Due Process – Identification Procedure – Showup ID: Probable Cause Specific to Purpose of ID Unncessary

State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger

Issue/Holding:

¶2        The issue presented in this case is whether a showup identification is necessary, thus meeting the first test of admissibility under Dubose, when probable cause exists to justify an arrest of a suspect, but it does not exist on the particular offense under investigation. ^[3] We conclude that whenever probable cause exists to justify detention of a suspect, regardless of whether it exists on the offense under investigation, a showup identification is not necessary within the meaning of Dubose.¶3        Because it is undisputed that officers, while lacking probable cause to arrest Nawrocki on the offense under investigation, had probable cause to arrest him on another offense, we conclude the showup was not necessary and was thus inadmissible underDubose. We therefore reverse the circuit court’s order denying Nawrocki’s motion to suppress evidence of the showup identifications. However, we remand for the circuit court to determine whether the victim’s in-court identification was based on an untainted, independent source, and for further proceedings that may be necessary consistent with this opinion.

All the rest is commentary. The parties agreed that the police had probable cause to arrest Nawrocki for various possible offenses but not the offense for which they obtained a show-up ID, ¶23. Dubose,2005 WI 126, ¶33, says there must be some necessity for use of the show-up procedure (such as that “the police lacked probable cause to make an arrest”) and the question therefore becomes whether they need probable cause for this offense, or whether any old offense will do. The court of appeals says it’s the latter:

¶26      We observe that the absence of probable cause makes a showup procedure necessary because officers lack a legal basis to detain the person and thus cannot acquire identification evidence by another, less suggestive procedure, such as a lineup or photo array. Id. Stated differently, a showup is necessary when officers lack other constitutional means to obtain a suspect’s identification. However, where probable cause exists, whether it is related to the offense under investigation or some other offense, officers have the constitutional means to detain the suspect and secure an identification using a procedure that is less conducive to misidentification. We therefore conclude that a showup is unnecessary and thus inadmissible under Dubose when probable cause exists to justify an arrest, regardless whether it exists on the particular offense under investigation.^[8]¶27      The State’s narrow interpretation of the necessity test runs counter to the purposes of Dubose. The supreme court in Dubose established a rigorous test for the admissibility of showup identification evidence grounded in the due process guarantees of Article 1, Section 8 of the Wisconsin Constitution and the principles enunciated by the Supreme Court in Stovall. The Dubose court adopted this standard in light of evidence that misidentification had led to an epidemic of wrongful convictions, and that the showup procedure was particularly suggestive and thus conducive to misidentification. A rule permitting admission of inherently suggestive showup identification evidence in situations in which officers have a legal basis to detain a suspect (but lack a legal basis related to the offense under investigation) would likely result in a higher incidence of misidentification and wrongful convictions in Wisconsin, the serious ills Dubose sought to remedy.

¶28      Applying the necessity test as we have construed it here, we conclude the circuit court erroneously admitted evidence of Gerhardt’s and Albert’s showup identifications of Nawrocki. It is undisputed that the officers had probable cause to detain and arrest Nawrocki for other potential criminal violations and thus could have employed an identification procedure less prone to misidentification. Therefore, the showup procedure was unnecessary in this case, and the circuit court thus erred in admitting testimony about the showup identifications at trial.

The underlying idea, that probable cause is not offense-specific, is certainly well-grounded in search-and-seizure caselaw. State v. Sykes, 2005 WI 48, ¶27, 279 Wis. 2d 742, 695 N.W.2d 277 (“as long as there was probable cause to arrest before the search, no additional protection from government intrusion is afforded by requiring that persons be arrested for and charged with the same crime as that for which probable cause initially existed”) – which reinforces a point made elsewhere on this pagethat showups are now tested by fourth amendment principles.