In re D.M. , 94 A.3d 760 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 11-FS-1125
IN RE D.M.,
APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(DEL-857-11)
(Hon. Patricia A. Broderick, Trial Judge)
(Argued February 20, 2014 Decided July 10, 2014)
Fleming Terrell, with whom James Klein and Jaclyn S. Frankfurt were on
the brief, for appellant.
Janice Y. Sheppard, Assistant Attorney General, with whom Irvin B.
Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for
appellee District of Columbia.
Before BLACKBURNE-RIGSBY, Associate Judge, and PRYOR and KING,
Senior Judges.
KING, Senior Judge: After a bench trial, D.M. was convicted of second-
degree burglary,1 felony destruction of property,2 and second-degree theft.3 D.M.
1
D.C. Code § 22-801 (b) (2008).
(continued…)
2
appeals the trial court‟s denial of his motion to suppress a show-up identification
and evidence obtained pursuant to his arrest thereafter. Specifically, he contends
his seventy-five minute detention was an unconstitutional seizure because (1) the
length of his detention converted a temporary investigatory stop into a de facto
arrest, and (2) the police could have used less intrusive means to accomplish their
investigation. We disagree that the length of his detention or the possibility that
the officers could have accomplished their objective by alternative means made his
seizure unreasonable per se. However, concluding the trial court did not have
sufficient evidence, as a matter of law, to find that the length of the detention was
necessary and that the police acted diligently in pursuing the purpose of the stop,
we reverse the order denying D.M.‟s motion.
I.
Shortly after 10:00 a.m., on April 14, 2011, Anthony Pickett was in the
kitchen at his mother‟s house on Jay Street, N.E. Through the kitchen window he
(…continued)
2
D.C. Code § 22-303 (2008).
3
D.C. Code §§ 22-3211, -3212 (b) (2008).
3
observed five juveniles behind the next-door neighbor‟s home. He continued to
watch as one of the juveniles broke a window on the neighbor‟s back door and
enter the home. Two other juveniles, one of whom Pickett would later identify as
D.M., followed the first inside. Pickett‟s mother called 911 and Pickett provided a
description of the individuals. Pickett testified at D.M.‟s trial4 that D.M. had
“some kind of hat or something across his face, but he took it off” at some point
and Pickett could clearly see D.M.‟s face. After a time, D.M. and the other two
individuals came back out of the house and all five juveniles ran off down the
alley.
Officer Demar Rodgers received a radio call for a burglary in process and
responded to the scene. Pickett gave Rodgers a description of the teenaged males,
including a description of their clothing. Rodgers broadcasted a lookout for the
individuals over his radio. Officers Robert Munn and Calvin Awkward, and
Detective Chad Howard, also responded to the radio call. They began to canvas
the area, driving past the scene of the burglary on Jay Street, parallel to the alley
down which the juveniles had run. As the police officers passed an apartment
4
The trial court initially heard testimony from the government‟s witnesses
for the purpose of ruling on D.M.‟s motion to suppress, and then incorporated that
testimony as evidence in D.M.‟s trial.
4
building directly across from where the alley opened onto Jay Street, they noticed a
group of individuals standing out front. Munn and Awkward stopped at the
building while Howard doubled back, having passed the building before noticing
the group. The individuals looked at the police vehicle and hurried down the steps
in the building and out of sight.
Munn and Awkward went into the building and found four young men
gathered on the lower landing, D.M. among them. Once they stopped the group,
the officers asked their names and some general questions. The officers “didn‟t
really do an investigation” at that point, but just stopped the individuals “until the
detective did his investigation.” After Howard arrived, he observed that D.M.‟s
clothing matched one of the lookout descriptions: a black jacket and tan pants.
Howard and the other officers obtained information from each individual about
where they lived and went to school. D.M. was detained further while the other
juveniles were released to their school because they didn‟t match the lookout
description as completely as D.M.
At some point after D.M. was stopped, Howard left the apartment building
and returned to the scene of the burglary to contact Pickett. Howard testified that
he interviewed Pickett, obtained a “description of whom he saw exiting the house
5
and running down the alley,” placed Pickett in his car and took Pickett to the
apartment to perform a show-up identification of D.M. Pickett testified that he had
to return from work to meet Howard and perform the show-up identification.
Neither Pickett or Howard testified about where Pickett worked, when or how
Howard contacted Pickett, or the timetable of events leading up to the show-up
identification. Pickett identified D.M. during the show-up as one of the youths
who entered the house. Howard confirmed that the juveniles were stopped at
10:37 a.m. and the show-up occurred at 11:52 a.m.
