Perry v. New Hampshire: Courts not Required to Determine
Reliability of Eye Witness Identifications Unless Improper Police Conduct
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In back-to-back days in January, the 10th and 11th, the U.S. Supreme Court—once referred to in hallowed terms “as the Court of Last Resort”—handed down two decisions, supported by both liberal and conservative justices, that will encourage prosecutorial and law enforcement misconduct in our criminal justice system. Smith v. Caindealt with a Brady violation while Perry v. New Hampshire dealt with suggestive identification procedures. We have dealt with the issues surrounding Smith v. Cain in prior posts (here, here, and here). No sense to rehash them here. We now turn our attention to Perry v. New Hampshire.
In the early morning hours of August 15, 2008, Joffre Ullon called the Nashua, New Hampshire Police Department. Ullon reported that an African-American man was trying to commit car burglaries in the parking lot of an apartment complex where Ullon resided. A police officer named Nicole Clay was dispatched to investigate the report. Upon arrival at the apartment complex, Officer Clay heard something that “sounded like a metal bat hitting the ground.” Almost simultaneously the officer saw an African-American male named Barion Perry standing between two vehicles and who immediately started walking toward officer. The officer saw a metal bat on the ground behind Perry who was carrying two car-stereo amplifiers as he approached her. When asked by Officer Clay where he got the amplifiers, Perry responded that he had “found them on the ground.”
While this commotion was going on, Ullon’s wife, Nubia Blandon, awaken her neighbor, Alex Clavijo, and informed him that she had just witnessed someone breaking into his vehicle. Clavijo went downstairs to inspect his car whose rear windows had been shattered and whose amplifiers and stereo were missing. Also missing were a metal bat and a wrench. Clavijo then approached Officer Clay and told her about Blandon’s alert. He also conveyed his own observations about his vehicle to the officer.
While all this transpired, another officer arrived at the scene. Perry was instructed to stay with the second officer. Officer Clay and Clavijo then went to Blandon’s apartment on the fourth floor of the complex where they found her standing just outside her door in the hallway. Blandon said that at about 2:30 a.m. she observed from her kitchen window an African-American “roaming the parking lot and looking into cars.” The black male stopped at Clavijo’s where he removed a large box from its trunk.

At this point Officer Clay asked Blandon if she could provide a “more specific description,” to which she responded by pointing through her kitchen window at Perry standing with the second officer in the parking lot. The officers arrested Perry at this point. A month later Blandon, when shown a photographic array with Perry’s photo in it, could not identify Perry as the man she saw breaking into Clavijo’s vehicle. Before his trial and conviction for theft by unauthorized taking and criminal mischief, Perry sought to suppress Blandon’s parking lot identification on the ground that it was a “one-person showup” in violation of due process. This issue was rejected at the trial court level and denied on direct appeal to the New Hampshire Supreme Court.
The issue presented to the U.S. Supreme Court was: Do the safeguards against the State’s use of unreliable eyewitness identification evidence at trial apply to all identifications which arise from impermissibly suggestive circumstances and which are very substantially likely to lead to misidentification, or only to those identifications which are also the product of “improper state action”?
To context this question requires an examination of a line of Supreme Court cases dealing with “police-arranged identification procedures.” The first of these decisions, Stovall v. Denno, was handed down in 1967. That case involved the police bringing a suspect into the witness’s hospital room. The suspect was handcuffed, surrounded by police, and was the only black male in the room. The police justified this identification procedure by saying the victim was the only person who could identify the suspect; she could not leave her hospital room; and doctors were uncertain as to whether she would live to identify the suspect under “natural circumstances.” The court found no due process violation.
The following year, 1968, the Supreme Court handed down Simmons v. United States, which involved a police-arranged photographic array. The court found that when a witness identifies an accused in a police-arranged “photo lineup,” the identification is subject to suppression only when “the photographic identification procedure was so [unnecessarily] suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” The court found no due process violation in the “photo lineup” conducted by the FBI in that case.
However, the next year, 1969, the Supreme Court in Foster v. Californiaheld that due process is violated when a witness identification is derived from a police-arranged procedure that “made it all but inevitable that [the witness] would identify [the defendant].”
To clear up any constitutional confusion generated by this trilogy of decisions, the Supreme Court handed down two decisions five years apart in the 1970s. The first, Neil v. Biggers, was decided in 1972 and it held that due process is violated by police-arranged identification procedures which are both suggestive and unnecessary. In 1977 the Supreme Court decided Manson v. Brathwaite which held even when police-arranged identifications are suggestive and unnecessary, suppression of any witness identification made in the procedure “is not the inevitable consequence.”
What emerged out of this line of cases is a “two-step inquiry” to be conducted by trial courts when faced with a motion to suppress identification evidence. The first step requires the court to determine whether the police in fact used an “unnecessarily suggestive procedure;” and, second, if so, did the “improper identification procedure” taint the witness identification to the extent that it is unreliable and thus inadmissible.
