8. Search and Seizure - Lineps and Showups Etire Section.docx

8 - LINEUPS AND SHOWUPS Suggestivity; reliability; searches and seizures during showups; right to attorney; recommended procedures; suppression hearing; identifications at trial; police art. I.   INTRODUCTION This chapter discusses the legal and practical issues involved in the identification of a s...

8 - LINEUPS AND SHOWUPS Suggestivity; reliability; searches and seizures during showups; right to attorney; recommended procedures; suppression hearing; identifications at trial; police art. I.   INTRODUCTION This chapter discusses the legal and practical issues involved in the identification of a suspect at a lineup or showup, plus a brief discussion of police art (composite sketches) as an investigative tool. A "lineup" is a physical or photographic group of people from which a witness may pick the perpetrator of the crime. A "showup" is a one-on-one confrontation between a witness and a suspect, usually in the field. A.   Penal Code Section 859.7, Effective January 1, 2020 In 2018, the California Legislature created a statewide standard for lineups.  Penal Code section 859.7 provides that as of January 1, 2020, all law enforcement agencies and "prosecutorial entities" shall adopt regulations for conducting photographic and live lineups.  The minimum requirements, set forth in the statute, are very specific: (1)  Prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness shall provide the description of the perpetrator of the offense. (2)  The investigator conducting the identification procedure shall use blind administration or blinded administration during the identification procedure. (3)  The investigator shall state in writing the reason that the presentation of the lineup was not conducted using blind administration, if applicable. (4)  An eyewitness shall be instructed of the following, prior to any identification procedure: (A)  The perpetrator may or may not be among the persons in the identification procedure. (B)  The eyewitness should not feel compelled to make an identification. (C)  An identification or failure to make an identification will not end the investigation. (5)  An identification procedure shall be composed so that the fillers generally fit the eyewitness' description of the perpetrator.  In the case of a photo lineup, the photograph of the person suspected as the perpetrator should, if practicable, resemble his or her appearance at the time of the offense and not unduly stand out. (6)  In a photo lineup, writings or information concerning any previous arrest of the person suspected as the perpetrator shall not be visible to the eyewitness. (7)  Only one suspected perpetrator shall be included in any identification procedure. (8)  All eyewitnesses shall be separated when viewing an identification procedure. (9)  Nothing shall be said to the eyewitness that might influence the eyewitness' identification of the person suspected as the perpetrator. (10)  If the eyewitness identifies a person he or she believes to be the perpetrator, all of the following shall apply: (A)  The investigator shall immediately inquire as to the eyewitness' confidence level in the accuracy of the identification and record in writing, verbatim, what the eyewitness says. (B)  Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness' statement of confidence level and documenting the exact words of the eyewitness. (C)  The officer shall not validate or invalidate the eyewitness' identification. (11)  An electronic recording shall be made that includes both audio and visual representations of the identification procedures.  Whether it is feasible to make a recording with both audio and visual representations shall be determined on a case-by-case basis.  When it is not feasible to make a recording with both audio and visual representations, audio recording may be used.  When audio recording without video recording is used, the investigator shall state in writing the reason that video recording was not feasible.  (Pen. Code, § 859.7, subd. (a).) The special terms "blind administration," "blinded administration," and others used in the provision are defined in section 859.7, subdivision (c). Nothing in section 859.7 affects policies for in-field showups.  (Pen. Code, § 859.7, subd. (b).) Additionally, this state provision does not affect the admissibility of a witness' eyewitness identification.  Evidence is not subject to exclusion based on a violation of state law if the evidence remains admissible under the United States Constitution.  (Moore (2008) 553 U.S. 164; Lance W. (1985) 37 Cal.3d 873, 879; McKay (2002) 27 Cal.4th 601, 605.)  II.   SUGGESTIVITY The U.S. Supreme Court has held that a defendant was denied due process at trial because the in-court eyewitness identification followed a pretrial photo ID procedure that was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."  (Simmons (1968) 390 U.S. 377, 384; Thomas (2012) 54 Cal.4th 908.)  In other words, a denial of due process can result if you "suggest in any way" to the witness that a suspect at a lineup or showup committed the crime and the lineup leads to an identification in court.  