) (po- Allen, that when, after re- probable had cause lice not be certain the officers would it could showup, turning suspects scene they not appellee arrested had known have identified). Although the positively were yellow knapsack and the the thus about close, that there was insuf- we hold case carry its government had failed burden probable evidence to constitute ficient that would to show the Brooks, supra, identity. as to cause inevitably appel- have after been discovered (“We are satisfied that A.2d at scene. lee was returned to the gave consideration to proper court the Although the United States Su of intru- the warrantless seriousness the yet decided Nix v. preme Court had not careful by the officers. Its rea- made sion — Williams, -, exigent application soning in the of support the motions ample finds doctrine circumstances pre- correctly applied standard estab- taken at court extensive evidence searched, noted, being time and size of the area are “[c]ourts have 5. One commentator position person likely an generally taken the ... that that more would fit such than one general LaFave, may description.” be made a supra that circumstances, including lapse of when the Nix, Supreme court concluded that what the said in that case. lished held that evidence which has been Court did not amount to their and did at time illegally may in- nevertheless be obtained thinking they had cause to arrest prosecution trial “if the can es- troduced at appellee.6 The court also noted that while by preponderance tablish of evidence claimed he not have Officer Lauro would ultimately the information or inevita- that brought appellee released after he was bly by discovered lawful would been show-up, appellee to the scene for the back ” means.... Id. Given the existence of formally after Lauro arrested until (Green’s illegality illegal primary knapsack and had looked inside the blue appellee’s knapsack), the evi- search of yellow knapsack. saw the suppressed yel- dence must be unless low would have been discovered government contends that the by legal means and therefore be would imposed improper court burden discovery admissible under the inevitable However, making findings. proof its exception. inquiry the first is wheth- government has confused the burden of would, fact, appellee er arrest- have been preponderance of proof by a the evi — Only ed. if that determination is made proven— dence—with that which affirmatively inquiry is the second —wheth- discovery or “cer that the was “inevitable” er the arrest would have been lawful be- tain to occur.” motions court stated supported cause—to be find that it could that it had to be substan Having addressed. concluded that tially the arrest certain that would have government prove failed to that yellow knap occurred the absence of arrested, would been Although specifi the court did not sack. properly ques- declined to reach the making cally state whether it was probable cause. tion of whether there was evidence, finding by preponderance Supreme Court stated in ordinary proof is the burden discovery no Nix “inevitable involves Nix, hearings, supra, of suppression see speculative elements but focuses on demon aware, supra the court was see note capable ready strated historical facts (government prove by prepon failed to impeachment verification or and does evidence), no derance of the and there is require departure from the usual burden that the motions court reason assume proof suppression hearings.” Id. 104 proof. The imposed a different burden of 5.Ct. at 2509-10 n. 5. The motions court the substantial motions court stated that determined that it was not certain that certainty to which it referred related have arrested not to the inevitability discovery yellow knapsack. The they not found the finding that these “feel- asked." The court found that this 6. The contends ings" not amount to a by and “inclinations” did Lauro’s testi- the court was refuted Officer officers, by in- based on the mony support clear decision the without in the and therefore was yellow knap- However, they had without the formation sack, it is for the motions court evidence. and there- had cause credibility that and demeanor of the to assess the appellee. court noted findings. The Unit- fore would arrest and make such factual witnesses belied the conten- actions at the scene Lyon, supra, The that their v. 348 A.2d at 299. ed States arrested [appellee] would have was the tion that fact that Officer Lauro "felt Similarly, illegally knap- evidence. discovering seized without the before the assailant” arrest), (written shortly the finding, reports after automatically require their the does not sack as contends, court also before the motions which were government that based on this as the "feeling" contention; evidence, support Offi- Lauro, that police do not experienced an Officer testimony report and indicated officer, cer Lauro’s arrested because he would have discovered, the support until the had to convinced he investigatory phase. police were still Similarly, viewed arrest. the motions court the finding that the court’s we cannot find testimony to that he was inclined Lauro’s not 17-305(a) clearly wrong. being § D.C.Code appellee prior discovery to the release based, part, way question on "the the at least Nix, event, abuse, the proof.7 any requires permit of In the to use burden after and any of reasonable crucial evidence discovery the standard is clear —the v. Unit- Vicks legal theory. See available and proven to be inevitable (Nebek- (D.C.1973) ed A.2d finding discovery court’s that the er, Accordingly, and J., concurring). after “substantially certain” to occur is in ac- taken positions by of due consideration find no cordance with that standard. We death I this knell parties, would reverse by in its the motions court use of the error reasons suppression for the which order of certainty” “substantial test. follow. Accordingly, judgment is af- below one, resolving a case like this In we firmed. case-matching to a slave exer- cannot be treat factors in myriad cise in we one NEBEKER, Judge, dissenting: Associate setting a minimum case as threshold or begin A with some fundamentals. Mason, v. next. See States Application a search is for truth. (D.C.1982). past Each case exclusionary and rule blocks search different from the one hand. factors suppression thus truth. Sometimes reason, apply The role is to a rule of court’s the truth of the rule does not of use precedent not assume because injustice process an the trial work because elements it is thus based on certain factual finds the truth from other admissible evi- contrary result sim- inapposite or dictates a case, however, greatest In dence. this lacking ply one factor is because rule; injustice is done the use of the Long, Michigan case at hand. society injustice only but also L.Ed.2d hapless victim must see her assailant who (1983), rejected a where the Court guilt cer- go unpunished. Proof of to near case-matching approach by Michigan Moreover, it is being is excluded. titude Ohio, limiting Court only proof this that Lewis committed “only degrading, and violent act —rec- senseless person.” of a pat-down limited by inserting a abuse stick into this tal applied a broader rule of reason to Court female victim. protective “roadside encounters searches Michigan and police suspects.” between being applied rule is exclusionary Long, supra, at 3480. of regard to the nature this case without and the extreme conse- intrusion case and is a roadside encounter This compelling, this suppression candor, of quences Lewis, does commendable thus See Dickerson only, guilt. evidence dispute that Green had reasonable (D.C.1972) A.2d 708 return him to which to basis view, J., (Record (Nebeker, concurring). my show-up. In for a the crime scene rule, 54.) exclusionary generally is to fit the if it Lewis integrity of the pants on his the assailant and mud use in cases of real viable for remain LAFAVE, stated, prove, citing had to not to the burden SEARCH The court 11.4, necessary proba- supra, proof. People Payton, the New "[t]he In § AND SEIZURE bility found Appeals would have been that the evidence Court of stated: York [sic, according anyway, LaFae LaFave] place dis- the first label 'inevitable might, but have been Not word ‘would.’ covery’ mislead- is inaccurate and therefore strictly requirement must be found and that ing. The doctrine does not call for certitude New court’s reference to to....” adhered adjective meaning as the literal ‘inevita- People Payton, v. 45 law and the case York N.Y.2d suggest. required is is that ble’ would What 402, 395, 300, 313, N.Y.S.2d 380 408 very high degree probability be a there 224, (1978), grounds, rev'd on other N.E.2d 231 question in would have been the evidence 573, 1371, 63 639 S.Ct. L.Ed.2d 100 independently tainted obtained of the source. also clear that the motions makes 313, 402, at N.Y.S.2d at 45 N.Y.2d 408 380 certainty” referring stan- to the "substantial at 231. N.E.2d ultimate in relation to the fact dard