Brathwaite held that “automatic” suppression could go “too far” because it would keep “evidence from the jury that is reliable and relevant” and would occasionally result “in the guilty going free.” Underscoring this point, the court added that when an “identification is reliable despite an unnecessarily suggestive [police] identification procedure, automatic suppression “is a Draconian sanction”—one “that may frustrate rather than promote justice.” Both Biggers and Brathwaite instructed trial courts to apply these principles—synthesized as a “substantial likelihood of misidentification”—on a case-by-case basis. The guiding principle, said Brathwaite, would be the “reliability” of the witness identification. Put simply, if the corrupting influence of a police-arranged identification procedure outweighs the reliability of the witness identification, the identification evidence must be suppressed; however, if the evidence is admissible in all other respects, the jury should be permitted to consider it.
Perry conceded at the outset before the Supreme Court that the police did not “arrange” the identification procedure in his case. The trial judge in Perry’s case addressed only step-one of the Biggers/Brathwaite two-step inquiry; specifically, the identification procedure in his case was not unnecessarily suggestive. The judge did not address the second issue of whether the procedures were “improper” and thus tainted the witness identification.

The Supreme Court succinctly stated Perry’s due process claim as follows: “The rationale underlying [ourStovall line] of cases, Perry asserts, supports requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances.”
In rejecting Perry’s due process violation claim, Justice Ginsburg said for the majority:
“Perry’s argument depends, in large part, on the Court’s statement in Brathwaite that ‘reliability is the linchpin in determining the admissibility of identification testimony …’ If reliability is the linchpin of admissibility under the Due Process Clause, Perry maintains, it should make no difference whether law enforcement was responsible for creating the suggestive circumstances that marred the identification.
“Perry has removed our statement in Brathwaite from its mooring, and thereby attributes to the statement a meaning a fair reading of our opinion does not bear. As just explained, the Brathwaite Court’s reference to reliability appears in a portion of the opinion concerning the appropriate remedy when the police use an unnecessarily suggestive identification procedure. The Court adopted a judicial screen for reliability as a course preferable to a per se rule requiring exclusion of identification evidence whenever law enforcement officers employ an improper procedure. The due process check for reliability, Brathwaite made plain, comes into play only after the defendant establishes misconduct. The very purpose of the check, the Court noted, was to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct.
“Perry’s contention that improper police action was not essential to the reliability check Brathwaite required is echoed by the dissent. Both ignore a key premise of the Brathwaite decision: A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances, the Court said, is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place. Alerted to the prospect that identification evidence improperly obtained may be excluded, the Court reasoned, police officers will ‘guard against unnecessarily suggestive procedures.’ This deterrence rationale is inapposite in cases, like Perry’s, in which the police engaged in no improper conduct.”
The lone dissent in the Perry decision, Justice Sotomayor, saw the  issue quite differently as we do: “This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identification derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process. The Court today announces that that rule does not even ‘come into play’ unless the suggestive circumstances are improperly ‘police arranged.’”
We unreservedly endorse Justice Sotomayor’s concern about the Court’s new identification procedure rule. While we do not believe that Officer Clay, accompanied by Clavijo, went to Nubia Blandon’s apartment with the intent to conduct a “kitchen window” showup, the officer was aware that Blandon’s husband had reported to the police that an “African-American” was trying to breaking into cars at the apartment complex and that she (Blandon) had personally alerted Clavijo that an African-American male had broken into his vehicle. Officer Clay was also aware that she left Perry standing with the second officer which placed the suspect in the full view of any witness in the complex. As it turned out, Blandon was waiting outside her door in the hallway when Clay and Clavijo approached. The officer could have gotten her “more specific description” from Blandon there is the hallway, but instead she followed Blandon, accompanied by Clavijo, into Blandon’s kitchen where the witness had a clear view of Perry, the only African-American in the vicinity, standing next to the second officer. In effect, Officer Clay escorted Blandon, or was taken by Blandon, into the kitchen where the “kitchen window” identification could be made.
While we have no problem that such an identification procedure established probable cause for arrest, the identification of Perry produced by this procedure should have been suppressed and never conveyed to the jury that convicted Perry. Why? Because Blandon could not later make an independent identification of Perry in a photographic array. Thus, the issue of reliability of the “kitchen window” was very significant in this case because once Officer Clay reached Blandon’s apartment she “arranged” the kitchen window showup—either by leading Blandon into the kitchen or by following her there. The officer should have gotten a “more specific description” of the African-American male from Blandon in the hallway or in a neutral room in the apartment, such as the living room.
The new Perry rule provides the safety net for conducting “inadvertent” suggestive identification procedures without the deterrent threat of its suppression. It will, we believe, open the door to more police misconduct—a serious concern because, according to the New York-based Innocence Project, 75 percent of all DNA exonerations in this country involved misidentification and another 12 percent involved some form of official misconduct. The new Perry rule will ensure that the tragic figures will only increase.
We do not believe Officer Clay engaged in “police-arranged” identification misconduct; in other words, that she pre-arranged or pre-planned the one person kitchen window showup. But we do believe she “arranged”—or at the very least permitted—the “kitchen window” identification once she got in Blandon’s apartment. In effect, Officer Clay, standing near the kitchen window, asked, “do you see the black man now?” And with only one African-American male in the vicinity, and who was standing with a police officer, Blandon, who was also standing near the kitchen window (the same window where she had observed Officer Clay’s arrival and confrontation with Perry) had no trouble saying “that’s him.”
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization