U.S. v. Kessler

• Decision Date: 19 November 1982
• Docket Number: No. 82-1544,82-1544
• Citation: 692 F.2d 584
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Stephen Michael KESSLER, Donald Gene Booth, Inez Eaton Guerrero, Patrick John O'Shea, and Cynthia Lorraine, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 584

692 F.2d 584

UNITED STATES of America, Plaintiff-Appellant, v. Stephen Michael KESSLER, Donald Gene Booth, Inez Eaton Guerrero, Patrick John O'Shea, and Cynthia Lorraine, Defendants-Appellees.

No. 82-1544.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 1, 1982.

Decided Nov. 4, 1982.

As Amended Nov. 19, 1982.

Jack C. Wong, Asst. U.S. Atty., Portland, Or., for plaintiff-appellant.

Stephen Crew, Ronald Hoevet, Portland, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before KENNEDY and SKOPIL, Circuit Judges, and JAMESON, ^* District judge.

KENNEDY, Circuit Judge:

This case is before us a second time, the cause having been remanded for the trial court's further determination respecting the admissibility of certain eyewitness testimony in United States v. Booth, 669 F.2d 1231 (9th Cir.1981). As we again find an inadequate basis for the trial court's suppression order, we reverse.

The facts of the case are set forth in our earlier opinion. The eyewitness testimony is from bank tellers asked to view a suspect police returned to the bank in handcuffs an hour after the crime was committed. Appellee Booth states it is crucial to his position that the eyewitnesses filled out identification questionnaires within fifteen to twenty minutes after the robbery and again after the show-up, and that typically the identification questionnaires filled out before viewing the suspect were vague and general while the identification cards filled out afterwards gave much more specific descriptions.

As an initial matter, the trial court suppressed the eyewitnesses' testimony apparently on the basis that the show-up was improper insofar as no exigent circumstances required Booth to be handcuffed and taken back to the bank. 669 F.2d at 1239.

We reversed in reliance on our cases holding that a show-up is a permissible means of identification without requiring a showing of exigency. Id. (citing United States v. Williams, 626 F.2d 697, 703 (9th Cir.), cert. denied, 449 U.S. 1020, 101 S.Ct. 586, 66 L.Ed.2d 482 (1980) and United States v. Coades, 549 F.2d 1303, 1305 (9th Cir.1977)). A show-up can be a salutory police practice. Although a show-up is more suggestive than a lineup because the suspect is the only person presented for identification, returning a suspect to the scene of a crime shortly after its commission to determine whether eyewitnesses identify him as the perpetrator permits the witnesses to make the determination while the image of the perpetrator is still fresh in their minds, and may lead to the expeditious release of innocent suspects. See United States v. Coades, supra, 549 F.2d at 1305.

We remanded to the trial court with instructions to determine "whether in the totality of circumstances the 'procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " 669 F.2d at 1239 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968) and United States v. Field, 625 F.2d 862, 865 (9th Cir.1980)). On remand, the trial court again suppressed the eyewitness testimony, and the Government filed this appeal pursuant to 18 U.S.C. Sec. 3731.

In contending that the trial court's order should be upheld, Booth advances three principal arguments. First, Booth contends that his display in handcuffs and accompanied by a large number of officers was inherently suggestive. Second, he contends that the police at one point referred to him as a "suspect," and that such a word is suggestive in itself. And third, he contends that the written descriptions on the identification cards filled out before and after he was displayed were so divergent that the show-up procedure must have been impermissibly suggestive. For reasons stated below, we find these arguments unpersuasive.

As an initial matter, we note that in most cases it is unavoidable that a show-up at the scene of a crime will be suggestive of guilt to a certain degree. Nevertheless, this court has found that show-ups are not objectionable unless "the 'procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " United States v. Booth, supra, 669 F.2d at 1239. Although at first blush it may appear that this standard says no more than that a procedure should be permitted unless it is impermissible the rule means that at least some level of suggestibility is legitimate. With this in mind, we turn to Booth's contentions.

First, Booth's contentions with regard to the differences between pre and post show-up identification questionnaires do not advance his cause. That the later descriptions were detailed and accurate cannot be used to show impermissible suggestiveness since one of the central and legitimate purposes of a show-up is to sharpen the recollections of eyewitnesses and to enable them to focus attention on details they may have otherwise overlooked. That descriptions become more detailed after a suspect is displayed in a show-up at a crime scene is intended as well as expected. See Manson v. Braithwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977) (listing the level of certainty demonstrated at the confrontation as an indicia of reliability to be weighed against the corrupting effect of suggestive identification); see also Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972). Though we must resolve challenges to identification procedures on a case by case...