Bean v. State, 601

ANTHONY BEAN v. STATE OF MARYLAND

No. 601

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

March 28, 2019

Motion to Suppress Out-of-Court Identification > Due Process > State Action

To ameliorate the risk of an incorrect identification, criminal defendants may invoke the Due Process Clause of the Fourteenth Amendment to combat "the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures." Webster v. State, 299 Md. 581, 599-600 (1984) (quoting Moore v Illinois, 434 U.S. 220, 227 (1977)). A criminal defendant must first demonstrate, however, that the identification was orchestrated or engineered by the actions of "law enforcement officers[.]" Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012).

Motion to Suppress Out-of-Court Identification > Due Process > State Action

Courts engage in "[t]he due process check for reliability" only if the defendant demonstrates "improper police conduct" in the form of "law enforcement officers us[ing] an identification procedure that is both suggestive and unnecessary." Perry v. New Hampshire, 565 U.S. 228, 238-39, 241 (2012). Otherwise, the reliability of the witness's identification is a question for the jury, leaving the defendant with the typical protections against unreliable evidence: the right to persuade the jury of the evidence's lacking reliability through the cross-examination of witnesses, general rules governing the admissibility of evidence, and jury instructions on "the fallibility of eye-witness identification." Id. at 233, 237.

Motion to Suppress Out-of-Court Identification > Due Process > State Action

With no evidence that police arranged for a victim to view an extremely suggestive flyer containing the defendant's photo, the Due Process Clause of the Fourteenth Amendment to the United States Constitution is not implicated. See Perry v. New Hampshire, 565 U.S. 228, 241 (2012).

Motion to Suppress Out-of-Court Identification > Due Process > State Action

Once a victim has already volunteered an out-of-court identification of the defendant based on her independent viewing of a suggestive Be On the Lookout flyer, it was not improper or unreasonable for police to use that flyer to confirm her identification. Cf. State v. Greene, ___ Md. App. ___, ___, No. 2199, September Term, 2018, slip op. at 3-15 (filed Jan. 31, 2019).

Circuit Court for Baltimore City

Case No. 116144037

REPORTED

Wright, Leahy, Raker, Irma S., (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, J. Appellant, Anthony Bean, moved to suppress the pre-trial identification in this case because, he argued, it resulted from an impermissibly suggestive procedure and was unreliable in violation of his right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. The Supreme Court has declared that the "primary evil" that impermissibly suggestive identifications procedures generate is the "very substantial likelihood of misidentification." Neil v. Biggers, 409 U.S. 188, 198 (1972). To invoke the protections of the Due Process Clause of the United States Constitution, however, a criminal defendant must first demonstrate that the eyewitness identification was "procured under unnecessarily suggestive circumstances arranged by law enforcement." Perry v. New Hampshire, 565 U.S. 228, 248 (2012) (emphasis added). Failure to show state action—that the police arranged the pre-trial identification—effectively ends the constitutional inquiry. Id. at 232-33.

Following an armed robbery and carjacking, the Baltimore City Police Department created an internal "be on the lookout" flyer ("BOLO") that showed images of the assailants and the missing vehicle, and stated the particulars of the crime. The BOLO was released on social media and seen by the victim's brother, who showed it to the victim, who then recognized her assailants on the BOLO. The victim informed the police that she had seen the BOLO and that she recognized her assailants on the flyer. The next morning, at the police station, police showed her the BOLO again to confirm her identification and then showed her a single photo of each assailant, including one of Bean. She confirmed for police that Bean was one of her attackers.

The suppression court denied the motion, finding that the release of the BOLOconstituted state action, and that the identification procedures were impermissibly suggestive. Nevertheless, after applying the Biggers reliability analysis, the Court found that the victim's identification was reliable and admissible into evidence. Bean was subsequently tried and convicted by a jury in the Circuit Court for Baltimore City. He noted a timely appeal, challenging the court's denial of the motion to suppress.

We hold that, although the BOLO was impermissibly suggestive, the Baltimore City Police Department did not arrange the victim's identification of Bean and, therefore, there was no state action. Absent "improper law enforcement activity," the Due Process Clause and its check on the reliability of witness identifications were not implicated in this case. Perry 565 U.S. at 238-39. We conclude, although on different grounds relied upon by the circuit court, that it was correct to deny Bean's motion to suppress.

