The opinion of the court was delivered by: HECKMAN
Defendant Williams has moved to preclude trial identification testimony by undercover police investigators James Galie, Jr. and Christine Ann Scherer-Young. On September 6 and 24, 1997, the Court conducted a suppression hearing pursuant to the defendant's motion.
For the reasons set forth below, it is recommended that the defendant's motion be denied.
This prosecution of the defendant arose out of a Career Criminal Task Force investigation of drug trafficking in the Townsend/Detroit/Peckham Street area in the City of Buffalo. On two occasions on September 25, 1996, undercover police investigators James Galie, Jr. and Christine Scherer-Young purchased a quantity of crack cocaine from an individual later identified as the defendant, Mario Williams. Officer Galie testified that the first transaction was conducted through co-defendant Roxanne Lumpkin while Galie and Scherer-Young waited in their undercover car. The undercover officers were wearing wires monitored by detective McMahon. A video camera was also mounted in the back of the vehicle which 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).