737 Of and a knuckle on one been invalid? scratches swollen “Would the arrest have hand, not.”). suggesting recent violence. course see, suspicion,” had an Green “articulable determining reasonableness In States, e.g., Wilkerson United 427 A.2d knapsack, appellant’s we search of 923, 925 that Lewis had commit the individual’s intrusion on “balance [the] justified taking in ted the crime and was against interests Fourth Amendment [the] him to the scene. This was a “reasonable legitimate governmental in- promotion of extension of the duration of the Lafayette, Illinois 462 terests.” await the outcome of further investi 2605, 2608, 640, 103 S.Ct. 77 L.Ed.2d 65 926, Id. Harris v. gation.” quoting at Prouse, (1983) (quoting Delaware v. 440 States, 1016, (D.C. United 382 A.2d 1019 648, 654, 1391, 1396, 99 59 1978). (1979)). When Green made his scene, question whether, giv- that arises is decision to return Lewis to the crime knap- en the certainly reasonableness of the return of he could not have left the scene, behind, might Lewis to the the search of the blue sack as it well have been against was reasonable.1 It is well-set- stolen. Lewis would have claim prohibits resulting tled that the Constitution not all the officer from such a theft and searches, might provide rather be inclined to false informa- but those that are unrea- States, Id. 103 sonable. Elkins v. knapsack’s tion about the contents. United (inventory 206, 222, 1437, 1446, S.Ct. at 2609 search of arres- bag tee’s deterred false claims and inhibit- handling ed the theft or careless of items Given Officer Green’s version of how he arrestee). taken from knapsack, discovered the victim’s he could rejecting of Offi- reasonableness not have asserted an alternative rationale search, majority empha- cer Green’s hearing at the motions at variance with his Terry excep- scope sizes the narrow however, testimony. inquiry, This court’s requirement tion to the warrant and as- by reject is not bound Green’s asserted but , any potential danger to serts that subjective ed version or his state of mind or placed ended when Lewis legal reasoning prior to the search. Rath the hood of the car. Such a narrow read- er, objec we must focus on it whether was ing required, is not as evidenced tively for him to conduct reasonable language the Court’s in the case itself. See, as the court found did. length States, develop need not in this We e.g., Harris v. United 382 A.2d case, however, the limitations which (D.C.1978); Arrington v. Unit protec- places upon Amendment States, Fourth (D.C.1973); ed 311 A.2d weapons. tive seizure and search States, Bailey v. United 279 A.2d limitations have to be devel- These will (D.C.1971); Von Sleichter United concrete factual circumstanc- oped States, (D.C.1970); Cole cases. es of individual States, man U.S.App.D.C.