In his pre-trial motions, D.M. argued, inter alia, that the police did not have
reasonable suspicion to stop the individuals5 and that, even if the stop was justified
as an investigatory stop, his prolonged detention exceeded the allowable scope of
such a stop. Following the testimony of the government‟s witnesses, the trial judge
denied D.M.‟s motion concluding that
what Detective Howard said was after stopping [D.M.],
he returned to the event location, contacted the witness,
got a description of what the witness saw and then took
him back to the scene. So the entire time he was
5
The government acknowledged the officers did not have probable cause to
arrest D.M. before Pickett‟s identification. D.M. does not renew on appeal his
argument that the police lacked reasonable suspicion to stop the juveniles.
6
diligently pursuing the police investigation. So I do not
find that the time was ill-spent or too long under the
circumstances, particularly because Mr. Pickett indicated
that he had to return to the scene.
II.
Our review of the denial of a motion to suppress is limited. Womack v.
United States, 673 A.2d 603, 607 (D.C. 1996). We must “view the evidence
presented at the suppression hearing in the light most favorable to the party
prevailing below, and we draw all reasonable inferences in that party‟s favor.” Id.We must also defer to the trial judge‟s factual findings, including resolution of
conflicting testimony, unless “they are clearly erroneous, i.e., without substantial
support in the record.” Lawrence v. United States, 566 A.2d 57, 60 (D.C. 1989);
see also In re T.L.L., 729 A.2d 334, 339 (D.C. 1999) (“[W]e will not disturb the
trial judge‟s findings of fact unless they lack evidentiary support in the record.”).
The trial court‟s ultimate conclusion of the constitutionality of a seizure is a
question of law that we review de novo. Womack, 673 A.2d at 607. That is, we
review de novo whether the prosecution met its burden of proving by a
preponderance of the evidence that a seizure was constitutionally permissible. See
Mayes v. United States, 653 A.2d 856, 861 (D.C. 1995); see also Florida v. Royer,
460 U.S. 491, 500 (1983) (plurality opinion) (“It is the State‟s burden to
7
demonstrate that the seizure it seeks to justify on the basis of a reasonable
suspicion was sufficiently limited in scope and duration to satisfy the conditions of
an investigative seizure.”).
The Fourth Amendment protects against unreasonable search and seizure.
The touchstone of the Fourth Amendment is reasonableness. See, e.g., United
States v. Sharpe, 470 U.S. 675, 682 (1985) (“The Fourth Amendment is not, of
course, a guarantee against all searches and seizures, but only against
unreasonable searches and seizures.” (emphasis in original)); see also Womack,
673 A.2d at 607 (“The basic question presented is whether, under all the
circumstances, the seizure . . . was reasonable.”). “[C]onsistent with the Fourth
Amendment, the police may briefly detain an individual for investigative purposes,
even if they lack the probable cause to arrest, so long as the officers have a
reasonable and articulable suspicion that the individual has committed or is about
to commit a crime.” Womack, 673 A.2d at 608 (citing Terry v. Ohio, 392 U.S. 1,
21-22 (1968)); see also Adams v. Williams, 407 U.S. 143, 146 (1972) (“A brief
stop of a suspicious individual, in order to determine his identity or to maintain the
status quo momentarily while obtaining more information, may be most reasonable
in light of the facts known to the officer at the time.”).
8
The Supreme Court has articulated a “dual inquiry for evaluating the
reasonableness of an investigative stop” in which we examine: (1) “whether the
officer‟s action was justified at its inception,” and (2) whether the actions were
“reasonably related in scope to the circumstances which justified interference in
the first place.” Sharpe, 470 U.S. at 682 (quoting Terry, 392 U.S. at 20). D.M.
does not dispute on appeal that MPD officers had a reasonable, particularized, and
articulable suspicion on which to justify stopping D.M. We are not, therefore,
concerned with the first part of this inquiry. Instead, we focus on D.M.‟s challenge
under the second part of this analysis.
As we have observed, the “measure of the scope of permissible police action
in any investigative stop depends on whether the police conduct was reasonable
under the circumstances.” In re M.E.B., 638 A.2d 1123, 1127 (D.C. 1993); see
also Royer, 460 U.S. at 500 (“The scope of detention must be carefully tailored to
its underlying justification.”). Police conduct exceeds the scope permissible under
Terry when “the police seek to verify their suspicions by means that approach the
conditions of arrest.” Royer, 460 U.S. at 499; see also Hiibel v. Sixth Judicial Dist.
