United States ex rel. Williams v. LaVallee

• Decision Date: 10 September 1969
• Docket Number: Docket 33160.,No. 623,623
• Citation: 415 F.2d 643
• Parties: UNITED STATES of America ex rel. Leroy WILLIAMS, Relator-Appellant, v. J. Edwin LaVALLEE, Warden of Clinton Prison, Dannemora, N. Y., Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

415 F.2d 643 (1969)

UNITED STATES of America ex rel. Leroy WILLIAMS, Relator-Appellant, v. J. Edwin LaVALLEE, Warden of Clinton Prison, Dannemora, N. Y., Respondent-Appellee.

No. 623, Docket 33160.

United States Court of Appeals Second Circuit.

Argued June 4, 1969.

Decided September 10, 1969.

Thomas F. Daly, New York City, for relator-appellant.

Arlene R. Silverman, Deputy Asst. Atty. Gen., of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., for respondent-appellee.

Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

WATERMAN, Circuit Judge:

At approximately 2:20 A. M. on May 5, 1966, armed Negro bandits robbed the Western Union office on Hunts Point Avenue in the Bronx, New York. Several minutes later, two New York City police officers, Patrolman Francis Murphy and Sergeant Frank Basile, cruising in a police radio car in the precinct adjacent to the one in which the robbery occurred, heard an alarm broadcast informing of the holdup. A second broadcast shortly followed in which the perpetrators of the robbery were described as two male Negroes who had escaped in a light colored late model automobile, possibly a yellow Ford. Just prior to hearing this second alarm the policemen had observed a white Oldsmobile occupied by two males traveling away from the area where the reported robbery had taken place.

The officers followed this vehicle for several blocks. While doing so Sergeant Basile asked for a further description of the robbers from the Police Communications Bureau. The response received described them as two male Negroes, one wearing a short white coat, the other a dark coat. The officers observed that the occupants of the white Oldsmobile fitted this description. As the police cruiser came abreast of the Oldsmobile Sergeant Basile ordered the driver to pull over. At first the order was disregarded, but the second time it was given it was obeyed.

When the officers approached the car they saw that both of the occupants had guns. The two men were arrested for unlawful possession of weapons. The defendants were immediately searched, and Patrolman Murphy took from them two five dollar bills, $11.37 in loose change, and several rolls of coins. Rolls of coins were also discovered on the front seat of the car. Subsequent investigation disclosed that the vehicle occupied by defendants had been reported to the police as having been stolen.

The two men were then taken to the stationhouse and were placed in a room with several detectives, none of whom were Negro. The Western Union clerk from the robbed office was brought into the room and he made a positive identification of the two men as the men who had committed the robbery. This identification was made less than an hour after the event. On the following day, the clerk picked the same men out of a lineup and he also identified them as the robbers at the trial.

The two men were tried in the Supreme Court, Bronx County, New York. The clerk testified that the robbery took from three to four minutes. He said that the two armed men entered and demanded all the money in the office, and that they also told him to make out four American Express money orders for $25.00 each. He appeared to comply but actually quite coolly made out the orders for only 25 cents each. He testified that the robbers fled in a yellow Oldsmobile.¹ The money the officers found on the defendants and in the car at the time of the arrest corresponded to the amount stolen, and was admitted into evidence at the trial.

The two men were convicted of robbery in the first degree, of grand larceny, of felonious possession of a dangerous weapon, and of assault. The longest of their concurrent sentences was one of fifteen to thirty years. The conviction was affirmed on appeal, People v. Alston, 30 A.D.2d 641, 291 N.Y.S.2d 772 (1968). Leave to appeal to the New York Court of Appeals was denied.

Having exhausted his state remedies, the appellant in this case, Leroy Williams, sought a writ of habeas corpus in the United States District Court for the Northern District of New York. His habeas petition alleged that (1) the police station identification violated the due process clause of the Fourteenth Amendment; (2) there was no probable cause for the arrest; and (3) even if there were probable cause the search and the resulting seizure of the guns and coins was unlawful. Judge Foley denied the writ and we affirm.

The challenged identification occurred before the United States Supreme Court decisions in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) so the standard that must be applied to the identification procedure is that of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). This court stated in United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2 Cir.), cert. denied, 395 U.S. 983, 89 S.Ct. 2145, 23 L.Ed.2d 771 (1969) that an identification violates due process only when "`on the totality of the circumstances surrounding' the confrontation" it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 406 F.2d at 218. As was indicated in Rutherford and subsequent cases, see e. g. United States ex rel. Davis v. Follette, 410 F.2d 1135 (2 Cir. 1969), this is a very difficult test to meet.

The present case is similar to Rutherford in several particulars. In both cases a robbery victim who had had a relatively short time to view the robbers made an identification of Negro suspects in a situation where they were the only Negroes present. The appellant contends, and we concede, that there were several factors present in Rutherford not present here, and that those factors helped convince the court there that the identification of Rutherford was a reliable one. The most important of these distinguishing factors is the one that the victim in Rutherford could give a detailed description of the single robber while here the Western Union clerk could only describe the robbers as two Negroes, one wearing a white coat, one a dark coat. Also in Rutherford, the victim viewed several hundred photographs and on at least four different occasions saw other suspects whom she failed to identify; here there is no indication that the Western Union clerk was ever shown any other suspects prior to being shown the defendants.

Nevertheless, despite these differences, there is a factor present here which convinces us that there was no due process violation. Here, the identification was made almost immediately after the alleged robbery, not, as in Rutherford, several days later. Therefore, not only is the probable accuracy of the identification much more likely, but also as Judge (now Chief Justice) Burger has said, an immediate confrontation is desirable for it "may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh." Bates v. United States, 132 U.S.Ct.App.D.C. 36, 38, 405 F.2d 1104, 1106 (1968). This need of the police to know as soon as possible whether they have the "right...