Bean v. State

240 Md.App. 342

205 A.3d 26

Anthony BEAN

v.STATE of Maryland

No. 601, Sept. Term, 2017

Court of Special Appeals of Maryland.

March 28, 2019

Argued by: Adam J. Braig & Renee M. Hutchins (Paul DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Argued by: Todd W. Hesel (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

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

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, 93 S.Ct. 375, 34 L.Ed.2d 401 (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, 132 S.Ct. 716, 181 L.Ed.2d 694 (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, 132 S.Ct. 716.

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 BOLO constituted 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, 132 S.Ct. 716. 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, and capitalized 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 it to remain internal. Unbeknownst to Det. Bailey, the public relations office of the Baltimore City Police Department uploaded the BOLO onto several social media platforms later that day, including Facebook.³ Det. Bailey testified that he had no influence, even as the lead investigator, over the decision to place the BOLO on social media.

Ms. Perry testified that later that afternoon, her brother told her that he had seen a police flyer on Facebook concerning a robbery and carjacking that occurred the previous night. Ms. Perry recalled:

"My brother actually sent me something that he had saw [sic] on Facebook. Detective Bailey had, I think, put out, you know, a whatever, for – because the car was missing, and it was, like, a missing – ‘We're looking for these people.’ And the people that came up on the ad with my vehicle, they – three pictures were taken in the 7-Eleven, and I recognized the one gentleman."

She testified further that the person she recognized was wearing "a black-hooded sweatshirt."

Shortly after 5:00 p.m. on March 23, 2016, police located Ms. Perry's vehicle. Det. Bailey called Ms. Perry to report that they had located her vehicle and were sending it to the crime lab for additional analysis. To his surprise, Ms. Perry said that she had seen the BOLO on social media and recognized one of the men as one of the robbers. Det. Bailey arranged for Ms. Perry to come to the police station the next day for an interview.

3. The Interview

Before Ms. Perry's interview, officers patrolling the Cherry Hill area of Baltimore City stopped a woman wearing the same dress as the woman who used Ms. Perry's credit card in the 7-Eleven surveillance video. When questioned, the woman identified the two men with her in the surveillance footage, one of whom was Bean. Later that morning, Ms. Perry arrived at the Southern District police station. During the suppression hearing, defense counsel asked Det. Bailey what procedures he used during Ms. Perry's interview, and he responded:

...