205 A.3d 26
Md. Ct. Spec. App.2019Background
- Victim (Perry) was robbed and carjacked at gunpoint; police recovered surveillance stills from a store where the stolen credit card was used the next day.
- Detective Bailey created an internal BOLO flyer containing still frames of three suspects, vehicle photos, and a bold warning to law enforcement; the flyer was intended to be internal.
- The BPD public relations office uploaded the BOLO to social media (Facebook) without Detective Bailey’s knowledge; Perry’s brother saw it and sent it to Perry, who recognized one assailant (Bean) from the BOLO.
- Perry told police she had seen the BOLO; detectives then had Perry come to the station, showed her the BOLO again to confirm, and then showed her a single MVA photo of Bean which she signed and described in a written statement.
- Bean moved to suppress the pretrial identification as the product of an impermissibly suggestive, police-orchestrated procedure; the suppression court found the BOLO was state action and impermissibly suggestive but admitted the ID as independently reliable under Biggers.
- The Court of Special Appeals reversed the constitutional inquiry: it held the BOLO’s social-media dissemination did not amount to police-arranged identification of Perry, so Due Process suppression was not triggered and the denial of suppression was affirmed.
Issues
| Issue | Bean's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the victim’s out-of-court ID was procured under state-arranged, impermissibly suggestive procedures | BOLO was created by police and its content and dissemination suggested the suspects, so police arranged a suggestive ID that violated due process | Police did not arrange or direct Perry to view the BOLO; her viewing was independent (via her brother and social media), so no state action triggered due-process exclusion | No state action: social-media posting did not constitute police-arranged identification; due-process reliability check (Biggers) was not required |
| Whether police confirmation at station converted an independent ID into an impermissibly suggestive procedure | Showing the BOLO and then a single photo at station reinforced the suggestive effect and tainted the ID | Once Perry had already independently identified suspects from the BOLO, the station confirmation was merely confirmatory and not improper | Station confirmation was permissible; confirmatory use did not invoke due-process suppression |
Key Cases Cited
- Webster v. State, 299 Md. 581 (1984) (Due Process protects against unreliable pretrial IDs from unnecessarily suggestive procedures)
- Moore v. Illinois, 434 U.S. 220 (1977) (discussion of risks from suggestive identification procedures)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (Due Process applies only when law enforcement arranged the suggestive circumstances)
- Neil v. Biggers, 409 U.S. 188 (1972) (five-factor test for independent reliability of identifications)
- Smiley v. State, 442 Md. 168 (2015) (Maryland two-step suppression inquiry for suggestive police procedures)