Appeal No.

17-CF-0449

DISTRICT OF COLUMBIA COURT OF APPEALS

MILTON HOOD,

Appellant,

v.

UNITED STATES OF AMERICA,

Appellee.

Appeal from the Superior Court of the District of

Columbia—Criminal Division

BRIEF FOR APPELLANT

SAMIA FAM
*BENJAMIN MILLER

PUBLIC DEFENDER SERVICE

633 Indiana Avenue, NW
Washington, DC 20004
(202) 628-1200

*Counsel for Oral Argument

 DISCLOSURE STATEMENT

Public Defender Service attorney Maro Robbins represented appellant

Milton Hood at trial, and PDS attorneys Samia Fam and Benjamin Miller represent
him on appeal. Assistant United States Attorneys Gilead Light and Michael
Romano represented the United States at trial and AUSA Elizabeth Trosman

represents the United States on appeal.

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... iii

ISSUE PRESENTED ................................................................................................. 1

STATEMENT OF THE CASE AND JURISDICTION ............................................ 2

STATEMENT OF FACTS ........................................................................................ 3

A. Suppression Hearing and Ruling on Fruit of the Poisonous Tree ......... 5

1. Officer Butler hears a description. .............................................. 5

2. Officer Butler’s limited opportunity to observe Mr. Hood

prior to the illegal detention. ....................................................... 6

3. Officer Butler spends over seventy-five minutes with Mr.

Hood during the illegal detention. .............................................. 7

4. The motions court grants the motion to suppress. ...................... 9

5. The trial court’s fruits ruling. .................................................... 10

B. The Evidence at Trial .......................................................................... 16

SUMMARY OF THE ARGUMENT ...................................................................... 24

ARGUMENT ........................................................................................................... 26

I. THE TRIAL COURT COMMITTED CONSTITUTIONAL ERROR IN

ADMITTING OFFICER BUTLER’S IDENTIFICATION TESTIMONY
LINKING MR. HOOD TO THE CRIME WHERE THE
IDENTIFICATION TESTIMONY WAS A FRUIT OF MR. HOOD’S
ILLEGAL DETENTION AND ARREST..................................................... 26

A. The Identification Testimony Was A Fruit Of The Illegality. ............ 26

B. The Government Cannot Demonstrate That The Error Was

Harmless Beyond a Reasonable Doubt. .............................................. 39

i
CONCLUSION ........................................................................................................ 46

ii
 TABLE OF AUTHORITIES

Page

Cases
Andrews v. United States, 922 A.2d 449 (D.C. 2007) .............................................43

Barnett v. United States, 525 A.2d 197 (D.C. 1987) ...............................................31

Chapman v. California, 386 U.S. 18 (1967) ..................................................... 39, 45

Cunningham v. United States, 391 A.2d 1360 (D.C. 1978) ....................................27

Delafield v. State, 777 So.2d 1020 (Fla. Dist. Ct. App. 2000) ................................38

Garrett v. State, 946 So.2d 1211 (Fla. Dist. Ct. App. 2006) ...................................37

Hicks v. United States, 705 A.2d 636 (D.C. 1997) ..................................................27

In re K.H., 14 A.3d 1087 (D.C. 2011) .....................................................................29

In re K.P., 951 A.2d 793 (D.C. 2008)......................................................................37

In re T.L.L., 729 A.2d 334 (D.C. 1999) ...................................................................37

In re Woods, 314 N.E.2d 606 (Ill. App. 1974) ........................................................33

Manson v. Brathwaite, 432 U.S. 98 (1977) .............................................................35

Moore v. State, 900 P.2d 996 (Okla. Crim. App. 1995) ..........................................30

Morten v. United States, 856 A.2d 595 (D.C. 2004) ...............................................43

People v. Gethers, 207 A.D.2d 260 (N.Y. 1995).....................................................28

Pichon v. State, 683 S.W.2d 422 (Tex. Crim. App. 1984) ......................................36

State v. Emilo, 479 A.2d 169 (Vt. 1984)..................................................................36

United States v. Barragan-Martinez, 504 F.2d 1155 (9th Cir. 1974)......................28

iii
United States v. Ceccolini, 435 U.S. 268 (1978) .....................................................27

United States v. Crews, 445 U.S. 463 (1980) ............................................. 26, 28, 37

United States v. Jenkins, 396 F.3d 751 (6th Cir. 2005) ...........................................26

United States v. Wade, 388 U.S. 218 (1967) ...........................................................29

Wong Sun v. United States, 371 U.S. 471 (1963) ....................................................27

Young v. Conway, 698 F.3d 69 (2d Cir. 2012) ................................................. 27, 29

iv
 ISSUE PRESENTED

Under United States v. Crews, 445 U.S. 463 (1980), did the trial court
commit constitutional error in ruling that an officer’s identification testimony
linking Mr. Hood to the crime was not suppressible fruit of his illegal detention

and arrest when the officer had but a few distracted moments to see Mr. Hood—a
complete stranger to her—prior to illegally detaining him before she then spent
well over an hour interacting directly with him face-to-face after the illegal

detention?

1
 STATEMENT OF THE CASE AND JURISDICTION

By indictment filed August 26, 2015, Milton Hood was charged with one
count of robbery of a senior citizen (D.C. Code § 22-2801, 22-4601), and one
count of assault with intent to commit robbery of a senior citizen (D.C. Code § 22-

401, 22-4601). (R.13). On January 17, 2017, a jury trial began before the
Honorable Kimberly Knowles. On January 25, 2017, the jury convicted of both
counts. (R.62). On April 28, 2017, Judge Knowles sentenced Mr. Hood to eighty-

four months on each count with the sentences to run consecutive. (R.67). Mr. Hood
filed a timely notice of appeal on May 3, 2017. (R.68). This Court has jurisdiction
pursuant to D.C. Code § 11-721.

2
 STATEMENT OF FACTS
Introduction
A man wearing long, dark basketball shorts robbed an elderly couple on a

Friday morning in the 1500 block of 23rd Street NW. The central question at trial
was whether the man in those long basketball shorts was Milton Hood. At trial,
Officer Tanya Butler was the only government witness to provide damaging

witness testimony that directly linked Mr. Hood to the telltale shorts on the day of
the offense.1 Although Officer Butler did not witness the crime, two hours later at
16th and K Streets NW, while driving her cruiser on routine patrol, she saw a bald,
black man wearing long basketball shorts, had a hunch that he was the robber,
quickly detained him, and held him for over an hour before formally arresting him.
That man was Milton Hood.
At the suppression hearing, Judge Todd Edelman ruled that Mr. Hood’s
detention and arrest violated the Fourth Amendment and that, therefore, all fruits
of the illegality must be suppressed. The issue on appeal is whether the trial court,
Judge Kimberly Knowles, committed constitutional error in her Fourth
Amendment fruits rulings.
Judge Knowles ruled that Officer Butler was permitted to make an in-court

identification of Mr. Hood as the man she saw wearing the robber’s distinctive

1
The complainants and five witnesses provided clothing descriptions—
including the long, dark basketball shorts—and general physical descriptions of the
assailant, but none of them could identify Milton Hood as the man in the shorts.
The one witness who viewed a photo array containing Mr. Hood’s picture picked a
different man, writing, “None of the others look like him.” (Tr. 1/17/17 at 90).

3
long basketball shorts on K Street a couple of hours after the robbery. This
identification testimony should have been suppressed. An in-court identification

that follows an illegal seizure may be admitted at trial only if the government
proves by clear and convincing evidence that it rests on an independent source that
is not tainted by the intervening illegal detention. See United States v. Crews, 445

U.S. 463, 472 (1980). Here, the government utterly failed to prove that Officer
Butler’s brief, distracted, and distant opportunity to observe Mr. Hood, a stranger
to her, before the illegality was not tainted by her over-an-hour-long and far

superior face-to-face observations of him during a lengthy period of illegal

custody. Thus, the in-court identification should have been suppressed as a fruit of
the Fourth Amendment violation.

The court’s Fourth Amendment-fruits error was fueled by its mistaken belief
that Officer Butler automatically could testify that Mr. Hood was arrested after she
saw him on the street. The judge ruled that despite the unlawfulness of an arrest,
police are permitted to testify about it to put the investigation in “context.” (Tr.
1/11/17 at 38). There is no such inflexible rule of law. To the contrary, here,
Officer Butler’s testimony that Mr. Hood was arrested after she spotted him on the
street wearing the incriminating clothing impermissibly provided the government
with tainted identification evidence. Once the jury heard that Milton Hood was
arrested after Butler spotted him in the damning shorts on the day of the offense,
then it would know that her identification of him as the person she saw in the long
shorts on K Street was unassailable because police had determined the man’s
identity when they arrested him. The judge erred in missing this point and, instead,

4
reflexively applying an incorrect rule of law.
This Court cannot deem the constitutional error harmless beyond a

reasonable doubt where the government fought hard to admit Officer Butler’s
disputed testimony despite the suppression ruling, and touted it in both opening
statement and closing argument as an important part of the prosecution case. (Id. at

28; 1/17/17 at 39-40; 1/24/17 at 260-62). Reversal is required.

