Matter of F.G.

• Decision Date: 25 November 1987
• Docket Number: No. 85-1265.,85-1265.
• Citation: 534 A.2d 297
• Parties: In the Matter of F.G., Appellant.
• Court: D.C. Court of Appeals

534 A.2d 297

In the Matter of F.G., Appellant.

No. 85-1265.

District of Columbia Court of Appeals.

Argued November 17, 1986.

Decided November 25, 1987.

Maureen T. Cannon, Public Defender Service, with whom James Klein and Jennifer P. Lyman, Public Defender Service, Washington, D.C., were on brief, for appellant.

Michele Giuliani, Asst. Corp. Counsel, with whom John H. Suda, Acting Corp. Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Corp. Counsel, Washington, D.C., were on brief, for appellee.

Before NEWMAN and STEADMAN, Associate Judges, and NEBEKER, Associate Judge, Retired.^*

NEBEKER, Associate Judge, Retired:

The only question presented in this appeal is whether appellant was entitled to a pretrial evidentiary hearing on his motion to suppress identification evidence. We hold that appellant's motion to suppress did not warrant an evidentiary hearing, because there was no material fact in dispute which, if decided in his favor, would form a basis for suppression of the identification. This being so, the trial court did not err in summarily denying the motion. Appellant's convictions of distributing phencyclidine (PCP) and marijuana in violation of D.C. Code § 33-541(a)(1) (1987 Supp.) shall therefore stand.

I

Pursuant to the Superior Court Juvenile Rules,¹ appellant timely filed a written pretrial motion to suppress his show-up identification by an undercover narcotics officer. The motion to suppress, which was predicated on appellant's claim that evidence of the identification was inadmissible at trial because the procedure used by the police was unduly suggestive and therefore unreliable, averred pertinently as follows:

1. Respondent F.G. was arrested on April 12, 1985, for an alleged sale of PCP to an undercover police officer. The arrest of respondent occurred directly in front of his home at 1238 Wylie Street, N.E.

2. Following a purchase of PCP in the 1200 block of Wylie Street, N.E., an undercover police officer radioed a description of the seller to two other M.P.D. officers. Respondent was subsequently arrested by these two officers and held for a period of minutes. Respondent states, on information and belief, that while he was being held, the undercover police officer drove by and identified respondent as the person who had sold PCP.

3. A search incident to arrest revealed neither PCP nor the pre-recorded M.P.D. funds used by the undercover officer to make the buy.

The remaining two paragraphs of appellant's motion to suppress the identification contained legal arguments in the vein of a memorandum of law.²

In response, the government filed an opposition to the motion to suppress which set forth in greater detail the facts underlying appellant's identification and arrest. In its opposition, the government stated that the undercover officer was driving through the 1300 block of Wylie Street, N.E., an area notorious for drug trafficking, when he noticed appellant sitting on a parked car. The officer stopped and asked appellant if he had any "boat," street jargon for PCP-laced marijuana. Appellant replied that he did and then told the officer to park his car. After doing so, the officer approached appellant and asked whether he could purchase "two" for $25.00. When appellant responded that he had only one, the officer handed him a pre-recorded $20.00 bill for which he received a foil packet. The officer then left the scene and broadcast appellant's description and location to an awaiting arrest team. Approximately two minutes later, the arrest team located a man (appellant) fitting the description who was sitting on a car parked in the 1200 block of Wylie Street. They then escorted him to the corner of Thirteenth and Wylie Streets where, by a radio transmission, he was identified by the undercover officer as the man who had sold the narcotics.³ Thereupon, appellant was arrested. The arrest occurred approximately four minutes after the illicit sale.