A defendant claiming that a suggestive procedure was used must show that the identification procedure was actually unduly suggestive.  (Lucas (2014) 60 Cal.4th 153.) Example:   Defendant provided no more than speculative assertions that the photo lineup procedure was unduly suggestive based on claims that the victim's injuries (being choked) affected her memory, she had an emotional need to have her attacker tried, her participation in making composite sketches tainted her memory, and the questioning process was suggestive.  None of the assertions undermined the identification of defendant's photo.  (Lucas (2014) 60 Cal.4th 153.) Note:   Contrary to language that appears in some cases, it is not the procedure (suggestive lineup) that violates due process.  Rather, the problem is basing a conviction on "tainted" identification evidence.  "A conviction which rests on mistaken identification is a gross miscarriage of justice."  (Stovall (1967) 388 U.S. 293, 297.) For a number of years, a movement to discredit all forms of eyewitness identification has been gaining momentum in the popular press and journals, if not in the courts.  In 2012, a challenge based on the "fallibility" of eyewitness identification was rejected by the Supreme Court in Perry (2012) 565 U.S. 228.  The Court held that the "fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness."  Untainted eyewitness evidence, therefore, stands on its own in a criminal proceeding. A.   Suggestiveness Before the Identification To maintain the reliability of eyewitness identification, you must avoid any conduct prior to the identification that might be ruled suggestive. Never tell the witness: -   you caught (or think you caught) the person who committed the crime; -   the victim's property was in the suspect's possession; -   the suspect made admissions or confessed to the crime; -   the person to be observed is a "suspect" (do not use the word "suspect" at all). Always tell the witness: -   to keep an open mind; -   the person who committed the crime may or may not be among those present; -   just because the person is in custody does not mean she committed the crime (this applies only in situations where it will be obvious that the person is in custody); -   not to talk to any other witness about the identification. B.   Suggestiveness During the Identification You must avoid any conduct during the identification that might be ruled suggestive. Never permit the witness' attention to be drawn to the suspect because of the composition or makeup of a lineup, whether physical or photographic; or remarks you make during the identification. 1.   Lineups (Physical or Photographic) a.   Composition Live lineups where a group of persons are presented to a witness simultaneously (rather than sequentially) are a well-accepted identification procedure.  (Johnson (2010) 183 Cal.App.4th 253, 272.)  Although all participants in a lineup must be similar in appearance, "there is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance."  (Van Tran (9th Cir. 2000) 212 F.3d 1143, 1156; Thomas (2012) 54 Cal.4th 908; Blair (1979) 25 Cal.3d 640; Wimberly (1992) 5 Cal.App.4th 773, 790.)  "The question is whether anything caused defendant to 'stand out' from the others in a way that would suggest the witness should select him."  (Carpenter (1997) 15 Cal.4th 312, 367; Sanchez (2019) 7 Cal.5th 14; Johnson (2010) 183 Cal.App.4th 253, 272; Cook (2007) 40 Cal.4th 1344, 1355.) Example:   The photograph at issue was placed in the center of the top row and was the only one in which the subject had three of the features noted by the eyewitnesses--glasses, a goatee, and a suit and tie.  HELD:  No error.  All six men were wearing glasses, at least one of the others was dressed in a three-piece suit and another was wearing a suit jacket, all had a moustache and some had other facial hair, several had a hairstyle similar to defendant's, and defendant was not the tallest, shortest, oldest, or youngest of the participants.  (Cunningham (2001) 25 Cal.4th 926, 990.) Example:   Suspect was 37 years old and weighed 217 pounds. The other participants were between 19-30 years old and weighed 160-180 pounds. However, a picture of the lineup did not show the defendant as appearing "significantly taller, heavier or older than the other participants."  The photo lineup was fair.  (Blair (1979) 25 Cal.3d 640.) Example:   The suspect was 6'1", Italian, had a very dark complexion, weighed 238 pounds, and had dark wavy hair.  He was placed in a four-man lineup in which none of the other participants was his size or had his dark complexion or his wavy hair.  The lineup was ruled unduly suggestive.  (Caruso (1968) 68 Cal.2d 183.) Example:   The witnesses could observe defendant's "Lott Stoners 13" tattoo on the back of his head when he turned and when he walked across the platform.  Because none of the witnesses had reported seeing a tattoo on the gunman's head, the lineup was not unduly suggestive.  (Gonzalez (2006) 38 Cal.3d 932, 944.) Note:   If a witness describes the suspect as having a particular or distinguishing characteristic (e.g., dark wavy hair, mustache, brown eyes, tattoos, scar, etc.), make sure that others in the lineup also have this characteristic, if at all possible.  (Adams (1982) 137 Cal.App.3d 346.)  You should also try to make sure the photosthemselves (not just the people in them) are as similar as possible.  Problems can arise if only one picture is in color or a mug shot, etc. Example:   A six-pack photo array was impermissibly suggestive because the defendant's name and identification number, which were not included on any of the other photos, made his photograph "stand out."  (Carlos (2006) 138 Cal.App.4th 907, 912.) Example:   The court rejected defendant's claim that the photographic lineup was unduly suggestive because he was the only person wearing "gang-type" clothing, he was the only one with a "droopy" eye, and his photograph was discolored.  Nothing caused defendant to "stand out" in a way that suggested the witnesses should select him.  (Gonzalez (2006) 38 Cal.3d 932, 943; see Lucas (2014) 60 Cal.4th 153--the six photos bore a fair resemblance to a police composite sketch, and it would have been virtually impossible to find five other photos of men with the same "bulging" eyes.) b.   Officer Conduct You should not say or do anything during the lineup that would draw the witness' attention to the suspect.  To avoid any problems, try not to say or do anything during the identification. c.   Witness Conduct When more than one witness is to view the lineup, explain that each must view the lineup separately. Do not permit any witness to hear another's comments at the identification or to "compare notes" about the description of the perpetrator(s). d.   Prior Photographic Lineups Courts have rejected the argument that it is per se suggestive to have a live lineup following a photographic lineup even if the defendant is the only person who is included in both lineups.  (Cook (2007) 40 Cal.4th 1344, 1355; Johnson (2010) 183 Cal.App.4th 253, 272.)  Example:   One witness was shown a photo lineup that included defendant's photo.  Five days later, defendant was included in a live lineup and was identified by that witness.  A second witness was shown still photos taken from the surveillance video from a separate murder, and she was able to identify defendant.  One week later, the second witness also identified defendant in a live lineup.  HELD:  The fact that defendant was the only suspect appearing in all the photographic and live lineups was not an impermissibly suggestive procedure.  (Johnson (2010) 183 Cal.App.4th 253, 272--also holding that it was not unduly suggestive to show a different witness a surveillance video prior to viewing a photo lineup.) 2.   Showups A one-on-one contact between the suspect and a witness or victim is automatically suggestive just because there is only one person to look at and that person is already in police custody. Nevertheless, the courts make an exception to the general rule (that the suspect deserves a full lineup) because a showup held shortly after the offense benefits everyone:  the witness has the suspect's image fresh in mind, so an innocent suspect is released immediately, and the police can go on with their investigation while the trail is still fresh.  (Stovall (1967) 388 U.S. 293; Johnson (1989) 210 Cal.App.3d 316.) Even so, the courts will not uphold a showup if it was too suggestive.  In deciding this question, they try to balance all the circumstances, including: -   the witness' opportunity to view the perpetrator at the time of the crime (length of time, lighting, distance, etc.); -   the witness' degree of attention at the time of the crime (was he concentrating to remember the perpetrator's looks, was the witness sober, did the victim know the suspect?); -   the amount of time that went by between the crime and the showup (although there is no definite outside time limit, the showups in most cases that have been upheld took place within an hour or two of the crime--but see Rodriguez (1987) 196 Cal.App.3d 1041, upholding a showup held nine hours later, where officers had been piecing information together concerning a "gang" shooting); -   the physical setup of the showup itself (did the officer say "leading" things, how was the suspect positioned, where was he located, etc.?); -   the accuracy of the witness' description; -   the certainty of the witness' identification at the showup.  (Biggers (1972) 409 U.S. 188; Nash (1982) 129 Cal.App.3d 513.) Example:   Witnesses had an excellent chance to look at robber for 15 minutes from close distances.  Circumstances "encouraged" them to remember his face.  The showup took place within 20 minutes at defendant's motel.  Descriptions given were accurate.  The identification was upheld.  (Smith (1980) 112 Cal.App.3d 37.) Example:   Showup took place 45 minutes after murder.  The defendant was on the curb in handcuffs with many officers and patrol vehicles present.  However, police did not use the word "suspect," specifically advised witnesses that the murderer might not be the person they would be looking at, and reminded them to keep an open mind.  The identification was upheld. (Odom (1980) 108 Cal.App.3d 100.)  