229 A.3d 183
Md.2020Background:
- Nov. 29, 2017: Jon Hickey was murdered; police recovered grainy surveillance footage of a person attempting to enter the victim’s apartment.
- Jennifer McKay, the victim’s girlfriend, had known petitioner Daniel Greene for years and had been in a prior intimate relationship with him; detectives asked her to review the footage at the station.
- McKay repeatedly said the person in the video “looks like” Greene, but vacillated and the detectives pressed her for greater certainty, showing stills and slowing footage.
- Greene was indicted for first‑degree murder and moved to suppress McKay’s out‑of‑court and anticipated in‑court identification, arguing police used impermissibly suggestive procedures.
- The circuit court granted suppression; the State appealed. The Court of Special Appeals reversed, describing McKay’s identification as a “confirmatory identification” (non‑selective) not governed by constitutional eyewitness‑identification law.
- The Court of Appeals affirmed the intermediate court: constitutional due‑process ID rules (Biggers/Manson) apply to eyewitness selection procedures, not to non‑eyewitness identifications by someone familiar with the suspect; suppression was erroneous as a matter of law.
Issues:
| Issue | Plaintiff's Argument (Greene) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether constitutional eyewitness‑identification (due‑process) law governs McKay’s out‑of‑court identification | Police used impermissibly suggestive techniques to obtain an ID; Biggers/Manson analysis should apply | McKay was not an eyewitness to the crime; detectives sought confirmation of identity from someone who knew the suspect, so constitutional ID law does not apply | Court: Does not apply — this was a non‑selective "confirmatory identification," not within Biggers/Manson paradigm |
| Whether suppression was required because detectives’ conduct was unduly suggestive | Even if suggestive, identification was unreliable and suppression was warranted | Even if conduct was heavy‑handed, it was aimed at eliciting certainty from a familiar witness and did not implicate the primary due‑process concern (eyewitness misidentification) | Court: Suppression court erred; coercive questioning of a familiar non‑eyewitness does not trigger the constitutional reliability test — any challenge remains for impeachment/cross‑examination or evidentiary objections at trial |
Key Cases Cited
- Stovall v. Denno, 388 U.S. 293 (1967) (Due‑process suppression where confrontation is unnecessarily suggestive and risks irreparable misidentification)
- Neil v. Biggers, 409 U.S. 188 (1972) (Sets five‑factor reliability test for pretrial eyewitness identifications)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (Applies Biggers reliability analysis and balances suggestiveness against reliability)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (Due‑process review limited to identifications procured under law‑enforcement arranged suggestiveness)
- People v. Rodriguez, 593 N.E.2d 268 (N.Y. 1992) (Discusses "confirmatory identification"/familiarity exception used as shorthand for non‑selective IDs)