Identification Case Analysis

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The decision will be difficult to apply in future cases, because there is no principled basis on which to distinguish Bryant v. U.S., 599 A.2d 1107 (D.C. 1991), although the court cited it with approval, and yet distinguished it. In all relevant respects, the two cases are identical.

The court states, "Unlike in Bryant, the undisputed facts here show that officers had a sufficient evidentiary basis to arrest Roberson developed apart from the evidence of his location in the home."

The court notes that Wagner observed Roberson engaging in drug activity for 25 minutes, and that Terrell purchased drugs from him. The court concluded, "Detective Wagner’s extended observation of Roberson and Terrell’s upclose contact with him during the drug buy were enough to develop probable cause necessary for an arrest apart from Roberson’s location in the home."

This is a correct statement of the law; the officers could have arrested him at any time between the controlled purchase and when he entered the home, and the arrest’s legality would have been unquestionable.

However, the same is true in Bryant.

The facts in Bryant are as follows: an undercover officer asked Bryant if he could buy drugs; Bryant led him to a house in the area, where they met Brown and relayed the information that the officer wanted to buy drugs; the information was then relayed to Pryor, who stood behind a locked, steel-barred security door in the basement; Pryor gave the drugs to Brown; Bryant led the officer to an alley; the officer gave sixty dollars to Bryant; Bryant gave the money to Brown; Brown gave cocaine to Bryant; and Bryant gave cocaine to the officer. Bryant, 599 A.2d at 1108.

The officer then called an arrest team and gave them the address where Pryor gave the drugs to Brown, and described the three participants, including Bryant. Bryant was arrested, and the officer identified him outside the home. Id.

As in the case at bar, that is probable cause to arrest Bryant. The officers could have arrested Bryant at any time between the controlled purchase and when he entered the home that was the source of the drugs, and the arrest’s legality would have been unquestionable, as in the case at bar.

But the court in Bryant held there was no probable cause: "it is apparent that the police acquired the evidentiary basis for detaining him only by discovering him in the house as a result of the illegal search." Id., at 1111. The court even went so far as to say that, until they found Bryant in the house, they did not even have grounds for a Terry stop. Id., at 1112.

The Bryant court also explicitly rejected the argument adopted by the court in the case at bar, imputing the knowledge of the officer who participated in the drug sale to the rest of the participating officers.

The court wrote, "[Absence of probable cause] would not be the case had [the undercover officer] himself encountered Appellant in a distant location, given the visual imprint on his memory of a seller with whom he had met face-to-face for a significant period of time." Id., at 1112, n. 9.

The only factual difference between the cases that could plausibly be relevant is that the officers followed Roberson to the home, while in Bryant, it does not appear that any officer actually watched him enter the home after the transaction. However, the court of appeals makes nothing of this fact in its decision (the court notes the fact in determining that Roberson’s presence in the home has evidentiary value, but not its probable cause discussion).

As such, it is not clear what a circuit court in Wisconsin should do, if it is presented with facts identical to those in Bryant. It could note that the court of appeals in the case at bar cited Bryant with approval, and grant the motion to suppress. Or it could observe that the District of Columbia courts clearly have a different definition of "probable cause" than we do, and deny the motion on that basis.

Another interesting question when such cases arise will be the impact of the recent Wisconsin Supreme Court decision in State v. Dubose, 2005 WI 126, 699 N.W.2d 582, 593-594, holding that showup identifications are inherently suggestive, and should not be used when probable cause for arrest is present, unless exigent circumstances require it.

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Arguably, the holding is limited to showups where the witness is a civilian, and not a police officer who just participated in a controlled purchase ten minutes earlier.

The court in Dubose devoted an entire paragraph to listing studies purportedly showing that eyewitness identifications are "hopelessly unreliable," and that 85 percent of erroneous convictions are the result of mistaken identifications. Dubose, 699 N.W.2d at 591-592. I have not read the cited studies, but I would bet that anyone who does will find that they involve civilian identifications, not those by police.

The Supreme Court also listed numerous procedures to minimize suggestiveness when showups must be used, many of which are inapplicable, if the witness is a police officer, rather than a civilian. Id., at 594.

The state could make a reasonable argument that Dubose should not apply to identifications by po
lice officers; nothing in Dubose suggests the court intended such a limitation, but significant portions of the court’s justification can be considered inapplicable in such cases.

– David Ziemer

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David Ziemer can be reached by email.