IN RE: Z.B.

131 A.3d 351, 2016 D.C. App. LEXIS 34, 2016 WL 454071
CourtDistrict of Columbia Court of Appeals
DecidedFebruary 4, 2016
Docket14-FS-0772
StatusPublished
Cited by7 cases

This text of 131 A.3d 351 (IN RE: Z.B.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
IN RE: Z.B., 131 A.3d 351, 2016 D.C. App. LEXIS 34, 2016 WL 454071 (D.C. 2016).

Opinion

PRYOR, Senior Judge:

Appellant was adjudicated involved with robbery, D.C.Code § 22-2801 (2012 Repl.); receiving stolen property (“RSP”), D.C.Code § 22-3232 (2012 Repl.); and two counts of misdemeanor threats to do bodily harm, D.C.Code § 22-407 (2012 Repl.). He contends on appeal that police officers lacked reasonable articulable suspicion to seize him to conduct a show-up identification, and thus all resulting evidence from the seizure should be suppressed. Further, he argues threats should merge with robbery. After reviewing the record, we conclude that the judge did not err in denying the suppression motion and the offenses do not merge. We remand to merge RSP with robbery as noted by the trial court, but affirm in all other respects. 1

I.

Appellant, age fourteen, along with two other teenagers, approached another teenager and demanded his cell phone. Appellant told the complaining witness that he would break his jaw if he continued to yell out for help from passersby, and he said he would pull a “strap,” which complainant understood to be a gun. After handing over his cell phone, the complaining witness ran away, flagged down an officer, and provided a description of the suspects.

There was an initial radio broadcast for “three young black males” and another more detailed description two minutes later. The second radio broadcast was for a seventeen-year-old black male, 6'2", wearing a black jacket and blue gloves, and *353 stated his last known location. The broadcast did not mention that a cell phone had been stolen. Two officers heard the description and saw appellant, within a few minutes, standing on the street approximately two blocks away from the incident. Appellant placed the cell phone in his pocket after seeing the officers. He was shorter in height, wearing a black jacket, a black ski mask in which his face was exposed, and displayed one aqua and blue glove on his hand. The officers stopped him, radioed to the officer who was with the complaining witness, and the witness was transported for a show-up identification. Upon positive identification, 2 he was placed under arrest, and spontaneously asked, “How you going to say I robbed somebody?” A subsequent search revealed the stolen cell phone.

During trial there was a motion to suppress the identification, appellant’s volunteered question, and the cell phone on the basis that appellant’s seizure was invalid. The judge found that appellant matched the description in all pertinent aspects except being shorter in height. Based on the totality of the circumstances the trial judge denied the motion and found appellant involved with robbery, RSP, and two counts of misdemeanor threats. Appellant filed this timely appeal.

II.

A. Reasonable Suspicion to Seize Appellant

Officers may seize an individual to conduct an investigatory stop if, in the totality of the circumstances, they have particularized and objectively reasonable articulable suspicion that criminal activity is afoot. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officer must be able to provide “specific and articulable facts” to justify the Fourth Amendment intrusion. See Curtis v. United States, 349 A.2d 469, 471 (D.C.1975) (citation omitted). The government’s burden, however, “is not an onerous one” because “articulable suspicion is substantially less than probable cause....” In re T.L.L., 729 A.2d 334, 339 (D.C.1999) (citations omitted). “[A]n imperfect description, coupled with close spatial and temporal proximity between the reported crime and seizure, justifies a Terry stop.” United States v. Turner, 699 A.2d 1125, 1129 (D.C.1997) (summarizing cases of twenty-five seconds to “minutes” between description and stop) (citations omitted).

Our review is limited on an appeal concerning the denial of a motion to suppress evidence. Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991). “[W]e will not disturb the trial judge’s findings of fact unless they lack evidentiary support in the record— The evidence, and all reasonable inferences from the evidence, must be viewed in the light most favorable to the District, as the party that prevailed below.” In re T.L.L., supra, 729 A.2d at 339 (citing Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc); Ruffin v. United States, 642 A.2d 1288, 1291 (D.C. 1994)). We apply the clearly erroneous standard to the judge’s findings of fact, but the ultimate conclusion on whether the police had reasonable articulable suspicion is a question of law we decide de novo. Bronm, supra, 590 A.2d at 1020.

Appellant contends that the initial descriptions of the robber given by the complainant were markedly inaccurate and therefore deficient. Nonetheless, appellant fit the general description given as to the age, ethnicity, ski clothing, and glove. Further,' appellant was observed by the officers just two blocks from the robbery *354 scene a few minutes later. Applying the familiar Terry measure of total circumstances, we conclude that the evidence supports the trial judge’s finding of reasonable articulable suspicion of criminal activity afoot to justify a temporary stop. See Turner, supra, 699 A.2d at 1128-29 (discussing that an imperfect description “coupled with close spatial and temporal proximity between the reported crime and seizure, justifies a Terry stop”). Thereafter, the complaining witness’ positive identification of appellant at the show-up gave police probable cause to arrest. See generally Oxner v. United States, 995 A.2d 205, 209 (D.C.2010).

B. Merger of Threats With Robbery

Appellant also contends that the threats alleged in this instance were a part of the robbery and were included in that offense. Even after applying the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), appellant argues that we should, conclude that the legislative intent was to include threats as a component of robbery.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Holman v. United States
District of Columbia Court of Appeals, 2025
Drake v. United States
District of Columbia Court of Appeals, 2024
Austin v. United States
District of Columbia Court of Appeals, 2024
In re: M.S.
District of Columbia Court of Appeals, 2017
Nathan P. Jackson v. United States
157 A.3d 1259 (District of Columbia Court of Appeals, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
131 A.3d 351, 2016 D.C. App. LEXIS 34, 2016 WL 454071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-zb-dc-2016.