James McFerguson & Dion Worthington v. United States James McFerguson v. United States
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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 98-CF-1124
98-CF-1273
JAMES MCFERGUSON
and
DION WORTHINGTON, APPELLANTS,
v.
UNITED STATES, APPELLEE.
No. 98-CF-1129
JAMES MCFERGUSON, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the
District of Columbia
(Hon. Gregory E. Mize, Motions and Trial Judge)
(Hon. Stephanie Duncan-Peters, Trial Judge)
(Argued January 18, 2001
Decided March 15, 2001)
Rufus W. McKinney, Jr. for appellant McFerguson in both appeals.
Colleen B. McCrystal, Public Defender Service, with whom James Klein and Jaclyn
Frankfurt, Public Defender Service, were on the brief, for appellant Worthington.
Suzanne Grealy Curt, Assistant United States Attorney, with whom Wilma A. Lewis,
United States Attorney, and John R. Fisher, Mary-Patrice Brown, and Lydia Pelegrin,
Assistant United States Attorneys, were on the brief, for appellee in both appeals.
2
Before SCHWELB, FARRELL, and REID, Associate Judges.
FARRELL, Associate Judge: These consolidated appeals arise from separate trials
having in common only the fact that the defendant McFerguson was convicted in both for
burglaries committed in roughly the same part of Northwest Washington, D.C. In No. 98CF-1129, McFerguson was found guilty by a jury of burglary in the second degree. In
Nos. 98-CF-1124 and 98-CF-1273, McFerguson and Worthington were each convicted by
a jury of burglary in the second degree and theft in the second degree. The only issue
warranting this published opinion is Worthington’s contention that the trial court
erroneously denied his motion to suppress physical evidence and an identification
stemming from what he claims was an illegal seizure of his person and search of a plastic
bag he was carrying when the police stopped him and McFerguson. We conclude that
resolution of this issue requires a remand to the trial court for additional findings relevant
to the government’s argument of inevitable discovery. We affirm all of McFerguson’s
convictions.
I. Facts Relevant to the Suppression Issue
Officer Tonya Toler of the Metropolitan Police Department (MPD) and her partner
were in a police car patrolling the area of upper Massachusetts Avenue, N.W., near the
Naval Observatory. Just before 10:00 a.m., she heard a radio report of a burglary that had
occurred in the 3400 block of Garfield Street, N.W., not far from Massachusetts Avenue.
The radio run described the suspected burglars as two black males, one wearing a white
shirt and red pants, and one of them “tall.” As her car drove up Massachusetts Avenue
approaching 34th Street, Toler saw two black men walking together on the other side of
3
Massachusetts Avenue in the opposite direction, leading downhill toward Rock Creek
Parkway and Dupont Circle. The taller of the two men, whom Toler later identified as
Worthington, was wearing red pants and a white shirt (she could not recall what the other
man was wearing). Both men were walking “pretty fast” and appeared to have “bulge[s]”
in the front of their jackets. By the time the officers could turn their car around and begin
driving down Massachusetts Avenue looking for the suspects, the two men had
disappeared.
At that point Toler heard a radio run stating that two men had been stopped by U.S.
Secret Service officers on Rock Creek Parkway near the exit to P Street. She went directly
to the place of the stop, taking about five minutes to do so, and saw that Secret Service
officers had detained the two men she had seen minutes before. “[T]hey were the same
two [men],” she testified, except that “the clothes were different”:
Worthington was
wearing a white shirt but gray instead of red pants.
Officer Kevin Porter of the U.S. Secret Service, while driving north on Rock Creek
Parkway with his partner, had monitored the same lookout report Toler heard. Along with
his partner, he saw two black males later identified as Worthington and McFerguson
running southbound on the Parkway from Waterside Drive, which connects Massachusetts
Avenue with the Parkway. What “caught [his] attention” was that
they were running on the right-hand side of the northbound
lane [where] there is no sidewalk . . . . [I]t’s where the hill
comes down and meets the road. And just as I was getting up
to them, they cut right in front of my vehicle to the other side
of the road, causing us to stop . . . .
4
The two men were in
a full-blown run. They were running directly at me, . . . trying
to stay up on the hill and avoid being hit by traffic, and
dodging in and out of traffic, and then [they] cut right in front
of my vehicle.
