*1 For affirmance —Chief Clieeord, Pashman, Mountain, Handler —-7.
For reversal —Hone. PLAINTIFF-APPELLANT, JERSEY, v. STATE OF NEW FORD, DEFENDANT-RESPONDENT. LEVI February Argued 1979. 1978 Decided December Cohen, General, argued Attorney Frederick S. Deputy Mr. Gen- Degnan, Attorney John J. for appellant the cause (Mr. eral of Hew Jersey, attorney). Lubin, Counsel, argued I. Designated
Mr. Michael Ness, Public De- Van C. Stanley cause for .(Mr. respondent fender, attorney). substantially Curiam. reversed
Per judgment in the filed opinion in the expressed dissenting reasons N. J. Division, Super. which is reported Appellate concurring. with the proper disposition a reversal of the requires Division. My concurrence, however, is based on limited grounds more than espoused those dissenting below, adopted today by this Court. The standard applicable to the of identifica- admissibility tion evidence has recently restated by the United States Court in Manson v. 432 U. S. *2 Ct. 2243, 53 L. Ed. 140 case the Court 2d In that (1977). is a which of circumstances” adopted “totality approach the to and out- be in of in-court utilized the both judging legality 2250- 109-114, of-court Id. S. at identifications. at Ct. 2253, 53 L. Ed. is whether 2d at 151-154. first inquiry The any identification “unnecessarily sugges is utilized procedure level, tive.” If the does not reach the identifi procedure this cation is However, evidence admissible. if procedure is the deemed to be further is inquiry “unnecessarily suggestive,” In such court whether necessary. cases the must determine there are the sufficient indicia of to reliability outweigh Id. itself.” “corrupting effect of the identification suggestive 114, at 97 S. 2253, Ct. L. Ed. at 154. at 2d
The instant case can be decided with reference to solely the first I believe under the circumstances here inquiry. present the utilized were procedures “unnecessarily sug- be on gestive.” Because this case can decided this basis alone, is no indicia of re- there need further as to inquiry liability.1
In the present case, the officers the police upon arrived scene moments after the crime had been committed. The only criminals still have in involved been the immediate Thus, vicinity. action rapid appeared warranted. police Moreover, the modus of operandi the crime was recognized by officers and in a police the their minds triggered suspicion my grounds 1lnasmuch Ias reach determination on the there unnecessary suggestiveness, was no I have no occasion to consider reliability appropriate whether the additional test of under the Jersey merely aspect New Constitution. wish to note that subject persuasive by the standard was the of a dissent supra, in Marshall 432 U. at 97 S. Ct. at by Ed. 2d and has criticized commentators. the L. See,' g., Grano, “Kirby, Biggers any e. and Ash: Do Constitutional Safeguards Against Danger Convicting Remain Inno the the cent?,” Pulaski, Biggers: (1974); L. “Neil v. Mich. Rev. 717 Trilogy’s The Wade Process Court Dismantles the Due Protection,” L. 26 Stan. Rev. 1097 circumstances, that defendant Ford was involved. Under the it was show the flier to vic- not unreasonable for them to the before a tims so that the could successful suspects pursued be escape was complete. Division held that the procedure
used was In officers police its view the unduly suggestive. obtained dis- descriptions suspects should have before flier, thus a “benchmark” playing establishing against which to determine the identifica- subsequent reliability tions. While such a is more ideal than that utilized procedure herein, and in an standard to utilize as- appropriate cases, similar future sessing the actions taken police so as instant reasonable to sufficiently escape constitutional condemnation. Some must be flexibility granted to the their faith enforce the fairly effort good *3 law. not, in They should the absence de- prior judicial cision, penalized from every deviation what the slight courts later deem be procedure. perfect I find,
Although as did Appellate Division majority, the identification procedures utilized by the did have a suggestive impact, of the light circum- exigent stances present they I unnecessarily suggestive. with the trial judge had the officers addition to displaying fliers stated that they were for the looking per- sons therein pictured and that these persons had committed crimes, similar a different case well be presented. Here transmitted was message subconscious rather than explicit. Thus, the suggestiveness, present, still although was reduced. In the absence indicia stronger I prejudice, find that the evidence was properly admitted.
On this limited basis join the the Court. in the result. concurring For reversal —Chief Justice Moun- tain, Pashman, Clifford, Handler —7.
For affirmance —Hone.