United States v. Hutchinson, Chaka T.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 4, 2001 Decided November 6, 2001

No. 01-3036

United States of America,
Appellee

v.

Chaka Toure Hutchinson,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 00cr00255-01)

A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant. Gregory L. Poe, Assistant
Federal Public Defender, entered an appearance.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher, Roy W.

McLeese III and Roderick L. Thomas, Assistant U.S. Attor-
neys.

Before: Edwards, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Chaka T. Hutchinson appeals his
conviction for unlawful possession of a firearm and ammuni-
tion by a convicted felon on the ground that the district court
erred in denying his motion to suppress evidence. He con-
tends that the retention of his identification during a Terry
stop extended his nonconsensual detention longer than was
necessary to effect the purpose of the Terry stop, and there-
fore was unlawful, requiring suppression of the gun, the
ammunition, and certain statements that he made. Because
the district court did not address Hutchinson's argument that
the scope and duration of the Terry stop was excessive in
light of police retention of his identification, and hence there
are no findings of fact essential to decide this legal issue, we
remand the case to the district court.

I.

The police stopped Hutchinson at 13th and Monroe Streets,
N.W., at about 12:40 a.m. on July 28, 2000. In following up a
robbery, the police were investigating a stabbing incident that
arose from the robbery and occurred at around 11:30-11:45
p.m. on July 27, 2000, at 13th and Kenyon Streets, N.W.,
which is approximately two to three blocks from Monroe
Street. Around midnight, an eyewitness to the stabbing told
Detective Hilliard that the person who had done the stabbing
was a black male, 5'6" to 5'9" tall, wearing dark clothing, with
a bush hair style pulled back and tied; the eyewitness
observed the stabbing from about fifty yards away and from
an elevated position. In response to the eyewitness's report,
a lookout was broadcast, describing a black male in his
twenties, about 5'8" tall wearing a dark shirt over dark pants
and having a bush hair style tied back with a rubber band.
The lookout stated that the subject was last seen walking
eastbound in the 1200 block of Kenyon Street, N.W.

 Hilliard first saw Hutchinson walking east on Monroe
toward 13th Street. Hutchinson wore dark blue pants and a
white shirt, and was carrying a shoulder bag. He was 28 or
29 years of age. His hair was in a bush hairstyle, pulled back
and tied. Although Hutchinson is 6'3" tall, Hilliard, who is
5'10", thought at the time that Hutchinson was around 5'11"
or 6' tall. Accompanied by one other officer, Hilliard stopped
Hutchinson because he believed that he fit the description of
the individual described in the lookout and no one else in the
area matched the lookout. One of the officers told Hutchin-
son to put his hands on a fence, which he did. Hutchinson
then asked "what was going on," and the officer responded
that he matched a lookout. The officer patted down Hutchin-
son and found nothing. A third officer arrived at the scene
shortly after Hutchinson was frisked. Hilliard then asked
Hutchinson from where he was coming and to where he was
going. Hutchinson said that he had just finished work at
WPFW, a jazz radio station, and that he was on his way to a
friend's house on Monroe Street. Hilliard was satisfied with
Hutchinson's responses, and was "comfortable that this
wasn't our suspect."

Hilliard, however, had obtained Hutchinson's identification,
jotted it down in his notebook, and decided to run it through
the "WALES" system. After determining that Hutchinson
"wasn't our suspect," Hilliard started walking toward his
cruiser to do the "WALES" check, when he said to Hutchin-
son, "You don't have a problem with the officer looking into
your bag?" Hilliard asked about the bag because Hutchinson
fit the lookout, having had time to take off a dark colored
shirt, and the bag would have been a good place to hide the
shirt and the knife. Hilliard testified that he was comfortable
that Hutchinson did not appear to be the person for whom
they were looking, but he could not say for certain that
Hutchinson was not the stabbing suspect without seeing if he
had a dark shirt or a knife. Thus, he "just arbitrarily" asked
Hutchinson about the bag to be sure he did not have "these
articles" before he was released. When Hutchinson did not
respond, it "sent back up the red flag" and Hilliard continued
to his cruiser.