One of the men — Worthington — was tall and had what appeared to be a red bag in his
hand; both “were sweating profusely . . . and out of breath” from having “run[] hard . . .
from a distance,” and appeared “frantic.” Although Worthington was wearing a white shirt
and gray pants rather than red pants, Porter believed the pair to be the suspects wanted for
the burglary. He did so because of “their proximity to the [burglary] location,” their
general match to “the one basic description” of two black males, one tall and wearing a
white shirt; and the fact that “[n]obody runs through the Parkway like that” — “[t]hey had
an appearance . . . of fleeing something.”
Porter therefore turned his car around and caught up with the suspects at the
entrance ramp to the Parkway at P Street, a distance he estimated at half a mile from the
burglary site.1 Porter and his partner stopped the pair (the other man was McFerguson),
took the red bag from Worthington and put it on the ground, and frisked both men. Porter
then notified the Secret Service Control Center of the stop and told “them to notify [MPD]
Second District officers to respond down” to the scene. After doing this, he reached into
the red bag (“a plastic type of designer shopping bag”) and, opening it wider “so I could see
1
At trial he stated that the distance was just over a mile and a half, based on his
intervening measurement.
5
what was in there,” saw what appeared to be a couple of cameras and a CD player in it.2
Soon afterwards MPD officers arrived and Porter briefed them. The MPD officers “were
communicating back and forth” on their radios until “[s]omewhere down the line they
indicated that the [burglary] complainant was going to be responding down for
identification purposes.” Porter’s broadcast of the stop was made at 10:05 a.m., six
minutes after the burglary lookout report by MPD and twenty minutes after the victim had
reported seeing the burglars flee.
A third officer had also seen Worthington and McFerguson running. MPD Officer
Hicks was driving northbound on Waterside Drive when he saw them turn from
Massachusetts Avenue down onto Waterside Drive and “run[] past him at full speed.”3
Finally, MPD Sergeant Charity testified that as “a supervisor on the scene” of the
detention he had assembled there along with other police, including Officer Toler. The
burglary complainant was brought to the scene by a detective and, although she could not
identify the detained men as the burglars she had seen leaving her house, she identified a
camera and other items as property of herself or her husband. (At trial she added that she
had recognized the red plastic bag as one she used to store a dress.)
2
Porter explained that since the men were “running with a bag, I was curious as to the
contents of the bag.”
3
Hicks’s sighting was recounted by Porter at the suppression hearing.
6
II. Legal Discussion
Worthington contends that Officer Porter lacked a reasonable articulable suspicion
to stop him and that the search of the plastic bag and ensuing identification of its contents
as stolen were the product of the illegal seizure. Even if the stop was lawful, he continues,
Porter lacked probable cause to arrest him and search the bag incident to the arrest (the
government agrees that the search required probable cause), and thus the contents of the
bag and the complainant’s identification of them should have been suppressed at trial.4 The
government counters that the collective knowledge of the police — Toler, Porter, and Hicks
— at the time of the search furnished probable cause for Worthington’s arrest and a search
incident thereto, but that even if the search was unlawful, the stop of Worthington was
valid and the discovery of the bag’s contents was inevitable once the complainant was
summoned to the scene and, independently, once Toler identified Worthington as the
suspect who had worn the matching red pants.
A.
The government begins its argument, however, by urging us to consider whether
Worthington could even dispute the seizure and search of the bag, contending that since
“the bag was not only freely exposed to the public, but also was stolen and filled with
stolen property, . . . Worthington had no reasonable expectation of privacy in it” (Br. for
4
As pointed out, the complainant could not identify appellants personally as the
burglars.
7
Appellee at 21). The government made this argument in the trial court, and has pressed it
in its brief and at oral argument. We are unpersuaded by it.
The government first cites the principle “that ‘what a person knowingly exposes to
the public . . . is not a subject of Fourth Amendment protection,’ because the exposure
withdraws any expectation of privacy.” Holt v. United States, 675 A.2d 474, 480 (D.C.
