Opinion
CRIMINAL ACTION NO. 00-10226-GAO.
September 10, 2001
MEMORANDUM AND ORDER
The indictment in this case charges the defendant James Patterson with bank robbery, in violation of 18 U.S.C. § 2113(a). Patterson has moved to suppress evidence that he was identified as the bank robber by three tellers and a customer on the ground that the identification procedure was an impermissible "show-up" that violated his constitutional right to due process of law. For the reasons that follow, the defendant's motion to suppress is denied.
I. Facts
On the evidence adduced at an evidentiary hearing, I find the following facts:
On February 22, 2000, at about 10:40 a.m., a BankBoston branch office located on Boston Road in Billerica, Massachusetts, was robbed by a man whose face was mostly covered by a pulled-down watch cap and a pulled up high coat collar. Responding to an emergency 911 call, Billerica police arrived at the bank within about five minutes of the robbery. Three bank employees, including the teller who was robbed, and a customer who was present at the time of the robbery gave the police the additional facts that the robber was a black man and that he was wearing a jacket with a camouflage design. The bank customer also told the police that the robber had fled the bank in a red Mustang containing other occupants, heading north on Boston Road. According to the customer, the robber was seated in the front passenger seat of the car. The eyewitnesses gave slightly varying general descriptions of the height and weight of the man, but the descriptions were generally consistent that he was less than six feet tall and of medium build.
The police radioed an alert to other units, and a few minutes after the robbery officers in a patrol car stopped a red Mustang at the intersection of Boston Road and Andover Road, not far from the bank. The defendant was riding in the front passenger seat. He was either wearing, or had with him, a camouflage jacket. The police removed Patterson and the other occupants from the car and placed the camouflage jacket on top of the car. Patterson was handcuffed.
When the police who were still at the bank learned that a car matching the description given by the customer had been stopped with an occupant who generally fit the description of the robber, they decided to bring the eyewitnesses to where the car was stopped to see if they could identify the defendant as the robber. The four witnesses were taken, two by two, in two separate patrol cars. The driver of one of the police cars, Detective Richard Howe, told his passengers that they were "going to see if they could identify the person who had been in the bank." The other driver, Sergeant Richard Rohnstock, said nothing to his passengers on the way to the site of the stop. Both police cars pulled alongside the Mustang, and the police asked the witnesses if they recognized any of the occupants of the car. The witnesses remained in the patrol cars. All four witnesses identified the defendant as the person who robbed the bank. Each witness identified the defendant spontaneously, without hesitation and without consultation. The identifications occurred virtually simultaneously, and I find that no witness's identification was influenced before it was made by any other witness's identification. Later on, back at the police station, each witness separately prepared a written statement, which included the identification of the defendant as the robber.
II. Discussion
To determine whether admission of evidence of a pre-trial identification would violate the Due Process Clause, the court must conduct a two-step inquiry. First, the court must determine whether the procedure was impermissibly suggestive. If it was, then the court must decide whether the identification was nevertheless reliable, despite the elements of suggestiveness, under all the circumstances. See United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996); see also United States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993). Before suppressing identification evidence, a "court must be persuaded that there was a very substantial likelihood of irreparable misidentification." de Jesus-Rios, 990 F.2d at 677 (internal quotations and citations omitted). In considering the reliability of the identification, the court should consider "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation."Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
On the evidence, I conclude that the show-up within minutes after the robbery was not unnecessarily suggestive and that, even if it was, the witnesses' identifications were not so unreliable that their use in evidence at the trial would violate the defendant's right to due process.
A one-person show-up is typically thought to be more suggestive than a multi-person line-up not because a "true or false" question is inherently more suggestive of a particular "right" answer than a "multiple choice" question, but because the simple fact that the police have apparently focused on a single individual may lead the identifying witness to infer that the police believe the answer is "true" rather than "false," and that inference may in turn influence the witness to give an concordant answer. But, without other more explicit suggestion by the police, this implicit influence alone is not enough to warrant the conclusion that the show-up was unnecessarily, or impermissibly, suggestive. Compare Watson, 76 F.3d at 6-7 (citing cases) with Velez v. Schmer, 724 F.2d 249, 250 (1st Cir. 1984) (identification prompted by police statement, "This is him, isn't it?").
In this case, like Watson and unlike Velez, the police made no explicitly suggestive remarks, but rather asked neutrally whether the witnesses recognized any of the occupants of the red Mustang. It is true that the defendant had been handcuffed, but according to their testimony, none of the witnesses, seated in the police cars, realized that. Even if they had, the fact that the defendant was handcuffed added little, if any, additional suggestive influence. It was plain, whether he was handcuffed or not, that the police were detaining him to permit the show-up to be accomplished. Here, as in Watson, "the crime was very fresh, the police not suggestive, and had [Patterson] not been the [robber], [each witness] could easily have said so." See Watson, 76 F.3d at 7.
But even if the circumstances of the show-up could be considered to have been unnecessarily (and therefore impermissibly) suggestive, the identifications were not so unreliable that use of them at trial would deprive Patterson of due process of law.
All of the witnesses had the opportunity to view the bank robber in fairly close proximity at the time of the crime; although his face was mostly concealed, each witness saw his form, clothing, and general appearance. Moreover, particularly with respect to the tellers, their degree of attention was high.
The witnesses' descriptions of the robber were not as detailed as they might have been if the witnesses had made their observations for a longer time and under less stress, but overall they were consistent with each other and with the appearance of the defendant when identified at the stop. The four witnesses described the robber as a black man wearing a camouflage jacket. Three of the witnesses said he was wearing a hat or hood. Two of the witnesses characterized the robber's build as "medium." Height estimates ranged between 5'6" and 6', not a significant difference under the circumstances. All in all the several descriptions, given independently, were rather strikingly consistent, especially considering the general imprecision with which lay witnesses typically express such descriptions and estimates.
The level of the witnesses' confidence in their respective descriptions was high. Each witness identified Patterson without hesitation. The witnesses observed the defendant from only a few feet away, and they had ample opportunity to observe him closely and to voice any doubt about whether he was the same man whom they had seen at the bank. None of the witnesses expressed any hesitation or uncertainty.
Of particular significance is the fact that the time between the robbery and the confrontation was very short — only fifteen or twenty minutes at the most. This is strongly probative of reliability, as the witnesses' impressions of the robber were still fresh in their minds.
Evaluation of these several factors leaves me satisfied that the identifications were not so unreliable that the Constitution forbids evidence of them to be entered against the defendant. "[O]nly in extraordinary circumstances should identification evidence be withheld from the jury." Watson, 76 F.3d at 6. The defendant will be free, of course, through cross-examination and argument to highlight those aspects of the identification process that detract from the reliability of the identifications and to encourage the jurors to regard the identifications as unreliable grounds for assigning culpability to the defendant. See Brathwaite, 432 U.S. at 116 ("We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature."). See also United States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990). Any defect here "goes to weight and not substance." See Brathwaite, 432 U.S. at 117.
III. Conclusion
The identifications and the circumstances surrounding them were not so suggestive and unreliable as to violate the defendant's right to due process of law. Therefore, the defendant's motion to suppress evidence of the identifications is DENIED.
It is SO ORDERED.