48, 58, (1969) (Bazelon, Ohio, 420 F.2d supra, 392 U.S. at Terry v. States, concurring); Payne C.J., v. United And, deciding whether an at 1884. 94, 96, given reasonably 294 F.2d in a situa- officer acted Bell v. United (1961); U.S.App. tion, issue is whether a “reason- the crucial (1958) (arrest ably prudent man the circumstances D.C. his in the belief that ing officer’s belief that for one would be warranted arrest was danger.” safety that of others was “legal lights charge” or offense but decided 27, 88 S.Ct. at 1883. Id. something the offense was different. Although ments. March its did not frame terms, (D.C.1976). authority appeal in these this court’s argu- way limited chose to cast its bag so I took some of the

Here, prospect stuff out of faced the Officer Green bag and then he suspect particularly in a stuff out of himself transporting along bag pulled out the knap- crime with a into the violent and senseless went 125.) (Record were unknown at This search was bag, the contents of which sack.” may therefore be than those conducted rou- him. His actions far less intrusive searching public buildings airports it as a tinely deemed reasonable possession Supreme security personnel take security measure. The Court where “suspects may rummage outset recognized bags at expressly through only virtue It was after Lewis injure police officers and others them.2 though yellow knap- weapons, items that access to even removed some of their did, it armed.” into view. When they may not themselves be sack came point that it was Long, supra, 103 S.Ct. at to a Michigan v. situation escalated to seize Although stated that most reasonable 3480. then not think Lewis knapsack. of Lewis and did not afraid armed, question remains whether recog- holding, this court fails In its the search ex justification for objective ground nize an available Payne, supra, isted. justified. knapsack was of the blue Whether Green 294 F.2d 725. Johnson, 182 U.S. States v. See United knapsack contained actually feared that the (1977). 388, 391, App.D.C. “need to unimportant, as the weapons is only hope that express “the again indepen against such risks arises protect authority reviewing will both remaining subjective con particular officer’s dent of a reject the opportunity to and seize the supra, Lafayette, Illinois cerns.” Crews holding. majority’s” v. Rob States (citing at 2610 (Har- (D.C.1978) inson, 94 S.Ct. rev’d, United States ris, J., dissenting), (1973)). Crews, strong inter- Balancing government’s officers and safety

est in the bringing this defendant

public interest tempered manner against

book

search, the search is evident fact Lewis’ accept as We must reasonable. that, He testified of the search.

version me to take some asked

“He [Green] Moreover, a fayette, supra, S.Ct. at 2610. protected himself Arguably, Green could knapsack which contained pat-down of the trunk of the by placing the articles, hard, gym large such number of of his search reasonableness car. But the scout radio, as a have sufficed would not shoes and a security of a less intrusive existence turn on the La- measure. securing Illinois v. means

Case Details

Case Name: United States v. Lewis

Court Name: District of Columbia Court of Appeals

Date Published: Jan 16, 1985

Citation: 486 A.2d 729

Docket Number: 84-101

Court Abbreviation: D.C.