1996) (quoting Katz v. United States, 389 U.S. 347, 361 (1967)). Worthington, however,
was carrying items on his person that were unexposed in a shopping bag.5 (Officer Porter
admitted he had had to reach into the bag to determine what items were inside.) The
government also cites Godfrey v. United States, 408 A.2d 1244 (D.C. 1979), for the
principle that a thief has no legitimate expectation of privacy in stolen property, but the
language it relies on was subsequently deleted from the opinion.6 Since Worthington was
holding the shopping bag on his person at the time of the search, the relevant principle from
Godfrey is that “a street pedestrian has a reasonable expectation of privacy in covered
objects associated with his person.” Id. at 1246 (citing cases). The contents of the bag
were “sufficiently physically connected with [Worthington’s] person to fall properly under
the umbrella of protection of personal privacy.” Id. at 1246-47.
In disputing this conclusion, the government relies heavily on the Supreme Court’s
insistence in recent years that to claim Fourth Amendment protection a person must show
both that he displayed “an actual (subjective) expectation of privacy” in the object
5
He differed markedly in that respect from the Holt defendant, who challenged the
seizure of clothes from his hospital room after he had walked into the hospital wearing the
clothes. See 675 A.2d at 480-81.
6
See Godfrey v. United States, 414 A.2d 214 (D.C. 1980).
8
searched, and — particularly — that this expectation “is one that society is prepared to
recognize as reasonable . . . [or] justifiable under the circumstances.” Smith v. Maryland,
442 U.S. 735, 740 (1979) (citations and internal quotation marks omitted).
The
government questions whether society would impute a reasonable expectation of privacy to
“a burglar . . . running away from the crime scene carrying in plain view a distinctively
marked shopping bag which has been stolen from the burgled residence and filled with the
victim’s property” (Br. for Appellee at 22).
It is not clear from this statement whether the government is stressing the exposed
nature of the bag itself (“distinctively marked”) or Worthington’s status as “a burglar” and
the “stolen” contents of the bag. To the extent the emphasis is on the latter, that description
of Worthington and the contents assumes the very facts that were to be proved at trial —
that he was fleeing with goods he had stolen in the burglary. If assuming those facts as
given dictates whether he could move to suppress the evidence by which the government
meant to prove his guilt, that would do away with the justification for suppression hearings
in a great many cases, a proposition that alone leaves us skeptical. Moreover, emphasizing
the “stolen” nature of the bag and its contents recalls notions of property or ownership long
recognized as secondary by the Supreme Court in Fourth Amendment analysis. See Katz,
389 U.S. at 352-53; Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 305-06
(1967) (“[W]e have given recognition to the interest in privacy despite the complete
absence of a property claim by suppressing the very items which at common law could be
seized with impunity: stolen goods.”).7 Anything resembling a broad exclusion of stolen
goods (or contraband) from possessions enjoying Fourth Amendment protection would, we
7
See also Rakas v. Illinois, 439 U.S. 128, 143 & n.12 (1978).
9
think, be irreconcilable with the justification the Supreme Court has required for a search in
decisions such as United States v. Jacobsen, 466 U.S. 109 (1984), and Walter v. United
States, 447 U.S. 649 (1980), to name just two.
We therefore turn to whether the seizure and ensuing search of Worthington’s bag
was justified.
B.
As explained, Worthington challenges separately his initial seizure and the search of
the plastic bag. In defending both, the government argues for application of the collective
knowledge doctrine which, if applied, would allow us to aggregate the knowledge of
Officers Toler, Porter, and Hicks at the point Worthington was stopped and the bag
searched. See generally Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1983). Worthington
counters that this court has not aggregated police knowledge unless the officers concerned
were acting together or “cooperat[ing]” in an investigation, as shown by the fact that they
had communicated with one another directly or through a dispatcher.8 See In re M.E.B.,
638 A.2d 1123, 1129 (D.C. 1993) (where detective had initially broadcast information
about suspect, the collective knowledge doctrine applied even though he did not broadcast
later-acquired information providing a reasonable basis for the stop). We think the
government has the better of this argument.
8
Worthington thus points to Officer Toler’s admission that she did not report her
sighting of the suspects by radio before losing sight of them on Massachusetts Avenue and
responding down to Rock Creek Parkway.
