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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 11-FS-1125

IN RE D.M.,

APPELLANT.

Appeal from the Superior Court 

of the District of Columbia

(DEL-857-11)

(Hon. Patricia A. Broderick, Trial Judge)

(Argued February 20, 2014 Decided July 10, 2014)

Fleming Terrell, with whom James Klein and Jaclyn S. Frankfurt were on 

the brief, for appellant.

Janice Y. Sheppard, Assistant Attorney General, with whom Irvin B. 

Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor 

General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for 

appellee District of Columbia.

Before BLACKBURNE-RIGSBY, Associate Judge, and PRYOR and KING, 

Senior Judges.

KING, Senior Judge: After a bench trial, D.M. was convicted of seconddegree burglary,1

felony destruction of property,2and second-degree theft.3 D.M. 

 

1 D.C. Code § 22-801 (b) (2008). 

(continued...)
2

appeals the trial court‟s denial of his motion to suppress a show-up identification 

and evidence obtained pursuant to his arrest thereafter. Specifically, he contends

his seventy-five minute detention was an unconstitutional seizure because (1) the 

length of his detention converted a temporary investigatory stop into a de facto

arrest, and (2) the police could have used less intrusive means to accomplish their 

investigation. We disagree that the length of his detention or the possibility that 

the officers could have accomplished their objective by alternative means made his 

seizure unreasonable per se. However, concluding the trial court did not have 

sufficient evidence, as a matter of law, to find that the length of the detention was 

necessary and that the police acted diligently in pursuing the purpose of the stop, 

we reverse the order denying D.M.‟s motion. 

I.

Shortly after 10:00 a.m., on April 14, 2011, Anthony Pickett was in the 

kitchen at his mother‟s house on Jay Street, N.E. Through the kitchen window he 

 

(...continued)

2 D.C. Code § 22-303 (2008). 

3 D.C. Code §§ 22-3211, -3212 (b) (2008). 
3

observed five juveniles behind the next-door neighbor‟s home. He continued to 

watch as one of the juveniles broke a window on the neighbor‟s back door and 

enter the home. Two other juveniles, one of whom Pickett would later identify as 

D.M., followed the first inside. Pickett‟s mother called 911 and Pickett provided a 

description of the individuals. Pickett testified at D.M.‟s trial4that D.M. had 

“some kind of hat or something across his face, but he took it off” at some point 

and Pickett could clearly see D.M.‟s face. After a time, D.M. and the other two 

individuals came back out of the house and all five juveniles ran off down the 

alley. 

Officer Demar Rodgers received a radio call for a burglary in process and 

responded to the scene. Pickett gave Rodgers a description of the teenaged males, 

including a description of their clothing. Rodgers broadcasted a lookout for the 

individuals over his radio. Officers Robert Munn and Calvin Awkward, and 

Detective Chad Howard, also responded to the radio call. They began to canvas 

the area, driving past the scene of the burglary on Jay Street, parallel to the alley

down which the juveniles had run. As the police officers passed an apartment 

 

4

The trial court initially heard testimony from the government‟s witnesses 

for the purpose of ruling on D.M.‟s motion to suppress, and then incorporated that 

testimony as evidence in D.M.‟s trial. 
4

building directly across from where the alley opened onto Jay Street, they noticed a 

group of individuals standing out front. Munn and Awkward stopped at the 

building while Howard doubled back, having passed the building before noticing 

the group. The individuals looked at the police vehicle and hurried down the steps 

in the building and out of sight. 

Munn and Awkward went into the building and found four young men 

gathered on the lower landing, D.M. among them. Once they stopped the group, 

the officers asked their names and some general questions. The officers “didn‟t 

really do an investigation” at that point, but just stopped the individuals “until the 

detective did his investigation.” After Howard arrived, he observed that D.M.‟s

clothing matched one of the lookout descriptions: a black jacket and tan pants. 

Howard and the other officers obtained information from each individual about 

where they lived and went to school. D.M. was detained further while the other 

juveniles were released to their school because they didn‟t match the lookout 

description as completely as D.M. 