Court of Nevada, Humboldt Cnty., 542 U.S. 177, 186 (2004). Criminal cases
provide “endless variations in the facts and circumstances” such that there can be
no clear “litmus-paper test” or bright line determining where police action has
9
become unreasonable. Royer, 460 U.S. at 506. However, several factors have
been identified as important and helpful guideposts in evaluating the scope of a
stop: (1) the length of the detention, (2) the place of detention, (3) the use of
handcuffs or force to restrain the suspect, and (4) the investigative methods
employed. See, e.g., Royer, 460 U.S. at 500, 502-05; In re M.E.B., 638 A.2d at
1128; Davis v. United States, 498 A.2d 242, 245 (D.C. 1985).6
D.M. makes no argument regarding to the place of detention or the use of
handcuffs or force.7 D.M.‟s argument focuses on the length of his detention and
the investigative methods employed by the officers.
A.
The Supreme Court has made it clear that “an investigative detention must
be temporary and last no longer than is necessary to effectuate the purpose of the
6
This list is not exhaustive and we remain cognizant of the fact that the
reasonableness of police actions under the totality of the circumstances remains
the core measure by which to determine the legality of searches and seizures.
7
The record indicates that D.M. was detained in the hallway where he was
seized until he was moved outside for the show-up identification. There is also no
indication that D.M. was handcuffed at any point.
10
stop.” Royer, 460 U.S. at 500. The Court has stressed that brevity is an important
aspect of Terry stops and that “in assessing the effect of the length of the detention,
we take into account whether the police diligently pursue their investigation.”
United States v. Place, 462 U.S. 696, 709 (1983). “[I]f an investigatory stop
continues indefinitely, at some point it can no longer be justified as an
investigative stop.” Sharpe, 470 U.S. at 685. Thus, in order to show an
investigatory stop is constitutional, the government must show that the length of
detention was necessary to quickly confirm or dispel suspicions and that the police
diligently pursued their investigation. See Sharpe, 470 U.S. at 686.
D.M. contends that his seventy-five minute detention was beyond the
bounds permitted by Terry. He argues that the extreme length of his detention
alone compels this conclusion. We do not agree. The Supreme Court has declined
on multiple occasions to “adopt any outside time limitation for a permissible Terry
stop,” and so do we. See Place, 462 U.S. at 709. “Much as a „bright line‟ rule
would be desirable, in evaluating whether an investigative detention is
unreasonable, common sense and ordinary human experience must govern over
rigid criteria.” Sharpe, 470 U.S. at 685.
11
D.M. points to the Supreme Court‟s decision in Place to support his
argument that a detention over one hour approaches a level of per se
unreasonableness. That reliance is misplaced. The Court itself has clarified that,
regardless of the specific language used in Place,
the rationale underlying [the conclusion that a ninety-
minute detention was unreasonable] was premised on the
fact that the police knew of respondent‟s arrival time for
several hours beforehand, and the Court assumed that the
police could have arranged for a trained narcotics dog in
advance and thus avoided the necessity of holding
respondent‟s luggage for 90 minutes.
Sharpe, 470 U.S. at 684-85. No analogy exists on the circumstances presented
here. The officers responding to the burglary call could not have prepared in
advance for the fluid situation in which they found themselves. Cf. Sharpe, 470
U.S. at 686 (“A court making this assessment should take care to consider whether
the police are acting in a swiftly developing situation . . . .”). D.M.‟s detention was
not prolonged because the police failed to prepare in advance of his seizure. Thus,
he cannot rely on the underlying rationale used in Place.
That said, we have never upheld a seizure for over an hour while police
arranged a show-up identification. See, e.g., Hicks v. United States, 730 A.2d 657,
12
660 (D.C. 1999) (concluding a twenty-five minute detention for a show-up
identification was reasonable); see also McIlwain v. United States, 568 A.2d 470,
473 (D.C. 1989) (finding a thirty-minute detention while awaiting arrival of “law
enforcement officers specially trained to deal with the uniquely difficult offense of
sexual abuse of a child” did not convert Terry investigatory stop into an unlawful
arrest); accord Place, 462 U.S. at 710 (“[W]e have never approved a seizure of the
person for the prolonged 90-minute period involved here and cannot do so on the
facts presented by this case.”). While it is not impossible for a detention of a
suspect for over an hour to be reasonable, see, e.g., United States v. Richard, 500
F.2d 1025, 1029 (9th Cir. 1974) (upholding a detention of slightly over an hour
“where the suspects‟ own unsatisfactory responses to legitimate police inquiries
were the principal cause of the extended detainment”), courts appear to conclude,
more often than not, that such lengthy detentions are unreasonable. See generally
4 WAYNE R. LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 9.2 (f) n. 258 (5th ed. 2012) (listing cases holding detentions over
one hour were unreasonable). We are not aware of any precedent in any
jurisdiction upholding the detention of a suspect for over an hour while a show-up
identification was arranged.8 However, we need not resolve that question on the
8
The government has not cited to us any such case in its brief. The cases
(continued…)
13
case sub judice—nor could we—because, as we discuss infra, the record is
inadequate to evaluate the key factors necessary for a proper analysis. We simply
re-enforce here that there is no bright-line time limit demarcating investigatory
stops and arrests, and that each case must be evaluated on its particular
circumstances and facts.
