United States v. Mark Stubblefield , 820 F.3d 445 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 4, 2016 Decided April 29, 2016
No. 14-3051
UNITED STATES OF AMERICA,
APPELLEE
v.
MARK STUBBLEFIELD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00171-1)
Joshua M. Parker argued the cause for appellant. With
him on the briefs was David W. DeBruin, appointed by the
court.
Lena H. Hughes, Bristow Fellow, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
was Elizabeth Trosman, Assistant U.S. Attorney. Suzanne G.
Curt, Assistant U.S. Attorney, entered an appearance.
Before: TATEL, BROWN, and MILLETT, Circuit Judges.
2
Opinion of the Court filed by Circuit Judge BROWN:
BROWN, Circuit Judge: This case is, at its core, a fact-
intensive dispute over probable cause. Witness descriptions
of a serial robber—a middle-aged black man of short build
and facial disfigurement—helped produce a police sketch,
which was then used in canvassing efforts, which netted an
identification, which led police officers to the identified
suspect, and their approach prompted that suspect, Mark
Stubblefield, to flee for two blocks until he was apprehended
and arrested. We are asked to decide whether, in view of this
totality of circumstances, probable cause to arrest Stubblefield
existed. We hold that it did.
I
Between January and April 2008, an unknown suspect
committed a series of bank robberies in Washington, D.C.
Witnesses described the robber as a thin, middle-aged black
man, of short build—between 5’1” and 5’3”— and possessing
an unusual facial complexion. Descriptions of his
complexion varied slightly. Some used the word “scarring,”
while others used terms like “markings,” “birthmarks,”
“divots,” or “impressions . . . under his cheeks.” However, all
acknowledged the disfigurement.
Video surveillance showed a man, matching the robber’s
description, running down a nearby street and hopping in a
taxi cab just minutes after one of the robberies. FBI Special
Agent Luis DeJesus tracked down the cab driver, who had
been paid with a marked $20 bill the day before. The driver
recalled dropping the man at 7th Street and Florida Avenue.
Using a sketch produced from witness descriptions, FBI
agents canvassed nearby areas and distributed “wanted”
3
posters throughout Washington D.C. in search of anyone who
might recognize the robber. In early May, one individual did.
This person recognized the subject as a man who frequented
the area of 7th Street and Florida Avenue NW, the same
location identified by the cab driver. A few days later on the
morning of May 12, this same individual informed the FBI
that he or she had again spotted that same man, whom the
informant referred to as “Mark,” this time at 7th and Rhode
Island Avenue—a few blocks from Florida Avenue.
Some time after receiving this tip, two officers went to
the intersection and approached a man who matched the
robber’s description. When the man saw them, he ran; they
pursued and apprehended him two blocks away, where he was
promptly arrested and searched. The search uncovered a
small, inch-and-a-half long crack pipe in the suspect’s pocket.
The arresting officers made no mention of the bank robberies
in their arrest report, listing possession of drug paraphernalia
as the basis for the arrest.
The suspect, now identified as Mark Stubblefield, was
booked, photographed, and processed. Agent DeJesus
incorporated Stubblefield’s booking photograph into a photo
array containing pictures of eight other men. He showed the
array to two of the seven eyewitnesses. One witness, a branch
manager, positively identified Mr. Stubblefield based on the
photograph. The other, a teller, initially stated the photo
didn’t match, but then added, “It really looks like him, I’m not
sure, you know, I don’t know.” Based on the manager’s
positive identification, Agent DeJesus obtained and executed
a separate arrest warrant, this time charging Stubblefield with
bank robbery.
Before trial, Stubblefield’s attorney filed two motions to
suppress—one, alleging in-court and out-of-court testimony
4
stemmed from impermissibly suggestive identification
procedures, and the other, concerning Stubblefield’s post-
arrest statements and actions at police headquarters. Neither
motion alleged a Fourth Amendment violation.
At trial, the government called thirty-seven witnesses.
None of the eyewitnesses identified Stubblefield in court.
Their testimonies focused, instead, on their pre-trial
identifications and descriptions of the robber. Only
Detectives DeJesus and Elmer Baylor identified Stubblefield
in court. And aside from these pre- and in-trial
identifications, the government put on no other evidence
directly linking Stubblefield to the bank robberies.
Nonetheless, a jury convicted Stubblefield of six counts
of bank robbery and one count of attempted bank robbery,
and he received a sentence of 180 months’ imprisonment.