 

At some point after D.M. was stopped, Howard left the apartment building 

and returned to the scene of the burglary to contact Pickett. Howard testified that 

he interviewed Pickett, obtained a “description of whom he saw exiting the house 
5

and running down the alley,” placed Pickett in his car and took Pickett to the 

apartment to perform a show-up identification of D.M. Pickett testified that he had 

to return from work to meet Howard and perform the show-up identification. 

Neither Pickett or Howard testified about where Pickett worked, when or how 

Howard contacted Pickett, or the timetable of events leading up to the show-up 

identification. Pickett identified D.M. during the show-up as one of the youths 

who entered the house. Howard confirmed that the juveniles were stopped at 

10:37 a.m. and the show-up occurred at 11:52 a.m. 

In his pre-trial motions, D.M. argued, inter alia, that the police did not have 

reasonable suspicion to stop the individuals5and that, even if the stop was justified 

as an investigatory stop, his prolonged detention exceeded the allowable scope of 

such a stop. Following the testimony of the government‟s witnesses, the trial judge 

denied D.M.‟s motion concluding that

what Detective Howard said was after stopping [D.M.], 

he returned to the event location, contacted the witness, 

got a description of what the witness saw and then took 

him back to the scene. So the entire time he was 

 

5

The government acknowledged the officers did not have probable cause to 

arrest D.M. before Pickett‟s identification. D.M. does not renew on appeal his 

argument that the police lacked reasonable suspicion to stop the juveniles. 
6

diligently pursuing the police investigation. So I do not 

find that the time was ill-spent or too long under the 

circumstances, particularly because Mr. Pickett indicated 

that he had to return to the scene. 

II.

Our review of the denial of a motion to suppress is limited. Womack v. 

United States, 673 A.2d 603, 607 (D.C. 1996). We must “view the evidence 

presented at the suppression hearing in the light most favorable to the party 

prevailing below, and we draw all reasonable inferences in that party‟s favor.” Id. 

We must also defer to the trial judge‟s factual findings, including resolution of 

conflicting testimony, unless “they are clearly erroneous, i.e., without substantial 

support in the record.” Lawrence v. United States, 566 A.2d 57, 60 (D.C. 1989); 

see also In re T.L.L., 729 A.2d 334, 339 (D.C. 1999) (“[W]e will not disturb the 

trial judge‟s findings of fact unless they lack evidentiary support in the record.”). 

The trial court‟s ultimate conclusion of the constitutionality of a seizure is a 

question of law that we review de novo. Womack, 673 A.2d at 607. That is, we 

review de novo whether the prosecution met its burden of proving by a 

preponderance of the evidence that a seizure was constitutionally permissible. See 

Mayes v. United States, 653 A.2d 856, 861 (D.C. 1995); see also Florida v. Royer, 

460 U.S. 491, 500 (1983) (plurality opinion) (“It is the State‟s burden to 
7

demonstrate that the seizure it seeks to justify on the basis of a reasonable 

suspicion was sufficiently limited in scope and duration to satisfy the conditions of 

an investigative seizure.”). 

The Fourth Amendment protects against unreasonable search and seizure. 

The touchstone of the Fourth Amendment is reasonableness. See, e.g., United 

States v. Sharpe, 470 U.S. 675, 682 (1985) (“The Fourth Amendment is not, of 

course, a guarantee against all searches and seizures, but only against 

unreasonable searches and seizures.” (emphasis in original)); see also Womack, 

673 A.2d at 607 (“The basic question presented is whether, under all the 

circumstances, the seizure . . . was reasonable.”). “[C]onsistent with the Fourth 