(…continued)
the government cites all contain extenuating facts not relevant for comparison here
or involve a seizure of luggage while a warrant is sought, a situation we will not
analogize to the seizure of a person while an eye-witness is procured for
identification. See Buck v. State, 522 S.E.2d 252, 829-30 (Ga. Ct. App. 1999)
(concluding officers acted reasonably by detaining the appellant for an hour as
their initial contact revealed evidence that he was carrying a pair of women‟s
shoes, was acting nervous, and there was evidence of a struggle, torn clothing, and
high-heel prints nearby causing “suspicion that a woman may have been a victim
of foul play”); Miller v. Commonwealth, 434 S.E.2d 977, 980-81 (Va. Ct. App.
1993) (upholding court‟s determination that an hour-long traffic stop was
reasonable because it was pursued “largely with defendant‟s cooperation and
agreement” and that the court‟s finding the duration was reasonable was “neither
plainly wrong nor without evidence to support it”); see also United States v. Bory,
766 F.2d 304, 307 (7th Cir. 1985) (describing how DEA agents confiscated
luggage, wrote the appellant a receipt, and “explained how he could recover the
bags should no warrant be obtained or no drugs found”); Limonja v.
Commonwealth, 375 S.E.2d 12, 17-18 (Va. Ct. App. 1988) (concluding that the
duration of a traffic stop was not unreasonable because “only twenty-two minutes
of the detention were without consent, not sixty, as the defendants contend” and
listing cases involving “delays necessitated by efforts to obtain a narcotics dog for
sniffing luggage or packages, as in this case”).
14
B.
In addition to examining the length of the detention, a plurality of the
Supreme Court has opined that courts should examine whether “the investigative
methods employed [were] the least intrusive means reasonably available to verify
or dispel the officer‟s suspicion in a short period of time.” Royer, 460 U.S. at 500.
However, where the police have chosen a reasonable means to investigate
suspicious activity, and the means chosen is likely to confirm or dispel suspicions
quickly, we will not second guess that choice. Sharpe, 470 U.S. at 686. Thus, as a
majority of the Court articulated, “the question is not simply whether some other
alternative was available, but whether the police acted unreasonably in failing to
recognize or pursue it.” Id. That is, we review whether the police acted
reasonably in pursuing the investigative methods they chose under the
circumstances—not whether other reasonable, though perhaps less-intrusive,
methods were available.
Nevertheless, D.M. argues that his detention was unlawful because there
were less-intrusive means by which the police could have accomplished their
investigation. He posits that because the officers knew his name and where he
went to school they could have found him again later and performed the
15
identification at that point.9 We have previously rejected this type of logic because
it “could raise insuperable barriers to the exercise of virtually all search-and-
seizure powers.” Womack, 673 A.2d at 613 (quoting United States v. Martinez-
Fuerte, 428 U.S. 543, 556-57 n.12 (1976)). It is always possible to envision post
hoc a “better” or “less intrusive” manner by which the police may have conducted
their investigation. See Sharpe, 470 U.S. at 686-87 (“A creative judge engaged in
post hoc evaluation of police conduct can almost always imagine some alternative
means by which the objectives of the police might have been accomplished.”);
Cady v. Dombrowski, 413 U.S. 433, 447 (1973) (“The fact that the protection of
the public might, in the abstract, have been accomplished by „less intrusive‟ means
does not, by itself, render the [police action] unreasonable.”). We do not engage in
such “armchair quarterbacking” or “unrealistic second-guessing.” Womack, 673
9
D.M. compares the case sub judice with Davis, urging that we adopt a rule
requiring police in such situations to release the individual for later identification.
