ORAL ARGUMENT SCHEDULED FOR NOVEMBER 14, 2000
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPLY BRIEF FOR APPELLANT
Federal Public Defender
Counsel for Defendant-Appellant
625 Indiana Ave., N.W., Suite 550
Washington, D.C. 20004
Cr. No. (RWR)
SUMMARY OF ARGUMENT
The government's brief claims that there was reasonable suspicion to stop the defendant. The government makes two factual misstatements in its summary of the case, which are discussed in detail below. First, the government states that officers on the scene of the shooting broadcast lookouts indicting that the suspect was a black male" (GB 13). In fact, only one officer broadcast a description of a black male (APP 99). Second, the government states that a later call from someone described "an individual in all dark clothing (GB 13). In fact, the dispatcher said the person described a subject "wearing all black" (APP 108). The fact is that there was not sufficient reasonable suspicion to stop defendant because the record reflects an insufficient broadcast description upon which to base any stop of defendant.
I. THE BASIS FOR THE RADIO CALL
The government claims defendant has waived any issue as to the lack of information about the source of the information for the radio broadcast (GB 29). (1) The Court in United States v. Hensley, 469 U.S. 221, 233 (1985), specifically stated that for a stop based on a radio broadcast to be permissible, "the police who issued the bulletin" must possess reasonable suspicion to justify a stop. Thus, defendant's argument that there was no reasonable suspicion for a stop easily encompassed the argument that there was an insufficient basis for the broadcast. This is especially so where there were so many different descriptions that were broadcast. Indeed, defendant specifically argued that all the different descriptions made the last broadcast insufficiently specific.
The government concedes the prosecutor's argument that the tape was irrelevant was incorrect (GB 30 n.19). The government claims the prosecutor had "not been able to obtain the tape from the police department" (GB 30 n.19). The fact appears nowhere in the record. What the prosecutor told the court about discovery was that the 911 call was not on the tape of the radio run, but that he would check with MPD to see why it was not on the tape and that he would "followup on that" (SC 2-3). (2) The record reflects no indication that he ever did so and was unable to obtain the tape. (3)
The government apparently faults defendant for not inquiring of Taliaferro about the "origins of the lookouts" (GB 29-30). Initially, Taliaferro, the only witness at the suppression hearing, "could not verify the 911 calls and had no personal knowledge of them." United States v. Cutchin, 950 F.24 1216, 1218 (D.C. Cir. 1992). Furthermore, it is, of course, the government's burden to prove the justification for a warrantless search, United States v. Matlcock,415 U.S. 164, 177 n. 14 (1974), a fact the government does not mention in its brief. It is hardly the job of defense counsel to fill in gaps in the government's case. As the court stated in United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985):
The facts allegedly constituting the reasonable
suspicion are peculiarly within the knowledge and control of the police. To require the
defendant to prove the absence of a reasonable suspicion without knowledge of the facts
upon which the police based their assessment of the existence of a reasonable suspicion is
to place upon him an impossible burden.
The government certainly should have been aware of its obligation to introduce the 911 tape, or evidence about it, since this court's decision in Cutchin. Notably, the government's brief makes no mention of either Longmire or Cutchin. (4)
The government asserts that "the record does not establish" that the last lookout was anonymous (GB 32). Again, this again attempts to shift the burden of proof to defendant, when nothing in the record established the call was anything but anonymous. Because of the government's failure to meet its burden regarding the foundation for the information broadcast by the dispatcher, the district court's decision should be reversed.
II. THE BROADCAST DID NOT PROVIDE SUFFICIENT BASIS FOR THE STOP
In addition, the stop of defendant was not supported by any of the lookouts that were broadcast, including the final one upon which Taliaferro relied. At the suppression hearing, the government never provided any basis for the reliability of any of the lookouts.
Notably, although Taliaferro was at the scene for at least twenty to thirty minutes, and there were apparently a number of other officers there, he did not testify about hearing any information at the scene about any suspects.
Taliaferro testified only that defendant "appear[ed]" to see Taliaferro before walking briskly away (MS 38;APP 59). Indeed, Taliaferro did not testify as to what direction defendant was going when he was first seen by Taliaferro or how quickly defendant and the other man were walking at that time. Taliaferro did not testify that defendant changed direction or that the brisk walk was any faster or slower than defendant had been walking before he appeared to see Taliaferro. The district court found that defendant stopped and walked back to Taliaferro when he drew his gun and ordered defendant to stop (MS 59; APP 80). The district court did not find, as the government argues (GB 25), that defendant did not initially stop after Taliaferro supposedly initially told defendant to do so. The government was given a chance to request any additional findings, but did not do so, and the government has not argued in its brief that the district court's finding in this respect was clear error. (MS 65; APP 86).
Taliaferro repeatedly testified that the last lookout was not connected to the shooting (MS 40-42;APP 61-63). Only after persistent leading questioning by the district court, which seemingly was attempting to make the record clear for the government, did Taliaferro apparently finally figure out that he should say the lookout was connected to the shooting (MS 42; APP 63).
