On an evening in July of 2017, Justin Summers called 911 reporting he had just seen a parked car with substantial front-end damage. Next to the driver’s side of the car was a man Summers described as a black male, anywhere from maybe 5’9’’ to 6-foot,” wearing a white hat and dark clothes. Summers said he saw the man throw something “small” into the weeds on the side of Redbud Road. Then, Summers and his wife “came really slow up on the car . . . looking to see if he needed some help or if there was anybody else in the car that needed help.” The man “tipped his head back so Summers could see his face really good” and “very clearly.” As Summers and his wife drove away, Summers saw the man throw “a semiautomatic pistol into the . . . weeds or the ditch there.” Summers said no one else was in the car or “around at all.”
Arriving at the scene, police found Heard, who is five-foot-eight-inches tall, wearing a black t-shirt and blue jeans. They searched the wooded area near the car and found a bag of marijuana with 27 individually packaged baggies and a fully loaded “extremely clean” firearm with “no dirt or debris on it.” They arrested Heard.
Around 8:45 pm, officers asked Summers to return to the scene. He arrived at dusk. Officers positioned Heard (handcuffed with a spotlight shining on him) 20 to 25 feet from Summers. Officers told Summers “to have an open mind, and to tell them if it was or was not the person that [he] saw.” Summers “didn’t hesitate,” saying that “everything was exactly the same about him, except that . . . he was not wearing the hat.”
Before trial, the district court denied Heard’s motion to suppress Summers’ eyewitness identification arguing the show up was impermissibly suggestive in violation of the Fifth Amendment Due Process clause. The Eighth Circuit disagreed noting that show up was neither impermissibly suggestive nor unreliable. Necessary incidents of on-the-scene identifications, such as the suspects being handcuffed and in police custody or having a light shone on their face “do not render the identification procedure impermissibly suggestive.”
The identification also was not unreliable. An identification is unreliable if the circumstances allow for a very substantial likelihood of irreparable misidentification. The factors affecting reliability include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Here, Summers paid close attention to Heard due to the severe damage to his car. Summers observed him at a close distance, in good light, and “could see his face really good.” Only about an hour and a half passed between when Summers first saw Heard and when he made the identification. Accordingly, the district court did not err in admitting the eyewitness identification.
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