Bobby Russell v. United States
408 F.2d 1280
May 26, 1969 · Docket 21571
Opinion
This appeal from a conviction for housebreaking and petit larceny raises issues concerning the admissibility of identification evidence under United States v. Wade
At day-break on June 28, 1967, one George McCann investigated the sounds of a blaring radio and breaking glass at the Community Shoe Shine shop. The radio was sitting on the sidewalk outside the broken shop window. Stationing himself in a brightly-lighted gas station across the street, he saw a man emerge from the shop, look across at him, and proceed past him up the street. Mc-Cann went directly to a nearby police station and reported the incident three or four minutes after it occurred. The police broadcast a radio look-out, and officers in a responding squad car promptly encountered appellant in the vicinity. Since he matched the radioed description of the suspect and fled from the approaching police car, the officers pursued him to the porch of a house. There they discovered that he had a radio in one hand and a hatful of cigarettes and small change concealed under his coat. He also had a coat hanger and a screwdriver in his pocket, and on this particular summer night he was wearing gloves. They arrested him
At trial, a police officer described the out-of-court identification, and in addition McCann identified appellant in court. McCann also testified that the radio found in appellant’s possession looked like the one he had seen on the sidewalk while appellant was in the shop. The owner of the shop established that cigarettes and change had been taken from his vending machines.
I
In Wade, the Supreme Court held that a post-indictment lineup is a “critical stage”. in the criminal process at which the presence of counsel is required
The first court to confront this difficult question held that it does not. In Commonwealth v. Bumpus,
But some of the language in Wade implies that a suspect has a right to counsel at any pretrial confrontation arranged by the police, regardless of the circumstances. The Wade Court said it was obliged to “scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial * *
the confrontation compelled by the State between the accused and the victim, or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.10 It went on to observe:
The pretrial confrontation for purposes of identification may take the form of a lineup, also known as an “identification parade” or “showup,” as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno * * *. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.11
Tn all these confrontations the Court said the absence of counsel presents “serious difficulty in depicting what transpires * *
applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place * * *.13
Accordingly, in United States v. Kin-nard,
The passage in the Wade opinion which most nearly confronts the circumstances of the instant case provides uncertain guidance. The Court said:
No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications * * *. [W] e note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either ease that notice to counsel would have prejudicially delayed the confrontations. Moreover, we leave open the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect’s own counsel would result in prejudicial delay.15
This language leaves room for modification of the Wade rule in cases involving prompt confrontations. But it also leaves room for argument that at least “substitute counsel” would be required in any event.
While the language of Wade would thus seem to encompass prompt on-the-scene identifications, they do not fall within the holdings of Wade or its companion case, Gilbert v. California
The present case, however, involves an immediate on-the-scene confrontation at 5 o’clock in the morning when there would necessarily be a long delay in summoning appellant’s counsel, or a substitute counsel, to observe a formal lineup. Such delay may not only cause the detention of an innocent suspect; it may also diminish the reliability of any identification obtained, thus defeating a principal purpose of the counsel requirement.
Unquestionably, confrontations in which a single suspect is viewed in the custody of the police are highly suggestive
Yet, on the other hand, recognition of a person or face would seem to be as much the product of a subjective mental image as of articulable, consciously remembered characteristics. A man may see clearly in his “mind’s eye” a face or a figure which he is hard put to describe adequately in words. Though the image of an “unforgettable face” may occasionally linger without any translation into words, photographic recall is most often ephemeral. Vivid in the flash of direct observation, it fades rapidly with time. And the conscious attempt to separate the ensemble impression into particular verbalized features, in order to preserve some recollection, may well distort the original accurate image so that it is the verbalized characteristics which are remembered and not the face or the man.
Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will “if anything promote fairness, by assuring reliability *
This conclusion does not rest on a determination that McCann’s identification was in fact especially reliable. It rests instead on a general rule that it is not improper for the police immediately to return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before.
II
There remains the question of whether the confrontation in this case “was so unnecessarily suggestive and conducive to irreparable mistaken identification that [appellant] * * * was denied due process of law.”
Ordinarily, this would be the end of our inquiry. As with the right to counsel, the threshold due process question is not whether the identification was in fact reliable. Stovall v. Denno did not erect a due process barrier against all unreliable identifications ;
However, in post-Wade cases the excusable absence of counsel, while not dispositive, is among the “totality of the circumstances”
The troublesome feature of McCann’s identification is the fact that from his vantage point across the street at 4:30 a. m., he may not have had a good look at the culprit. McCann was, of course, watching for the purpose of aiding law enforcement and presumably was paying close attention. He testified that he saw appellant’s face, that the area was well-lighted, and that daylight was breaking. He gave the police a description on the basis of which they suspected appellant. Unfortunately, however, no one inquired at trial into the details of the description. Nor did McCann say whether he saw appellant pick up the radio. A better record on these details would remove all doubt, and in the future trial judges should insist on such a record. But the facts relating to the only reason for doubt in this case — i. e., McCann’s impaired opportunity for accurate observation — were exhaustively explored before the jury.. For this reason, and in the light of all the evidence, we find no infringement of due process.
