Bean v. State

Panel: Wright, Leahy, Irma S. Raker (Senior Judge, Specially Assigned), JJ. Leahy, J. ^{28 345} Appellant, Anthony Bean, moved to suppress the pre-trial identification in this case because, he argued, it resulted from an impermissibly suggestive procedure and was unreliable in violation of his right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. The Supreme Court has declared that the "primary evil" that impermissibly suggestive identifications procedures generate is the "very substantial likelihood of misidentification." Neil v. Biggers , 409 U.S. 188 , 198, 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972). To invoke the protections of the Due Process Clause of the United States Constitution, however, a criminal defendant must first demonstrate that the eyewitness identification was "procured under unnecessarily suggestive circumstances arranged by law enforcement.

" Perry v. New Hampshire , 565 U.S. 228 , 248, 132 S.Ct. 716 , 181 L.Ed.2d 694 (2012) (emphasis added). Failure to show state action-that the police arranged the pre-trial identification-effectively ends the constitutional inquiry. Id. at 232-33 , 132 S.Ct. 716 . Following an armed robbery and carjacking, the Baltimore City Police Department created an internal "be on the lookout" flyer ("BOLO") that showed images of the assailants and the missing vehicle, and stated the particulars of the crime.

The BOLO was released on social media and seen by the victim's brother, who showed it to the victim, who then recognized her assailants on the BOLO. The victim informed the police that she had seen the BOLO and that she recognized her assailants on the flyer. The next morning, at the police station, police showed her the BOLO again to confirm her identification and then showed her a single photo of each assailant, including one of Bean. She confirmed for police that Bean was one of her attackers.

The suppression court denied the motion, finding that the release of the BOLO constituted state action, and that the identification procedures were impermissibly suggestive. Nevertheless, ³⁴⁶ after applying the Biggers reliability analysis, the Court found that the victim's identification was reliable and admissible into evidence. Bean was subsequently tried and convicted by a jury in the Circuit Court for Baltimore City. He noted a timely appeal, challenging the court's denial of the motion to suppress.

We hold that, although the BOLO was impermissibly suggestive, the Baltimore City Police Department did not arrange the victim's identification of Bean and, therefore, there was no state action. Absent "improper law enforcement activity," the Due Process Clause and its check on the reliability of witness identifications were not implicated in this case. Perry , 565 U.S. at 238 -39 , 132 S.Ct. 716 . We conclude, although on different grounds relied upon by the circuit court, that it was correct to deny Bean's motion to suppress.

BACKGROUND A. The Motion to Suppress On March 16, 2017, Bean moved to suppress the pretrial photo identification. The following facts are derived from the suppression hearing. ²⁹ 1. The Robbery and Initial Police Involvement 1 Ms. Perry testified that at around 10:00 p.m. on March 22, 2016, she parked her vehicle in the 1700 block of Johnson Street in Baltimore City and began walking toward her home. She said, "[it was] kind of dark out" but that there was "[a] little" street lighting.

After walking about "50 feet or so" from her car, she observed three men, roughly 100 feet away, walking directly toward her. One of the men, who was wearing a hooded sweatshirt, "kind of, held back, [ ] I guess, like [a] lookout," about five feet away, while two other men, "both African-American gentlemen, about average height," approached her to effectuate the robbery. She believed that the ³⁴⁷ lookout person, who was wearing a hooded sweatshirt, was a male because "he seemed tall, built bigger than, you know, a girl." When pressed, "are you certain it wasn't two males and a female," she responded that "it seemed to me like three males." She explained that one of the men who approached her-the "main" robber-"got closer to me, probably about two feet [away]." She stated that "he seemed taller, bulkier, kind of chubby around mid-face. And he had a black hoodie on[.] ...

He, kind of, had, like, a shaved face a little bit." Ms. Perry noted that the other person who approached her was "average height [and] skinny[,]" but she was unable to provide other details because this person was wearing a mask and did not speak during the robbery. During the robbery, the "main" robber demanded to know where her car was and threatened that he would "blow [her] brains out" if she did not cooperate. She pointed the assailants in the direction of her car, surrendered her "keys, and [ ] just, kind of, handed over everything." After handing over her belongings, a car "came down the road," which caused the assailants to "scatter[,]" giving Ms. Perry a chance to run to her house and call the police. She recalled that the entire interaction lasted "[p]robably about a couple minutes, two or three minutes." When asked about her state of mind at the time, Ms. Perry testified that she was "[t]errified.