In Davis, the police released a suspect after detaining him for fifteen minutes while
trying—unsuccessfully—to persuade two witnesses to identify him. 498 A.2d at
245. The suspect was later identified from a photo array and lineup. Id. at 244.
Davis did not articulate the rule that D.M. would have us implement, instead it
merely concludes that under the circumstances of the case, a fifteen minute
detention was not “transmute[d] into an arrest.” Id. at 245. While releasing a non-
dangerous, known suspect pending later eyewitness identification may be most
reasonable in certain situations, we decline to articulate a rule requiring police to
do so. Such a rule would impinge the ability of police to reasonably respond to the
exigencies of the unique and fluid situations with which they are faced.
16
A.2d at 614. Instead, our review is limited to whether the actions undertaken by
the police were reasonable under the circumstances.10
We note that the police in this situation only engaged in general questioning
of the detained minors regarding their identities and why they were in the hallway.
In locating a suspect involved in a consummated crime, “the ability to briefly stop
[a] person, ask questions, or check identification . . . . may be most reasonable in
light of the facts known to the officers at the time.” Davis, 498 A.2d at 245(quoting United States v. Hensley, 469 U.S. 221, 229 (1985)); accord Hiibel, 542
U.S. at 186 (“Our decisions make clear that questions concerning a suspect‟s
identity are a routine and accepted part of many Terry stops.”). This is not a case
where the police engaged in what could be effectively considered custodial
interrogation designed to obtain incriminating statements from the minors. Cf.
10
D.M.‟s argument is also based on pure conjecture of what the police
“might” have done at the time. For example, D.M. asserts that the police could
have taken his photograph, released him, and asked Pickett to identify him from a
photo array. There is no indication in the record that such a procedure was
possible—no evidence the officers at the scene had the ability to take photographs
or whether a photographer was available to respond to the scene and how long it
would take for a photographer to arrive. Generally, under the circumstances such
as those before us, a show-up identification may be the most efficient investigatory
procedure available to the police. See Turner v. United States, 622 A.2d 667, 672
(D.C. 1993) (“[I]dentifications conducted soon after the crime enhance the
accuracy of witnesses‟ identifications and allow innocent suspects to be quickly
freed.”).
17
Dunway v. New York, 442 U.S. 200, 216 (1979) (“[D]etention for custodial
interrogation—regardless of its label—intrudes so severely on interests protected
by the Fourth Amendment as necessarily to trigger the traditional safeguards
against illegal arrest.”). Were it such a situation, the manner of investigation may
have been more suspect.
III.
While the foregoing illustrates that there is no per se time limit for detention,
it does not address whether—once the decision was made to conduct a show-up—
the police acted diligently in contacting Pickett and bringing him to the scene, or
whether any delay was necessary for completing the show-up. That the police did
act diligently and that any delay was reasonable and necessary to affect the
investigation are factual matters the government has the burden of proving. See
Mayes, 653 A.2d at 861.
In evaluating the evidence, the trial court must not simply accept conclusory
assertions that would justify the search, “but rather must evaluate the facts
underlying those assertions.” Sanders v. United States, 751 A.2d 952, 955 (D.C.
2000). To properly evaluate the underlying facts, the judge must be apprised of
18
sufficient facts relating to the justification for and scope of a seizure. See In re
T.L.L., 729 A.2d at 341. Where no such evidence is adduced, the government
cannot carry its burden even if, had the record been more fully developed, the
government could have otherwise presented sufficient evidence. See id. (“If the
nature of the information on which the police relied had been disclosed to the court
at the hearing on T.L.L.‟s motion to suppress, this might well have satisfied the
District‟s modest burden in a case of this kind . . . .”).
The only testimony offered at the motions hearing relevant to D.M.‟s
seventy-five minute detention was a single statement by Pickett and a single
statement by Howard. In discussing how he came to identify D.M. during the
show-up, Pickett testified:
I had to go to work. So, I had to come all the way back
from Deanwood to come back to take care of this. So,
when I walked down the street I met the detective right
here and we got in the car and he drove I would say
where the apartments was and the apartments, this is
where the other squad car was with the young man in it.
So, we drove like right here and he stopped and he got
out of the car and identified him and then I said yeah, that
is him.
Howard‟s sole testimony as to what happened after the minors was stopped:
19
I contacted the witness. I interviewed the witness, got his
description of whom he saw exiting the house and
running down the alley, but placed him in the car with
me and took him back to the scene w[h]ere we responded
and the other individual was stopped to do a show up
with each one of those individuals.[11]
Howard never testified that he had to call Pickett at work or that he had to wait for
his arrival.