This court affirmed his conviction on direct appeal, see
United States v. Stubblefield, 643 F.3d 291 (D.C. Cir. 2011),
and Stubblefield comes before us now on a motion to vacate
that conviction due to ineffective assistance of counsel (IAC),
pursuant to 28 U.S.C. § 2255(a). The district court denied
Stubblefield’s motion and declined to issue a certificate of
appealability. United States v. Stubblefield, 931 F. Supp. 2d
118 (D.D.C. 2013).
II
Stubblefield’s ineffective assistance of counsel argument
is relatively straightforward: He contends his booking
photograph was obtained in violation of the Fourth
Amendment, and had his counsel moved to suppress it, there
wouldn’t have been sufficient evidence to sustain a
conviction. To prevail on an ineffective assistance of counsel
motion premised on a Fourth Amendment claim, the
5
defendant bears the burden of “prov[ing] that his Fourth
Amendment claim is meritorious.” Kimmelman v. Morrison,
477 U.S. 365, 375 (1986). Attempting to carry that burden,
Stubblefield, through court-appointed Amicus, asserts three
separate, if overlapping, grounds for suppression: one, the
police lacked reasonable suspicion to stop him; two, the crack
pipe was discovered through an impermissible search; and
three, the government lacked probable cause to arrest
Stubblefield for bank robbery. As the foregoing recitation
demonstrates, Stubblefield proffers “a substantial showing of
the denial of a constitutional right,” and we grant his request
for a certificate of appealability. See Slack v. McDaniel, 329
U.S. 473, 484 (2000). Accordingly, we review his IAC claim
de novo. United States v. Abney, 812 F.3d 1079, 1087 (D.C.
Cir. 2016).
Affirming the district court’s conclusion that there was
probable cause to arrest Stubblefield for bank robbery would
render inert his other two arguments, both of which are
premised on a lack of reasonable suspicion. So we begin
there. Determining probable cause requires examination of
the totality of circumstances rather than facts in isolation.
Illinois v. Gates, 462 U.S. 213, 231–32 (1983). Like a mosaic
formed from many pieces, it is the whole picture, viewed
from the proper perspective, that deserves our attention. No
single piece, no matter how colorful or ornate, can duplicate
the impact of the image formed when the parts are viewed
together. Here, proper attention to the totality of
Stubblefield’s case—to the entire pattern—creates a portrait
that clearly supports the district court’s finding of probable
cause.
Three facts in particular shape the portrait. First, the
witness descriptions of the robber uniquely identify and
clearly match Stubblefield’s characteristics. Witnesses
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described the robber as a middle-aged black man, of thin,
short build and with some sort of facial disfigurement. Of
these descriptions, two are particularly distinctive: the height
and the facial disfigurement. As to the robber’s height,
witnesses identified the robber as between 5’1” and 5’2”. 1
Given that, for black men ages 40–59, a height even of 5’5” is
considered the bottom fifth percentile, 2 the robber’s height—
which matched Stubblefield’s height of 5’2”—is a unique
identifier. In addition to the robber’s unusually short build, he
exhibited unique facial disfigurement. While it’s true that
witness descriptions toggled between “scarring” and “divots”
and “markings,” many eyewitnesses readily noticed the
robber’s distinctive facial disfigurement. And again, the
described disfigurement, another unique identifier, was
consistent with Stubblefield’s disfigurement. Second, two
different sources put the robber at or very near the location
where Stubblefield was arrested. The cab driver told police
he dropped the robber off at the intersection of 7th and
Florida Avenue. And a citizen-informant told the FBI that a
man matching the robber’s description frequented that exact
same intersection. Stubblefield was ultimately apprehended a
few blocks from there—7th and Rhode Island—after
1
Stubblefield attempted at trial and again here on appeal to suggest
other witness descriptions put the robber’s height around 5’5” or
5’6”. Amicus Reply Br. 5. As support, Amicus directs the court to
a colloquy at trial between defense counsel and a branch manager
in which the branch manager could not recall what height she told
police, only that the robber “was a smaller gentleman, probably
below average” who was “possibly” “five-foot five or shorter.”
S.A. 139. Thus, the discrepancy was minor and equivocal; the
consensus described an exceptionally short male.
2
See U.S. Dep’t of Health & Human Servs., National Health
Statistics Reports: Anthropometric Reference Data for Children and
Adults: United States, 2003-2006, Oct. 22, 2008, at 16, available at
http://www.cdc.gov/nchs/data/nhsr/nhsr010.pdf.
