Opinion
No. 1-883 / 00-1359
Filed August 28, 2002
Appeal from the Iowa District court for Wapello County, Richard J. Vogel, Judge.
Nathaniel appeals his robbery conviction, contending the evidence from a vehicle stop and witness identifications should be suppressed.
AFFIRMED.
Eric Parrish, of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Mary Tabor, Assistant Attorney General for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
David Nathaniel appeals his judgment and sentence for second-degree robbery, contending the district court should have suppressed evidence obtained following a stop of his vehicle as well as the identifications made by witnesses to the crime. We affirm.
I. Background Facts and Proceedings
A gas station in Ottumwa was robbed of approximately $700 in cash. Clerk Mary Louise Miller reported the robbery and authorities immediately issued a broadcast alert, describing the perpetrator as a black male in his mid-twenties, armed with a 9mm pistol, and possibly heading east on Highway 34 in a gray car.
Responding to the alert, Officer Cook positioned himself on Highway 34 and eventually spotted a gray car heading east. He followed the car for about nine blocks and, when the car turned into a parking lot, activated his flashing lights and directed the car to stop. Using police procedures for felony arrests, Cook informed the occupants that they matched the description of persons just involved in an armed robbery.
Cook and another officer separately ordered the occupants to exit the car. Cook identified the passenger as Nathaniel. The suspects were handcuffed and placed in separate patrol cars. Cook then asked the driver if there were any weapons in the car. The driver said no and consented to a search of the car. Cook did not find the 9mm pistol described in the broadcast alert but did discover a bag of what appeared to be marijuana, a wallet containing a large sum of money, and another wad of money totaling $300. Another officer searched Nathaniel and discovered a wallet in his sock, containing paperclipped bundles of cash totaling $600.
Other officers then arrived at the apprehension site with the witnesses, store clerk Mary Louise Miller and customer Mike Courtney. Each separately identified Nathaniel as the robber.
The State charged Nathaniel with first-degree robbery and with being a felon in dominion and control of a firearm. See Iowa Code §§ 711.1, 711.3, 724.26 (1999). Nathaniel moved to suppress the evidence obtained following the vehicle stop as well as the witness identifications. The district court denied both motions. Pursuant to a stipulation, the State reduced the first-degree robbery charge to second-degree robbery and dismissed the firearm charge. Nathaniel waived his right to a jury trial and agreed to submission of the case on a stipulated record. The court found Nathaniel guilty and pronounced judgment and sentence. This appeal followed.
Nathaniel's motions to suppress alleged violations of constitutional magnitude. Therefore, our review is de novo. State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993).
II. Constitutionality of Stop
Nathaniel first contends Officer Cook's investigatory stop of his vehicle was unconstitutional. See U.S. Const. amend. IV; Iowa Const. art. I, § 8. Officers must have "reasonable suspicion" to stop a vehicle for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968); State v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001). Reasonable suspicion means that the officer must have "specific and articulable cause to reasonably believe criminal activity may be afoot." Walshire, 634 N.W.2d at 626. We examine the whole record to determine what facts were known to the deputy and then consider whether a reasonable officer in those circumstances would have reasonably believed an offense was being committed. State v. Horton, 625 N.W.2d 352, 369-70 (Iowa 2001).
The district court concluded the stop was constitutional. We agree. Officer Cook knew that a robbery had been committed and that the suspect was a young, armed black man driving a gray sports car, possibly heading east on Highway 34. He saw a gray sports car drive past him and followed the car for a period of time before stopping it. During that period, he saw that the car contained two black men. We believe a reasonable officer under these circumstances could have reasonably believed that one of the people in the car was the armed robbery suspect described in the broadcast alert. We conclude the stop was constitutional.
III. Probable Cause
Nathaniel next argues that the officers arrested him when they ordered him out of the car at gunpoint, cuffed him, and placed him in the patrol car. He contends this arrest was not supported by probable cause.
The State argues Nathaniel waived error by failing to adequately brief this issue. See Iowa R. App. P. 6.14(a)(5). Although terse, we note that Nathaniel raised and cited authority to support his argument. Accordingly, we decline to find that he waived error.