A. SUPPRESSION HEARING AND RULING ON FRUIT OF

THE POISONOUS TREE.
The defense filed a motion to suppress the fruits of Mr. Hood’s unlawful
detention and arrest, arguing that Officer Tanya Butler conducted a stop absent

reasonable suspicion when she boarded the Metro bus in which Mr. Hood was
riding and ordered him to get off.

1. Officer Butler hears a description.

Officer Butler testified at the suppression hearing that on May 29, 2015,2 she
responded to the scene of a robbery of two senior citizens on 23rd Street, NW
between P and Q Streets. (Tr. 3/30/16 at 65-66).3 Although her role was to take
photographs of the crime scene, she heard an eyewitness describe the assailant to a
detective. (Id. at 67). The witness said the assailant was “a black male, bald, he had

something white on his head, but she wasn’t sure if it was a shirt or a cloth, a black
tank top and shorts, that’s long basketball shorts” extending past the knees. (Id. at

2
Officer Butler’s suppression hearing testimony is included as Appellant’s
App. A.
3
Officer Butler arrived at the scene around 11:30 am. (Tr. 1/19/17 at 431).

5
67, 78). The witness included no information about the suspect’s age, facial hair,
complexion, build, or facial features.

2. Officer Butler’s limited opportunity to observe Mr.

Hood prior to the illegal detention.
Shortly before 1:30 p.m., Officer Butler was patrolling near the intersection
of K Street, NW and Connecticut Avenue. (Id. at 69, 89). K Street is very broad
there, with two lanes, a service road and a median separating the service road from
the main road in each direction. (Id. at 72). There were a lot of people in the area
and “lots of auto traffic.” (Id. at 90-91). While she was driving eastbound, a man
crossing from the south side of the street to the north “caught [her] attention”

because he had on “long [basketball] shorts” and she believed that the witness’s
description had included basketball shorts. (Id. at 70-71). She recalled that the man
she saw was bald and wore a white polo shirt, which differed from the black tank
top described by all the witnesses. (Id. at 70, 76). Unable to remember for sure
whether the witness’s description included basketball shorts, (id. at 105), Butler
had to divide her attention among trying to “keep [her] eye on him” through a sea
of people, driving through traffic, and using her police radio to speak with another
officer who could refresh her recollection about the description. (Id. at 73-74).4
Relying on the “clothing description,” Butler thought to herself, “[W]ell, let
me see if it is him, let me stop him. If it’s not then we’ll just do a contact.” (Id. at
71). With the man on the opposite side of the street from the direction Butler was

4
This officer told her that the “witness had not said anything about pants,” but
that “it could have been.” (Id. at 106).

6
traveling, she had to make a u-turn and “[at] that point . . . [she was] not close” to
him. Once she completed the u-turn, the officer parked and began to get out of her

car, but as soon as she did, the man boarded a city bus headed west. (Id. at 71-72).
The officer got back in her car and started to follow the bus. The man got off the
bus after it had traveled a block and a half to the next bus stop and then crossed the

street and walked towards the park at Farragut Square. The area where he went was
crowded with people. (Id. at 73-74). To not “lose [sight of] him in the park,” the
officer pulled to the side of the road near the intersection of Connecticut and K

Streets and again got out of the car to try to “see him at a distance in the park, on
the sidewalk,” where he waited for another bus. (Id. at 73-74).
She got back on the police radio to “ask for assistance” with her plan to stop

the man. (Id. at 74, 106). The man then got onto a second bus. The officer then
crossed the street and boarded the bus before it could leave and ordered the man to
“come off the bus so [she] could talk to him.” (Id. at 75). This man was Mr. Hood.
(Id. at 75, 94). The span of time from when she first saw Mr. Hood until she got on
the bus was “five to six minutes.” (Tr. 1/19/17 at 417).

3. Officer Butler spends over seventy-five minutes

with Mr. Hood during the illegal detention.
Once off the bus, from at least 1:32 p.m. until at least 2:49 p.m., Officer
Butler and Mr. Hood were together on the side of the road. (Tr. 3/30/16 at 83-84,
89, 123-24).5 The officer had Mr. Hood sit on a bus stop bench and, for nearly all

5
The stop occurred at 1:32 p.m. (Tr. 3/30/16 at 89). Officer Butler’s body worn
camera footage, which was introduced during the motion hearing as Government
Exhibits 15-17, began at 1:52 pm. (Id. at 83-84). It captured their time together on

7
of those seventy-five-plus minutes, she was face-to-face with him, speaking with
him, answering his questions, and interrogating him about his whereabouts earlier

in the day. (See App. D, Govt. Ex. 15-16). She gave Mr. Hood commands, such as
“stand up” and “sit down” so she could photograph him, and instructed him, “sir,
look at me.” (Id. at 83, 128-29; App. D, Govt. Ex. 15). She learned Mr. Hood’s

name by looking at his voter identification card and engaged him in conversation
to determine where he lived and why he had no social security card. (Id.)
She interrogated him about the robbery, asking him “tell me the truth, what

happened this morning, you know what happened this morning,” a subject she
returned to numerous times, saying to Mr. Hood, “sir, you want to tell me what
happened this morning,” “tell me what you did this morning,” “I know you know

more,” and “I know you want to tell the truth, all you have to do is tell the truth.”
Mr. Hood responded, and Officer Butler asked him follow-up questions about what
he said. (Id.).
Besides directly looking at Mr. Hood’s face under excellent viewing
conditions for over an hour, Officer Butler was able to see many other features of
Mr. Hood’s appearance after she detained him that she could not see while she was
looking at him while driving at a distance from him before the stop. (Tr. 3/30/16 at
107). He had a “knot” on his head, a “nice lump,” which was “swelling” and
“[p]inkish,” (id. at 79); the white polo shirt was on inside out; it was worn over a

K Street from 1:52 to 2:49 p.m., when Mr. Hood was transported to the police
station, as well as additional time she interacted with him at the Second District
police station. (Id. at 84-85, 126). The officer’s body camera footage has been
attached to Appellant’s Appendix at App. D.

8
black tank top that had been torn, (id. at 76); and he had a ring on his finger that
she questioned him about. (App. D, Govt. Ex. 15).

During the extended illegal detention, Officer Butler received still

photographs from surveillance-video footage taken just before the robbery that
may have captured the person who committed it. (Tr. 3/30/16 at 76-77). She

compared the pictures to Mr. Hood. Although the pictures did “[n]ot clearly” show
the face of the man, (id. at 77-78), she placed Mr. Hood under arrest after she
determined that his clothing matched that of the man in the pictures. (Id. at 79-80).

At the Second District Police Station, Officer Butler spent more time with
Mr. Hood when she was called upon to admonish him that he needed to go to the
hospital and to get off the floor. (Id. at 84-85; App. D, Govt. Ex. 17).6

4. The motions court grants the motion to suppress.

The motions court granted the motion to suppress. (Tr. 3/31/16 at 218, 220-
24).7 The court found that Officer Butler had a description of a “black male, who
was bald, wearing a black tank top, long basketball shorts[.]” (Id. at 218). Later,
when she was on routine patrol, she saw “a black male . . . he was bald, wearing a

white shirt and long basketball shorts[.]” (Id. at 219). “When she saw him she
followed the bus that he was on and eventually removed him from the bus by

6
While the entire length of time she spent with Mr. Hood at the police station
was not established on the record, her body camera from this time showed it was at
least five minutes. (App. D, Govt. Ex. 17).
7
Judge Edelman’s suppression ruling is included as Appellant’s App. B.

9
instructing him to get off the bus.” (Id.). She then “had Mr. Hood sit down at a
covered bus stop for over an hour. During that hour she had him lift up his clothing

and otherwise pose for pictures[,]” and Officer Butler “learned additional
information connecting Mr. Hood to the robbery over the course of that hour,”
including his statements in response to her questions. (Id. at 219-20).

The court ruled that “the description . . . does not provide a particularized or
individualized basis to stop Mr. Hood where he was stopped away from the scene
of the original crime two hours after the incident.” (Id. at 226-27). The description

of a bald, black male was “not [] particularly distinguishing.” The “shorts” were
“really the only truly distinct feature,” though they were not distinctive enough to
justify a stop that occurred two hours later at a different location. (Id. at 223). The

court noted there was “nothing in the description about whether the robber had
facial hair, what his complexion was, what his weight or build was,” and that the
stop occurred in a “very crowded commercial part of town” during the middle of a
weekday. (Id. at 221, 223). The court determined that Officer Butler illegally
seized and arrested Mr. Hood and granted the defense’s motion to suppress. (Id. at
220-22).