Amendment, the police may briefly detain an individual for investigative purposes, 

even if they lack the probable cause to arrest, so long as the officers have a 

reasonable and articulable suspicion that the individual has committed or is about 

to commit a crime.” Womack, 673 A.2d at 608 (citing Terry v. Ohio, 392 U.S. 1, 

21-22 (1968)); see also Adams v. Williams, 407 U.S. 143, 146 (1972) (“A brief 

stop of a suspicious individual, in order to determine his identity or to maintain the 

status quo momentarily while obtaining more information, may be most reasonable 

in light of the facts known to the officer at the time.”). 
8

The Supreme Court has articulated a “dual inquiry for evaluating the 

reasonableness of an investigative stop” in which we examine: (1) “whether the 

officer‟s action was justified at its inception,” and (2) whether the actions were 

“reasonably related in scope to the circumstances which justified interference in 

the first place.” Sharpe, 470 U.S. at 682 (quoting Terry, 392 U.S. at 20). D.M. 

does not dispute on appeal that MPD officers had a reasonable, particularized, and 

articulable suspicion on which to justify stopping D.M. We are not, therefore, 

concerned with the first part of this inquiry. Instead, we focus on D.M.‟s challenge 

under the second part of this analysis. 

As we have observed, the “measure of the scope of permissible police action 

in any investigative stop depends on whether the police conduct was reasonable 

under the circumstances.” In re M.E.B., 638 A.2d 1123, 1127 (D.C. 1993); see 

also Royer, 460 U.S. at 500 (“The scope of detention must be carefully tailored to 

its underlying justification.”). Police conduct exceeds the scope permissible under 

Terry when “the police seek to verify their suspicions by means that approach the 

conditions of arrest.” Royer, 460 U.S. at 499; see also Hiibel v. Sixth Judicial Dist. 

Court of Nevada, Humboldt Cnty., 542 U.S. 177, 186 (2004). Criminal cases 

provide “endless variations in the facts and circumstances” such that there can be 

no clear “litmus-paper test” or bright line determining where police action has 
9

become unreasonable. Royer, 460 U.S. at 506. However, several factors have 

been identified as important and helpful guideposts in evaluating the scope of a 

stop: (1) the length of the detention, (2) the place of detention, (3) the use of 

handcuffs or force to restrain the suspect, and (4) the investigative methods 

employed. See, e.g., Royer, 460 U.S. at 500, 502-05; In re M.E.B., 638 A.2d at 

1128; Davis v. United States, 498 A.2d 242, 245 (D.C. 1985).

6

 

D.M. makes no argument regarding to the place of detention or the use of 

handcuffs or force.

7

 D.M.‟s argument focuses on the length of his detention and 

the investigative methods employed by the officers. 

A.

The Supreme Court has made it clear that “an investigative detention must 

be temporary and last no longer than is necessary to effectuate the purpose of the 

 

6

This list is not exhaustive and we remain cognizant of the fact that the 

reasonableness of police actions under the totality of the circumstances remains 

the core measure by which to determine the legality of searches and seizures. 

7

The record indicates that D.M. was detained in the hallway where he was 

seized until he was moved outside for the show-up identification. There is also no 

indication that D.M. was handcuffed at any point. 
10

stop.” Royer, 460 U.S. at 500. The Court has stressed that brevity is an important 

aspect of Terry stops and that “in assessing the effect of the length of the detention, 

we take into account whether the police diligently pursue their investigation.” 

United States v. Place, 462 U.S. 696, 709 (1983). “[I]f an investigatory stop 

continues indefinitely, at some point it can no longer be justified as an 

investigative stop.” Sharpe, 470 U.S. at 685. Thus, in order to show an 

investigatory stop is constitutional, the government must show that the length of 

detention was necessary to quickly confirm or dispel suspicions and that the police 

diligently pursued their investigation. See Sharpe, 470 U.S. at 686. 