Police may take action to ensure their safety. Terry 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909 (authorizing pat down search for weapons following investigatory stop); State v. Bergmann, 633 N.W.2d 328, 333 (Iowa 2001) (same). The officers reasonably believed they had stopped a robbery suspect. Based on the broadcast alert, they reasonably believed the suspect was armed. Under these circumstances, their decision to remove Nathaniel from the vehicle and secure him while they searched the car was a reasonable seizure and not an arrest. See State v. Nucaro, 614 N.W.2d 856, 860 (Iowa Ct.App. 2000) (stating "[o]fficer safety is an important underlying element in this analysis."). We believe the detention did not rise to the level of an arrest. Id., 614 N.W.2d at 856-61.
IV. Eyewitness Identification
Nathaniel contends the manner in which he was identified by eyewitnesses to the robbery was unconstitutional because he was singled out at the scene of the detention.
The practice of singly showing suspects to witnesses for identification purposes has been "widely condemned." Stovall v. Denno, 388 U.S. 293, 302, n. 6, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967) overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). However, "the admission of evidence of a showup without more does not violate due process." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972). Even unnecessary suggestiveness alone will not require the exclusion of evidence. Id. at 198-99, 93 S.Ct. at 382, 34 L.Ed.2d at 411. Evidence will be suppressed only if the showup is "unnecessarily suggestive and conducive to irreparable mistaken identification." Stovall, 388 U.S. at 302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206; State v. Salazar, 213 N.W.2d 490, 493 (Iowa 1973). The standard is one of reliability. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). We examine the totality of the circumstances to determine whether the identification was reliable even though the procedure was suggestive. Biggers, 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411. Accord State v. Whetstine, 315 N.W.2d 758, 764 (Iowa 1982) (stating we first determine whether procedure was impermissibly suggestive and then, if it was, "determine whether under the totality of circumstances the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification.").
See also Eyewitness Identification: Psychological Research and Legal Policy on Lineups, 1 Psychol. Pub. Pol'y L. 765 (1995) (outlining reliability problems inherent in eyewitness identifications); Rethinking the Right to Due Process In Connection With Identification Procedures, 79 Kentucky L. J. 259 (Winter 1990/1991); Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (June 1984).
The State concedes that the show-up "did involve the presence of several police cars, the suspects shown to the witnesses in handcuffs flanked by uniformed officers, and the absence of counsel." The State nevertheless maintains that the fact two suspects were shown to the witnesses diminishes the suggestiveness of the show-up. We disagree. Officers transported Miller to the suspects after telling her they "got the people who robbed the station." One of the officers similarly told Courtney "they had a suspect stopped." Once the witnesses arrived at the suspects' location, the scene was as described by the State. Under these circumstances, we believe the showup was impermissibly suggestive.
We move to the second prong of the test: whether there was a substantial likelihood of irreparable misidentification. Courts have articulated various factors to consider in deciding this reliability prong: (1) the opportunity to view, (2) degree of attention, (3) accuracy of description, (4) level of certainty and (5) time span. Biggers, 409 U.S. at 199-200; 93 S.Ct. at 382, 34 L.Ed.2d at 411; State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987). Applying these factors, we conclude that both witness identifications were reliable despite the unnecessarily suggestive nature of the identification procedures.
Miller's identification took place shortly after the robbery. She testified that she "got a good look at" Nathaniel during the robbery and was able to describe what he wore and the type of glasses he had on. During the showup, she was able to identify the driver of the gray car as a person who had come into the store before the robbery but stated he was not the person who committed the robbery. She was then able to identify Nathaniel as the robber based on his facial features, despite the fact the driver was Nathaniel's cousin. There is no indication she equivocated in her identification.
Courtney's identification also took place on the evening of the robbery. He stated he thought he observed the robber at the store for about ten minutes or less. In his written statement, he identified the robber as a "young Black male about early 20's 5'6" to 5'8" wearing black Oakley style sun glasses stocking (cap blue) blue dress shirt dark blue shorts. . . ." At the showup, Courtney positively identified Nathaniel as the robber from a distance of less than two feet. Although he mistook the car's driver for Nathaniel in a subsequent deposition, he testified that, at the time of the identification, the two were clearly distinguishable based on their different heights and weights.
We conclude these showup identifications passed constitutional muster. Accordingly, we agree with the district court's decision not to suppress them.
V. Substantial Evidence
Nathaniel finally contends that the district court's fact findings in its suppression ruling are not supported by substantial evidence. The substantial evidence standard does not apply to review of constitutional issues. State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001) (overruling cases holding otherwise). Therefore, we need not address this issue.
AFFIRMED.