United States Court of Appeals, District of Columbia Circuit
Argued March 4, 2016
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.
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.
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" 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 stemmed from impermissibly suggestive identification procedures, and the other, concerning Stubblefield's post-arrest statements and actions at ...