 While still retaining Hutchinson's identification, Hilliard
was in his cruiser for two to five minutes attempting to run
the "WALES" check. Hilliard was unable to run the
"WALES" check, however, and returned to where Hutchin-
son was standing with the two other officers and asked, "Do
you have a problem with the officer looking in your bag?"
Hutchinson began taking his bag off his shoulder. Hilliard
asked, "What's wrong?" Hutchinson replied, "Well, you['re]
going to lock me up anyway." Hilliard asked, "Well, what's
wrong? You got a weapon or something in there?" Hutchin-
son replied, "Yeah, I have a gun." The police immediately
arrested Hutchinson and took the bag. The bag contained a
sawed-off shotgun. The transport officers observed Hutchin-
son attempting to conceal two shell casings in the transport
vehicle. Another officer corroborated much of Hilliard's tes-
timony.

Hutchinson, who was implicated in neither the stabbing nor
the robbery that preceded it, filed a motion to suppress the
gun, the ammunition, and his statements. He argued that
the facts did not justify a Terry stop, because he did not fit
the lookout description and was walking in the opposite
direction at a time much later than the stabbing. He also
argued that the Terry stop had exceeded the scope of the
purpose of the stop, maintaining that the Terry stop consti-
tuted a custodial situation because Hilliard kept Hutchinson's
identification, there were three officers present, and Hutchin-
son was commanded to let the police look in his bag. Fur-
ther, Hutchinson argued, because Hilliard was satisfied with
Hutchinson's responses, there was no need for further investi-
gation. Finally, Hutchinson argued that the police officers'
questioning constituted custodial interrogation in violation of
his Fifth Amendment rights. The government responded
that the lookout was reliable, Hutchinson's location, age, race,
dark pants and hair style justified the stop, there was only
investigatory questioning that led to asking for consent to
search the bag, which Hutchinson effectively gave, and, in any
event, upon admitting he had a gun, there was probable cause
to arrest him.

 The district court denied the suppression motion. The
court concluded that the description was sufficient for a stop
two or three blocks away from the incident, and that because
the stabbing involved a knife, a pat down and preliminary
inquiry regarding the weapon were proper. The court found
that no weapons were drawn, the police did not use loud
voices, Hutchinson was not surrounded, and the stop was for
a short duration on a public street. As to the identification,
the court relied on United States v. Jordan, 958 F.2d 1085
(D.C. Cir. 1992), for the standard, "[whether] there [is] a
reasonable opportunity to review it," and concluded that the
officers retained Hutchinson's identification for a reasonable
period of time. Given the circumstances, the court concluded
that it was a fair inference that Hilliard intended to return
the identification to Hutchinson but for his admission to
having a gun. Finally, the court concluded that Hutchinson
was not in custody--that the encounter was a legitimate
Terry stop--and that the questioning was reasonably related
to the purpose of the stop.

Hutchinson thereafter pleaded guilty to unlawful possession
on July 28, 2000, of a firearm and ammunition by a convicted
felon in violation of 18 U.S.C. s 922(g)(1).

II.

On appeal, Hutchinson does not contend that his initial stop
was based on less than reasonable suspicion. Instead, he
explicitly declined to challenge the stop's propriety at its
inception in light of United States v. Davis, 235 F.3d 584
(D.C. Cir. 2000). Because Hutchinson does not challenge the
lawfulness of his initial stop, the court has no occasion to
decide whether the facts in the instant case rise to the level of
reasonable suspicion present in Davis and required by the
Supreme Court's Terry jurisprudence.

Hence, the only question on appeal is whether the scope
and duration of the Terry stop were impermissible. Hutchin-
son contends that the retention of his identification for two to
five minutes to run a "WALES" check, and the questioning
that took place during and after that period, resulted in a

detention that was both longer than necessary to carry out
the purpose of the stop and beyond the scope of the purpose
of the stop. Therefore, Hutchinson contends, his statements
and the physical evidence seized from him during and after
this time period must be suppressed.

In Florida v. Royer, 460 U.S. 491 (1983), the Supreme
Court instructed that:

an investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the
stop. Similarly, the investigative methods employed
should be the least intrusive means reasonably available
to verify or dispel the officer's suspicion in a short period
of time. It is the State's burden to demonstrate that the
seizure it seeks to justify on the basis of reasonable
suspicion was sufficiently limited in scope and duration to
satisfy the conditions of an investigative seizure.