The government provides two justifications for the delayed show-up
identification. First, it points out that Pickett had to return from work. The record
bears this out, but it does not indicate where Pickett worked, nor how long it took
him to return from work, nor when the officers called him to request his presence.12
Second, the government posits that the police had to “conduct an investigative stop
on not one but four juveniles.” The record also shows this to be true. However,
11
Howard also confirmed on cross-examination the general timeframe of
events: the lookout was broadcast at 10:15 a.m., the minors were stopped at 10:37
a.m., and the show-up identification occurred at 11:52 a.m.
12
Pickett simply testified he had to return from “Deanwood.” Deanwood is
the name of the neighborhood where the events occurred. There is no indication
whether his work location was close at hand or further removed from his home.
20
there is no evidence in the record about how long it took the four officers present at
the scene13 to obtain identification information, to decide to conduct a show-up, or
to contact Pickett.
The reasonable inference from the facts adduced in the hearing is that
Pickett went to work after his initial conversation with the police and had to return
from work before he could participate in the show-up identification. This
inference is not only reasonable on the facts, but is one we are compelled to accept.
See Womack, 673 A.2d at 607. However, any further assumptions about the nature
and timing of what occurred between the time that Pickett left for work and when
he returned home for the identification would be purely speculative on this record.
“Conclusions arising from speculation do not satisfy the requirement of proof by a
preponderance of evidence.” Rule v. Bennett, 219 A.2d 491, 495 (D.C. 1966).
It would be merely speculative on this record to conclude that there was no
unnecessary delay in the show-up identification or that the police acted diligently.
Cf. United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (“It is the
13
Howard testified that in addition to himself, Detective Wood, Officer
Munn, and Officer Awkward were present when the minors were stopped—Munn
and Awkward made the initial contact, but Howard only had to double back to the
apartment to join the investigation.
21
government‟s burden to show that the evidence at issue would have been acquired
through lawful means . . . . However, the Supreme Court made clear in Nix that
the analysis should focus upon the historical facts capable of ready verification,
and not speculation.” (citing Nix v. Williams, 467 U.S. 431, 444 n.5 (1984));
United States v. Driver, 776 F.2d 807, 810-11 (9th Cir. 1985) (“Because of the
intrusive nature of a warrantless arrest, the government must demonstrate specific
and articulable facts to justify the finding of exigent circumstances, and this burden
is not satisfied by leading a court to speculate about what may or might have been
the circumstances.”). We likewise cannot say that it is an obvious conclusion from
the record that it reasonably and necessarily took seventy-five minutes for Pickett
to be notified and return from work. Cf. Womack, 673 A.2d at 614 (recognizing
obvious inferences in the record). The record is too thinly developed to conclude
that it is more likely than not that the police acted diligently and that any delay was
necessary to complete their investigation. See Sanders, 751 A.2d at 955.
It may well be that D.M.‟s “longer detention was simply the result of a
graduated response to the demands of the particular situation.” Sharpe, 470 U.S. at
688 (alterations and ellipses omitted) (quoting Place, 462 U.S. at 709 n.10).
However, because of the limited factual record established by witness testimony
the evidence in the record is insufficient to support the trial court‟s factual
22
conclusion that the police acted diligently. Cf. Sanders, 751 A.2d at 956 (finding
evidence in record insufficient to establish, as a fact, the reliability of a tipster). As
such, the government failed to meet its burden to prove the show-up identification
was not the product of an unlawful seizure, and the trial court therefore erred in
denying D.M.‟s motion to suppress and his adjudication of delinquency must
therefore be reversed.14 See In re K.P., 951 A.2d 793, 798 (D.C. 2008). The case
is remanded for further proceedings consistent with this opinion.
So ordered.
14
The government argues as an alternative ground to support the length of
D.M.‟s detention that the officers could take him into custody for violating the
school attendance requirements of D.C. Code §§ 38-202, -251 (a)(3) (2001).
However, such a seizure only subjects the minor to “a temporary investigative
seizure designed to determine whether he was truant” and then to transport the
truant minor to a truancy center. See In re A.J., 63 A.3d 562, 568 (D.C. 2013); see
also D.C. Code § 38-251 (a)(2). The government‟s reliance on this provision fails
because the other three minors were “driven to school and released” while D.M.
remained in custody. D.M.‟s continued detention was only justified at that point
upon his suspected role in the burglary and the length of his detention must be
measured by that metric, not by his truancy.