                                District of Columbia
                                 Court of Appeals
No. 15-CF-724
                                                                    FEB - 2 2017
DEANGELO JENKINS,
                                          Appellant,

       v.                                                          CF2-137-15


UNITED STATES,
                                          Appellee.


                 On Appeal from the Superior Court of the District of Columbia
                                      Criminal Division

       BEFORE: GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges; and PRYOR,
Senior Judge.

                                        JUDGMENT

                 This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

              ORDERED and ADJUDGED that the trial court’s denial of appellant’s
motion to suppress is reversed.

                                                  For the Court:




Dated: February 2, 2017.

Opinion by Senior Judge William C. Pryor.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 15-CF-724                       2/2/17

                       DEANGELO JENKINS, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                          Appeal from the Superior
                       Court of the District of Columbia
                                 (CF2-137-15)

                       (Hon. Neal E. Kravitz, Trial Judge)


(Argued October 26, 2016                              Decided February 2, 2017)


     Justin Murray, Public Defender Service, with whom Samia Fam and Mikel-
Meredith Weidman, Public Defender Service, were on the brief, for appellant.

       Bryan H. Han, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and
Thomas N. Saunders, Assistant United States Attorneys, were on the brief, for
appellee.

      Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR,
Senior Judge.
                                         2

      PRYOR, Senior Judge: Following a stipulated trial, appellant was convicted

of the unlawful possession of a firearm and related charges.1 On appeal, appellant

contends that the police lacked reasonable, articulable suspicion to stop and frisk

him, and that the trial court thus erred in denying his motion to suppress. We agree

and reverse.



                                         I.

                                        A.



      On a winter afternoon in January 2015, between 3:00 and 4:00 p.m., the

complaining witness entered one of eight buildings on Columbia Road, Northwest,

Washington, comprising the Columbia Heights Village (CHV) apartment complex.

The complex has 400 units. As the complaining witness was entering the building,

he saw two black males standing together. One of the two persons followed him

_______________________________
       1
          Specifically, appellant was convicted of one count of unlawful possession
of a firearm by a felon, D.C. Code § 22-4503 (a)(1); one count of carrying a pistol
without a license, D.C. Code § 22-4504 (a)(1); two counts of possession of an
unregistered firearm, D.C. Code § 7-2502.01 (a); two counts of unlawful
possession of ammunition, D.C. Code § 7-2506.01 (a); and one count of possession
of a large-capacity ammunition-feeding device, D.C. Code § 7-2506.01 (b).
Appellant had also been indicted for one count of possession of cocaine, D.C.
Code § 48-904.01 (d), but the court dismissed the charge with the government’s
consent.
                                         3

inside and, while brandishing a weapon, demanded money.            The complainant

pushed the gunman away and returned outside. As the complainant exited the

building, he noticed the second man was still outside.



      Officer Jeffrey Polanco of the Metropolitan Police Department (MPD)

interviewed the complainant on the same date at about 10:00 p.m. According to

Officer Polanco, the complaining witness described the person who brandished the

weapon as a 21- to 22-year-old, 5’8” to 5’9” tall, dark-brown-complected black

male of average build, with dreadlocks hairstyle, a dark ski mask, and dark clothes,

who “could possibly go by the name of ‘Donnell.’”          The person outside the

building had identical characteristics as to age, clothing, and also wore a ski mask,

but was described as light complected, and no description was made of his build or

hairstyle.



      Special Police Officers (SPOs), stationed at the CHV complex, had cameras

inside all of the buildings and at some “strategic locations on the property.”

Officer Polanco did not see any video surveillance footage, but meanwhile SPOs at

the CHV complex were “huddle[d] around a computer desk,” rewinding and

watching footage of “where . . . it happened.” At that time, SPO Walker arrived at

the station to begin his midnight shift. His colleagues told him “that a robbery had
                                         4

just happened, and [that] they were looking at the [video for a] description of the

suspect.” Notably, the attempted robbery was not captured on the video. Rather,

SPO Walker — who himself did not see any of the video — testified only that his

colleagues “saw the people coming out . . . after it happened.”