5. The trial court’s fruits ruling.

Prior to trial, the defense filed a motion and then a supplement to that motion

arguing that Officer Butler’s in-court identification of Mr. Hood as the man she
observed on K Street in the long basketball shorts must be suppressed as the
tainted fruit of the Fourth Amendment violation. Mr. Hood cited the governing
cases, United States v. Crews, 445 U.S. 463 (1980), United States v. Wade, 388

10
U.S. 218 (1967), and other authorities. (R. 54, 56, 58). He argued that what limited,
distracted, and distant opportunity Officer Butler had to view the suspect prior to

the illegal detention did not give the government the independent source it needed
to overcome the taint of the almost hour and a half of up-close exposure to Mr.
Hood that she gained during the period of illegal detention. See also Tr. 1/11/17 at

42.
The government subsequently filed a pleading that entirely skirted the
constitutional fruits analysis required by Supreme Court precedent when the

government seeks to elicit an in-court identification after the witness has viewed
the defendant during a period of illegal detention. The government did not address
whether it had proved an independent source for Officer Butler’s in-court

identification. Instead it claimed that it had a right—independent of Fourth

Amendment constraints—to have Officer Butler testify about Mr. Hood’s
appearance pre-detention, followed by testimony that police arrested Mr. Hood
after Butler saw him on K Street, and then an in-court identification of Mr. Hood
as the man whom police arrested.8 (R. 57).
At the January 11, 2017 hearing before Judge Knowles, the government
elaborated: “[W]e have a right to present to the jury . . . a narrative that includes

8
The government also claimed that Mr. Hood’s clothing, which police seized
after his illegal arrest, and photographs of him in the clothing, taken during his
illegal detention, were admissible on the theory that the clothing was evidence that
Officer Butler saw before the illegality. (Tr. 1/11/17 at 7-11). The judge denied this
request, ruling that the clothing and photographs were fruits of the Fourth
Amendment violation. (Id. at 23-24).

11
[Officer Butler] observing someone [pre-detention] . . . . But also referencing that
this person that she [saw] . . . was arrested.” (Tr. 1/11/17 at 34). “[O]fficers are

entitled to reference an arrest even though it was illegal,” and “Officer Butler has
the right to say [to the jury,] I arrested, that this person was arrested. And his name
is Milton Hood and that’s him sitting right there.” (Tr. 1/11/17 at 33-34).

Importantly, the government acknowledged that if Officer Butler were

permitted to testify that police arrested Milton Hood after she saw him on K Street,
that testimony “may render the ID motion moot,” (id. at 34)—that is, the defense

motion to suppress the in-court identification as the tainted fruit of the Fourth
Amendment violation would be moot because the jury would learn that indeed the
man in the long basketball shorts was Milton Hood because police ascertained his

identity when they arrested him. See also id. at 26 (government argument that if
the court permitted Butler to testify that police arrested Hood after she spotted him
in the long basketball shorts that it may “render” the defense’s motion to suppress
the in-court identification “moot”). “[W]e feel that we have a right to present to the
jury . . . a narrative that includes her observing someone [and] referencing that this
person that she sees here was arrested.” (Id. at 34). The government implored that
Officer Butler’s testimony linking her pre-detention observations of the suspect in
the long basketball shorts to Milton Hood’s arrest was “essential to the narrative
for the jury.” (Id. at 35).
Defense counsel countered that the government’s proffer of testimony
linking Officer Butler’s pre-detention observations to Mr. Hood’s arrest would
improperly reference tainted identification evidence and would not otherwise be

12
“relevant [or] necessary” for any proper reason. “[I]t bolsters any in court ID or
any other identification testimony. And it’s basically using tainted contact with

him to bolster any ID.” (Id. at 37). See also id. at 36, 38, 46-48. Aside from an
improper use of tainted fruit of the Fourth Amendment violation to identify Mr.
Hood as the man in the incriminating clothing, testimony “that an arrest occurred

at some point in time” would not be relevant, or would have only “nominal
probative value.” (Id. at 36).
The defense argued that Butler’s in-court identification of Mr. Hood as the

man she followed and arrested must be excluded as the fruit of the prolonged
illegal detention because she lacked a sufficient, untainted opportunity to observe
him before the illegal stop. (Id. at 36, 47). Citing Crews and Wade, counsel argued

that the government did not prove by clear and convincing evidence that the officer
had an independent and untainted basis to make an in-court identification. (Id. at
42). The defense contrasted the brief time the officer had to observe Mr. Hood
prior to the illegality, through a sea of people at a busy time of day as she drove her
police car through traffic, (id. at 44-45), with the her prolonged time—“lots of
contact”—with Mr. Hood following the illegal stop. (Id. at 42). Such a stark
disparity in opportunity to observe meant that the government lacked the required
“independent source” to establish that Officer Butler’s ability to identify Mr. Hood
was not a product of the illegality—her extended and focused time with him during
the illegal detention. (Id. at 31).
Defense counsel emphasized that before the stop, the officer was focused
solely on clothing while any physical description she could articulate was

13
general—that he was a bald, black male—lacking anything about age, complexion,
or facial hair, let alone facial features. (Id. at 47-48). Because her focus was “all

based on clothing,” (id. at 47), there was no evidence in the record that nineteen
months later in the courtroom she could look at Mr. Hood’s face and determine
that he was the man she saw for only a few minutes from a distance while driving,

uninfluenced by her extended and much closer engagement with him during the
illegal detention. (Id. at 42).
The government responded by invoking the wrong legal standard. Ignoring

its heavy burden to prove an independent source for any in-court identification by
Butler, the government instead claimed that whether her inferior opportunity to see
Mr. Hood’s face prior to the illegality permitted an in-court identification “all goes

to the jury. That’s a question of weight not admissibility.” (Id. at 50). The
government nowhere argued that Officer Butler possessed an independent source
from her pre-detention observations to enable an in-court identification that was
not tainted by the hour and a half she spent in close quarters with Mr. Hood during
the illegal detention. To the contrary, it admitted that pre-detention, Officer
Butler’s “mind” was on “those basketball shorts,” and never once claimed that she
got a good look at his face. (Id. at 28).
The court first ruled that the officer could testify that Milton Hood was
arrested after she observed him on K Street.9 “I don’t think the arrest is a fruit of
the seizure. It is part of, it’s partly the seizure. The formal arrest actually happens

9
Judge Knowles’ ruling on fruit of the poisonous tree is included as
Appellant’s App. C.

14
after the seizure. But I don’t see that as fruit of the seizure. That’s not evidence that
came about. That is kind of putting it in context.” (Id. at 38). The court believed

that “the arrest is separate from the fruit. . . . I don’t think that an arrest, the
mention of Mr. Hood being arrested is part of [the fruits] analysis. I don’t think it
is impermissible.” (Id. at 39). The court concluded that Butler could testify that Mr.

Hood “was arrested after getting off the bus that day and maybe that’s where it
ends.” (Id. at 40).
The court then ruled that Officer Butler would be permitted to make an in-

court identification of Mr. Hood as the man Butler saw in the long basketball
shorts. The judge never addressed the contrast between the officer’s limited time
and opportunity to view the man before he got on the bus and her extended time

during the illegal detention sitting face-to-face with Mr. Hood for well over an
hour. (Id. at 50-51). Instead, much like the government, she acknowledged that
once she allowed Officer Butler to testify that police arrested Mr. Hood after
Officer Butler saw him on K Street, his identity as the man she saw on K Street in
the long basketball shorts would be established.
The court intertwined Officer Butler’s in-court identification of Mr. Hood as
the man she saw on the street with her testimony about him being arrested,
testimony she was already permitting: “I think there’s enough evidence based on a
trained police officer . . . who’s looking for this person, who’s watching this person
crossing the street, going back and forth to then say [‘]yes, he’s the person who I
saw who got arrested.[’] And that’s the phrase we’re talking about was the person
arrested. And since I’m not suppressing the arrest I think that [her in-court

15
identification of Mr. Hood] is appropriate. Because the fact that someone is
arrested I’m finding is not a fruit. And therefore the fact that Mr. Hood was the one

arrested is therefore permissible. So I will allow that.” (Id. at 52) (emphasis added).
The court repeated that she was permitting an in-court identification despite
defense counsel’s arguments about a lack of independent source because “again, I

think the linchpin, I think the biggest part of the reason why I think she can identify
him is because we’re talking about the identification of the person who was
arrested.”10 (Id. at 55) (emphasis added).