10
Officer Toler heard and reacted to the same broadcast that caused Officer Porter to
stop Worthington and McFerguson minutes later; and when she spotted the burglary
suspects she was approximately a mile from where the stop took place. As in M.E.B.,
supra, “this investigation [concerned] a fast-moving sequence of events involving a number
of law enforcement officers at several different locations in one section” — indeed, a small
subsection — “of the city.” Id. at 1133. Toler cannot be said to have “played no part in
. . . the investigation or the search for those responsible,” id.; she was just as much a part of
that search as the officers who made the stop and whom she promptly joined at the stop
location.9 Had Toler (or, for that matter, Hicks, who saw Worthington and McFerguson
turn off Massachusetts Avenue) paused in pursuing the suspects to radio their information
to the dispatcher, Worthington does not appear to dispute that the information would then
be includable in the facts justifying the stop.
But M.E.B. does not require such
communication as a matter of principle, and on the facts of this case we can see no logic in
a requirement that might only have slowed Toler’s already-delayed pursuit of the suspects.
We therefore analyze the stop and search of Worthington considering everything
known by the officers involved. Doing so, we have no difficulty concluding that Porter had
a reasonable basis on which to stop Worthington, separate him from the bag, and detain
him until the complainant could be brought to the scene.10 Moments after he heard the
9
The trial judge agreed, reasoning that because Toler “obtain[ed] information . . .
through her eyes . . . in response to the [burglary] lookout, . . . she is someone who played
a part in the investigation or search for those responsible.”
10
Although this court defers to relevant factual findings by the trial court, we review
de novo the ultimate question of whether a seizure was supported by reasonable suspicion.
See United States v. Turner, 699 A.2d 1125, 1127 (D.C. 1997). While the Fourth
Amendment imposes only “some minimal level of justification to validate [a seizure],”
(continued...)
11
burglary lookout, Porter saw the same two black males that Hicks had seen turn off
Massachusetts Avenue and run down Waterside Drive toward the Parkway. One of the
pair, Worthington, was tall and wearing a white shirt — consistently with the broadcast —
and both were running “frantic[ally]” as though fleeing, dodging in and out of traffic and
nearly colliding with Porter’s car. Porter knew the place of the sighting to be less than a
mile and a half from the burglary on Garfield Street near Massachusetts Avenue.
Worthington points to the paucity of identifying details in the burglary report and
the fact that neither he nor McFerguson was wearing red pants — the sole distinctive
feature of the description — when Porter saw them. Their general appearance and frantic
behavior, he asserts, was not enough to link them to a burglary that had occurred nearly
twenty minutes earlier a mile or more from where they were running; i.e., it failed to
narrow “the universe of possibilities of where the [actual] burglary suspects could have
fled” (Br. for Appellant at 17). We might be inclined to agree with this assertion, although
we need not decide the point, if the only evidence of where within an “approximately . . .
two-mile radius of 3400 Garfield Street” (id.) the burglars had run was Porter’s testimony.
But Toler had seen two suspects matching the lookout completely — including the
distinctive red pants — walking hurriedly down Massachusetts Avenue in the direction of
Rock Creek Parkway barely five minutes before the stop. Given this additional fact, the
police had reasonable grounds to suspect that the two black males Hicks saw leave
Massachusetts Avenue and run down toward the Parkway (though neither wore red pants),
and whom Porter saw moments later running in a way “nobody runs through the Parkway,”
10
(...continued)
I.N.S. v. Delgado, 466 U.S. 210, 217 (1984), a reasonable suspicion must be one
“particularized as to the individual stopped.” Turner, 699 A.2d at 1128.
12
were the burglars. See Turner, supra note 10, 699 A.2d at 1129 (“Because we examine the
totality of the circumstances and require far less than certainty, we have routinely held that
an imperfect description, coupled with close spatial and temporal proximity between the
reported crime and seizure, justifies a Terry stop.”); District of Columbia v. M.M., 407
A.2d 698, 700-01 (D.C. 1979).
C.
The government concedes, nevertheless, that while reasonable suspicion justified the
stop of Worthington and temporary removal of the bag from his possession, see United
States v. Place, 462 U.S. 696, 706 (1983), it could not justify Porter’s search of the bag’s
interior.11 For that, probable cause was necessary to arrest Worthington and search the bag
incident to the arrest. See Rawlings v. Kentucky, 448 U.S. 98, 110-11 (1980). The
government argues, and the trial court concluded, that the combined information in the
possession of Toler, Hicks, and Porter was sufficient to warrant a reasonably prudent
person in believing Worthington and McFerguson had committed the burglary. See Beck v.