Affirmed.
. 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
. 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
. Appellant’s contention that the police lacked probable cause for an arrest at this juncture is plainly without merit.
. Appellant contends there was insufficient evidence to establish a larceny because the cigarettes and change found in his possession were not specifically identified as those taken from the shop. There was, however, ample circumstantial evidence to support the inference that he had filled his hat from the larceny victim’s machines. We know of no case requiring actual identification of such fungible goods, and it is apparent that any such requirement would be unworkable.
. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. 388 U.S. at 237, 87 S.Ct. 1926.
. 238 N.E.2d 343 (Mass.1968).
. The court said :
Reasonable confrontations of this type, in the course of (or immediately following) a criminal episode, seem to us to be wholly different from post-indictment confrontations (such as those in the Wade and Gilbert cases) in serious crimes after a significant interval of time, and in the absence of already appointed counsel. The Supreme Court of the United States has not applied the principle of the Wade and Gilbert cases in such circumstances. Until we have more guidance than at present about the scope of necessary application of these cases, we shall regard them as not intended to apply to facts like those in the case at bar.
. 388 U.S. at 227, 87 S.Ct. at 1932.
. Id. at 228, 87 S.Ct. at 1933 (emphasis added).
. Id. at 229, 87 S.Ct. at 1933 (emphasis added).
. Id. at 230, 87 S.Ct. at 1934.
. Rivers v. United States, 400 F.2d 935 (5 Cir. 1968).
. 294 F.Supp. 286 (D.D.C., November 4, 1968). Judge Gesell said in part:
Many different situations occur on our*1283 streets daily which, as a practical matter, warrant if not require the police to present a suspect to a complaining witness shortly following detention or arrest. Indeed, such confrontations often occur even without any special police effort to bring them about. Defense counsel cannot always be riding in police cruisers. If police are no longer able to get identification confrontation promptly while the complainant’s recollection is fresh, a drastic change in police procedures must take place. The police need greater flexibility than an absolute application of the Wade ruling as presently drawn appears to portend.
The Court fully recognizes that hazards are present in immediate one-man confrontations but such confrontations also have benefits in terms of their relation to effective police work and as a safeguard to preventing false accusation. If there were some other practical way of handling identification matters promptly without fear of unwarranted suggestion, it of course should be used exclusively, but there is no such technique available.
96 Daily Wash.Law Rep. 2041, 2044 (Dec. 13, 1968).
. 388 U.S. at 237, 87 S.Ct. at 1937.
. In a footnote, the Court commented that
Although the right to counsel usually means a right to the suspect’s own counsel, provision for substitute counsel may be justified on the ground that the substitute counsel’s presence may eliminate the hazards which render the lineup a critical stage for the presence of the suspect’s own counsel.
Id. n. 27.
. 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
. See the discussion in Wade, 388 U.S. at 230-237, 87 S.Ct. 1926.
. Text at note 15, supra.
. We wish to make clear that the holding of this case approves only those on-the-scene identifications which occur within minutes of the witnessed crime. Cf. Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968) ; Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104 (decided December 13, 1968).
. See Biggers v. Tennessee, 390 U.S. 404, 407, 88 S.Ct. 979, 19 L.Ed.2d 1267 (dissenting opinion of Douglas, J.) ; Wright v. United States, 131 U.S.App.D.C. 279, 404 F.2d 1256 (decided January 31, 1968) ; Wise v. United States and Bates v. United States, supra note 20.
. Wise v. United States, supra note 20, 127 U.S.App.D.C. at 282, 383 F.2d at 209.
. Stovall v. Denno, supra note 2, 388 U.S. at 302, 87 S.Ct. at 1972.
. Wise v. United States, supra note 20.
. As our recent decision in Clemons v. United States, 133 U.S.App.D.C. -, 408 F.2d 1230 (decided December 6, 1968) (en banc), makes clear, considerations bearing on the actual reliability of an identification are relevant only to a determination of whether there was an “independent source” for an identification made at or after an unnecessarily suggestive confrontation. Even then, the question is not whether the identification was ae-curate in fact, but whether the witness was likely to make an accurate identification. Id. pp, - , - - -, 408 F.2d 1237-1238, 1248-1250.
. Stovall v. Denno, supra note 2, 388 U.S. at 302, 87 S.Ct. 1967.
. See text at note 20, supra.