B. THE EVIDENCE AT TRIAL.

On May 29, 2015, shortly before 11:30 am, 82-year-old Anton Manolache
and his 77-year-old wife Georgetta were leaving the Romanian Consulate at 1607
23rd Street, NW. (Tr. 1/18/17 at 192-93, 209). As they walked towards their car,
they noticed a short, bald black man waving what appeared to be a shirt over his
head coming towards them. (Id. at 195). The man told them three or four times,
“Give me your money.” (Id. at 196). Mr. Manolache responded that he did not
have any. (Id.). The man then pushed Mr. Manolache, and while it was not that

hard of a push, it caused him to fall backwards onto the grass. (Id. at 197). Mr.
Manolache believed the man took his wallet because he did not have it after he got
up. (Id.).

10
The court also ruled that Officer Butler could view the photographs from the
surveillance video and could testify “th[e] person in the videotape appears” to be
the same person she followed based on clothing, but she could not testify it is the
same person she followed. (Id. at 59-60).

16
 Mrs. Manolache screamed when she saw her husband on the ground with the
man kneeling next to him. (Id. at 213). She struck him in the back and neck with

her cane. (Id. at 214-15). The man stood up and yanked at her purse, which was
hanging off her shoulder, causing her to fall and briefly lose consciousness. (Id. at
215-17). When she regained consciousness moments later, she saw the man

running down the street. (Id. at 217).

Both Mr. and Mrs. Manolache described the man as a well-built, bald, black
male waiving a white shirt and wearing a dark-colored top. (Id. at 195-96; 217-18).

Mr. Manolache said the man was a “shorter person,” (id. at 196), while Mrs.
Manolache did not mention anything about height. Also, he said the man was
wearing a “tank top” that “wasn’t white,” (id. at 196), which she described as

“maybe some dark piece of clothing on top.” (Id. at 218). At trial, both testified he
was wearing long pants, though Mr. Manolache said he was not “pay[ing] attention
to that,” (id. at 196), and she admitted she testified in the grand jury that he was
wearing knee-length shorts. (Id. at 220). Neither complainant ever identified Mr.
Hood as the robber.
Four additional witnesses testified at trial to seeing the robbery. While their
descriptions varied to some degree in terms of build and height, they all testified
that the man they saw had on dark-colored long, baggy shorts, with one witness
specifically describing the shorts as being dark-colored basketball shorts with a
stripe down the side. None of these eyewitnesses ever identified for the jury Milton
Hood as the robber.
Such was the case even though two of them—Rehanna Raza and Amin

17
Nhaila—were inside a car at the scene and both testified that the robber walked
right up to the window of the car and started pushing on the windows. (Tr. 1/17/17

at 81, 168). Mr. Nhaila described the man as a bald, black male, wearing a tank top
and shorts, though he did not give any additional details about the clothing or the
physical description. (Id. at 165-66). He was working that day as an Uber driver

and stopped near the location of the robbery with Ms. Raza as his passenger. She
described the robber as “closely shaven or bald,” wearing “blue longish shorts and
a sleeveless vest” and what “seemed” to her to be a “white T-shirt or white [] cloth

in his hand.” (Id. at 86).

She made a 911 call to report the robbery but admitted on cross-examination
that in that phone call she did not mention anything about the length of the shorts.

(Id. at 109). She testified that while she was on the phone with 911, she saw the
robber “trying to run but limping” down 23rd street, as if “he wasn’t able to put
pressure on both legs[.]” (Id. at 85).11 On the day of the robbery, police showed
Ms. Raza a photographic array that included Mr. Hood’s picture. (Id. at 89-90).12
She identified someone else, writing, “I think it is that one, photo number 1 [which
was not Mr. Hood]. None of the others look like him. He looks the closest to him.”
(Id. at 90).
Stephanie Cantizano testified that on the morning of May 29, 2015, she was

11
Ms. Raza admitted that she never mentioned anything about seeing the man
“limping” to the 911 operator. (Tr. 1/17/17 at 110).
12
The police did not conduct an identification procedure with any other
witness.

18
riding her bike home when she had a “weird encounter” with a man on the street.
(Tr. 1/18/17 at 236-40). He approached her and made eye contact as if he was

about to say hello. (Id. at 240). But as she got closer to him, he did not say hello
and instead made more of a “jerk[ing]” motion with his body towards her. (Id.).
Originally, she did not “think anything of it” and continued riding her bike. (Id.).

But not long after, she got a flat tire and had to call her daughter to come pick her
up. (Id. at 242-43).
While they were driving home, they saw a “scuffle” on 23rd Street. She said

they were about four feet away and could see an elderly woman with a cane in her
hand about to hit a man—the same man Ms. Cantizano had observed earlier when
on her bike—who was standing over an elderly man on the ground. (Tr. 1/19/17 at

328-31, 333). She described the man as “light complected,” “completely bald,”
“not super tall but not super short,” and he was “sturdily built” with long
“basketball shorts” made of a “nylon blend” that had a stripe down [both] side[s].”
(Id. at 345-46). She also said the man had a towel or a shirt on his head and was
wearing a “navy blue, short sleeved shirt.” (Id. at 347, 360). Even with her having
two occasions to view this man, Ms. Cantizano never identified Mr. Hood for the
jury at trial.
Ms. Cantizano told her daughter to call 911 and then got out of the car to run
towards the scuffle. Before she got there the man ran off and she quickly lost sight
of him. (Id. at 355). At trial, her daughter provided the jury with a similar
description of the man as her mother had—a bald, black male, with a black tank
top, white towel on his head, who was wearing “dark-colored baggy shorts. They

19
could have been basketball shorts, something that almost went below his knees and
were pretty baggy.” (Tr. 1/23/17 at 67-68). She did not recall if there were any

markings on the shorts and did not say anything about the man’s build. (Id.).13 She
never made an identification of Milton Hood as the man in the dark-colored baggy
shorts.

Less than thirty minutes before the robbery, William Sheppard was working
at the front desk of Gateway Condominiums located at 2500 Q Street, NW—only a
short walk from the scene of the robbery—when a bald, black man who was “5-5,

a little bit on the stocky side” wearing “three-quarter length pants or long shorts,
dark color with a stripe down the side, a dark undershirt and a white shirt thrown
over it” entered. (Tr. 1/17/17 at 55-58).14 Mr. Sheppard interacted with this man at

the front desk for several minutes, the entirety of which the building’s surveillance
camera captured, as was footage of the man entering the building, which Mr.
Sheppard later reviewed. (Id. at 62-67). Though the video showed a bald black
man wearing very long dark-colored basketball shorts with a white vertical stripe
on the outside of each leg, a black tank top, and a white or light-colored cloth or
shirt draped over his shoulders, the man’s face was not discernible and neither was

13
Both Stephanie Cantizano and her daughter spoke to the 911 operator and
provided a description of the robber as “African American, 40 to 50 years old,”
“completely bald,” “below average in height,” “sturdily built” with “long
basketball shorts.” (Tr. 1/19/17 at 345-47, 360; 1/23/17 at 64-67). Stephanie
Cantizano told the 911 operator the man was “5-7, 5-8.” (Tr. 1/19/17 at 359).
14
In the grand jury, Mr. Sheppard said the man was “5-5 to 5-7, a little bit on
the husky side with round shoulders[.]” (Tr. 1/17/17 at 57-58). He testified that he
was 5-9 and the man who entered the lobby was shorter than he was. (Id. at 58).

20
it possible from the video to ascertain his height or complexion. (Id. at 40; 1/24/17
at 266-68). Like the other eyewitnesses, Sheppard did not identify Mr. Hood as the

man he saw in the lobby.

MPD Officer Tanya Butler was the only witness at trial to identify Mr. Hood
as the man in the dark colored long basketball shorts. While processing the crime

scene and taking photographs, she heard Ms. Cantizano tell a detective that the
assailant was a black male, bald, short, with long basketball shorts and a white t-
shirt or cloth around his head and a black tank top. (Tr. 1/19/17 at 403). About two

hours after the robbery, Officer Butler was driving on K Street, NW near 16th
Street. She saw a short, bald, black male with long basketball shorts who she
thought matched the description, even though she could see that this man was

wearing a white polo shirt (not a black tank-top) and did not have any clothes or a
towel on his head. (Id. at 405). This man was also walking with a limp as if he was
in some type of pain and she did not remember anyone at the scene mentioning
anything about the robber limping. (Id. at 405-06; Tr. 1/23/17 at 38).
When she first saw this man, he was standing about seven feet away from
her but she drove past him and had to make a u-turn. (Tr. 1/19/17 at 412).
Meanwhile, the man had stopped at a bus stop. (Id. at 412). Also at this time she
was using her radio to speak with the detective to confirm the description. (Id. at
416). Although she made the call because she “wanted to be definitely sure of the
description,” (id.), the call did not confirm her memory of the description. The
detective told her that the witnesses did not “say anything about pants.” (Tr.
1/23/17 at 37). After the man boarded a bus heading westbound on K Street, she

21
followed it. At the next bus stop, the man got off the bus, and crossed the street by
Farragut Square. (Tr. 1/19/17 at 414). He went to a bus stop near the corner of

Connecticut Avenue and the eastbound side of K Street. (Id. at 415). Shortly after,
a bus arrived and he got on that bus. (Id. at 416). The officer testified that about
“five to six minutes” passed between the time she first saw the man walking on K

Street and when he got onto the second bus. (Id. at 417).
Officer Butler viewed two still photographs taken from the surveillance
footage from Georgetown Condominiums. She testified that the man in the

photographs had the same hair style, skin color, build, and clothing as the man she
followed on K Street. (Id. at 419). Also, she described the clothing as being
“[e]xactly the same,” even though the man she followed was wearing a white polo

shirt and the man in the photographs was wearing a black tank top with some type
of white shirt hanging off of his neck. (Tr. 1/19/17 at 419).
Officer Butler then made an in-court identification of Mr. Hood as the man
she saw on K Street and whom MPD arrested that day:

[Government]. Okay. Now, Officer Butler, at some point after you

followed this person around, was the same person that you followed
arrested that day by the Metropolitan Police Department?

