On reasonable suspicion in Funderburk

I have a couple of ideas that, no matter how hard I push, are not catching on.

One idea is the notion of banking jail credit for cases that are later dismissed.  

Everyone knows that, if convicted of a crime after being detained pending trial, you are given credit for time served.  That is, the time you have already spent in jail will count toward your sentence.

But what happens if you spend time in jail awaiting trial and then the case is dismissed or you are acquitted?

In that case, the jail time goes toward nothing, right?  The time credit simply vanishes.  

My idea is that should be able to bank this jail time toward a criminal offense to be determined later.

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My other idea that nobody likes is that everyone should have an identical twin.  

That way you could never be convicted of a crime because no court of law would ever be able to find beyond a reasonable doubt that it was you, and not your twin, who committed the offense.

I know, simple ideas for simple people.

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I was thinking of the identical twin argument recently while reading the recent D.C. Court of Appeals decision in Funderburk v. United States, 260 A.3d 652 (D.C. 2021).

Responding to the sound of gunshots and “loud and erratic screaming,” police encountered Funderburk in an alleyway in a residential neighbor.  Although Funderburk was alone at the time, police could hear other people, and two women eventually walked out from a house behind him with a third woman lingering in the doorway of the house.  

The question for the court was whether police had a legal basis – in this case, reasonable suspicion – to stop and frisk one of these people, in this case Funderburk.

The trial court denied Funderburk’s motion to suppress.  It found that, although the officers had no physical description of the shooter, “the geographic proximity, temporal proximity, lateness of the hour, and the suspect’s lone presence at the scene” provided the necessary reasonable suspicion to justify the Fourth Amendment intrusion.  

Reasonable suspicion is a low standard.  It is lower than probable cause which is lower than preponderance of the evidence which is lower than clear and convincing evidence which is lower than beyond a reasonable doubt.  

Based on the U.S. Supreme Court case in Terry v. Ohio, reasonable suspicion is defined by Black’s Law Dictionary as a “particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.” 

According to Terry, a brief stop can be based on reasonable suspicion.  The officer can also conduct a “protective frisk for weapons” if he has a “reasonable, articulable suspicion that the person is armed and dangerous.”

Here is where my argument on the identical twins comes in.  

Although police emphasized that Funderburk was alone when they first saw him, there were at least three other people present at the scene who might have fired the gun.  

Would the legal basis for stopping and frisking a suspect extend to all four people they encountered?  

Although the holding applies only to Funderburk (who was the first person police encountered and who, not coincidentally, was the only male present), the court’s reasoning suggests that its holding would also have applied to the three women.  

After all, the lower standard here differentiates this fact pattern from the situation of identical twins at a trial in which the uncertainty as to the perpetrator’s identity would make it impossible to establish guilt beyond a reasonable doubt.

The Court specifically cites United States v. Turner, 699 A.2d 1125 (D.C. 1997) in which it held that the officers’ suspicion was sufficiently particularized when it was narrowed down to two possible suspects:

Turner illustrates how particularized suspicion “does not deal with hard certainties, but with probabilities.”  By definition, there may be a reasonable basis to suspect more than one individual of being the (one) person who committed the criminal offense under investigation.  If reasonable suspicion centers on each of a small enough number of individuals, to the exclusion of all others, the probability of each individual’s guilt is enough to establish the requisite degree of particularity to stop each of them.

In other words, held the Court, there is a good chance one of the four people had fired the gun.  The police were justified in thinking it may have been Funderburk.

Judge Glickman wrote the Court’s opinion.  Funderburk was represented by Amanda Rogers at trial and by Stefanie Schneider on appeal, both of the Public Defender Service (PDS).  Judge Todd Edelman was the trial judge.