Question: Will a witness’ show-up identification be suppressed if a court finds that law enforcement’s procedures for the identification were suggestive?
Quick answer: Maybe not. If, based on the totality of the circumstances, the identification was otherwise reliable, a court might not suppress the identification as unduly suggestive.
Facts: Minutes after 12-year-old N.S. got home from school, he heard a loud banging on the back door of his house. He looked out to see two young black men standing outside the door, with a third person waiting on the street in an older-model metallic red car. The men were wearing hooded sweatshirts in red, green, and blue. N.S. opened the door a crack, and all three men eventually entered the home. N.S. told them, “Take what you want, just don’t kill me.” They took two video game systems, storage racks of video games, and a large flat-screen TV. The men wrapped the items in a green blanket. Before they left, they told N.S. to lie on the floor. At that point, N.S. got a better look at the man in the green hoodie, Omearo Beaver. Beaver’s hoodie had a New York Jets emblem on it, and his pants had green striping. As soon as N.S. heard the men pull off, he called 911.
A detective heard the dispatcher announce the crime over the radio, and he drove to a nearby apartment complex that he knew to have a lot of crime. He watched a red metallic car pull into the lot. Two younger black men in red and green hoodies got out of the car and opened the trunk. The detective got out of his car, drew his weapon, and told the men to get down. Two more officers arrived shortly after, and once the scene was secure, the detective looked into the opened car trunk. He saw two video game systems, several video games, and a green blanket. As one of the other officers patted down Beaver, he felt large bulges in his jacket and pants pockets. The officer found jewelry, wires for a game system, a watch box, watches, and N.S.’s mother’s driver’s license.
Thirty to 40 minutes after N.S. called 911, police arrived at his house with two suspects and asked him if he could identify them. Looking at the suspects from a window of his home, N.S. identified them as two of the three intruders. Beaver filed a motion to suppress the show-up identification because it was overly suggestive and unreliable.
Why the case is important: The court of appeals held that the show-up identification was not overly suggestive and unreliable even though there were some differences in N.S.’s testimony from pretrial to trial. For example, N.S. testified at trial that the police told him they had “possible suspects” for him to identify, but at the pretrial hearing, he explained that the officers told him they found “the suspects” and were bringing them back for identification. Still, the court looked at the totality of the circumstances and found that, even if the show-up ID was suggestive, N.S.’s identification was reliable because of the specific description he gave to the dispatcher and because of the short time between the crime and the later identification. Plus, any suggestiveness of the show-up ID was harmless because officers found all of the stolen items in Beaver’s possession, including N.S.’s mother’s license.
Keep in mind: Show-up identifications are a helpful option for law enforcement to find a suspect, but they can easily become suggestive. So even in the heat of the moment, make sure to be as objective as possible when speaking to a witness about making an identification. Also, try to corroborate as many details from the victim or witness statement as you can. Corroborating the victim’s version of the crime will help keep the show-up ID from being suppressed even if a court finds your procedure was suggestive.
to read the entire opinion.