DC Superior Court Judge Andrea Hertzfeld shut down most of the attempts by the defense on Oct. 16 to suppress evidence an armed carjacking case set for an Oct. 27 jury trial date.
Marcus Tucker, 30, is charged with armed carjacking , possession of a firearm during crime of violence or dangerous offense , robbery while armed , and assault with a dangerous weapon.
These charges stem from Tucker’s alleged involvement in the armed carjacking of a victim on the intersection of 30th and Hartford Streets, SE, on April 17.
Defense attorneys Jason Tulley and Marta Garcia were joined by an additional attorney, Hira Javed, who started with a motion to suppress evidence. Specifically four areas of body worn camera footage where the defendant’s Fifth and Sixth Amendment rights were violated, according to the defense.
Javed stated that the nature of the interaction between Tucker and officers was considered a Terry stop in which the defendant could be placed into handcuffs and detained temporarily. Additionally, she argued that police officers on scene insinuated that Tucker couldn’t leave and was being arrested since the Terry stop lasted for more than 30 minutes and he was not allowed to move freely after he was detained.
Defense counsel said that any questions asked at this point could elicit a criminal response and made Tucker incriminate himself as if an interrogation was being conducted.
In response, the prosecution stated that the detention of Tucker on his property was a Terry stop, not an arrest. The questions officers asked were during the stop, not during the arrest, in which Miranda rights would have to be read to the subject.
Judge Hertzfeld ruled that the motion to suppress evidence was denied, and no constitutional rights were violated.
An additional motion to suppress evidence was related to evidence found from a search of Tucker’s car and home. Garcia stated that this search was not constitutional under the Fourth Amendment and that evidence from it should not be admissible in court. The evidence should not be admissible due to the unreliability of cell phone ping data and a vague vehicle/physical description that was used to find and stop Tucker, alleged defense counsel.
The prosecution argued that between the cellphone data being accurate beyond a doubt and the description of the vehicle being located at the address the cell phone pinged, the stop was reasonable for a search.
Judge Hertzfeld agreed with prosecution and ruled that the motion would be denied to suppress the evidence from entering into court proceedings.
A motion to suppress identification of the defendant was brought forward by defense. Garcia alleged that the identification made of the defendant by the witness was inadmissible because the show-up that was conducted by officers was suggestive, and the identifier, who was the carjacking victim, was unreliable.
The victim was brought to where Tucker had been stopped, at that time he was being “perp walked out” and in handcuffs, according to defense. Due to the appearance of Tucker it should be considered unduly suggestive.
The defense furthered by saying that the victim had been arrested and charged with possession of an open container of alcohol (POCA) earlier in the evening. They alleged that he had been under the influence of alcohol during the evening and therefore could not make a reliable identification of the suspect.
Prosecutors argued that the identification was reliable because the victim was able to give a detailed description of the suspect and was able to identify what role he played in the assault.
In the show-up, the victim stated that Tucker was the individual who pointed the gun at him. The prosecution also claimed that the victim stated that he was “100 percent” confident in his identification of the suspect to officers at the show-up.
The prosecution added that being arrested and charged with POCA did not inherently mean that the victim was under the influence that evening or during the time of the incident. The court also ruled that the victim’s history of alcohol use or his other open cases that involve the use of alcohol would be allowed to be discussed during this case.
In regard to the undue suggestivity of the show-up, the prosecution cited case law that stated that an individual being in handcuffs and or the presence of police does not constitute an excess of suggestivity.
The judge denied the motion to suppress the identification of the defendant.
Tulley argued that the victim testifying for the prosecution was a conflict of bias and currying favor. The victim has an open felony case in which the prosecutors for Tucker are the same in the case of the victim.
Prosecutors argued that there is no bias or currying of favor because the victim has a right to testify to his actions on the night of the incident.
The defense moved to suppress screen shots and testimony regarding the tracking of the victim’s phone, which was in his vehicle the night it was taken. The defense argued that the victim should not be able to testify about tracking his phone to the location where Tucker was later found.
The prosecution argued that the location of the phone in question was computer generated and therefore the screenshots of the location of the device that had been allegedly stolen would be admissible as evidence in regards to how the defendant and the car were located.
Judge Hertzfeld did not issue a ruling on the motion to suppress the screen shots and testimony regarding the tracking of the victims phone.
Parties are set to reconvene Oct. 23.