      SPO Mason, who had operated the computer while the officers reviewed

video footage, told SPO Walker that they had viewed a black male with a black ski

mask, blue jeans, black jacket, and a bicycle.2 SPO Walker testified that he

“assumed that [SPO Mason] got [the description] from either [the] individual who

was robbed, or . . . the camera footage.” He also believed that there was only one

suspect; did not know the suspect’s age; and did not testify to the suspect’s height,

build, complexion, or hairstyle. Moreover, SPO Walker only recalled that they had

been looking for “a black male on a bicycle.” But a subsequent conversation with

SPO Mason and a review of appellant’s arrest record refreshed SPO Walker’s

recollection of the description. SPO Walker did not speak to the MPD, and SPO

Mason did not testify. The surveillance video was not reviewed or submitted into

evidence at the suppression hearing.



_______________________________
      2
         The complaining witness’s description of neither the person inside the
building nor the one outside included a bicycle.
                                         5


      After hearing SPO Mason’s description, some of the SPOs returned to the

computer. Then SPO Walker received a call from off-duty SPO Barber from the

previous shift, who reported that he had seen a person who matched the description

while driving on the nearby 1400 block of Harvard Street, Northwest. SPOs

LeCounte and Dixon, two SPOs from the midnight shift, along with SPOs Walker

and Mason, walked to the location identified by SPO Barber but did not see

anyone. The time was between midnight and 1:00 a.m., and a midnight curfew at

the CHV complex was in force.



      The SPOs began walking on the grounds of the CHV complex and were

walking on Columbia Road between 13th and 14th Street back toward the station.

Though it was dark, streetlights and lights on surrounding buildings illuminated

this section of Columbia Road, located within a block of a 24-hour 7-Eleven as

well as bus and Metro stops.      Riding toward them, they saw a person, later

identified as appellant, on a bicycle five to ten yards away — wearing a black

jacket and blue jeans, and pulling up or down his face a black ski mask. SPO

Mason said, “[T]hat looks like the individual right there,” or “That looks like him,”

whereupon SPO Dixon said “Stop.” Appellant on the bicycle, then in between the

four SPOs walking in twos, was stopped by SPOs Walker and Dixon, placed

against a fence, and frisked for weapons by SPO Dixon.             When the SPOs
                                         6

recovered two weapons with ammunition, the suspect stated “Okay. You got me.

You got me.” He was handcuffed, arrested, and taken to the SPO’s station. A

subsequent search of appellant also revealed a white substance. According to

photographs taken at SPO’s station, appellant wore a black jacket, white shirt, blue

jeans, and had a ski mask next to him; he did not have dreadlocks, had tattoos on

his neck and arms, and was “[s]ort of” “light-skinned.” According to SPO Walker,

wearing a ski mask, coat, and jeans in January, and riding a bicycle was not

unusual in that part of the city. The MPD did not perform a show-up.



                                        B.



      After a grand jury indicted appellant on drug and weapons-related counts,

appellant moved to suppress, contending that the tangible evidence was obtained

pursuant to an unlawful stop. At the conclusion of the hearing on appellant’s

motion to suppress, the trial judge denied the motion, ruling that appellant was

seized in a lawful Terry stop based on reasonable, articulable suspicion that he had

been “involved” in the attempted armed robbery committed several hours earlier at

the CHV complex. Specifically, the judge found the stop reasonable even though

appellant did not match the complaining witness’s description of his assailant

(appellant did not have dreadlocks or a dark complexion) because SPO Mason
                                          7

identified appellant as looking like a “black male wearing a black ski mask, a black

jacket, blue jeans, with a bicycle” that he reportedly had seen in a “video of

something related to this attempted armed robbery.”



      The next day, appellant agreed to a stipulated trial, and the court dismissed

the possession of cocaine charge with the government’s consent while finding

appellant guilty of all remaining counts. This appeal followed.



                                         II.