Appellant did not challenge the facts as stated by the government. And on such facts, the government asserted in its opposition that the on-the-scene identification of appellant by the undercover officer was admissible at trial. To this end, the government argued that the identification procedures employed were "fully in accord" with the standards enunciated by the Supreme Court in decisions such as Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972), as well as those standards as articulated in local court decisions. And citing, e.g., Stovall v. Denno, 388 U.S. 293, 301-04, 87 S.Ct. 1967, 1972-74, 18 L.Ed.2d 1199 (1967), the government maintained appellant had the burden of establishing that the procedures used were impermissibly suggestive and so conducive to irreparable misidentification as to render the identification's use at trial a violation of due process.

At a pretrial hearing on several defense motions, the motions court (Schwelb, J.) raised sua sponte the question whether appellant was entitled to an evidentiary hearing on his motion to suppress the show-up identification. During the extended colloquy which followed, appellant reiterated the challenges to the procedure he had made in writing, relying principally on his argument that show-up identifications, whether made by a police or civilian witness to the crime, are inherently suggestive and therefore unreliable. The court immediately disagreed, however, and pressed appellant for a more tenable basis for suppression of the identification. The court essentially reasoned that there was nothing unusual about this case one involving a policeman's identification of a suspect, just minutes after an undercover buy, while driving by the suspect as he is being detained by other officers — which might distinguish it from the many police "ride-by" identification cases in which suppression had been routinely denied.

Appellant responded only that an evidentiary hearing was warranted in this case because of the inherent suggestivity of the identification procedure used, coupled with the fact that evidence might be elicited at a hearing which would prove the procedure was indeed impermissibly suggestive. With regard to the latter contention, appellant basically argued that without a hearing he would not know the "additional facts which distinguish this [case] from your average run-of-the-mill narcotics purchase and show-up."

The court ruled at the close of the hearing that appellant was not entitled to a pretrial evidentiary hearing on the admissibility of the show-up identification. The court followed its oral ruling with a written opinion and order. It may be summarized as follows.

After describing a typical undercover drug purchase and ride-by identification, the court, citing Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), noted that it is the common practice of courts in this jurisdiction to conduct pretrial evidentiary hearings on motions to suppress identification evidence. Nevertheless, the court then stated its view that judicial resources cannot accommodate evidentiary hearings "in every case of a prompt on-the-scene identification by an undercover officer." The court also observed that hearings in such cases provide an inappropriate mechanism for defense discovery and rarely, if ever, result in suppression of the identification.

On the merits, the court began its written analysis with a discussion of Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981), in which the Supreme Court held that the due process clause of the fourteenth amendment does not require state criminal courts to conduct a hearing out of the jury's presence whenever there has been a challenge to the admissibility of identification evidence. While acknowledging that the Court in Watkins only went so far as to hold there is no constitutional right per se to such a procedure, and indeed suggested that the procedure "may often be advisable," id. at 349, 101 S.Ct. at 659, the court found the identification method used in this case less suggestive than that used in Watkins where an evidentiary hearing was deemed unnecessary.

The court then rejected appellant's thesis, advanced on the authority of Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969), that show-up identifications are unreliable because they are inherently suggestive. While conceding that show-ups are in fact suggestive, the court refused to accept the notion that this, in and of itself, makes them unreliable. The court noted that in Russell it was held that evidence of a prompt show-up identification by a civilian witness was admissible at trial. The motions court added that the reliability of a show-up identification is bolstered where, as here, the witness is a policeman who is far less likely than a civilian witness to be influenced by the fact that the suspect is in custody. Further, the court declared that "[i]t defies common sense to suggest that an undercover officer who has bought narcotics from a man only minutes earlier should not be permitted to view the suspect at once." In this regard, the court observed, the allowance of immediate identifications by undercover officers would assure that the innocent are not mistakenly detained, as well as facilitate police efforts against the city's pernicious drug trade. The court also focused on the analogous case of People v. Leftwich, 82 Misc.2d 993, 372 N.Y.S.2d 888 (1975), in which it was also held that a pretrial suppression hearing was not required on a challenge to the admissibility of an undercover officer's show-up identification.

In concluding that appellant was not entitled to an evidentiary hearing on his motion to suppress, the court declared:

[W]here, as here, the respondent alleges no more than...