7
receiving another tip from the same informant. Third, when
the police followed that tip to 7th and Rhode Island and
approached Stubblefield, he fled and eluded the police’s chase
for two blocks. Whether any of these facts is sufficient alone
for probable cause or whether reasonable suspicion ripened, at
some point, to probable cause, we need not decide. Placed
alongside each other, these three pieces—the witness
descriptions matching Stubblefield’s unusual visage and
physique, Stubblefield’s location at or near the place
witnesses had previously seen him, and his flight from the
police—form a convincing depiction of probable cause.
In an attempt to divide and minimize, Amicus responds
by isolating and impeaching each fact. Regarding the witness
descriptions, Amicus contends “the perpetrator’s one
distinctive feature” was his “scarring or mark[ings] on his
face,” and asserts Stubblefield lacked that one feature.
Amicus Br. 26. And absent that one feature, Amicus avers,
Stubblefield matched only the generic descriptions, which is
insufficient since “there were almost certainly other short,
black men somewhere between the ages of 36 and 50 in the
area.” Id. at 25. But here, Amicus overplays its hand in two
important respects. First, the record doesn’t support the
argument that “scarring” was the robber’s one distinctive
feature. To the contrary, witnesses described the robber as
possessing a facial complexion more similar to Stubblefield’s
than the one Amicus depicts. See e.g. Stubblefield, 931 F.
Supp. 2d at 120 (“unusual facial complexion”); Trial Tr. day 1
at 89 (“a very sunken face” with “bumps”); Trial Tr. day 3 at
42 (“I don’t know whether it was gashes or wrinkles, but you
could definitely see marks, an indentation in his cheeks”). To
be sure, witnesses equivocated on whether it was a scar, bad
skin, bumps, or divots, but one thing was clear: the robber had
some sort of disfigurement, and that disfigurement was
consistent with Stubblefield’s. Second, Amicus glosses over
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just how distinctive the robber’s height is and, thus, how
relevant it is to our probable cause calculus. Individuals a full
three inches taller than Stubblefield still fall in the bottom
fifth percentile. There are relatively few middle-aged men of
such height in America. There are even fewer middle-aged
men of such height who also have visible facial
disfigurement. That Stubblefield matches both supports a
finding of probable cause.
None of the cases Amicus cites persuades us otherwise.
For instance, the Supreme Court found no probable cause to
search a traveler’s luggage for drugs in Reid v. Georgia, 448
U.S. 438 (1980). That traveler had no luggage other than a
shoulder bag, arrived from Fort Lauderdale (a hotbed of
cocaine trafficking), and arrived early in the morning when
law enforcement presence is diminished. Those
circumstances, the Court explained, “describe[d] a very large
category of presumably innocent travelers.” Id. at 441. That
conclusion is unsurprising, since finding probable cause there
would have meant everyone traveling from Fort Lauderdale in
the early morning with light luggage forfeited the Fourth
Amendment’s protection. Nothing even approaching that
scenario exists in Stubblefield’s case.
And our conclusion that no probable cause existed in
United States v. Short, 570 F.2d 1051 (D.C. Cir. 1978), is
easily distinguishable from the case at hand. We concluded a
description consisting of a black “male approximately 18 to
19 years old, 5’9 to 5’10” tall, 145 to 155 pounds, with a short
Afro-bush haircut and dark complexion, . . . wearing a camel-
colored, waist-length leather jacket and blue trousers” was not
sufficiently specific. Id. at 1053–54. But unlike
Stubblefield’s, those descriptors (with the possible exception
of the suspect’s clothing, distinguishable for other reasons)
are extraordinarily common characteristics that “fit[] many
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young people in that area of Washington.” Id. at 1054. It was
precisely for this reason we concluded the description was
“insufficient to narrow the number of suspects to a level
tolerable under the Fourth Amendment.” Id. Stubblefield’s is
a very different case. We are convinced that if the description
in Short had identified a thin, middle-aged black man,
approximately 5’2” tall with facial disfigurement, the number
of suspects would have narrowed to a tolerable level.
As to location, Amicus advances two arguments, both
centered on the informant’s tips. First, Amicus contends that,
since little is known about the tipster, the tips were unreliable.