Scared for [her] life." Officer Pennington from the Baltimore Police Department arrived at Ms. Perry's home 15-20 minutes after the robbery. At some point after Officer Pennington arrived, Ms. Perry exited her home and discovered that her vehicle had been stolen. She testified that she provided Officer Pennington with some initial details about the men who had robbed her, and then he escorted her to the police station where she spoke with a detective about the robbery. 2 That night, Ms. Perry ³⁴⁸ canceled her credit cards by phone, and a representative informed her that her card had just been used at a local 7-Eleven. 2. The Police Flyer The next morning, Detective William Bailey called Ms. Perry to obtain further details about the robbery.

Ms. Perry told Det. Bailey that her credit card had been used at a nearby 7-Eleven. Det. Bailey and two other detectives went to the 7-Eleven and recovered the stolen credit card that was left there, along with a receipt detailing the transaction.

Using the date and ³⁰ time of the transaction, Det. Bailey obtained the store's surveillance footage from the time of the purchase. The video showed two black males enter the store with a black female, then stand behind the female as she made a purchase with a credit card. Det.

Bailey pulled still-frames of the three individuals shown in the video and created the BOLO to aid in identification of the suspects from the robbery. He also included two pictures of a red 2015 Toyota Rav4-the same color, make, and model of Ms. Perry's vehicle-and the instruction at the bottom in bold, underlined, red, and capitalized font " FOR OFFICAL USE ONLY / LAW ENFORCEMENT SENSITIVE ." In addition to his contact information, Det. Bailey included the following paragraph on the BOLO, just below the still-frame photos: "In reference to an armed carjacking that took place in the 1700 Blk Johnson St on 3/22/16 @ 10:20pm, where a red 2015 Toyota Rav4 was taken, vehicle has raven & oriole sticker on the rear. This detective is attempting to identify the above individuals.

Approach with caution, the individuals operating this vehicle should be considered armed and dangerous." Det. Bailey sent the BOLO to all the other police department districts in Baltimore in the hope that other precincts could "possibly locate the car or maybe [identify] the individuals from prior contact." Det. Bailey testified that when he created the BOLO, he intended it to remain internal. Unbeknownst to Det.

Bailey, the public relations office of the Baltimore City ³⁴⁹ Police Department uploaded the BOLO onto several social media platforms later that day, including Facebook. 3 Det. Bailey testified that he had no influence, even as the lead investigator, over the decision to place the BOLO on social media. Ms. Perry testified that later that afternoon, her brother told her that he had seen a police flyer on Facebook concerning a robbery and carjacking that occurred the previous night. Ms. Perry recalled: "My brother actually sent me something that he had saw [sic] on Facebook.

Detective Bailey had, I think, put out, you know, a whatever, for - because the car was missing, and it was, like, a missing - 'We're looking for these people.' And the people that came up on the ad with my vehicle, they - three pictures were taken in the 7-Eleven, and I recognized the one gentleman." She testified further that the person she recognized was wearing "a black-hooded sweatshirt." Shortly after 5:00 p.m. on March 23, 2016, police located Ms. Perry's vehicle. Det. Bailey called Ms. Perry to report that they had located her vehicle and were sending it to the crime lab for additional analysis. To his surprise, Ms. Perry said that she had seen the BOLO on social media and recognized one of the men as one of the robbers.

Det. Bailey arranged for Ms. Perry to come to the police station the next day for an interview. 3. The Interview Before Ms. Perry's interview, officers patrolling the Cherry Hill area of Baltimore City stopped a woman wearing the same dress as the woman who used Ms. Perry's credit card in the 7-Eleven surveillance video. When questioned, the woman ³⁵⁰ identified the two men with her in the surveillance footage, one of whom ³¹ was Bean.

Later that morning, Ms. Perry arrived at the Southern District police station. During the suppression hearing, defense counsel asked Det. Bailey what procedures he used during Ms. Perry's interview, and he responded: "... I had [Ms. Perry] come in.

I couldn't show her a photo array at that point, because she already had [seen the BOLO] through social media. So I used the BOLO we had, attempt to identify, had her look at that and sign off where the two individuals that she said she saw that night rob her." Det. Bailey indicated that Ms. Perry "signed both pictures" on the BOLO to indicate that she recognized both men from the night of the robbery. After she had identified both assailants in the BOLO, Det.