      The circumstances of this case cause us to consider the application of the

stop and frisk principle, which the Supreme Court articulated in Terry v. Ohio, 392

U.S. 1 (1968). There the Court noted “that in dealing with rapidly unfolding and

often dangerous situations on city streets the police are in need of an escalating set

of flexible responses, graduated in relation to the amount of information they

possess.”   Id. at 9.   Thus, as this court has recognized, “[u]nder the Fourth

Amendment, a policeman whose observations lead him reasonably to suspect that a

particular person has committed . . . a crime[] may detain that person briefly in
                                           8

order to investigate the circumstances that provoke suspicion.”3 Ramsey v. United

States, 73 A.3d 138, 144 (D.C. 2003) (quotation and citation omitted). If, during

the stop, an officer “has reasonable, articulable suspicion that the person detained

is armed and dangerous, [the] officer may also conduct a protective frisk for

weapons.” Robinson v. United States, 76 A.3d 329, 336 (D.C. 2013) (internal

quotation marks and citation omitted). Conversely, if a stop is unjustified, then the

frisk that follows is likewise unjustified. See Terry, supra, 392 U.S. at 32 (“[I]f the

frisk is justified in order to protect the officer during an encounter with a citizen,

the officer must first have constitutional grounds . . . to make a forcible stop.”).



      To be sure, reasonable suspicion is a less demanding standard than probable

cause, “and requires a showing considerably less than preponderance of the

evidence.” Morgan v. United States, 121 A.3d 1235, 1237 (D.C. 2015) (quotation

and citation omitted). Courts consider the totality of the circumstances “through

the eyes of a reasonable and cautious officer on the scene, guided by his experience

and training.”    Singleton v. United States, 998 A.2d 295, 300 (D.C. 2010)

(quotation and citation omitted). The government, however, “must be able to point
_______________________________
       3
          Because the SPOs here had “powers akin to that [sic] of a regular police
officer,” the Fourth Amendment governs their conduct. United States v. Lima, 424
A.2d 113, 118 (D.C. 1986 (en banc); see also Limpuangthip v. United States, 932
A.2d 1137, 1143 (D.C. 2007).
                                           9

to specific and articulable facts” sufficient to justify the intrusion. In re T.L.L., 729

A.2d 334, 339-40 (D.C. 1999) (quotation marks and citation omitted).



      Our review of the trial court’s denial of a motion to suppress evidence “is

narrow in scope, limited to ensuring that the trial court had a substantial basis for

concluding that no constitutional violation occurred.” Zanders v. United States, 75

A.3d 244, 247 (D.C. 2013) (internal citations, quotation marks, and alteration

omitted).   We review legal conclusions de novo but leave untouched factual

findings so long as they are not clearly erroneous. Id. Thus, we only “disturb the

trial judge’s findings of fact [if] they lack evidentiary support in the record.” In re

T.L.L., supra, 729 A.2d at 339 (citations omitted). But we view “the facts and all

reasonable inferences therefrom . . . in favor of sustaining the trial court ruling.”

Milline v. United States, 856 A.2d 616, 618 (D.C. 2004) (internal quotation marks

and citation omitted).



                                          III.



      Although the trial court meticulously reviewed the total circumstances of the

stop in this case, we come to a different conclusion. As a preliminary matter, we

observe that the complaining witness’s description of the second person waiting
                                         10

outside the building could not have contributed to any reasonable suspicion

calculus. Based on the discrepancies between complaining witness’s description of

the robber and the person standing outside, the SPOs were either searching for a

man with light skin whom they had no reasonable suspicion to stop, or they were

looking for someone with dreadlocks and dark skin, a description that did not

match appellant. This mismatch aside, the person outside never talked to, pointed

a weapon at, or otherwise took action against the complainant. Merely seeing

“both males together” falls short of justifying a Terry stop because guilt by

association is not enough. Smith v. United States, 558 A.2d 312, 315 (D.C. 1989)

(“The courts in the District of Columbia have . . . rejected articulable suspicion

arguments based upon guilt by association”).          The same applies to the

complainant’s apparent hunch that the person outside could have been a “possible

lookout” for the suspect inside. See Jackson v. United States, 805 A.2d 979, 990

(D.C. 2002) (rejecting “the notion that the defendant’s association with a known

criminal will provide articulable suspicion”).