Because we know nothing of the informant’s identity or
record, Amicus argues, we are unable to “infer” much at all
about the tipster’s credibility. Id. To the contrary, the
reliability of this informant’s tip, obtained in a face-to-face
encounter with FBI canvassers, surpasses others the Supreme
Court has previously blessed. See Alabama v. White, 496
U.S. 325 (1990) (concluding an anonymous tip exhibited
sufficient indicia of reliability to justify an investigatory stop);
Navarette v. California, 134 S. Ct. 1683 (2014) (holding that
an anonymous call reporting apparent drunk driving was
sufficiently reliable). In-person tips are “inherently more
trustworthy” than anonymous ones. United States v.
Thompson, 234 F.3d 725, 729 (D.C. Cir. 2000).
Amicus’s second argument indicts the lack of record
evidence concerning how much time elapsed between the
informant’s May 12th tip and the officers’ arrival at 7th and
Rhode Island. Amicus suggests the record reveals only that
“both occurred in the morning” and requests, at the very least,
an evidentiary hearing to fill in the gaps. Amicus Reply Br. 8.
It is true the record is incomplete. But even if we were to
discover, after supplementing the record, that the police
dithered for an hour before arriving at the scene, it wouldn’t
10
change our conclusion. 3 The citizen-informant who provided
the tip told police the individual “frequented the area,” which
suggests the person hangs around longer than, say, a passing
commuter. Thus, even if there was a long response time, the
person identified by the informant was likely still in the
vicinity. Moreover, as we noted earlier, the individual
identified by the informant, by the robbery witnesses, and
ultimately by the police possessed not one, but two
extraordinarily rare characteristics. Given all the other
evidence suggesting probable cause here, whether the police
promptly pursued the tip or not would hardly alter the
probable cause mosaic at all.
Finally, Amicus argues Stubblefield’s flight from police
does not add anything to this portrait of probable cause
because the record does not demonstrate his flight was
“headlong” or “unprovoked.” Amicus Br. at 30. Those terms
come from the Supreme Court’s decision in Illinois v.
Wardlow, in which the court held that “[h]eadlong” or
“unprovoked flight” can suggest wrongdoing and justify
further investigation. 528 U.S. 119, 124–25 (2000). While
we agree the record is scant, we do not agree with Amicus’s
ultimate contention for two reasons. First, the record tells us
that Stubblefield “fled on foot,” that “[a] chase ensued,” and
that he was ultimately apprehended two blocks away from
where he was first approached. Aff. in Support of Arrest
Warrant for Mark Stubblefield at 4. The Wardlow opinion
3
This is unlikely, in any event. In his original arrest report from
May 12, the arresting officer noted the time of the arrest was 7:49
AM. Thus, before 7:49 AM, the officers received the tip, arrived at
the scene, approached Stubblefield, chased him two blocks, stopped
him, patted him down, discovered drugs, and then arrested him.
While it is true the record does not say when the informant called
the police, the arrest was made early enough in the morning to
dampen fears that an alarming delay occurred.
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strikes an explicit contrast between a person’s “right to ignore
the police and go about his business” and “unprovoked flight
upon noticing the police.” 528 U.S. at 124–25. Whatever can
be made of the scant record before us, it is clear Stubblefield’s
flight and attempt to outrun the police were “just the
opposite” of “going about one’s business.” Id. at 125. And
second, this piece of the mosaic must not be viewed in
isolation. If all we had before us was an instance of
unprovoked flight, the probable cause question would favor
Stubblefield. See United States v. Sharpe, 470 U.S. 675, 706
(1985) (Brennan, J., dissenting) (“[F]light alone cannot give
rise to probable cause.”). But that’s not all we have before us.
We’ve already shown how the witness descriptions, combined
with Stubblefield’s location, at the very least contributed to a
reasonable suspicion of wrongdoing. That is crucial—
because while flight alone cannot sustain a finding of
probable cause, it can when “coupled with pre-existing
reasonable and articulable suspicion.” Id.III
As we said at the outset, this case is fundamentally about
probable cause, a “fluid concept[,] turning on the assessment
of probabilities in particular factual contexts.” Gates, 462
U.S. at 232. This case’s factual context, its assemblage of
interlocking pieces, reveals a mosaic that clearly depicts
probable cause. Because the FBI had probable cause to arrest
him for bank robbery, Stubblefield’s Fourth Amendment
argument for suppression is not meritorious and, therefore, his
ineffective assistance of counsel claim fails. The decision of
the district court is accordingly
Affirmed.