Bailey showed Ms. Perry the MVA photos of the two men she had identified in the BOLO. Det. Bailey explained why he then showed Ms. Perry a single photo of Bean rather than a full six-photo array: "After she already told us she looked at the BOLO, we already knew she saw the faces. And [ ] then I thought at that point i[t] would be a moot point to show a photo array that she already [knew] the people's faces already.

Now, I did show her individual photos of both of them. She wrote a statement out for each one, what particular - what part they played in the robbery." Ms. Perry testified to her recollection of the events at the police station. Before being presented with any of the photos at the suppression hearing, Ms. Perry said that when she was shown the BOLO at the police station, she pointed out whom she recognized from the robbery. Ms. Perry said that when she first saw the BOLO on Facebook, she was "[i]nstantly" able to identify both men-Bean as the "main" robber, Walker as the "lookout," but was unable to identify the woman.

The State showed Ms. Perry Bean's MVA photo that she had viewed at the police station. She stated that when she viewed Bean's photo, she wrote a statement on the picture describing his role in the robbery and how she recognized him. ³⁵¹ The court permitted Ms. Perry to read her statement at the suppression hearing and she recited the following: "I recognize this man who robbed me at gunpoint. He pointed a gun at me and demanded I show them where my car was. He stated he would blow my brains out if I didn't show them where my car was.

I recognize [him] based on his stockier, full face, darker complexion, dark eyes, and full lips. He also had a shaved head with fine black hair. I also recognize this man from the social media ad on the police flyer." Ms. Perry admitted that she wrote this description "after viewing the photos." Following Ms. Perry's testimony, defense counsel argued for the suppression of the pretrial identification, maintaining that the procedure was impermissibly suggestive and the underlying identification was not reliable. Defense counsel argued that the timing of the release and subsequent exposure to the BOLO was problematic because Ms. Perry viewed it before she ever made an identification of Bean.

Counsel pressed: "If you look at just the layout of the [BOLO] itself, it's got a big picture of her car. It's got a description of not that we're looking for these folks that were in the 7-Eleven on Hanover Street on the 23rd, we're looking for these folks that robbed this lady and took this car. And it suggests very plainly that these are the people that we think did it." Counsel continued, noting that before Ms. Perry saw "the single photograph at the ³² precinct ... the way [the BOLO] was put together and the information that's contained in it [ ] definitely suggested the answer to her." Counsel insisted that regardless how she came into contact with the BOLO, its release constituted state action because it "was generated by the police department, and it was disseminated by them[.]" Defense counsel reiterated that the message relayed to viewers of the BOLO was inherently suggestive and noted that the BOLO "gives a really strong statement, and it's a statement by the police. This is a police government-generated document[. ³⁵² ]" Finally, defense counsel argued that the identification lacked independent reliability. 4.

The Court's Ruling The suppression court denied Bean's motion to suppress the pre-trial identification. First, however, the court found that the release of the BOLO constituted state action: "[T]he [BOLO] is, in fact, a bulletin that was prepared by the Baltimore City Police Department, specifically references the date and time of the incident, that they were looking for these individuals in relating [sic] to a car jacking, and that that car jacking place [sic] at the 1700 block Johnson Street, and that these individuals were armed and dangerous and should not be approached." "Even though that did pass to a neighborhood association and maybe through Facebook, ultimately, to the alleged eyewitness in this case, the Court does find that, that state action, as that it did originate and was created by the Baltimore City Police Department[.]" Next, the court found that the procedure used was impermissibly suggestive, and stated the following: "... I don't think there's any doubt, and the State has conceded that the [BOLO] itself is suggestive. [ 4 ] The Police Department is basically saying, 'This is the individual, or these are the individuals that we believe were responsible for this.' " "So the Court does find that [Bean] has met [his] burden to establish that the pretrial identification at issue here was impermissibly suggestive when it was provided to Ms. Perry." Finally, the court considered the reliability of the identification, and found that the factors enumerated in Biggers , 409 U.S. at 198 , 93 S.Ct. 375 , weighed in favor of reliability, and denied the motion to suppress. ³⁵³ 5. Trial This case proceeded to trial from March 16-20, 2017.

On the morning of the third day of trial, Bean made a motion for judgment of acquittal, arguing that besides Ms. Perry's