BACKGROUND

A. The Motion to Suppress

On March 16, 2017, Bean moved to suppress the pretrial photo identification. The following facts are derived from the suppression hearing.

1. The Robbery and Initial Police Involvement¹

Ms. Perry testified that at around 10:00 p.m. on March 22, 2016, she parked her vehicle in the 1700 block of Johnson Street in Baltimore City and began walking toward her home. She said, "[it was] kind of dark out" but that there was "[a] little" street lighting.After walking about "50 feet or so" from her car, she observed three men, roughly 100 feet away, walking directly toward her. One of the men, who was wearing a hooded sweatshirt, "kind of, held back, [] I guess, like [a] lookout," about five feet away, while two other men, "both African-American gentlemen, about average height," approached her to effectuate the robbery. She believed that the lookout person, who was wearing a hooded sweatshirt, was a male because "he seemed tall, built bigger than, you know, a girl." When pressed, "are you certain it wasn't two males and a female," she responded that "it seemed to me like three males."

She explained that one of the men who approached her—the "main" robber—"got closer to me, probably about two feet [away]." She stated that "he seemed taller, bulkier, kind of chubby around mid-face. And he had a black hoodie on[.] . . . He, kind of, had, like, a shaved face a little bit." Ms. Perry noted that the other person who approached her was "average height [and] skinny[,]" but she was unable to provide other details because this person was wearing a mask and did not speak during the robbery.

During the robbery, the "main" robber demanded to know where her car was and threatened that he would "blow [her] brains out" if she did not cooperate. She pointed the assailants in the direction of her car, surrendered her "keys, and [] just, kind of, handed over everything." After handing over her belongings, a car "came down the road," which caused the assailants to "scatter[,]" giving Ms. Perry a chance to run to her house and call the police. She recalled that the entire interaction lasted "[p]robably about a couple minutes, two or three minutes." When asked about her state of mind at the time, Ms. Perry testified that she was "[t]errified. Scared for [her] life."

Officer Pennington from the Baltimore Police Department arrived at Ms. Perry's home 15-20 minutes after the robbery. At some point after Officer Pennington arrived, Ms. Perry exited her home and discovered that her vehicle had been stolen. She testified that she provided Officer Pennington with some initial details about the men who had robbed her, and then he escorted her to the police station where she spoke with a detective about the robbery.² That night, Ms. Perry canceled her credit cards by phone, and a representative informed her that her card had just been used at a local 7-Eleven.

2. The Police Flyer

The next morning, Detective William Bailey called Ms. Perry to obtain further details about the robbery. Ms. Perry told Det. Bailey that her credit card had been used at a nearby 7-Eleven. Det. Bailey and two other detectives went to the 7-Eleven and recovered the stolen credit card that was left there, along with a receipt detailing the transaction. Using the date and time of the transaction, Det. Bailey obtained the store's surveillance footage from the time of the purchase. The video showed two black males enter the store with a black female, then stand behind the female as she made a purchase with a credit card. Det. Bailey pulled still-frames of the three individuals shown in the video and created the BOLO to aid in identification of the suspects from the robbery. He also included two pictures of a red 2015 Toyota Rav4—the same color, make, and model of Ms. Perry's vehicle—and the instruction at the bottom in bold, underlined, red, andcapitalized font "FOR OFFICAL USE ONLY / LAW ENFORCEMENT SENSITIVE." In addition to his contact information, Det. Bailey included the following paragraph on the BOLO, just below the still-frame photos:

"In reference to an armed carjacking that took place in the 1700 Blk Johnson St on 3/22/16 @ 10:20pm, where a red 2015 Toyota Rav4 was taken, vehicle has raven & oriole sticker on the rear. This detective is attempting to identify the above individuals. Approach with caution, the individuals operating this vehicle should be considered armed and dangerous."

Det. Bailey sent the BOLO to all the other police department districts in Baltimore in the hope that other precincts could "possibly locate the car or maybe [identify] the individuals from prior contact." Det. Bailey testified that when he created the BOLO, he intended...