focused on the back of detective Galie's head and the driver's side window. Williams was not recorded by video or voice in either transaction.
Galie testified that the first purchase occurred shortly before noon on September 25. Roxanne Lumpkin approached the investigators' car as it pulled to the curb on Townsend Street. After she was unable to obtain drugs for the investigators, she got into the car and directed them to the corner of Detroit and Peckham Streets. There, she left the car, crossed the street, and met the defendant for 20 to 30 seconds. During this meeting, both officers viewed the defendant's face without obstruction from a distance of approximately 15 feet. They observed the defendant hand a package of suspected drugs to Lumpkin, who then crossed the street and handed the package to Officer Galie. Immediately after the transaction. Officer Galie broadcast a description of the defendant over the police radio.
Approximately two hours later, the same police investigators again approached the defendant in the same location and purchased additional drugs through an unidentified intermediary. On that occasion, both investigators had a clear view of the defendant's face. Both immediately recognized him as the same person who earlier met and sold drugs to Roxanne Lumpkin.
Officer Galie's physical descriptions of the defendant were accurate except as to his height. Galie estimated the defendant's height to be 5' 8" tall. In fact, the defendant is 6' 4" tall. Trooper Scherer-Young gave substantially the same testimony as Officer Galie, except that she estimated his height as being approximately 5' 11".
Within forty minutes of the second distribution of drugs by the defendant, both Galie and Scherer-Young independently viewed a single photograph of the defendant shown to them by detective McMahon. Each immediately identified it as a picture of the defendant.
Defendant challenges the admission of in-court identifications of him by officer Galie and trooper Scherer-Young, arguing that the single photograph was an impermissibly suggestive identification procedure. The general principals governing this challenge are well established. The defendant has a due process right not to be the object of suggestive police identification procedures that create "'a very substantial likelihood of irreparable misidentification.'" United States v. Concepcion 983 F.2d 369, 377 (2d Cir. 1992), cert. denied, 510 U.S. , 126 L. Ed. 2d 124 (1993) (quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968)). This principle applies both to showups, Stovall v. Denno, 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967), and to photographic identifications, Simmons, supra, 390 U.S. at 384.
The first step is to determine whether the identification procedure used was unduly suggestive. In general, "the practice of showing suspects singly to persons for the purpose of identification, not as part of a lineup, has been widely condemned." Stovall, supra, 388 U.S. at 302. Although under extenuating circumstances a showup might be permissible, as for example when a victim is believed to be dying, such practices should be avoided where there is no overriding necessity for their use.
In determining whether a showup is constitutionally permissible, the court must carefully consider all of the surrounding circumstances. Concepcion, supra, 983 F.2d at 377. These same principles apply to the use of a single photograph. Where no extenuating circumstances justify the procedure, the exhibition of a single photograph is considered unnecessarily suggestive. See, e.g., United States v. Bubar, 567 F.2d 192, 197 (2d Cir.), cert. denied, 434 U.S. 872, 54 L. Ed. 2d 151, 98 S. Ct. 217 (1977) (noting that single photographic display is impermissibly suggestive absent exigent circumstances); Mysholowsky v. People, 535 F.2d 194, 197 (2d Cir. 1976); see also Simmons, supra, 390 U.S. at 384-85 (singly presented photograph absent exigent circumstances is impermissibly suggestive photographic identification procedure).
If the challenged identification procedure is unduly suggestive, the court must then proceed to the second step in the analysis. The second step requires an analysis of whether the in-court identification will be the product of the suggestive procedure or whether instead it will be independently reliable. Factors to be considered include "the opportunity of the witness to view the criminal at the time of the crime, the witnesses' degree of attention, the accuracy of the witnesses' prior description of the criminal, the level of certainty demonstrated by the witness of the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972); accord Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977).
Applying this two-step analysis to this case, I find as an initial matter that the use of a single photograph to identify the defendant was impermissibly suggestive. The government has not offered any exigent circumstances or emergency which prevented detective McMahon from assembling a suitable array of photographs. Indeed, as defense counsel points out, the defendant was not arrested until months after the sales.
The government cites United States v. Matthews, 20 F.3d 538, 547 (2d Cir. 1994), as authority to suggest that a single photograph is not impermissibly suggestive. Matthews, however, dealt with objections to an in-court identification where no pretrial identification was made. Accordingly, this case does not support the government's position.
It is therefore necessary to turn to the second prong of the analysis to determine whether under the totality of circumstances there is a substantial likelihood that the in-court identification will be the product of the suggestive procedures. Evaluating the factors set forth in Neil v. Biggers, I find that the in-court identification by the two police officers should be allowed.
The first factor to be analyzed is the opportunity to view the criminal. Both investigators testified that they had an unobstructed view of the defendant's face for 20 to 30 seconds during the first transaction, and for somewhat less than a minute during the second transaction. The weather was clear, and the observations occurred during daylight between noon and 2:50 p.m.
Significantly, the two witnesses are not civilians unaccustomed to viewing criminal activities or crime victims under stress. Rather, they are trained police officers performing their duties. As recognized by the United States Supreme Court in Manson v. Brathwaite, supra, a police officer is in a different circumstance than a crime victim in making identification testimony. The court stated:
[The policeman], as a specially trained, assigned and experienced officer, . . . could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.