438 P.3d 946
Utah Ct. App.2019Background
- Around 10:00 p.m., an officer conducted concealed, real-time surveillance (~30 minutes) with a spotting scope of suspected street drug activity near a homeless shelter. The area was well-lit and he continuously observed a group of three men: two "sellers" and one "holder."
- The officer saw repeated seller–buyer transfers and exchanges with the holder, consistent with prepackaged "twists." The officer directed an Arrest Team by radio to stop the three men.
- The sellers ran and were stopped; the holder (later identified as Kenneth Bowdrey) did not flee. The officer continued to watch through the scope and told the Arrest Team they had the right person.
- The officer then left his concealment, joined the Arrest Team, and confirmed the detained man was the same person he had been watching. A search of Bowdrey produced a pill bottle containing ~30 black/white "twists."
- Bowdrey was charged with two felonies (possession with intent to distribute) and one misdemeanor (paraphernalia). He requested a Long cautionary eyewitness-identification instruction at trial; the court denied the request. The jury convicted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by refusing to give a Long cautionary eyewitness-identification instruction | State: Officer made contemporaneous observations and directed the arrest; no Long instruction required | Bowdrey: Officer’s post-surveillance confirmation to the Arrest Team constituted an eyewitness identification that triggered Long | Court: No error — identification was contemporaneous observation, not memory-based; Long not required |
Key Cases Cited
- State v. Long, 721 P.2d 483 (Utah 1986) (establishes requirement for cautionary instruction when eyewitness ID is central and requested)
- State v. Clopten, 223 P.3d 1103 (Utah 2009) (modifies Long by allowing judicial discretion in certain contexts)
- State v. Robertson, 122 P.3d 895 (Utah Ct. App. 2005) (trial court has discretion to refuse Long instruction when ID is not central)
- State v. Snyder, 932 P.2d 120 (Utah Ct. App. 1997) (standard of review: correctness for refusal to give Long instruction)
- State v. Maestas, 984 P.2d 376 (Utah 1999) (example of memory-based IDs where Long applies)
- State v. Pascual, 804 P.2d 553 (Utah Ct. App. 1991) (Long instruction not required where issues pertain to circumstances of arrest rather than identification)