[Officer Butler]. Yes.

Q. Do you see the person who you followed and who was arrested sitting
here in court today?

A. Yes.

Q. Would you please point that person out and identify him by a piece of
clothing that he’s wearing?

22
 A. He’s sitting with his defense attorney. He has a black vest on, pullover
vest.
(Tr. 1/19/17 at 417-18).
When Officer Butler and other officers collected evidence at the scene of the
robbery, no one bothered to seize Mrs. Manolache’s cane or to swab it for possible
DNA. (Tr. 1/19/17 at 429-31). It was not until the following day that Detective

Bryan Adams went to Mrs. Manolache’s home in Virginia and took DNA swabs of
the handle and the body of the cane. (Tr. 1/24/17 at 167-69).
Forensic analyst Jenna Hong developed a DNA profile from a sample taken
from the handle of the cane that she concluded was consistent with a mixture of
two contributors. Milton Hood was excluded as a contributor. (Tr. 1/23/17 at 61-
71). Analyst Hong also developed a DNA profile from the body of the cane. She

concluded that this profile contained the DNA from two people with a mixture of a
major and a minor contributor and that Milton Hood could not be excluded as a
possible contributor to the major mixture DNA profile. (Id. at 60-75). She testified
that the chance of someone other than Milton Hood being the contributor to the
major mixture was one in 41 million of the Caucasian population and one in 100
million of the African American population. (Id. at 84-85). Despite those

conclusions, Analyst Hong admitted she had no idea how, where, or when the
DNA she said came from Mr. Hood got onto the cane; that DNA can be found in
body fluid and saliva but that available tests to determine the source were not

conducted; that there can be “indirect transfer” which can result in a person’s DNA
being left on an object that the person never actually touched; and that by the time

23
of trial the laboratory’s testing protocols had changed and had she done the testing
then she would have to conclude that the mixture on the body of the cane came

from three or more people. (Tr. 1/24/17 at 110-122).

In closing argument, the government, as it did in opening statement, told the
jury its evidence consisted of “three buckets of proof,” which were the

“observations” by Officer Butler and the other eyewitnesses, the DNA evidence,
and the physical evidence, including 911 calls and the surveillance video from the
apartment building. (Id. at 252). The government said to the jury “the important

thing for you all to understand is” that “when you consider [the evidence in the
three buckets of proof,] you don’t consider them in isolation. You don’t just look at
the DNA without regard to the rest. You don’t just look at what eyewitnesses said

without regard to the rest. You consider all of them holistically, the way they fit
together, the way that the evidence inter-relates with each other, corroborates each
other, supports each other.” (Id. at 252-53).
SUMMARY OF ARGUMENT
After Judge Edelman found a Fourth Amendment violation, the government
insisted it still should be permitted to have Officer Butler identify Milton Hood as
the man she observed in the distinctive shorts before the detention, and who police
then arrested, regardless of any Fourth Amendment constraints or fruits analysis.
The trial judge permitted the testimony, adopting the government’s argument and
giving short shrift to the required constitutional fruits analysis. It committed
constitutional error.
The government had the burden to prove by clear and convincing evidence

24
that the officer possessed an independent source to identify Milton Hood as the
man in the incriminating clothing based on her brief pre-illegality observations,

wholly independent of and untainted by her extensive post-detention observations.

The government not only failed to meet its heavy burden, it did not even attempt to
do so despite the defense counsel’s pointed and detailed arguments on the subject

at the hearing on fruits. Having chosen to defend below solely on the ground that
Officer Butler must invariably be permitted to testify that Mr. Hood was arrested
after she spotted him in the incriminating shorts, and never once stating that it had

proven an independent, untainted source for such identification, the government

has waived any argument about independent source.
In any event, the evidence shows that the government did not meet its

burden of proving an independent source. Before the illegal detention, Officer

Butler had but a few distracted moments while driving and multitasking to look at
Mr. Hood, a complete stranger to her, from a distance on K Street while she was
admittedly focused on his clothing. By contrast, during the illegal detention and
arrest, she spent over an hour and fifteen minutes in close quarters with him on K
Street, and additional time with him at the Second District police station. As a
result, her capacity to identify Mr. Hood in court a year and a half later based on
her hasty pre-detention observations was tainted by her exponentially lengthier and
far superior observations during the illegal detention, arrest, and subsequent
interactions at the stationhouse. Thus, the officer’s identification testimony was
arrived at through exploitation of the officer’s illegal detention and should have
been suppressed.

25
 ARGUMENT

I. THE TRIAL COURT COMMITTED CONSTITUTIONAL ERROR IN

ADMITTING OFFICER BUTLER’S IDENTIFICATION
TESTIMONY LINKING MR. HOOD TO THE CRIME WHERE THE
IDENTIFICATION TESTIMONY WAS A FRUIT OF MR. HOOD’S
ILLEGAL DETENTION AND ARREST.

A. THE IDENTIFICATION TESTIMONY WAS A FRUIT

OF THE ILLEGALITY.
The trial court committed constitutional error in allowing Officer Butler to
identify Mr. Hood in-court as the man she saw wearing the incriminating long

basketball shorts shortly after the robbery who was then arrested. The trial court
was required to suppress the in-court identification as the fruit of the officer’s
illegal detention and arrest of Mr. Hood because Officer Butler lacked an

independent source for any in-court identification of Mr. Hood. See United States
v. Crews, 445 U.S. 463, 468, 473 n.18 &19 (1980).
Pre-illegal detention, she never got a good look at Mr. Hood’s face.

Whatever glimpse she managed to get of Mr. Hood occurred while driving and
multi-tasking as they were both in motion during mere minutes, at a distance from
each other, and while Officer Butler was admittedly focused on his long shorts

because that is what stuck in her mind from the witnesses’ description. Such a
limited opportunity to see Mr. Hood’s face could not possibly be disentangled
from, and was thus tainted by, the near hour and a half she spent with him face-to-

face and fully focused on him during the illegal detention.15 The government never

15
“Application of the independent source doctrine is a
mixed question of law and fact that is reviewed de novo.” United States v. Jenkins,
396 F.3d 751, 757 (6th Cir. 2005); Young v. Conway, 698 F.3d 69, 77 (2d Cir.

26
suggested otherwise. Instead, it ignored the established constitutional framework
and misdirected the trial judge with the wrong legal analysis, contending it had

“the right” to present Officer Butler’s identification testimony telling the jury that
the man in the incriminating long basketball shorts was positively determined to be
Milton Hood through his arrest following her observations of him on K Street.

Evidence obtained by exploiting an illegal seizure or arrest must be excluded

from trial. Wong Sun v. United States, 371 U.S. 471, 488 (1963). The exclusionary

rule applies with equal force to witness testimony about observations, such as

identification testimony, as it does to physical evidence. Crews, 445 U.S. at 470.

See also United States v. Ceccolini, 435 U.S. 268, 278 (1978) (identification

testimony should be excluded when there is a “close” and “direct link” between it

and the illegality); Cunningham v. United States, 391 A.2d 1360, 1363 (D.C. 1978)

(“[T]he Fourth Amendment requires exclusion of all evidence, including

identification testimony, that is directly traceable to [and] is causally related to

unlawful official behavior.”); United States v. Barragan-Martinez, 504 F.2d 1155,

1157 (9th Cir. 1974) (in-court and out-of-court identifications suppressed as fruits

of the defendant’s illegal seizure); People v. Gethers, 207 A.D.2d 260, 261 (N.Y.

2012) (“Whether an in-court identification has a source independent of an earlier

tainted identification is a mixed question of law and fact.”); Hicks v. United States,
705 A.2d 636, 639-40 (D.C. 1997) (in Fourth Amendment fruits analysis, findings
of historical fact are reviewed for clear error but the Court’s “[r]eview of the trial
court's legal conclusions is de novo.”).

