U.S. v. Watson, 77-2199

• Decision Date: 24 November 1978
• Docket Number: No. 77-2199,77-2199
• Parties: 4 Fed. R. Evid. Serv. 241 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Ronald WATSON, Mack H. Banks and Willie Davis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 365

587 F.2d 365

4 Fed. R. Evid. Serv. 241

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Ronald WATSON, Mack H. Banks and Willie Davis,

Defendants-Appellants.

No. 77-2199.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 22, 1978.

Decided Nov. 24, 1978.

Paul Bradley and Robert Bailey, Chicago, Ill., for defendants-appellants.

Charles B. Sklarsky, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SPRECHER, TONE and WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Defendants Lawrence Ronald Watson, Mack H. Banks, and Willie Davis were found guilty of robbing ¹ the Second Federal Savings and Loan Association of Chicago of $17,145.00 on May 2, 1977. ² At issue are the post-arrest identifications of Watson and Banks, the exclusion of the testimony of defendants' cross-racial identification expert, the existence of probable cause for the arrest of Davis and the admission of his post-arrest statement, and, lastly, the court's rulings concerning the testimony of Davis' character witness, Muhammed Ali. We affirm.

Post-Arrest Identification of Watson and Banks

Watson and Banks contend that their post-arrest identifications by a bank employee were impermissibly suggestive. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The government concedes that the one-on-one "show up" identification in this case was inherently suggestive, but argues that other facts and circumstances establish that the procedure used was permissible and that the resulting identifications were reliable. We agree.

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), established a standard based on "the totality of the circumstances." Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), stressed the same totality without adopting a strict exclusionary rule. More recently, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), drawing from those prior cases concludes that "reliability is the linchpin in determining the admissibility of identification testimony." In testing reliability the Manson Court refers us to the factors set forth in Biggers, 409 U.S. at 199-200, 93 S.Ct. 375. We will briefly consider the application of each of those factors.

Within minutes of the robbery police arrived on the scene. A police broadcast alerted other police in the vicinity, one of whom spotted Banks and Watson, followed their car, observed them toss out a gun, and then made the arrest. This arrest is not questioned. Within two hours of the robbery, both Banks and Watson were positively identified at the police station by the bank employee as two of the robbers. These two defendants had been placed in a room with two police officers and viewed by the bank employees through a one-way window from an adjoining room. The trial court found, the government concedes, and we agree, that it was an inherently suggestive "show up."

This case is stronger than the prior cases we have mentioned because of the exigent circumstances justifying to some extent the way the identification was handled. The robbery had happened only a short time before and the search was on for all involved before their appearances could be changed, the area of necessary search broadened, or the apprehension of the perpetrators otherwise made more difficult. The quick identifications while the eyewitness' recollection was still fresh narrowed and advanced the police search for the other suspects. Similar justifications were not present in Biggers or Manson.

The opportunity for the identifying bank employee to see during the robbery was very good as to Watson and sufficient as to Banks. The identifying bank employee, one of the threatened victims, was in the center of the activity during the robbery. Both daylight and natural light illuminated the bank and its entrance during the fifteen minutes of the robbery.

The identifying bank employee was not an outside casual observer but an experienced teller with special identification training. Although one of the defendants wielded a sawed-off shotgun, the witness remained reasonably calm and paid attention to the defendants' appearances.

Good pre-identification descriptions of the defendants, considering the circumstances were given by the identifying bank employee prior to the "show up." For the most part the descriptions were accurate but to the extent that they varied as to a few details the variations were minimal and of no significance. Some generality in a description does not make the identification inadmissible. Israel v. Odom, 521 F.2d 1370, 1375 (7th Cir. 1975).

The identification by the bank employee of both Banks and Watson at the show up was positive and unequivocal. That six months later this same bank employee was somewhat less certain in court does not make the evidence inadmissible. Even the trial judge observed that the appearances of Banks and Watson in the court-room were "vastly different" than at the time of the "show up."

The length of time between the robbery and the identification at the police station was short, thereby insuring good recollection on the part of the witness.

We find that there could be no serious question about the reliability of the identifications and therefore they were properly admitted. ³

The Arrest and Post-Arrest Statements of Davis

Davis claims that Special Agent Gary Aaron of the FBI had no probable cause to arrest him. Probable cause as the phrase suggests is a matter of probabilities involving the factual, practical considerations of everyday life upon which reasonable, prudent men, not legal technicians act. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Ganter, 436 F.2d 364, 368 (7th Cir. 1970). That the arrest resulted from good police work does not suggest at the same time that there is a substantial question about probable cause.

A bank employee observed an E/Z Truck Rental van in front of the bank during the robbery. It was quickly surmised by the police that it was the getaway vehicle. At the time Watson and Banks were arrested, police found the rental receipt for the van and the identification used to rent the van in the name of an uninvolved person. An FBI agent, being advised about the robbery, went to that rental agency, got a description of the person who had rented the van in that borrowed name, and when Davis returned the van to the rental lot shortly after the robbery, the agent, seeing that Davis fit the description, arrested him as he attempted to leave without checking in at the rental office. We find that there was probable cause. ⁴ The claim of Davis that he was arrested on suspicion merely because he was a black male driving a rental truck conveniently overlooks the other facts and...