Ohio, 379 U.S. 89, 91 (1979).12 We are not persuaded. The lone case cited by the
government (and relied on by the trial court) is Davis v. United States, 230 A.2d 485 (D.C.
1967), which concerned two men arrested within two to three minutes of a housebreaking
and one block from the scene of the crime; both wore clothing close in color to the
11
Porter and his partner also frisked the two suspects for their safety, but since nothing
was discovered as a result of the frisk, it presents no issue on this appeal.
12
As with the issue of reasonable suspicion, this court decides de novo whether there
was probable cause to justify a search. See Brown v. United States, 590 A.2d 1008, 1020
(D.C. 1991).
13
descriptions of two of the housebreakers. Id. at 486. Here the separation of time and place
was greater, and neither suspect matched the only distinctive feature of the lookout
description, the red pants. A survey of our decisions demonstrates that they have required
a closer fit than this between the crime and the person apprehended — particularly between
the description of the suspect and the appearance of the arrestee — before probable cause
may be found.13 We hold that the police, even taking into account their collective
knowledge, lacked probable cause to arrest Worthington and search the bag incident to the
arrest.
D.
13
Compare In re T.L.L., 729 A.2d 334 (D.C. 1999) (description of black male, 14-18
years old, medium complexion, wearing dark clothes insufficient to support finding of
probable cause); Junior v. United States, 634 A.2d 411, 420 (D.C. 1993) (description of
older black male, gray and black facial hair, and detailed clothing description, insufficient
to support probable cause); Bryant v. United States, 599 A.2d 1107, 1112 (D.C. 1991)
(description of black male wearing brown suede-like jacket and gray khaki pants too
general to support Terry stop); Cauthen v. United States, 592 A.2d 1021, 1023-24 (D.C.
1991) (no reasonable suspicion; scanty description and 15-minute delay in arrival of
police); Brown v. United States, 590 A.2d 1008, 1017 (D.C. 1991) (“[d]escriptions
applicable to large numbers of people will not support a finding of probable cause”);
United States v. Lewis, 486 A.2d 729, 733-34 (D.C. 1985) (no probable cause; variations in
height, weight and facial hair), with Hill v. United States, 627 A.2d 975, 979 (D.C. 1993)
(probable cause, where suspect matched a detailed description of his clothing, including “a
black cap, orange or rust colored shirt, dark colored pants”); Best v. United States, 582
A.2d 966, 969 (D.C. 1990) (probable cause, where suspect matched description stating he
wore “a baseball-style cap with a star on it, black jacket, gray jeans and tennis shoes”);
Glass v. United States, 395 A.2d 796, 805 (D.C. 1978) (probable cause, where arrestees
largely matched report of crime “by one white male, one white female, and one black
male,” with “rather particularized descriptions of each”); Atkinson v. United States, 295
A.2d 899, 902 (D.C. 1972) (probable cause where suspect “reasonably matched” the
lookout description in that he possessed a scar which was a “unique element of
identification”).
14
The government further argues that, even if the search of the bag was unlawful,
Worthington was properly detained and once Officer Porter notified the MPD of the stop
(through his call to the Secret Service Control Center), it was inevitable that the
complaining witness would be brought to the scene and identify her bag and its contents.
“Inevitable discovery” applies doubly in this case, the government asserts, because once
Officer Toler heard the radio report of the stop, she came immediately to the scene and
recognized Worthington as the suspect she had seen moments before wearing red pants.
Quite apart from the identification by the complainant, therefore, Toler’s identification
would have ultimately led to Worthington’s arrest and search. We examine both aspects of
this argument.
The inevitable discovery doctrine provides that, even
though the police have obtained evidence as a result of illegal
conduct, the evidence still may be admitted “if the prosecution
can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been
discovered by lawful means.” If “the evidence in question
would inevitably have been discovered without reference to the
police error or misconduct, there is no nexus sufficient to
provide a taint and the evidence is admissible.” Importantly,
however, the doctrine “involves no speculative elements but
focuses [instead] on demonstrated historical facts capable of
ready verification or impeachment.” That is, “the lawful
process which would have ended in the inevitable discovery
[must] have . . . commenced before the constitutionally invalid
seizure,” and there must be “the requisite actuality” that the
discovery would have ultimately been made by lawful means.