D.M. contends that his seventy-five minute detention was beyond the 

bounds permitted by Terry. He argues that the extreme length of his detention 

alone compels this conclusion. We do not agree. The Supreme Court has declined 

on multiple occasions to “adopt any outside time limitation for a permissible Terry

stop,” and so do we. See Place, 462 U.S. at 709. “Much as a „bright line‟ rule 

would be desirable, in evaluating whether an investigative detention is 

unreasonable, common sense and ordinary human experience must govern over 

rigid criteria.” Sharpe, 470 U.S. at 685. 
11

D.M. points to the Supreme Court‟s decision in Place to support his

argument that a detention over one hour approaches a level of per se

unreasonableness. That reliance is misplaced. The Court itself has clarified that, 

regardless of the specific language used in Place, 

the rationale underlying [the conclusion that a ninetyminute detention was unreasonable] was premised on the 

fact that the police knew of respondent‟s arrival time for 

several hours beforehand, and the Court assumed that the 

police could have arranged for a trained narcotics dog in 

advance and thus avoided the necessity of holding 

respondent‟s luggage for 90 minutes. 

Sharpe, 470 U.S. at 684-85. No analogy exists on the circumstances presented 

here. The officers responding to the burglary call could not have prepared in 

advance for the fluid situation in which they found themselves. Cf. Sharpe, 470 

U.S. at 686 (“A court making this assessment should take care to consider whether 

the police are acting in a swiftly developing situation . . . .”). D.M.‟s detention was 

not prolonged because the police failed to prepare in advance of his seizure. Thus, 

he cannot rely on the underlying rationale used in Place. 

That said, we have never upheld a seizure for over an hour while police 

arranged a show-up identification. See, e.g., Hicks v. United States, 730 A.2d 657, 
12

660 (D.C. 1999) (concluding a twenty-five minute detention for a show-up 

identification was reasonable); see also McIlwain v. United States, 568 A.2d 470, 

473 (D.C. 1989) (finding a thirty-minute detention while awaiting arrival of “law 

enforcement officers specially trained to deal with the uniquely difficult offense of 

sexual abuse of a child” did not convert Terry investigatory stop into an unlawful 

arrest); accord Place, 462 U.S. at 710 (“[W]e have never approved a seizure of the 

person for the prolonged 90-minute period involved here and cannot do so on the 

facts presented by this case.”). While it is not impossible for a detention of a 

suspect for over an hour to be reasonable, see, e.g., United States v. Richard, 500 

F.2d 1025, 1029 (9th Cir. 1974) (upholding a detention of slightly over an hour 

“where the suspects‟ own unsatisfactory responses to legitimate police inquiries 

were the principal cause of the extended detainment”), courts appear to conclude, 

more often than not, that such lengthy detentions are unreasonable. See generally

4 WAYNE R. LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH 

AMENDMENT § 9.2 (f) n. 258 (5th ed. 2012) (listing cases holding detentions over 

one hour were unreasonable). We are not aware of any precedent in any 

jurisdiction upholding the detention of a suspect for over an hour while a show-up 

identification was arranged.8 However, we need not resolve that question on the 

 

8

The government has not cited to us any such case in its brief. The cases 

(continued...)
13

case sub judice—nor could we—because, as we discuss infra, the record is 

inadequate to evaluate the key factors necessary for a proper analysis. We simply

re-enforce here that there is no bright-line time limit demarcating investigatory 

stops and arrests, and that each case must be evaluated on its particular 

circumstances and facts.

 

(...continued)

the government cites all contain extenuating facts not relevant for comparison here 

or involve a seizure of luggage while a warrant is sought, a situation we will not 

analogize to the seizure of a person while an eye-witness is procured for 

identification. See Buck v. State, 522 S.E.2d 252, 829-30 (Ga. Ct. App. 1999) 

(concluding officers acted reasonably by detaining the appellant for an hour as 

their initial contact revealed evidence that he was carrying a pair of women‟s 

shoes, was acting nervous, and there was evidence of a struggle, torn clothing, and 

high-heel prints nearby causing “suspicion that a woman may have been a victim 

of foul play”); Miller v. Commonwealth, 434 S.E.2d 977, 980-81 (Va. Ct. App. 

1993) (upholding court‟s determination that an hour-long traffic stop was 

reasonable because it was pursued “largely with defendant‟s cooperation and 

agreement” and that the court‟s finding the duration was reasonable was “neither 

plainly wrong nor without evidence to support it”); see also United States v. Bory, 

766 F.2d 304, 307 (7th Cir. 1985) (describing how DEA agents confiscated 

luggage, wrote the appellant a receipt, and “explained how he could recover the 

bags should no warrant be obtained or no drugs found”); Limonja v. 