27
1995) (in-court identification should have been suppressed because there was no

basis for it independent of the defendant’s illegal seizure).

Crews governs the analysis. There, the defendant was arrested without

probable cause and taken to the station house, where police photographed him and

then released him. His photograph was put into an array that was shown to the

robbery victim, who picked him out. Subsequently he was ordered to stand in a

line-up where the victim again identified him as the robber. 445 U.S. at 467. Both

the photographic identification and the line-up identification were deemed to be

tainted fruits of the unlawful arrest and therefore suppressed. The question before

the Court was whether the in-court identification by the victim was also a fruit of

the Fourth Amendment violation.

The Court held that the answer would turn on whether the complainant’s

“ability to identify” the defendant “in court was based upon independent

recollection untainted by the intervening identifications[.]” Id. at 468. That is,

whether her capacity to identify the defendant in court “rested on independent

recollection of her initial encounter with the assailant” “uninfluenced” by the time

and opportunity she had to view Crews during “the [tainted] pretrial

identification.” Id. at 473. Referencing a plethora of indicia that the witness

possessed an “independent source” for in-court identification that was unaffected

by her exposure to him or to his image during the tainted photographic and line-up

28
procedures, the Court held that the in-court identification should not be suppressed

as a fruit of the illegality. Id. at 473 n. 18 (noting excellent opportunity to observe

the assailant “at close range,” “without distraction,” during the offense, an accurate

and detailed pre-taint description, and a demonstrated capacity to positively

identify the assailant “without hesitation in nonsuggestive pretrial identification

procedures”).

The Court adopted the “independent source” doctrine of United States v.

Wade, 388 U.S. 218 (1967). Crews, 445 U.S. at 473 n. 18 & 19. In Wade, the Court

held that when the government conducts line-ups in violation of the Sixth

Amendment right to counsel, it may adduce the participating witness’ in-court

identifications of the defendant only if it can “establish by clear and convincing

evidence that the in-court identifications were based on observations of the suspect

other than the lineup identification.” 388 U.S. at 240. See also Young v. Conway,

698 F.3d 69, 78 (2d Cir. 2012) (“The State bears the burden of proving,

by clear and convincing evidence, that the in-court identification was based upon

observations of the suspect other than” during the occasions tainted by the Fourth

Amendment violation) (internal quotation marks and citation omitted); In re K.H.,

14 A.3d 1087, 1093 (D.C. 2011) (in-court identification of a defendant must be

suppressed if it was “influenced unduly” by a prior tainted opportunity to view the

defendant); Moore v. State, 900 P.2d 996, 1001 (Okla. Crim. App. 1995) (A “post-

29
taint, in-court identification is admissible only if it is supported by clear and

convincing evidence that it is based on the witness’ independent observations at

the time of the crime”).

Thus, here the government had a heavy burden to prove—by clear and

convincing evidence—that any in-court identification was based on Officer

Butler’s pre-detention observations of Milton Hood unaffected by the nearly hour

and a half she spent with him during the illegal detention. The record shows that

the government came nowhere close to meeting this burden.

First, the Court should dispose of the taint question on the ground that the

government waived any independent source argument. Below, the government

never attempted to meet its burden. Although black letter law required the

government to prove an independent source once Judge Edelman found a Fourth

Amendment violation, the government never asserted that Officer Butler possessed

an independent source for an in-court identification, let alone that it had proved

one by clear and convincing evidence. It never claimed that Officer Butler got a

good enough look at Mr. Hood’s face pre-illegality that somehow could have been

untangled from her post-detention observations of his face. Instead, the

government readily acknowledged that pre-detention Officer Butler was focused

on the shorts. (Tr. 1/11/17 at 10-11).

Ignoring the required constitutional framework for fruits analysis—and the

30
defense’s arguments in both its pleadings and in court that the Crews test governed

admission of Butler’s in-court identification, (id. at 42)—the government argued

that the defense was just “quibble[ing],” and that any shortcomings in Officer

Butler’s pre-detention opportunity to observe Mr. Hood’s face were merely matters

for jury argument that went to “weight not admissibility.” (Id. at 50). It also argued

that it was entitled to prove that Mr. Hood was the man in the incriminating

clothing by having Officer Butler testify that police determined that man’s identity

when they arrested him, and that such testimony about the arrest was not subject to

any Fourth Amendment fruits analysis. (Tr. 1/11/17 at 34). As such, the

government waived any contention that it established an independent source under

Crews. See Barnett v. United States, 525 A.2d 197, 100 (D.C. 1987) (government

waived Fourth Amendment justification by failing to invoke and prove it below).

On the merits, the case for suppression is clear. To make an untainted in-

court identification, the officer had to be able to look at Mr. Hood’s face as he sat

in the courtroom and match it to the face of the person she saw pre-detention

walking on K Street—a person she had never seen before. And she needed to be

able to do so unaffected by the exorbitant amount of time she spent with him after

the illegal detention, during which she was up-close and fully focused on his face.

She lacked that ability.

First, the degree of taint was massive. During the illegal detention, the

31
officer stood within a few feet directly in front of Mr. Hood for well over an

hour.16 The detention began at 1:32 p.m. and lasted until at least 2:49 pm. (Tr.

3/30/16 at 84-85, 123-26). She then spent more time with him at the stationhouse,

where her body camera footage showed her dealing directly with Mr. Hood as she

implored him to seek medical treatment and to get off of the floor. (Id. at 80; App.

D). For nearly all of the illicit time on K Street, the officer viewed Mr. Hood

without distraction or obstruction as she had him sitting on a bus bench and looked

right at him.

There can be no doubt about the extent to which she focused on him. She

interrogated him about the robbery and questioned him about his general

background. By interrogating Mr. Hood and assessing his responses, Officer Butler

focused on his face, infecting any ability she would have to later identify him

based on the pre-taint sighting. As her body camera footage shows, (App. D), the

officer looked at Mr. Hood’s face as she over and over asked him about the

robbery, saying “tell me the truth, what happened this morning, you know what

happened this morning,” “you want to tell me what happened this morning,” “tell

me what you did this morning,” “I know you know more,” and “I know you want

to tell the truth.” And when the officer was not asking Mr. Hood about the offense

16
In the typical case the period of taint lasts only momentarily, when a witness
is exposed to the defendant or his photographic image during a short procedure,
such as a show-up, a photo-array procedure, or a line-up procedure.

32
in an attempt to obtain a confession, she engaged him in questions about his

identification credentials and why he did not have a social security card. She asked

him what time he first got on a bus that morning. She took several photographs of

Mr. Hood, as well as obtained still photographs from the surveillance camera and

compared them to Mr. Hood—all of which required her to look directly at Mr.

Hood’s face.

The stark contrast between Officer Butler’s extensive, up-close, and focused

observation of Mr. Hood during the illegal detention and her brief, distracted,

limited view of Mr. Hood—a complete stranger to her—before the illegal

detention cements the conclusion that she lacked the required independent basis to

identify Mr. Hood at trial.17 The officer testified that from the moment she first saw

Mr. Hood until she boarded the bus took only “five to six minutes.” (Tr. 1/19/17 at

417). But even during those minutes, she was not close to him, nor did she even

have the opportunity to see his face, let alone to focus on it, for much of that time.

After she first saw Mr. Hood, she drove past him to the next intersection in order to

make a u-turn, meaning that she had no ability to see him for that time span. (Tr.

3/30/16 at 71). Then Mr. Hood boarded a bus, which departed, and stayed on it for

17
See, e.g., In re Woods, 314 N.E.2d 606, 610-11 (Ill. App. 1974) (reversing for
admission of in-court identification where witness had provided only a general
description of the robber and then closely viewed him during a show-up following
his illegal seizure).

33
a block and a half before returning to K Street—additional time when she had zero

ability to see his face. (Id. at 71-74).

The remaining time was woefully inadequate to view Mr. Hood’s face in a

way to form any lasting impression of it. This is so not only because Mr. Hood was

a complete stranger, but because Officer Butler was at a distance from him, seeing

him through obstructions, and otherwise distracted. As she admitted, for much of

that time she was “not close” to him. (Tr. 3/30/16 at 72). When she first saw Mr.

Hood, it was when she was in her car and he was on a crowded street with “lots of

traffic” during the middle of the day, (Tr. 3/30/16 at 90-91), and when he got off

the bus after a block and a half, she had to try to see him “at a distance” off in a

park across a busy intersection and was worried about “los[ing] [sight] of him.”

(Id. at 73-74). Adding to the distractions of driving in heavy traffic in one of the

most congested areas of the city on a workday afternoon, Officer Butler also twice

had to use her police radio, one time to check with the officer who had been on the

scene about the witness’s description and a second time to ask for assistance. (Id.

at 73-75).

Importantly, prior to the stop, there was no reason for Officer Butler to focus

on Mr. Hood’s face, even if she could have. She provided no testimony that she

did, and the government never argued that she focused on his face. The reason she

was focused on his clothing—specifically his long, basketball shorts—was because

34
that was the distinctive detail she believed the witness to the robbery had

described. (Id. at 134). While the trial court stated that Butler was a police officer

“looking for this person,” (Tr. 1/11/17 at 52), in fact she was not looking for a

person she had seen before, nor did the witness description that she possessed

direct her to look for any specific facial features. The physical description she

recalled was generic—a bald, black male. (Tr. 3/30/16 at 79). As the prosecutor

emphasized, and what caught her attention, were the shorts: “On her mind are

those basketball shorts.” (Tr. 1/11/17 at 28).

And after she saw the clothes that she believed matched, she still had no

reason to pay close attention to the man’s face. This is so because at the time she

was not thinking she would later have to make an in-court identification of the

man’s face. She believed that would be for someone else. The officer was not in

the role of an eyewitness to a crime, such as an undercover officer in a drug buy,

who would want to pay close attention to the seller’s face so she could later

identify him as such. Here, in those brief, pre-illegality moments, the officer

believed she was stopping the man in the shorts for someone else—the

eyewitnesses—to identify him by his face as the person who committed the

robbery. See Tr. 3/30/16 at 71, 122 (explaining that she was going to stop the man

in the shorts to determine if someone could identify him as the robber).18

18
Cf. Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (concluding that an

35
 A sign that she was not closely paying attention to Mr. Hood’s face, but
cared mainly about his clothes, was that it was not until after she detained Mr.

Hood that she could see that he had a “knot” on his head,” that she described as a
“nice lump” which was “swelling” and “[p]inkish.” (Id. at 79). Similarly, besides
not seeing the knot on his head before she detained him, she did not even observe

until after she detained him that Mr. Hood’s white polo shirt was on inside out or
that he had on a torn black tank top underneath. (Id. at 76).
Thus, the officer’s ability to identify Milton Hood in court as the man she

saw in the distinctive shorts should have been suppressed because it was come at
by exploitation of her time spent with him during the unlawful detention. See State
v. Emilo, 479 A.2d 169, 172-73 (Vt. 1984) (holding that an officer’s in-court

identification should have been suppressed because it was “come at by

exploitation” of an unlawful detention when the officer’s ability to identify the
defendant was tainted by his observations of the defendant as he walked him back

undercover officer’s ability to identify the defendant was sufficiently reliable

despite a later suggestive identification procedure because as a “specially trained,
assigned, and experienced [undercover] officer, he could be expected to pay
scrupulous attention to detail, for he knew that subsequently he would have to find
and arrest” the defendant who he had just purchased drugs from).
Pre-taint, the officer also never provided a detailed description of Mr. Hood
suggesting a good opportunity to observe his face and the ability to recall it months
later. Compare Pichon v. State, 683 S.W.2d 422, 424-25 (Tex. Crim. App. 1984)
(victim provided a “detailed description” of the defendant before any illegality
occurred). When she spoke with the other officer about the man she was looking at
she asked only about the shorts, and the only specific characteristics of the
suspect’s appearance that she mentioned was that he was a bald, black male. (Tr.
3/30/16 at 71-72).

36
to the patrol car following an illegal stop).
Also, the trial court erred in ruling that Officer Butler’s testimony

identifying Milton Hood as the man who was arrested after she observed him on K
Street did not reference tainted identification testimony. Clearly it did. The
prosecutor acknowledged as much when he stated that if the trial court admitted

such testimony, it would render the defense motion to suppress the in-court
identification “moot.” (Tr. 1/11/17 at 26, 34). He was right.
Telling the jury that Officer Butler’s K Street suspect was arrested and

determined to be Milton Hood after Butler spotted him in the incriminating

clothing relied directly on tainted identification evidence. Had the illegal detention
and arrest not occurred, Butler would not have discovered that the man in the

shorts was Milton Hood. As defense counsel argued below, the disputed testimony
permitted the government to establish Mr. Hood’s identity as the man Officer
Butler had seen pre-illegality by “using tainted contact with him.” (Tr. 1/11/17 at
37). It is well established that identification evidence obtained during an illegal
detention that is enabled by the defendant’s unlawful presence in police custody is
a tainted fruit that must be suppressed. See, e.g., Crews, 445 U.S. at 472 (photo
array identification is a fruit because it contained a photograph of the defendant
that police took after arresting him without probable cause); In re K.P., 951 A.2d
793, 798 (D.C. 2008) (show-up identification must be suppressed as product of
illegal detention); In re T.L.L., 729 A.2d 334, 343 (D.C. 1999) (same). Officer
Butler’s testimony identifying Mr. Hood as the person arrested was no different.
Garrett v. State, 946 So.2d 1211, 1213-15 (Fla. Dist. Ct. App. 2006), is

37
instructive. As here, a police officer unlawfully detained and arrested a suspect
who was previously a stranger to him after seeing him in a public place. He

determined the man’s identity as a result of the illegal seizure and arrest. At trial,
the judge agreed that the seizure and arrest violated the Fourth Amendment but
permitted the officer to testify that Garrett was the man he saw and arrested. This

was important government evidence because Garrett was charged with being in
that location in violation of his community supervision requirements. On appeal,
the Court held that the officer’s testimony identifying Garrett as being in a

particular place at a particular time was a fruit of the illegality:

At issue then, is whether the deputy's identification of Garrett as the person

he saw in the parking lot that night, which constituted evidence that he
violated condition twelve of his community control, is subject to
suppression. The trial court reasoned that the deputy had a right to be where
he was when he saw Garrett and allowed the identification. We would agree
if the deputy had known Garrett prior to that evening and, upon arriving at
the scene, immediately recognized him. However, the deputy did not know
Garrett and only learned his identity as a result of the illegal seizure of
Garrett.

Id. at 1213 (emphasis added). “Here, the seizure of Garrett is tainted, and so is the

identification evidence. It was only because the deputy made the illegal seizure that

he learned Garrett’s identity.” Id. at 1214. In this case took, “the seizure of [Mr.

Hood] is tainted, and so is the identification evidence. It was only because [Officer

Butler] made the illegal seizure that [s]he learned [Mr. Hood’s] identity.” Id.

A similar result occurred in Delafield v. State, 777 So.2d 1020 (Fla. Dist. Ct.

App. 2000), a case involving an illegal stop of a driver and subsequent discovery

38
that he was driving with a suspended license. Because “identity is no different

from other evidence that must be suppressed following an unconstitutional stop,”

when the “evidence consists of the officer’s discovery of the identity of the

defendant as the driver at the time of the arrest,” if the “stop is tainted, so is the

identification evidence.” Id. at 1021. In this case, the disputed evidence consisted

of Officer Butler’s “discovery of the identity of [Milton Hood] as the” man

wearing the distinctive shorts “at the time of the arrest.” Because the stop and

arrest were tainted, so too was the identification of him as the person she arrested.

The trial court erred in admitting Officer Butler’s identification testimony that was

tainted by her illegal contacts with Mr. Hood during the extended detention and

subsequent formal arrest.

B. THE GOVERNMENT CANNOT DEMONSTRATE THAT

THE ERROR WAS HARMLESS BEYOND A
REASONABLE DOUBT.

The government cannot meet the Chapman v. California, 386 U.S. 18

(1967), standard of showing that the error was harmless beyond a reasonable

doubt, or equivalently, that there is no “reasonably probability that the evidence

complained of might have contributed to the conviction.” Id. at 23. When the

government emphasized Officer Butler’s testimony to the extent it did, and when it

fought so hard to have it admitted in the first place, it cannot now show that her

identification testimony did not contribute to Mr. Hood’s conviction.

39
 In a case that abounded with eyewitnesses to a crime that occurred in broad

daylight, none of them identified Milton Hood as the robber. They, and the pre-

robbery surveillance video, however, indicated that the robber was wearing long,

dark basketball shorts extending past the knee, a unique descriptive feature that the

prosecutor was determined to directly connect to Mr. Hood. The government

accomplished that feat solely through Officer Butler’s tainted identification

testimony. Although the government also presented DNA evidence linking Mr.

Hood to the cane, the defense raised reasonable doubt about its value through

cross-examination and argument and the government itself admitted its case

depended on more than the DNA. The analyst described how easily DNA may be

transferred, and admitted that she could offer no evidence or opinion about when

and under what circumstances one’s DNA may land in a particular place. For this

reason, the prosecution was careful not to over rely on the DNA evidence and

instead, fought hard to admit the disputed testimony and then made it a focal point

of the government’s case against Mr. Hood.

