a stop by police, and police conduct preceding petitioner's arrest was proper.
b. Showup Procedure
Petitioner claims that the showup procedure subsequent to an illegal stop is "fruit of the poisonous tree," Wong Sun v. United States, 371 U.S. 471, 488, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), and, thus, inadmissible at trial. He also contends that police used an unduly suggestive showup procedure to secure a positive identification and petitioner's subsequent arrest.
Because this Court has established the legality of petitioner's stop and detainment by police, the showup is not per se inadmissible under the Wong Sun doctrine. The Supreme Court, in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), set forth the standard for admitting identification evidence at trial. In order to violate due process, an identification procedure used by police "must create a very substantial likelihood of misidentification." Id. at 198 (citation omitted); Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987). Under this standard, even an unnecessarily suggestive identification of a suspect will be admissible if the totality of the circumstances indicates that the identification was reliable. Neil, 409 U.S. at 199.
In addition, the Supreme Court, in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), narrowly defined a suggestive identification to include, inter alia, when "all in the lineup but the suspect were known to the identifying witness, [or] the other participants in a lineup were grossly dissimilar in appearance to the suspect, [or] only the suspect was required to wear distinctive clothing which the culprit allegedly wore . . . ." Id. at 233; see Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992).
In the case at hand, Brown observed petitioner and his co-defendant during at least two separate intervals of time. Although the robbery occurred at night, Brown had the opportunity to directly observe petitioner for at least one or two minutes in the illuminated cab. Police officers, relying on Brown's descriptions, located and temporarily detained both suspects within ten minutes of the crime. Moreover, petitioner's assertion that the officers seized him while he was standing among a crowd of thirty or forty other black males dressed in similar, non-distinctive clothing only reinforces the accuracy and reliability of Brown's description. Given these facts, this Court finds that the descriptions were reliable and that there is no evidence from the totality of the circumstances that petitioner's showup, resulting in Brown's positive identification of petitioner, was unduly suggestive.
This Court thus finds that the police stop and temporary detainment of petitioner was within constitutional boundaries. Additionally, the showup procedure used to secure a positive identification was not unduly suggestive and consequently admissible. Accordingly, habeas relief is denied on these grounds.
3. Claim That Petitioner Did Not Receive A Fair Trial
Petitioner claims that his Sixth and Fourteenth Amendment rights to a fair trial were violated when a member of the jury allegedly saw him being led into the courtroom in handcuffs. Generally, a defendant has the constitutional right to appear before a jury free of shackles. See United States v. Thomas, 757 F.2d 1359, 1363 (2d Cir.) (citation omitted), cert. denied, 474 U.S. 819, 106 S. Ct. 67, 88 L. Ed. 2d 54 (1985). However, the Supreme Court has held that in some cases the use of shackles or gags on a criminal defendant during his trial is constitutionally permissible. Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970); Estelle v. Williams, 425 U.S. 501, 505, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976) (citation omitted); Thomas, 757 F.2d at 1363.
In the instant case, petitioner was neither shackled nor gagged during his trial. Although petitioner contends that he was seen in handcuffs by a juror while he was being led into the courtroom, the trial record does not contain any evidence supporting this contention. Because there was only one time during the trial that the jury room door was open, merely creating the possibility of jurors viewing petitioner in handcuffs, he fails to present proof that any jurors were prejudiced by the sight of him in handcuffs.
Moreover, handcuffing is generally not considered an unusual restraint, but part of routine security measures. United States v. Diecidue, 603 F.2d 535, 539 (5th Cir. 1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 781 (1980); Jones v. Gaither, 640 F. Supp. 741, 747 (N.D. Ga. 1986). Thus, even if a juror had seen petitioner in handcuffs, this Court holds that it would not have been so prejudicial as to require the granting of habeas relief.
For the aforementioned reasons, petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
July 29, 1992