Commonwealth, 375 S.E.2d 12, 17-18 (Va. Ct. App. 1988) (concluding that the 

duration of a traffic stop was not unreasonable because “only twenty-two minutes 

of the detention were without consent, not sixty, as the defendants contend” and 

listing cases involving “delays necessitated by efforts to obtain a narcotics dog for 

sniffing luggage or packages, as in this case”). 
14

B.

In addition to examining the length of the detention, a plurality of the 

Supreme Court has opined that courts should examine whether “the investigative 

methods employed [were] the least intrusive means reasonably available to verify 

or dispel the officer‟s suspicion in a short period of time.” Royer, 460 U.S. at 500. 

However, where the police have chosen a reasonable means to investigate 

suspicious activity, and the means chosen is likely to confirm or dispel suspicions 

quickly, we will not second guess that choice. Sharpe, 470 U.S. at 686. Thus, as a 

majority of the Court articulated, “the question is not simply whether some other 

alternative was available, but whether the police acted unreasonably in failing to 

recognize or pursue it.” Id. That is, we review whether the police acted 

reasonably in pursuing the investigative methods they chose under the 

circumstances—not whether other reasonable, though perhaps less-intrusive,

methods were available. 

Nevertheless, D.M. argues that his detention was unlawful because there 

were less-intrusive means by which the police could have accomplished their 

investigation. He posits that because the officers knew his name and where he 

went to school they could have found him again later and performed the 
15

identification at that point.9 We have previously rejected this type of logic because 

it “could raise insuperable barriers to the exercise of virtually all search-andseizure powers.” Womack, 673 A.2d at 613 (quoting United States v. MartinezFuerte, 428 U.S. 543, 556-57 n.12 (1976)). It is always possible to envision post 

hoc a “better” or “less intrusive” manner by which the police may have conducted 

their investigation. See Sharpe, 470 U.S. at 686-87 (“A creative judge engaged in 

post hoc evaluation of police conduct can almost always imagine some alternative 

means by which the objectives of the police might have been accomplished.”); 

Cady v. Dombrowski, 413 U.S. 433, 447 (1973) (“The fact that the protection of 

the public might, in the abstract, have been accomplished by „less intrusive‟ means 

does not, by itself, render the [police action] unreasonable.”). We do not engage in 

such “armchair quarterbacking” or “unrealistic second-guessing.” Womack, 673 

 

9 D.M. compares the case sub judice with Davis, urging that we adopt a rule 

requiring police in such situations to release the individual for later identification. 

In Davis, the police released a suspect after detaining him for fifteen minutes while 

trying—unsuccessfully—to persuade two witnesses to identify him. 498 A.2d at 

245. The suspect was later identified from a photo array and lineup. Id. at 244. 

Davis did not articulate the rule that D.M. would have us implement, instead it 

merely concludes that under the circumstances of the case, a fifteen minute 

detention was not “transmute[d] into an arrest.” Id. at 245. While releasing a nondangerous, known suspect pending later eyewitness identification may be most 

reasonable in certain situations, we decline to articulate a rule requiring police to 

do so. Such a rule would impinge the ability of police to reasonably respond to the 

exigencies of the unique and fluid situations with which they are faced. 
16

A.2d at 614. Instead, our review is limited to whether the actions undertaken by 

the police were reasonable under the circumstances.10 

We note that the police in this situation only engaged in general questioning

of the detained minors regarding their identities and why they were in the hallway. 

In locating a suspect involved in a consummated crime, “the ability to briefly stop 

[a] person, ask questions, or check identification . . . . may be most reasonable in 

light of the facts known to the officers at the time.” Davis, 498 A.2d at 245 

(quoting United States v. Hensley, 469 U.S. 221, 229 (1985)); accord Hiibel, 542 

U.S. at 186 (“Our decisions make clear that questions concerning a suspect‟s 

identity are a routine and accepted part of many Terry stops.”). This is not a case 

where the police engaged in what could be effectively considered custodial 

interrogation designed to obtain incriminating statements from the minors. Cf. 

