Seventy-five minute detention of juvenile suspect while police went to retrieve a witness for a show-up identification held an unreasonable seizure in violation of the Fourth Amendment.

In re D.M., No. 11-FS-1125 (decided July 10, 2014)

The Players: Blackburne-Rigsby, Pryor, King.  Opinion by Judge King.  PDS for D.M.  Trial judge: Patricia Broderick.

The Facts:  Anthony Pickett witnessed five juveniles break into a neighbor’s home.  His mother called 911 and Pickett provided a description of the juveniles, but before police could arrive, the juveniles exited the house and ran down the alley.  Pickett described the juveniles to the responding officer, who then broadcast a radio lookout for them.  Two canvassing officers saw a group of four young men standing outside an apartment building; when the males saw the police, they hurried into the building.  The officers followed them and stopped the group, asking them their names and general questions.  When a detective arrived, he noticed that D.M. matched the clothing of one of the lookout descriptions.  The officers released the other juveniles but detained D.M. while the detective returned to the scene of the burglary to bring Pickett for a show-up identification.  After seventy-five minutes, the detective returned with Pickett, who identified D.M. as one of the burglars.  D.M. moved to suppress the show-up identification on the ground that his seventy-five minute detention exceeded the scope of a reasonable Terry stop.  The trial court denied that motion, and D.M. was adjudicated guilty, in a bench trial, of burglary, theft, and felony destruction of property.

Issue:  Did the police’s detention of D.M. for seventy-five minutes while they waited for the detective to bring a witness for a show-up identification violate D.M.’s Fourth Amendment right against unreasonable seizures?

Holding:  Yes.  While a seventy-five minute detention is not per se unreasonable, here the government failed to meet its burden of proving that the police acted diligently and that the lengthy delay was necessary to complete their investigation.  Although the evidence showed that Pickett had gone to work after calling 911, and thus “had to return from work before he could participate in the show-up identification” (slip op. at 20), the government presented no evidence about where Pickett worked, how far away it was, how long it took him to return, or at what time the officers contacted him.  Thus, any conclusions about whether the police acted diligently or whether the delay was necessary would be entirely speculative.

Of note: 

·       Although the court emphasizes that there is no bright-line rule that detentions of a certain length are per se unreasonable, it acknowledges that it has “never upheld a seizure for over an hour while police arranged a show-up identification” (slip op. at 11), and that it is “not aware of any precedent in any jurisdiction upholding the detention of a suspect for over an hour while a show-up identification was arranged” (slip op. at 12).

·       The court rejects the notion that a detention is unlawful if there existed “less-intrusive means by which the police could have accomplished their investigation,” explaining: “[W]e review whether the police acted reasonably in pursuing the investigative methods they chose under the circumstances—not whether other reasonable, though perhaps less-intrusive, methods were available” (slip op. at 15).  CM

Read the full opinion here.