Id. at 500 (citations omitted). In Adams v. Williams, 407
U.S. 143 (1972), the Court further stated that a "brief stop of
a suspicious individual, in order to determine his identity or
to maintain the status quo momentarily while obtaining more
information," is permissible. Id. at 146.

Typically, this means that the officer may ask the detain-
ee a moderate number of questions to determine his
identity and to try to obtain information confirming or
dispelling the officer's suspicions. But the detainee is
not obligated to respond. And, unless the detainee's
answers provide the officer with probable cause to arrest
him, he must then be released.

Berkemer v. McCarthy, 468 U.S. 420, 439-40 (1984) (footnotes
omitted); see also United States v. Gale, 952 F.2d 1412, 1415
(D.C. Cir. 1992).

On appeal, Hutchinson contends that his detention exceed-
ed its allowable limits because Detective Hilliard's suspicions
based on the lookout had been dispelled, according to Hilli-
ard's testimony, by the time Hutchinson made the incrimina-
ting statements. Hilliard testified that prior to attempting a
"WALES" check, he was satisfied with Hutchinson's respons-

es to his questions and that Hutchinson was not the subject of
the lookout. Nonetheless, although the record is unclear
when and what identification was obtained from Hutchinson,
the police obtained Hutchinson's identification. There was no
indication that there was anything wrong with Hutchinson's
identification. Hutchinson maintains, moreover, that there
was no evidence that a "WALES" check could have provided
information that would have helped the police determine
whether he was the stabbing suspect. Insofar as the record
reveals, retention of his identification for a "WALES" check
bore no relation to the purpose of the stop, which was for a
suspect in a stabbing earlier that night. No evidence was
offered about what information can be obtained from the
"WALES" system, much less what the "WALES" system is
other than some sort of police database. Although running a
computer check on a driver's license and registration is a
lawful part of a traffic stop because of the public interest of
the States in ensuring that only those qualified to do so are
permitted to operate motor vehicles, see Delaware v. Prouse,
440 U.S. 648, 658 (1979), Hutchinson maintains that no such
interest exists with regard to pedestrians. Finally, because
Detective Hilliard testified that he had copied the information
in his notebook, there was no need for him to retain Hutchin-
son's identification during the "WALES" check. In Hutchin-
son's view, the fact that the retention of his identification had
nothing to do with the stop is shown by Hilliard's failure to
explain why he needed to retain the identification for any
purpose related to the stop.

The government's response is that Hutchinson has waived
the argument that retention of his identification to run the
"WALES" check exceeded the lawful scope of the Terry stop
by failing to make it in the district court. See Fed. R. Crim.
P. 12(f). We disagree. First, Hutchinson's motion to sup-
press challenged the scope of the investigative stop, citing
both Royer and Terry. Second, Hutchinson elucidated this
challenge at the suppression hearing, arguing that "[a]n
investigative detention has to be reasonably related in scope
to the circumstances which justified the interference in the
first place. That's Terry, 392 U.S. at 20." He also argued
that because his match to the lookout description was so

weak, the permitted scope and duration of the stop "narrowed
considerably." As part of his challenge to the scope and
duration of the stop, he further argued: "A key fact is that
Hilliard asks for and keeps [Hutchinson's] identification" and
that this "alone is enough to turn this into a custodial
situation." Although Hutchinson's terminology was not tech-
nically exact because "custodial situation" generally pertains
to Miranda analyses whereas the issue here was the scope
and duration of a Terry seizure, Hutchinson, by arguing that
the officer's retention of his identification impermissibly
turned the Terry stop into a custodial situation, a higher-
level, more intrusive, Fourth Amendment event, was also
necessarily arguing that the officer exceeded the permissible
bounds of the Terry stop. See United States v. Sharpe, 470
U.S. 675, 685 (1985); United States v. Laing, 889 F.2d 281,
285 (D.C. Cir. 1989). Third, the district court addressed the
legal issue of whether the stop had exceeded its permissible
bounds, and, relying on the legal standard in United States v.
Jordan, 958 F.2d 1085 (D.C. Cir. 1992), concluded that the
retention of Hutchinson's identification was not temporally
significant for purposes of the court's Fourth Amendment
analysis. Although neither Hutchinson nor the district court
focused clearly on the distinction between Jordan, in which
the issue was whether retention of an identification would
turn an otherwise consensual encounter into a seizure, id. at
1088-89, and this case, in which Hutchinson's identification
was retained during a seizure, Hutchinson's citation to Jor-
dan put the issue of whether retaining his identification had
Fourth Amendment significance before the court, and the
court seemingly understood that point because it addressed
the issue.