 

10 D.M.‟s argument is also based on pure conjecture of what the police 

“might” have done at the time. For example, D.M. asserts that the police could 

have taken his photograph, released him, and asked Pickett to identify him from a 

photo array. There is no indication in the record that such a procedure was 

possible—no evidence the officers at the scene had the ability to take photographs 

or whether a photographer was available to respond to the scene and how long it 

would take for a photographer to arrive. Generally, under the circumstances such 

as those before us, a show-up identification may be the most efficient investigatory 

procedure available to the police. See Turner v. United States, 622 A.2d 667, 672 

(D.C. 1993) (“[I]dentifications conducted soon after the crime enhance the 

accuracy of witnesses‟ identifications and allow innocent suspects to be quickly 

freed.”).
17

Dunway v. New York, 442 U.S. 200, 216 (1979) (“[D]etention for custodial 

interrogation—regardless of its label—intrudes so severely on interests protected 

by the Fourth Amendment as necessarily to trigger the traditional safeguards 

against illegal arrest.”). Were it such a situation, the manner of investigation may 

have been more suspect. 

III.

While the foregoing illustrates that there is no per se time limit for detention, 

it does not address whether—once the decision was made to conduct a show-up—

the police acted diligently in contacting Pickett and bringing him to the scene, or 

whether any delay was necessary for completing the show-up. That the police did 

act diligently and that any delay was reasonable and necessary to affect the 

investigation are factual matters the government has the burden of proving. See 

Mayes, 653 A.2d at 861. 

In evaluating the evidence, the trial court must not simply accept conclusory 

assertions that would justify the search, “but rather must evaluate the facts 

underlying those assertions.” Sanders v. United States, 751 A.2d 952, 955 (D.C. 

2000). To properly evaluate the underlying facts, the judge must be apprised of 
18

sufficient facts relating to the justification for and scope of a seizure. See In re 

T.L.L., 729 A.2d at 341. Where no such evidence is adduced, the government 

cannot carry its burden even if, had the record been more fully developed, the 

government could have otherwise presented sufficient evidence. See id. (“If the 

nature of the information on which the police relied had been disclosed to the court 

at the hearing on T.L.L.‟s motion to suppress, this might well have satisfied the 

District‟s modest burden in a case of this kind . . . .”). 

The only testimony offered at the motions hearing relevant to D.M.‟s

seventy-five minute detention was a single statement by Pickett and a single 

statement by Howard. In discussing how he came to identify D.M. during the

show-up, Pickett testified: 

I had to go to work. So, I had to come all the way back 

from Deanwood to come back to take care of this. So, 

when I walked down the street I met the detective right 

here and we got in the car and he drove I would say 

where the apartments was and the apartments, this is 

where the other squad car was with the young man in it. 

So, we drove like right here and he stopped and he got 

out of the car and identified him and then I said yeah, that 

is him.

Howard‟s sole testimony as to what happened after the minors was stopped:
19

I contacted the witness. I interviewed the witness, got his 

description of whom he saw exiting the house and 

running down the alley, but placed him in the car with 

me and took him back to the scene w[h]ere we responded 

and the other individual was stopped to do a show up 

with each one of those individuals.[11]

Howard never testified that he had to call Pickett at work or that he had to wait for 

his arrival. 

The government provides two justifications for the delayed show-up 

identification. First, it points out that Pickett had to return from work. The record 

bears this out, but it does not indicate where Pickett worked, nor how long it took 

him to return from work, nor when the officers called him to request his presence.

12

 

Second, the government posits that the police had to “conduct an investigative stop 

on not one but four juveniles.” The record also shows this to be true. However, 

 

11 Howard also confirmed on cross-examination the general timeframe of 

events: the lookout was broadcast at 10:15 a.m., the minors were stopped at 10:37 

a.m., and the show-up identification occurred at 11:52 a.m. 