      In this instance it appears that the complaining witness gave the description

of the attempted robber, as stated, to the MPD officer. SPO Walker received and

made assumptions about the collective descriptions (of the robber), which he had

heard. He was forthright that he did not possess first-hand knowledge of such.
                                         11

SPO Mason, who had manned the video equipment, and was present when

appellant was observed on the street, did not testify at the hearing. This leaves us

with considerable uncertainty regarding the factual basis for the Terry stop.



      Thus, we turn to whether the trial court had sufficient ‘“indicia of reliability

to justify’” appellant’s stop. In re S.B., 44 A.3d 948, 952 (D.C. 2012) (quoting

Adams v. Williams, 407 U.S. 143, 147 (1972)) (discussing the importance of

reliability of a tipster in a Terry stop). As one noted commentator remarked in the

context of the related common knowledge doctrine, failing to require a showing of

reliability could enable an officer to “bring about a lawful stop by the simple

expedient of passing [information] on to another officer.” 4 Wayne R. LaFave,

Search and Seizure § 9.5(j) (5th ed. 2012). But our case law addresses this

concern by foreclosing such a result.



      As we stated in In re T.L.L., supra, to support a finding of reasonable

suspicion based on information passed from one police officer to another, the

government must apprise the judge “of sufficient facts to enable him to evaluate

the nature and reliability of that information.” 729 A.2d at 341 (citations omitted).

In other words, an officer may rely on a police lookout only to the extent that the

lookout itself is based on reasonable suspicion. Milline, supra, 856 A.2d at 619
                                       12

(citing United States v. Hensley, 469 U.S. 221, 232 (1985)).       Applying this

requirement, the court in In re T.L.L., supra, concluded that the street address

where the defendant was arrested could not contribute to a finding of reasonable

suspicion, because the government’s evidence failed to show what led law

enforcement there. 729 A.2d at 341.



      In our case, the government did not present the surveillance video

purportedly watched by SPO Mason and his colleagues. Nor did the government

present a witness who could testify first-hand to the contents of the video. SPO

Mason did not testify. And neither did any of the several other SPOs who had

huddled around the computer to watch and re-watch surveillance footage. What is

more, while we know that the video did not depict the attempted robbery itself, we

cannot know where the camera or cameras were located. We thus have no record

evidence that would support the conclusion that the video SPO Mason watched had

something to do with the attempted robbery — meaning that even if appellant

resembled someone in the video, this would not implicate him in the attempted

robbery.



      On this record then, at best, all we can know is that SPO Mason gave a

description to SPO Walker that was — according to SPO Walker’s understanding
                                          13

— based on video footage. This falls short of satisfying the reliability requirement

articulated in In re T.L.L., supra, and the trial court consequently erred in its legal

conclusion.



      Moreover, the descriptions given by both the complainant and SPO Mason

were too vague in the circumstances to provide reasonable suspicion to stop

anyone, given the nature of the neighborhood in question and, especially, the

passage of time between the robbery and the stop. For example, as the testimony

established and the trial judge acknowledged, “in that neighborhood . . . it’s not

unique” to see “a black male with blue jeans and a dark jacket” or ski mask. And

whereas appellant was apprehended “right in the middle of th[e] [CHV] complex”

where the attempted robbery occurred, and “at 12:30 in the morning” when the

area could be expected to be relatively less frequented due to a curfew in place at

that time, there was a ten-hour gap between the time of the alleged robbery attempt

and the stop.    This temporal gap undermined any reason to suspect that the

assailant was still in the area, and there was no reasonable, articulable suspicion to

stop appellant on the basis of either of the descriptions. See, e.g., In re T.L.L.,

supra, 729 A.2d at 341 n.6 (D.C. 1999) (describing 55 minutes as “far too long to

support any inference that the robbers . . . would probably still be at or near the

scene”); Cauthen v. United States, 592 A.2d 1021, 1023-24 (D.C. 1991) (footnote
                                          14

omitted) (referring to a 15-20 minute gap as “considerably longer than the delay

involved in [this court’s] past decisions on point”).



                                         IV.



      For the foregoing reasons, we reverse the trial court’s denial of appellant’s

motion to suppress.



                                               Reversed.
