Issue link: http://lawandordermag.epubxp.com/i/65600
ON THE JOB NEWS EYE ON EDUCATION DISCIPLINE SOCIAL NETWORKING JUST HANDED DOWN Favorable Ruling for "On-Scene" Investigations By Pam McDonald and Randy Means Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of "The Law of Policing," which is available at LRIS.com. He can be reached directly at rbmeans@aol.com. In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at pammcdonaldfirm@aol.com. I to stay with this officer while she went to talk to witnesses in the apart- ments. Ms. Blandon, who witnessed the break-in from her kitchen win- dow, described how she watched a tall African-American man walk around the parking lot looking into cars and removing a large box from the trunk of one of the cars. The box contained speakers and was located on the ground near where Officer Clay first saw Perry. n January 2012, the Supreme Court ruled in favor of law enforcement in two cases involving ordinary patrol-type "on- scene" investigations. One involved eyewitness identification. The other involved entry into a residence during tense on-scene questioning. In the first case, Perry v. New Hampshire (2012), police arrest an auto-breaking suspect 'on-scene' when a witness points out the man she saw breaking into cars is the same man who was now standing in the parking lot beside a police officer. The police were not presenting the suspect to her for identification. She simply looked past the questioning officer and pinpointed the suspect. In the second case, Ryburn v. Huff (2012), police were at a student's home investigat- ing rumors of him threatening his school, and ended up trailing his mother back into the residence when she evaded their on-scene questioning about the presence of firearms. Witness Identifies Suspect During On-Scene Questioning In Perry v. New Hampshire, patrol officers responded to a complaint about an African-American male trying to break into cars in the parking lot of an apartment building around 3:00 a.m. The first officer on the scene, Officer Clay, heard what "sounded like a metal bat hitting the ground," and found the sus- pect, Perry, standing between two cars holding two car stereo amplifiers in his hands, a metal bat on the ground behind him. The officer asked him where the amplifiers came from and he said he "found them on the ground." The owner of the vehicle came out and identified his car with the rear win- dows broken out, and identified the bat and the amplifiers as items that were missing from his car. When a second officer arrived, Officer Clay asked Perry 16 LAW and ORDER I May 2012 When Officer Clay asked the wit- ness for a more detailed description of the man, the witness said the man she saw breaking into the car "was standing in the parking lot, next to the police officer." Perry was then arrested. About a month later, this witness was unable to pick Perry out of a photographic array. The witness's on-scene identification of Perry was admitted during the trial and he was convicted. This identification of Perry would have been simi- lar to a 'show-up' in which police present a single sus- pect to a witness soon after an incident occurs – except the police did not actually attempt to present Perry as a suspect. The witness' spontaneous identification of Perry was not the result a police-prepared show-up procedure. Since the police did not control the iden- tification procedure, the Court did not even address whether the police procedure was unduly suggestive. In this 8-1 decision, the Court reviews the two-step analysis, which governs out-of-court identifications. The first step requires the trial court to determine "whether the police used an unnecessarily suggestive identification procedure." If they did, then the second step is to determine whether the procedure so tainted the resulting identification as to make it unreliable and therefore inadmissible. Neil v. Biggers (1972). In Perry v. New Hampshire, the police did not use any identification procedure, and the witness asserted the man in the parking lot with the police was the same one she saw trying to break into cars. Because the on-scene identification did not involve a police-generated identification procedure, Perry's complaint does not survive the first step and the Court declined to even assess the identification for suggestiveness.