State v. Ponce, C78-08-12637

• Decision Date: 09 November 1981
• Docket Number: No. C78-08-12637,C78-08-12637
• Citation: 635 P.2d 1042,54 Or.App. 581
• Parties: STATE of Oregon, Respondent, v. Michael Lee PONCE, Appellant. ; CA 18043.
• Court: Oregon Court of Appeals

Page 1042

635 P.2d 1042

54 Or.App. 581

STATE of Oregon, Respondent, v. Michael Lee PONCE, Appellant.

No. C78-08-12637; CA 18043.

Court of Appeals of Oregon.

Argued and Submitted Jan. 30, 1981.

Decided Nov. 9, 1981.

John Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Richard David Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before BUTTLER, P. J., and WARDEN and WARREN, JJ.

BUTTLER, Presiding Judge.

Defendant appeals from his convictions for the crimes of assault, attempted sodomy, kidnapping and robbery arising out of an episode in which a hitchhiker riding in a vehicle driven by defendant was slashed in the face with a knife, deprived of his liberty, ordered to engage in oral sex with a third passenger and ultimately forced to hand over his wallet. Following his conviction in his first trial, defendant appealed. See State v. Ponce, 43 Or.App. 665, 603 P.2d 1243 (1979), where we held that the stop of defendant's vehicle was unlawful and that defendant's motion to suppress physical evidence seized at the time of the stop should have been granted. We reversed and remanded for a new trial.

Prior to the new trial, defendant filed two motions to suppress. The first sought suppression of the victim's show-up identification of defendant in the police station on the ground that the identification was the direct product of the unlawful stop of defendant, and also to suppress the courtroom identification of defendant on the ground that it was tainted by the prior unlawful show-up identification. The second motion was to suppress the show-up identification on the ground that the identification procedures were unduly suggestive, ¹ and to suppress the in-court identification as being tainted by the show-up. The trial court denied both motions. On appeal, defendant assigns error to the denial of his motions to suppress both the out-of-court and the in-court identifications. We affirm.

IN-COURT IDENTIFICATION

The question of whether an in-court identification may be regarded as the "fruit" of an unlawful arrest was resolved in United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). In Crews, the Court held that a courtroom identification need not be suppressed as the "fruit" of a concededly unlawful arrest, but was admissible for the following reasons: (1) the victim's presence in the courtroom was not the product of police misconduct, because her identity was known before any official misconduct occurred; (2) the illegal arrest did not in any way affect the victim's ability to give accurate identification testimony, and (3) the presence of the defendant himself in the courtroom was not suppressible, for the illegality of the initial detention could not deprive the government of the opportunity to prove defendant's guilt through the introduction of evidence wholly untainted by the police misconduct.

Defendant attempts to distinguish Crews, because there the intervening photographic and show-up identifications were not contended to be unduly suggestive. That is quite a different point. As in Crews, here the victim's presence in court was not the product of the unlawful stop. The stop did not affect the victim's ability to give accurate identification testimony based on his view of defendant prior to the stop. Defendant's presence in the courtroom is not a suppressible "fruit" of the misconduct, because the state is entitled to prove defendant's guilt through reliable identification unrelated to the unlawful stop. Therefore, the courtroom identification is not suppressible as a "fruit" of the unlawful stop, under the rationale of Crews.

SHOW-UP IDENTIFICATION

A. AS POISONOUS FRUIT

With respect to the out-of-court show-up identification, Crews is helpful, but not dispositive. It is helpful because a majority of the Court agreed that the rationale of Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), foreclosed the claim that a defendant's face can be suppressed as the "fruit" of an unlawful arrest. That would seem to end the matter but for the fact that the parties conceded, and all members of the Court appeared to agree, that the photographic and line-up identifications were suppressible as "fruits" of the Fourth Amendment violation-the defendant had been taken into custody without probable cause.

If the Court's apparent acceptance of that proposition is taken at face value, there might be a problem here, because defendant contends he would not have been in custody if it had not been for the unlawful stop and would not have been available for the show-up identification by the victim at the police station. Therefore, the argument goes, defendant's show-up identification by the victim was a "fruit of the poisonous tree" and should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, the Court in Wong Sun stated:

" * * * We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959). * * * " 371 U.S. at 487-8, 83 S.Ct. at 417.

The question, then, is narrowed to whether defendant's identification was the result of "exploitation" of the initial illegality, or whether it was derived from "means sufficiently distinguishable to be purged of the primary taint." This is not a case where the police stopped the defendant unlawfully and, without more, took him off to the police station to see if the victim could identify him. Neither is this case in its present posture ² one where the police caused the defendant to yield something of evidentiary value, such as fingerprints, during an illegal detention. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), held fingerprints so obtained were suppressible. ³ Rather, it is a case where an accurate description of defendant was given by the victim, was broadcast over the police radio and was received by the officer who stopped defendant on the highway. Although the officer did not stop defendant on the basis of the description, after the stop the officer realized that defendant matched the description and arrested him at the scene. ⁴ It was not until after defendant's arrest that he was taken to the police station, where he was identified by the victim.

The police did not obtain defendant's description from the "primary illegality"-they already had it-and the victim had a visual perception of defendant, which was not related to the stop. It is true that the stop permitted the officer to fit defendant to the broadcast description, but once that matching was accomplished the officer had probable cause to arrest defendant, which he did. Defendant's arrest under these circumstances constituted a sufficient intervening circumstance between the stop and the show-up identification to purge that identification from the primary taint.

We reach that conclusion recognizing that there may be cases where suppression of the defendant's pretrial identification may be the only meaningful sanction for deterring particular police conduct which violates the constitutional rights here involved. We also recognize that the deterrent effect of suppression is, like any sanction, largely dependent upon the degree of certainty that the sanction will follow from the conduct to be deterred. The less certainty that the sanction will follow, the less its deterrent value and, therefore, the less justifiable the sanction.

Those counter-currents require accommodation by the courts in an effort to approach reasonable certainty of the sanction without dilution of individual rights. Where, as here, the question is one of physical identification of the defendant, the temptation is to say that a defendant's face can never be "considered evidence suppressible as the 'fruit' of an illegal arrest." United States v. Crews, supra, White, J. concurring, 445 U.S. at 478, 100 S.Ct. at 1253. That proposition has a nice ring to it, but is too pat. Suppose the defendant, like the defendant in Davis v. Mississippi, supra, is taken in by a police dragnet, and while in custody is identified by the victim in a line-up. On those facts, we should consider "the purpose and flagrancy of the official misconduct," Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), in deciding whether to impose the sanction.

By doing so, the certainty factor of the sanction might suffer, but not so much as individual rights would suffer if we did not do so. The point is that even though, as a general proposition, the flagrancy of the illegal police conduct is not a factor in determining whether physical evidence should be suppressed, because certainty of the sanction is desirable, there are cases where flagrancy of police conduct is relevant.

This case is one where that factor may legitimately be considered in determining what must be shown by way of intervening circumstances to dissipate the taint of the initial illegality. A minor intrusion requires less in the way of an intervening circumstance than a flagrant one. Brown v. Illinois, supra. We have said above that the officer's arrest of defendant on the scene after matching his appearance to the description given by the victim was sufficient to get the defendant to the police station for the show-up, notwithstanding the illegal stop. A Terry ⁵ type stop, by its nature, is considered...