Hicks v. United States, 730 A.2d 657, 659 (D.C. 1999) (citing, inter alia, Nix v. Williams,
467 U.S. 431 (1984); emphasis in original). The government first points to Officer Porter’s
testimony that before he searched the shopping bag, he radioed the Secret Service Control
Center and told it to notify the MPD that he had stopped the suspected burglars. This, the
15
government asserts, set in motion “the lawful process” of bringing the burglary victim to
the scene for an identification, in turn creating the “actuality” that she would recognize the
bag and its contents as hers — as she in fact did14 — and bring about Worthington’s arrest.
Worthington responds that the record is barren “as to how the [MPD’s] decision to
bring the complainant to the scene came to pass,” and that without such evidence “there is
no way to know whether information about the stolen property that had been illegally
recovered from the bag in any way prompted the decision to conduct a show-up” (Reply
Br. for Appellant at 9-10). He points out that the trial judge gave the prosecutor repeated
opportunity to call and recall witnesses to elucidate this matter but that in the end the
testimony revealed only the following sequence: (a) Porter radioed the fact of the stop; (b)
MPD officers responded to the scene and engaged in repeated radio communications “back
and forth”; and (c) (according to Porter) only then, “somewhere down the line,” did they
“indicate[] that the complainant was going to be responding down for identification
purposes.”
We agree that on this record the prosecutor did not eliminate “speculati[on],” Hicks,
supra, as to whether the search of the bag and retrieval of its stolen contents entered into
the decision to summon the complainant to the scene. In Hicks, on comparable facts, we
were able to say that “[h]ad the police not [unlawfully] searched the station wagon before
notifying [another officer] of the stop of the car[, which resulted in the robbery victim
14
Although the suppression hearing drew no testimony that the complainant had
identified the bag (as distinct from its contents), she testified at trial that she had done so,
and the government cites the principle that in reviewing the motions judge’s ruling we may
rely as well on undisputed trial testimony. See Clark v. United States, 755 A.2d 1026,
1028 n.1 (D.C. 2000).
16
being brought to the scene], there is not the slightest reason to believe that events [leading
to the identification] would have unfolded any differently.” Hicks, 730 A.2d at 662. On
the record here, we have nothing like that confidence that the search of the bag played no
part in the decision to bring the burglary victim to the scene. Were this all the record
revealed, therefore, we would be constrained to reject the government’s assertion of an
inevitable link between the stop itself and the recovery of the stolen goods.
But there is more. Officer Toler testified that when she heard by radio that two
suspects had been stopped by Secret Service officers, she drove to the scene of the stop and
at once recognized Worthington as the suspect she had seen wearing the red pants minutes
before. Toler’s testimony, which the trial judge credited on this point,15 raises the strong
possibility that Worthington would have been arrested and searched on the basis of her
recognition alone, regardless of a later identification by the complainant. On the present
record, however, we are unable to decide whether Toler’s actions establish the required
link between the lawful stop and inevitable discovery of the stolen property. Because the
judge ruled that the search of the bag was supported by probable cause, he did not reach the
question of inevitable discovery and so had no occasion to make findings of fact
concerning Toler’s identification that bear on that issue.16 Accordingly, in the interests of
justice, see D.C. Code § 17-306 (1997), we will remand the record for consideration by the
judge of the inevitable discovery doctrine solely as it relates to Officer Toler. The judge
15
Toler, the judge pointed out, had “made an unwavering identification of
[McFerguson] and Worthington here in court as the ones who were stopped by the Secret
Service agents and who[m] she had seen [on Massachusetts Avenue].”
16
This court “may affirm on any basis argued to the trial court,” but only “when no
additional factfinding is necessary.” Young v. United States, 670 A.2d 903, 906 (D.C.
1996).
17
should make findings that include (but need not be limited to) whether Officer Porter made
the original radio report of the stop before he searched the bag, and whether Toler heard
and responded to that report (re-transmitted through the MPD)17 rather than some later
broadcast that may have incorporated the results of the unlawful search. On the basis of
these findings, he should then determine whether — in his view — the government has met
its burden of showing inevitable discovery, and transmit the supplemental record to us.18
We leave to the judge the decision whether to reopen the evidentiary hearing for this
purpose, see Martin v. United States, 567 A.2d 896, 907 (D.C. 1989), a decision that may
properly include consideration of the opportunity the government has already had to elicit
testimony relevant to inevitable discovery. See Barnett v. United States, 525 A.2d 197,
200 (D.C. 1987). We will retain jurisdiction over Worthington’s appeal.