 

12 Pickett simply testified he had to return from “Deanwood.” Deanwood is 

the name of the neighborhood where the events occurred. There is no indication 

whether his work location was close at hand or further removed from his home. 
20

there is no evidence in the record about how long it took the four officers present at 

the scene13 to obtain identification information, to decide to conduct a show-up, or

to contact Pickett. 

The reasonable inference from the facts adduced in the hearing is that 

Pickett went to work after his initial conversation with the police and had to return 

from work before he could participate in the show-up identification. This 

inference is not only reasonable on the facts, but is one we are compelled to accept. 

See Womack, 673 A.2d at 607. However, any further assumptions about the nature 

and timing of what occurred between the time that Pickett left for work and when 

he returned home for the identification would be purely speculative on this record. 

“Conclusions arising from speculation do not satisfy the requirement of proof by a 

preponderance of evidence.” Rule v. Bennett, 219 A.2d 491, 495 (D.C. 1966). 

It would be merely speculative on this record to conclude that there was no

unnecessary delay in the show-up identification or that the police acted diligently. 

Cf. United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (“It is the 

 

13 Howard testified that in addition to himself, Detective Wood, Officer 

Munn, and Officer Awkward were present when the minors were stopped—Munn 

and Awkward made the initial contact, but Howard only had to double back to the 

apartment to join the investigation. 
21

government‟s burden to show that the evidence at issue would have been acquired 

through lawful means . . . . However, the Supreme Court made clear in Nix that 

the analysis should focus upon the historical facts capable of ready verification, 

and not speculation.” (citing Nix v. Williams, 467 U.S. 431, 444 n.5 (1984)); 

United States v. Driver, 776 F.2d 807, 810-11 (9th Cir. 1985) (“Because of the 

intrusive nature of a warrantless arrest, the government must demonstrate specific 

and articulable facts to justify the finding of exigent circumstances, and this burden 

is not satisfied by leading a court to speculate about what may or might have been 

the circumstances.”). We likewise cannot say that it is an obvious conclusion from 

the record that it reasonably and necessarily took seventy-five minutes for Pickett 

to be notified and return from work. Cf. Womack, 673 A.2d at 614 (recognizing 

obvious inferences in the record). The record is too thinly developed to conclude 

that it is more likely than not that the police acted diligently and that any delay was 

necessary to complete their investigation. See Sanders, 751 A.2d at 955. 

It may well be that D.M.‟s “longer detention was simply the result of a 

graduated response to the demands of the particular situation.” Sharpe, 470 U.S. at 

688 (alterations and ellipses omitted) (quoting Place, 462 U.S. at 709 n.10). 

However, because of the limited factual record established by witness testimony

the evidence in the record is insufficient to support the trial court‟s factual 
22

conclusion that the police acted diligently. Cf. Sanders, 751 A.2d at 956 (finding 

evidence in record insufficient to establish, as a fact, the reliability of a tipster). As

such, the government failed to meet its burden to prove the show-up identification 

was not the product of an unlawful seizure, and the trial court therefore erred in 

denying D.M.‟s motion to suppress and his adjudication of delinquency must 

therefore be reversed.14 See In re K.P., 951 A.2d 793, 798 (D.C. 2008). The case 

is remanded for further proceedings consistent with this opinion.

So ordered.

 

14 The government argues as an alternative ground to support the length of 

D.M.‟s detention that the officers could take him into custody for violating the 

school attendance requirements of D.C. Code §§ 38-202, -251 (a)(3) (2001). 

However, such a seizure only subjects the minor to “a temporary investigative 

seizure designed to determine whether he was truant” and then to transport the 

truant minor to a truancy center. See In re A.J., 63 A.3d 562, 568 (D.C. 2013); see 

also D.C. Code § 38-251 (a)(2). The government‟s reliance on this provision fails 

because the other three minors were “driven to school and released” while D.M. 

remained in custody. D.M.‟s continued detention was only justified at that point 

upon his suspected role in the burglary and the length of his detention must be 

measured by that metric, not by his truancy.