It is true that the argument at the suppression hearing
focused on whether Hutchinson was lawfully stopped initially,
and whether his statements thereafter were elicited in re-
sponse to custodial interrogation. In his motion, Hutchinson
argued that by the time he "told the officers that he had a
gun, the statement was the product of an illegal seizure."
The government's opposition acknowledged Hutchinson's
claim that he was unlawfully seized, but did not address
Hutchinson's impermissible scope argument or his reliance on

Royer. It is also true that Hutchinson's motion could have
stated more fulsomely the argument regarding the scope of
the seizure, as counsel has done in his brief on appeal. But
for the reasons noted, we conclude that Hutchinson adequate-
ly set forth both the legal ground and factual support for his
objection, and accordingly, did not waive the scope and dura-
tion claim. See United States v. Mitchell, 951 F.2d 1291, 1296
(D.C. Cir. 1991); United States v. Bailey, 675 F.2d 1292, 1294
(D.C. Cir. 1982).

We nevertheless conclude that remand is required. Hutch-
inson's motion to suppress raised two separate legal ques-
tions. The first question was whether, under Terry, the
police had articulable suspicion to stop Hutchinson for ques-
tioning. See Royer, 460 U.S. at 498. The district court
addressed this question, finding that the police had reason-
able grounds to stop Hutchinson and, because the stabbing
involved a knife, to pat him down and ask him questions in
connection with the stabbing. The second question was
whether Hutchinson's seizure was sufficiently limited in scope
and duration to the circumstances that justified the interfer-
ence with his liberty in the first place. See Royer, 460 U.S. at
500; Terry, 392 U.S. at 19-20. In order to answer the second
question, the district court had to make factual findings
regarding not only the length of time that Hutchinson was
seized, i.e., held for investigative detention, but also whether
at some point the investigative detention exceeded the pur-
pose of the initial stop, see Royer, 460 U.S. at 500; United
States v. Holt, 264 F.3d 1215, 1229-30 (10th Cir. 2001), and
hence impermissibly extended the duration of the stop. In
concluding that the duration of the stop was reasonable,
however, the district court addressed the retention of Hutch-
inson's identification only in temporal terms. The district
court also should have considered whether the temporal
duration of the stop was unlawfully extended because the
police pursued a means of investigation that was beyond the
scope of the purpose of the stop. See Sharpe, 470 U.S. at
686; see also United States v. Machuca-Barrera, 261 F.3d
425, 432 (5th Cir. 2001). The district court did not, however,
address whether the retention of Hutchinson's identification

exceeded the permissible scope of the stop to investigate the
stabbing, and thus unlawfully extended Hutchinson's seizure.
Hutchinson did not argue in the district court that he was not
required to surrender his identification, see Oliver v. Woods,
209 F.3d 1179, 1190 (10th Cir. 2000) (citing Kolender v.
Lawson, 461 U.S. 352, 361 n.10 (1983)), and does not attempt
to raise that issue now. But to address the argument he
made regarding the scope and duration of his detention and
the retention of his identification, the district court had to
make findings regarding the purpose of retaining Hutchin-
son's identification, the purpose of the "WALES" check, and
whether the information available from the "WALES" system
could have assisted the police in determining whether Hutch-
inson was the stabbing suspect whom they were pursuing.
Absent such findings, the court was not in a position to
determine whether the government had met its burden to
show that Hutchinson's seizure "last[ed] no longer than [wa]s
necessary to effectuate the purpose of the stop." Royer, 460
U.S. at 500. Under such circumstances, remand is appropri-
ate. See United States v. Williams, 951 F.2d 1287, 1291
(D.C. Cir. 1991); see also United States v. Hill, 131 F.3d
1056, 1060 (D.C. Cir. 1997).

Accordingly, we remand the case to the district court for
a determination whether retention of Hutchinson's identifica-
tion for the purpose of running the "WALES" check was
related to the purpose of the stop or caused the stop to go on
for too long, thereby tainting the evidence and statements
obtained by the police after the attempted "WALES" check.