III.
Appellant McFerguson assigns a number of errors related to both of his trials; none
requires extended discussion or provides a basis for reversal.
17
Toler acknowledged at trial that she did not monitor directly Porter’s report, but
rather an ensuing broadcast by MPD.
18
We need not decide at this point whether the ultimate ruling on inevitable discovery
is to be made de novo or under a more deferential standard of review. Compare United
States v. Kennedy, 61 F.3d 494, 497 (6th Cir. 1995) (applicability of inevitable discovery
exception is mixed question of law and fact to be reviewed de novo), with United States v.
Lang, 149 F.3d 1044, 1047 (9th Cir. 1998) (inevitable discovery rulings are mixed questions
of law and fact, which nonetheless should be reviewed under a clearly erroneous standard),
and Oken v. State, 612 A.2d 258, 271 (Md. 1992) (reviewing inevitable discovery ruling
under clearly erroneous standard).
18
First, McFerguson’s actions with Worthington in hurriedly leaving the area of the
Garfield Street burglary (where the complainant had seen two men run from her house),
combined with the recovery of the stolen items from Worthington’s possession, were
sufficient to support the jury’s conclusion that McFerguson was one of the two burglars.
See, e.g., Wheeler v. United States, 470 A.2d 761, 764 (D.C. 1983).19 Second, although a
criminal defendant is generally entitled to a jury instruction setting forth his theory of the
case, see Jackson v. United States, 645 A.2d 1099, 1101 (D.C. 1994), there was no
evidence that McFerguson was in the area of the P Street “beach” at the time of the
Garfield Street burglary, and thus the trial judge was not obliged to instruct the jury on that
theory of alibi. See Greenhow v. United States, 490 A.2d 1130, 1135 (D.C. 1985).20
In No. 98-CF-1129, McFerguson appeals from his conviction for a burglary he was
shown to have committed on Porter Street, N.W., when he entered an apartment building
garage with another man and tried to break the locks securing some bicycles. McFerguson
first contends that the trial judge erroneously allowed the government to introduce evidence
of his home address, which he had given a police officer at the time of his arrest.21
Assuming the address had no probative value, an issue we do not decide, McFerguson has
19
McFerguson’s complaints about the reliability of Toler’s and Hicks’s identifications
go to the weight of their testimony, not its admissibility. See United States v. Hunter, 692
A.2d 1370, 1376 (D.C. 1997).
20
The judge did instruct that McFerguson denied committing or having any knowledge
of the crimes.
21
At oral argument, McFerguson suggested the only reason the prosecutor presented
this evidence was to identify him as a stranger in the neighborhood from another part of the
city who “had no business being there.” The government’s theory at trial was that the
address did show why McFerguson was walking back down Porter Street after the burglary,
i.e., he was on his way home.
19
not shown prejudice sufficient to overcome the strong eyewitness evidence of his activities
inside the garage.22
McFerguson next argues that his statement to the arresting officer that the charges
against him would be reduced and he would soon be released from custody was obtained in
violation of Miranda, supra note 22.
The trial judge, after a hearing, found that
McFerguson had volunteered the statement, and we have no reason to dispute that finding.
See Spann v. United States, 551 A.2d 1347, 1350-51 (D.C. 1988). Further, as in the
consolidated case, the trial judge did not err in refusing to instruct the jury that
McFerguson’s defense was that he had missed the bus and was walking towards Adams
Morgan to catch one, when no testimony was presented to that effect. Finally, the evidence
justified an instruction to the jury on aiding and abetting. See, e.g., Bayer v. United States,
651 A.2d 308, 310-11 (D.C. 1994).
IV.
In summary, as to McFerguson, we affirm the judgments of conviction. As to
Worthington, we remand the record to the trial court for further proceedings in accordance
with this opinion.
So ordered.
22
McFerguson’s additional claim that the statement, made during routine booking, was
taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), has not been adequately
preserved.
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