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July 27, 1976

UNITED STATES of America, Plaintiff,
Robert BARNES et al., Defendants

The opinion of the court was delivered by: CURTIN

On November 7, 1974, a federal grand jury returned two one-count indictments charging Robert Barnes with violations of 21 U.S.C. ยง 841(a)(1), in that he distributed controlled substances. Indictment CR-74-293 charged defendant Barnes alone, and indictment CR-74-294 also named Marilyn Folmar as codefendant.

 The defendants have moved for the suppression of evidence pertaining to the identification of the defendants by Deputy Deborah Wilson, the Government's main witness in these cases. A hearing was held on October 6, 1975. The hearing revealed this testimony.

 Deborah Wilson, a Niagara County Deputy Sheriff, was on special assignment as an undercover narcotics agent with the Drug Enforcement Administration [hereinafter DEA] on October 3, 1974. At about 12:15 a.m., she was driving on Genesee Street in Buffalo, New York with Raymond Badgett, an informant, when an individual "flagged" her over to the side of the road. (Transcript of Suppression Hearing [hereinafter Tr.] at 4). The black male who had stopped them, later identified as Robert Barnes, got out of his car and approached Deputy Wilson's car on the passenger side. This individual, alleged to be Barnes, told Deputy Wilson that he "had some good stuff" and asked if they wanted to purchase any. He then directed them to meet him in another part of the city. (Tr. at 5, 6).

 About twenty minutes later, the same parties met in a restaurant parking lot. The individual identified as Mr. Barnes got into the back of Deputy Wilson's car, gave her a glassine bag and she gave him $15. (Tr. at 9). The seller then gave the Deputy a phone number at which he could be reached for further purchases.

 Arrangements were made with the seller for another meeting later that same morning. At approximately 3:30 a.m., the agent and her companion, Badgett, arrived at the bar and ordered drinks. Shortly thereafter, the agent observed the seller and a female companion being stopped by the Buffalo police. (Tr. at 24). The seller and his companion, later identified as defendant Folmar, entered the bar and joined the agent and Mr. Badgett. The conversation lasted between ten and thirteen minutes. (Tr. at 25). At the seller's direction, his female companion, later identified as Marilyn Folmar, went to the ladies' room with Deputy Wilson and sold her some narcotics. The women returned to the table and the seller and his female companion then left the bar.

 Later in that same day, Deputy Wilson returned to DEA headquarters and was shown two pictures, one "mug shot" of each of the defendants, front and profile views. She identified these photos as being those of the sellers of drugs with whom she had dealt earlier in that day.

 The prosecution wishes to utilize the testimony of Deputy Wilson as to her identification of the defendants. Not only does the prosecution seek to have Deputy Wilson make an in-court identification, but also the Government wishes to introduce testimony concerning her out-of-court photographic identification. (Tr. at 45; Government's Memorandum at 6, 12).

 Conceding that the viewing of a single photograph was suggestive, the prosecution argues that the controlling consideration in determining if in-court and out-of-court identification testimony should be allowed is ". . . whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199 [93 S. Ct. 375, 382, 34 L. Ed. 2d 401] (1972). The defendants argue that while such a test may be appropriate for determining the admissibility of the in-court identification, the out-of-court identification should be excluded per se once a determination is made that it is unnecessarily and impermissibly suggestive.

 The problem originates with the Supreme Court's ruling that identification testimony of lineups conducted outside of the presence of counsel would be excluded from trial automatically. United States v. Wade, 388 U.S. 218 [87 S. Ct. 1926, 18 L. Ed. 2d 1149] (1967); Gilbert v. California, 388 U.S. 263, 272-73 [87 S. Ct. 1951, 18 L. Ed. 2d 1178] (1967). That Court reasoned such a per se exclusionary rule was necessary ". . . to assure that law enforcement authorities will respect the accused's [newly enunciated] right to the presence of his counsel at the critical lineup." Gilbert v. California, supra, at 273 [87 S. Ct. at 1957]. The Court, concerned by the great potential for suggestiveness and the inherent hazards of eyewitness identification, ruled that a post-indictment lineup was a "critical stage" of the prosecution at which the accused was entitled to assistance of counsel. Id. at 229-37 [87 S. Ct. 1951]

 However, the right to assistance of counsel has not been extended to a witness's viewing of a photographic display. United States v. Counts, 471 F.2d 422, 425 n.2 (2d Cir. 1973); United States v. Johnson, 467 F.2d 630, 639 (2d Cir. 1972); United States v. Bennett, 409 F.2d 888, 899-900 (2d Cir.); cert. denied, 396 U.S. 852 [90 S. Ct. 113, 24 L. Ed. 2d 101] (1969). But, there exists independent of any right to counsel the possibility that the photographic identification was "so unnecessarily suggestive and conducive to irreparable mistaken identification that [a defendant] was denied due process of law." Stovall v. Denno, 388 U.S. 293, 302 [87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199] (1967). This due process right actually poses several questions. First, was there a due process violation? Second, if there was, will testimony of such a pretrial identification be allowed at trial? Third, if there was a due process violation, will the witness be allowed to make an in-court identification? The Second Circuit recently discussed the problems in a quite similar factual setting. Brathwaite v. Manson, 527 F.2d 363 (2d Cir. 1975). There, a police officer, Trooper Glover, who had made a purchase of narcotics from a black man, described the seller to a fellow officer who then selected Brathwaite's picture and presented it to Officer Glover, who identified the man as the person from whom he had purchased drugs. At trial Officer Glover made an in-court identification of the defendant and also testified as to the photo identification. Id., at 364-365. The Government conceded that exhibition of the single photo was impermissibly suggestive, but defended testimony as to the pretrial identification as being proper under Neil v. Biggers, supra. In Neil, Justice Powell seemed to open the door to the introduction at trial of testimony of suggestive pretrial identifications. Justice Powell ruled that "the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification'" and concluded:

While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of "irreparable" it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.
Neil v. Biggers, supra, 409 U.S. at 198 [93 S. Ct. at 381], cited in Brathwaite v. Manson, supra, at 367, 368.

 In our case, the Government argues that the "very substantial likelihood of misidentification" test should be applied as a basis for admitting testimony as to the pretrial photo identification. After an arduous explication of the major cases in Brathwaite, Judge Friendly concluded that the Neil case involved an identification that had occurred before the Wade-Gilbert-Stovall trilogy in 1967, and that the Neil case was applicable only to pretrial pre-Stovall suggestive photographic identifications, and that for post-Stovall cases "evidence of an identification unnecessarily obtained by impermissibly suggestive means must be excluded under Stovall. . .. " Brathwaite v. Manson, supra, at 371. Judge Friendly concluded in this fashion:

No rules less stringent than these [per se exclusion of unnecessarily and impermissibly suggestive pretrial identifications and exclusion of subsequent in-court identifications that also give rise to substantial likelihood of irreparable misidentification] can force police administrators and prosecutors to adopt ...

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