In both opening statement and closing argument, the government told the

jury its evidence consisted of “three buckets of proof.” (Tr. 1/17/17 at 38; 1/24/17

at 252). The “first bucket” consisted of the “eyewitness descriptions.” (Tr. 1/17/17

at 38). The “second bucket” “involved the 911 call” and the “surveillance video.”

(Tr. 1/17/17 at 40). The “third bucket” was the DNA evidence. (Tr. 1/11/17 at 40).

40
The government repeatedly emphasized that the buckets were all important and

interrelated: “You don’t just look at the DNA without regard to the rest. You don’t

just look at what eyewitnesses said without regard to the rest. You consider all of

them holistically, the way they fit together, the way that the evidence inter-relates

with each other, corroborates each other, supports each other.” (Tr. 1/24/17 at 252).

“[W]e believe that once you’ve looked at these three buckets of proof, you’re

going to bring them all together, and . . . that the conclusion you’re going to draw

is that the defendant, Milton Hood is guilty[.]” (Tr. 1/17/17 at 45).

The reason the government fought so hard to introduce the disputed

testimony even after it lost the suppression hearing was that Officer Butler’s

identification testimony was the linchpin connecting the eyewitness descriptions in

the first bucket and the 911 call descriptions and video images in the second bucket

to Mr. Hood. Without her testimony the jury would know only that the robber wore

long dark basketball shorts extending past the knee, but it would not have learned

that Mr. Hood was wearing the identical distinctive shorts two hours after the

robbery in a proximate location. That testimony came only from Officer Butler and

the government used it to great advantage.

The centrality and importance of the improperly admitted identification

testimony is highlighted by the government’s use of it at trial. In opening statement

and closing argument the prosecutor repeatedly stressed Officer Butler’s

41
identification of Mr. Hood as the man she followed in the long basketball shorts

who was arrested that day. See Andrews v. United States, 922 A.2d 449, 460 (D.C.

2007) (“A prosecutor’s repeated highlighting, during the course of the trial, of an

erroneously admitted statement is persuasive evidence of its centrality and

prejudicial character.”); Morten v. United States, 856 A.2d 595, 602 (D.C. 2004)

(“A prosecutor’s stress[] [upon] the centrality of particular evidence in closing

argument tells a good deal about whether the admission of the evidence was meant

to be, and was prejudicial.”). Along those same lines, the government also argued

vigorously before trial to have the officer’s identification testimony admitted at

trial. The government filed multiple pleadings addressing the issue. See R. at 53,

57. When seeking to justify admission of the identification testimony, the

government even said to the trial court: “I want to emphasize this point because it’s

an important point for the government’s case.” (Tr. 1/11/17 at 28).

In opening statement, the government told the jury, “[Y]ou’re going to hear

from a witness, a police officer named Tanya Butler” who after hearing a

description from one of the witnesses, “had an image in her mind of what this

person looked like. She heard the descriptions of the basketball shorts. The

basketball shorts, especially rang out in her head. And two hours later, you’re

going to hear that Officer Butler saw this man, the defendant wearing the same

clothes[.]” (Tr. 1/17/17 at 39).

42
 In closing argument, the government admitted that the “eyewitnesses”

merely saw a “crime happen,” but that it was Officer Butler who “saw” and

“followed the defendant. . . . And you heard [from Officer Butler] later that day he

was arrested[.]” (Tr. 1/24/17 at 260, 262). The government concluded its closing

argument by specifically pointing out that “what Officer Butler saw” was a

primary reason the jury would know that “the defendant is the person who

committed this robbery.” (Tr. 1/24/17 at 274).

Similar to the eyewitness descriptions, the surveillance video provided

evidence that the robber was a bald, black man wearing over-long dark basketball

shorts, but did not show that man to be Milton Hood. (Tr. 1/17/17 at 40; 1/24/17 at

266-68). It was, again, only Officer Butler’s testimony that connected the man in

the video to Milton hood. She testified that the man she saw on K Street and

arrested—Milton Hood to whom she pointed in court—was dressed exactly like

the man in the video. (Tr. 1/19/17 at 417-18). And the government in opening told

the jury that on the video they will see a man “dressed the way Officer Butler saw

[Milton Hood] dressed just hours later.” (Tr. 1/17/17 at 40).19

The government’s third bucket of proof—the DNA evidence—does not

19
The government acknowledged that the poor quality of the video would not
reveal the identity of the man. “You’re going to look at [the surveillance video]
and . . . [a]re you going to see [the defendant] clearly as if it’s a portrait? No.” (Tr.
1/17/17 at 40); the video was “a little bit grainy, a little bit pixilated,” and “a little
hard to make out.” (Tr. 1/24/17 at 266-68).

43
render Officer Butler’s prejudicial testimony harmless beyond a reasonable doubt.

The government itself cautioned the jury that its case relied on the eyewitness

testimony as linked to Mr. Hood via Officer Butler’s testimony. This was a sound

strategy because the DNA evidence was not foolproof. As the government’s own

witness admitted, a person’s DNA can be left on an object that person never

touched based on “indirect transfer.” (Tr. 1/24/17 at 115-19).

The defense’s argument to the jury stressed the dangers of placing too much

stock on DNA evidence, focusing on the argument that Mr. Hood’s DNA could

have wound up on the cane from indirect transfer when in actuality he never

touched it.20 As the defense argued, “[W]hat this trial has shown is their [evidence]

buckets have [] some serious holes. . . . [T]ake this DNA that they want to talk

20
Counsel is aware of at least five recent cases in Superior Court where after
the defense relied, at least in part, on an indirect transfer theory to rebut DNA
evidence on a key piece of evidence juries either found a defendant not guilty or
were unable to reach a verdict. United States v. Clarence Minor, 2017 CF3 1775
(not guilty on all counts of unregistered possession of a firearm and unregistered
possession of ammunition despite the defendant’s DNA being on the gun); United
States v. Paris Stephenson, 2015 CF2 009833 (not guilty on all counts in a series of
gun-related offenses despite the defendant’s DNA being on the gun); United States
v. Darnell Resper, 2016 CF2 004376 (not guilty on all counts in a series of gun-
related offenses despite the defendant’s DNA being on the gun); United States v.
Sean Rose, 2015 CF2 005595 (jury returns not guilty verdict on unlawful
possession of ammunition charge and hangs on firearm possession charges, despite
the defendant’s DNA being on the gun); United States v. Jerome Robinson, 2015
CF2 002027 (jury returns not guilty verdict on two counts of possession of a
firearm during a crime of violence and hangs on the remaining charges, which
include gun-possession charges despite the defendant’s DNA being on the gun).

44
about. There are so many things that DNA can’t tell you, like when, where, or how

it got on the cane. And meanwhile, you know there are multiple innocent ways that

DNA can get transferred from one object to another.” (Tr. 1/24/17 at 276). The

defense continued:

But the fact that you know there are lots of innocent ways that DNA can get
transferred is a reason to doubt that this DNA has anything to do with that
crime. . . . There is so much that you don’t know about the DNA. She tells
you, I can’t tell you when it got on the cane. DNA lasts days, weeks. You
don’t have any evidence of where the Manolaches were the day before,
where Mr. Hood was the day before. No idea where—if there’s a possibility
that there was a transference in that time. You don’t even know how it got
onto the cane. The test cannot tell you . . . [w]as it through secondary
transfer, like stepping on—like using the cane and walking across some spit?
The test can’t tell you that. . . . The fact that you don’t know [whether the
source of the DNA was blood or saliva] is another reason to doubt that you
can relate that this DNA has anything to do with the crime.
(Tr. 1/24/17 at 293-94).21
Given the government’s stress on officer Butler’s testimony and the manner

in which the testimony tied its case together and corroborated it, the government
cannot show that there is no “reasonable possibility that the evidence complained
of might have contributed to the conviction.” Chapman, 386 U.S. at 23. Reversal is
required.

21
The defense also argued to the jury other shortcomings with the government’s
DNA evidence, namely that the police failed to collect the cane at the scene and
the analyst had to admit in her testimony that she had no idea where, when, or how
the DNA got on the cane, or if the DNA came from a person’s blood or saliva
because she did not use available tests that could have made that determination.
(Tr. 1/24/17 at 110-122).

45
 CONCLUSION

For the foregoing reasons, this Court should reverse Mr. Hood’s convictions.

Respectfully submitted,

/s/Benjamin Miller
*Benjamin Miller
Bar No. 503001

PUBLIC DEFENDER SERVICE

633 Indiana Avenue, NW
Washington, DC 20004
(202) 628-1200

*Counsel for Oral Argument

46
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing brief has been delivered

electronically to Assistant United States Attorney Elizabeth Trosman, Esq., Chief

of the Appellate Division at the Office of the United States Attorney, 555 Fourth
Street, N.W., Washington, D.C., 20530, this 29th day of June, 2018.

/s/ Benjamin Miller

Benjamin Miller