The lookout described only one person, yet defendant was with another man. The lookout stated that person was dressed in all black (APP 108), yet defendant had on dark blue coveralls (MS 60); APP 81). While the district court found that "it was not unreasonable to link the description of all black clothing to this dark blue appearance in the late night hours" (MS 62; APP 83), this finding is unsupported by any evidence. Taliaferro never testified to any such link or mistake. Taliaferro did testify, incorrectly, that the lookout said "dark clothing" (MS 21; APP 42), but he never testified that defendant's clothing looked black. (5) In fact, just the opposite -- Taliaferro testified he saw that defendant was wearing "dark blue" (MS 33; APP 54). (6)
The lookout upon which Taliaferro acted contained no description of the race of the person. Only one lookout regarding the shooting at 2308 North Capitol contained the race of the subject, and that described a "black male, light skinned ... possibly on a bike" (APP 99). (7) The government did not dispute defense counsel's assertion that light skin was not an accurate description of defendant (MS 50; APP 71). The district court obviously agreed, for it noted that the fact defendant was black was "weakened" by the lookout describing a light complexion (MS 62; 83). Again, Taliaferro did not testify to any mistake about the complexion, yet again the district court found, with no support in the evidence, that someone could "have different perspectives on the complexion of an African American at night on that street" (MS 62; APP 83). Basing its decision on "inferences" that help the government, rather than on evidence by which the government should be required to meet its burden of proof, demonstrates the weakness of the district court's decision and the government's position.
The government argued that Taliaferro had information in his mind that the person was running away from 2308 North Capitol and was in the unit block of Channing (MS 54; APP 75). Yet defendant was first seen at the corner of Bryant and North Capitol, which is back toward 2308 North Capitol from Channing (MS 59; APP 80). Thus, defendant could not have fit the description, as he was not running away from 2308 North Capitol.
The government also refers to cases involving eyewitnesses or citizen informers (GB 32). The record in this case does not show the lookout was based on either of these sources. The government contends that "two previous descriptions broadcast to Lieutenant Taliaferro came from officers actually on the scene of the crime" (GB 33). The significance the government attaches to this is unclear. Those descriptions differed markedly from the final lookout. The fact that differing descriptions were being broadcast necessarily casts doubt upon the reliability of any of them. In addition, there is no evidence about the source relied upon for those broadcasts.
None of the cases cited by the government contain a description even close to as skimpy as the one in the present case. As discussed in appellant's opening brief, the cases upholding stops contain far more detailed information describing the person. Describing a person in black clothing is far too nonspecific to justify a stop, especially where defendant had on blue clothing. The broadcast describing the tip as being even less specific than the one found on deficient in Florida v. J.L., 120 S.Ct. 1375 (2000).
There was not reasonable suspicion to stop the
defendant in this case. The government has not contested the premise that if the stop was
unlawful, the evidence must be suppressed. For all the reasons discussed above and in
appellant's opening brief, defendant respectfully requests the court reverse the order of
the district court denying defendant's motion to suppress.
A. J. Kramer
Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
CERTIFICATE OF LENGTH
I HEREBY CERTIFY that the foregoing reply brief for appellant, Curnell L. xxxxxxx, does not exceed the number of words permitted by D.C. Circuit Rule 28(d).
A. J. KRAMER
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two copies of the foregoing Reply Brief for Appellant has been sent by first-class mail, postage prepaid to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this th day of September, 2000.
A. J. Kramer
1. "GB" refers to the government's brief.
2. Transcripts are referenced by "SC" for an August 3, 1999, status conference; and "MS" for the September 23, 1999, motion to suppress hearing. The appendix filed with appellant's brief is referenced as "APP".
3. Again referring to facts not in the record, the government claims to have made a "third effort" to obtain the 911 tape and to apparently have succeeded (GB 30 n.19). There is nothing in the record as to what the first two attempts were. If the government has now been able to obtain the tape, it is apparent that the trial prosecutor did not tell the truth to the district court.
4. The government also requests a remand for further findings regarding the tape, as it now claims to have found the 911 tape. The government offers no explanation for why the trial prosecutor apparently misled the district court by assuring it that he would follow up on the 911 call. In light of Cutchin, the government should not be given an opportunity to produce evidence it should have produced after its assurances to the district court. The government's argument that this court cannot review the issue because of a lack of findings by the district court is frivolous. The government introduced no evidence about the 911 call, so it is simple for this court to review the issue because the government completely failed to meet its burden. Specific findings by the district court are unnecessary.
5. Taliaferro also testified incorrectly that the lookout described a "dark male" (MS 21; APP 42). In fact, the lookout did not describe the race of the person.
6. The district court stated there was "no testimony or cross-examination to contradict the reasonable inference that someone could have mistaken this dark blue for black" (MS 63; APP 84). Thus improperly shifts the burden of proof to defendant. In addition, the district court's "reasonable inference" is not based upon any evidence, as discussed above.
7. The government incorrectly states that two "lookouts were for a black male suspect" (GB 22). In fact, only one of these lookouts described the person's race (APP 97, 98).