Facts
In 2002, Officer Raymond Rickoll, an off duty police officer, sat on his front porch smoking a cigarette when he noticed a two toned, gold or champagne colored Lexus pass by his home in Picayune two or three times. Rickoll said he was intentionally keeping an eye on the Sunflower grocery store, about 100 yards away, because his training officer had advised him that drug activity had been going on near the store at night.
He then saw a black male get out of the Lexus, carry a black jacket in his hand, and approach the Sunflower. Rickoll then heard banging sounds coming from the store but was unable to discern the source of the noise. He called the police, describing the driver as a 195-pound black male, five feet, nine inches tall, wearing a black hat and black pants, and carrying a black jacket in his hands.
Officer Charles Esque, Jr. arrived at the Sunflower along with the store’s owner. He and Rickoll investigated the scene and discovered the window had been broken and two black cash till drawers were missing as well as the change that had been left inside them. A third till drawer had been emptied of its change and left in the Sunflower parking lot.
Officer Chad Dorn then noticed a gold or brownish, two toned Lexus traveling through east Picayune. He followed the vehicle until it stopped at the local Texaco station. James T. Roche, the driver, got out of the vehicle and started walking toward Dorn. The passenger, Joseph Parkman, exited the vehicle and entered the store.
After Roche asked what was going on, Dorn informed him he was driving a vehicle believed to be involved in a local burglary. At that point, Dorn placed Roche in investigative custody. Rickoll arrived at the scene and recognized the Lexus as being the one he had seen about an hour and a half earlier.
The driver of the car, Roche, who is a black male, was wearing a black hat and dark clothing. Rickoll also noticed a black jacket in the back seat of the car. Although he could not identify Roche’s face, he testified that Roche was the same height and build of the man he saw in the Sunflower parking lot.
Esque looked through the window of the vehicle and saw two paper bags. On one of the bags someone had written “Nickles – $7.00″ and on the other bag someone had written “Dimes – “$8.00.”
The officers searched the vehicle and, in addition to the bagged change, found $11.50 in quarters, $0.20 in nickels, and $0.03 in pennies in the console. After examining the jacket in the back seat, Esque said he noticed it was glittering with tiny pieces of glass. The officers also found a car jack in the trunk.
Roche was convicted of business burglary and sentenced to seven years. On appeal, he argued the show up identification was improper and the search of his vehicle was illegal. MSC affirmed.
Analysis
A. Show up Identification
Roche contends he was impermissibly identified by Officer Rickoll in a “show-up” procedure at the Texaco. We have previously held that pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed. See York v. State, 413 So. 2d 1372 (1982). The U.S. Supreme Court has also stated, the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. See Foster v. California, 394 U.S. 440 (1969).
There is support for Roche’s argument that it was impermissibly suggestive for the officers to use a show up procedure to assist in his identification. When Officer Rickoll, the only witness to the crime, arrived at the Texaco the police were questioning only one man, Roche. Roche wore the same type clothing Rickoll had seen the burglar wearing and stood next to a Lexus which was similar in color to the one Rickoll reported seeing the burglar driving. Inside the car was evidence which ostensibly linked the driver to the crime. Rickoll then identified Roche as the individual he saw breaking into the Sunflower. The show up identification in question conspicuously singled Roche out and was impermissibly suggestive.
However, the presence of an impermissibly suggestive identification is not the end of our inquiry. Such identification is admissible if, considering the totality of the circumstances surrounding the identification procedure, the identification did not give rise to a very substantial likelihood of misidentification. Reliability is the linchpin of the inquiry. This standard applies to both in-court and out-of-court identifications.
Under U.S. Supreme Court case Neil v. Biggers, 409 U.S. 188 (1972), the factors to be considered in evaluating reliability identification under the totality of the circumstances include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
1. Opportunity to view the accused
Rickoll viewed the burglar from approximately 100 yards away at a very early hour of the morning. Though he testified the lighting in the parking lot enabled him to view the man, his opportunity to see the perpetrator’s face was limited by his distance from the perpetrator and the darkness of the hour.
2. Degree of attention
As a result of being warned by his training officer, Rickoll was already vigilant about criminal activity going on in his neighborhood during late hours. This indicates the degree of attention to which he paid the event was heightened under the circumstances.
3. Accuracy of prior description
Rickoll described the burglar as a 195-pound black male, five feet, nine inches tall, wearing a black hat and black pants, carrying a black jacket in his hands, and driving a two- toned, gold or champagne-colored Lexus. Roche is a black male; he was wearing a black hat and black pants when Officer Dorn stopped him; he had a black jacket in the back seat of his vehicle; and he was driving a Lexus within the range of color Rickoll described. And though Roche testified he is, in fact, 220 pounds and five feet, eleven inches tall, the slight disparities in weight and height are, by no means, so inconsistent as to render Rickoll’s prior description inaccurate.
4. Witness’s level of certainty at confrontation
Upon seeing Roche at the gas station, Rickoll identified Roche as having the same height and build of the man he saw outside the Sunflower. He also was certain the clothing was the same clothing he described to the police when he reported the burglary. Even so, we note that Rickoll’s certainty was necessarily limited by the fact that he had not seen the burglar’s face.
5. Length of time between the crime and the confrontation
Rickoll identified Roche approximately an hour and a half after witnessing the burglary.
As noted above, the “show up” procedure used by the Picayune Police Department was impermissibly suggestive, but we do not turn a blind eye to the reliability demonstrated by Rickoll’s identification of Roche. Though Rickoll’s opportunity to view the accused may have been slightly limited, any concerns about the reliability of his identification are wholly alleviated by the degree of attention to which he paid the event, the level of certainty upon viewing Roche, the length of time between the crime and the confrontation, and, in particular, the accuracy of his description despite the darkness of the hour and the fact that he was 100 yards away.
Roche has not met his very heavy burden of showing the conduct gave rise to a very substantial likelihood of misidentification, and this issue is without merit.
B. Legality of Search
The U.S. Supreme Court in U.S. v Ross, 456 U.S. 798 (1982), authorizes automobile exceptions to the warrant requirement. When probable cause justifies the search of a vehicle which police have lawfully stopped, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. In cases where there was probable cause to search a vehicle, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.
In Pennsylvania v. Labron, 518 U.S. 938 (1996), the U.S. Supreme Court repeated that the automobile exception does not have a separate exigency requirement: If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more.
The search of Roche’s vehicle falls squarely within the Fourth Amendment’s automobile exception. The facts at hand justified issuance of a warrant to search Roche’s vehicle. The car was readily mobile, and probable cause existed to believe it contained contraband; therefore, the Fourth Amendment permitted the officers to search the vehicle without a warrant.
Thoughts
In addition to probable cause and readily mobile, the car must also be in a public place to utilize the automobile exception. The U.S. Supreme Court in Collins said that automobile exception searches can not take place at a home or its curtilage.