Example:   Showup took place less than one hour after rape.  The victim had "clear view" of perpetrator in daylight.  The showup took place on city street and the suspect was not handcuffed.  The victim had given an accurate description and was positive of her identification.  The identification was upheld.  (Kilpatrick (1980) 105 Cal.App.3d 401.) a.   Single-Photo "Showups" The California Supreme Court has, in one case, called the use of a single photo shown to an eyewitness a "single-photograph showup."  (Sanchez (2019) 7 Cal.5th 14.)  The court relied on the U.S. Supreme Court analysis in Brathwaite (1977) 432 U.S. 98, which rejected a per se rule of exclusion when police use a single photograph to establish a suspect's identity. In Brathwaite, the Court found that the admissibility of a witness's later identification depends on the reliability of the initial identification.  Factors to consider are the witness's opportunity to view the suspect at the time of the crime, the witness's degree of attention, the accuracy of any prior description of the suspect, the witness's level of certainty when viewing the photograph, and the time between the crime and viewing the photograph.  (Brathwaite (1977) 432 U.S. 98.)  Assessing these factors, the court in Sanchez found that a child's eyewitness identification of the single photograph of the man who killed his mother in their home was sufficiently reliable.  The court specifically noted, however, "that because single-photograph showups are inherently suggestive, they should be used very cautiously, and only when truly necessary," adding that it "is generally better to use a multiple-photograph lineup."  (Sanchez (2019) 7 Cal.5th 14.)  C.   Suggestiveness After the Identification You should be very careful concerning conduct after the identification that might be ruled suggestive. For instance, if you tell a witness that she has picked the "right" (or "wrong") person, it may jeopardize the admissibility of a later in-court identification.  On the other hand, if the witness has failed to identify anyone, or seems uncertain, it is legal for you to question the witness further if you believe that she has actually recognized someone in the lineup. Example:   Witness failed to identify anyone on the lineup card.  Later, outside the lineup room, the officer asked her if she had seen anyone who closely resembled the robber.  She said she had recognized Perkins in the lineup but could not be sure without seeing the two "lightning bolt" tattoos on his neck.  The officer told her Perkins had such tattoos, and the court upheld the conviction.  (Perkins (1986) 184 Cal.App.3d 583.) It is also legal to modify a photograph (such as by adding a moustache) to help confirm an identification when a witness has already made a tentative identification.  Do not make any such modification, however, until after the witness has made at least a tentative selection. (Hernandez (1988) 204 Cal.App.3d 639.) III.   RELIABILITY Even when a lineup (physical or photo) or showup is unduly suggestive, the witness may nevertheless be allowed to identify the suspect at trial if the trial identification has an "independent origin." A prosecutor must show by "clear and convincing evidence" that the in-court identification is totally independent of the suggestive identification, i.e., that the suggestive pretrial identification could not have affected the accuracy of the identification at trial.  (Orozco (1981) 114 Cal.App.3d 435.)  This can be a very difficult burden. A.   Factors In deciding whether an in-court identification has an "independent origin," the courts consider most of the same factors listed under "Showups" above, as well as any additional identifications or non-identifications that the witness may have made.  (Sanchez (1982) 131 Cal.App.3d 709.)  You can assist prosecutors by including the details of all identifications/non-identifications in your report. B.   Documenting a Witness' Description Another helpful tool is for you to fully document any description you get from a witness. An identification witness will be subjected to grueling cross-examination at trial regarding her description documented in your report.  An officer should try to make sure that all descriptions documented in a report are accurate and as complete as possible.  For example, what if a witness, who is 5', says that the person who robbed her was "tall"?  The following are suggestions to get a useful description before it is memorialized in your report. (1)   Tell the witness to relax, close his eyes and visualize the robber's facial features and other characteristics. (2)   Ask him approximately where his eyes would hit the suspect's body if he looked straight ahead. (3)   Ask him to hold his hand to approximate the height (or use some other method to get an accurate measurement). (4)   Ask him to approximate your height and weight. (5)   Ask him to approximate the distance between him and the robber by moving closer to him or farther away. (6)   Ask him to close his eyes and run through the robbery in his mind step-by-step to determine how long he was looking at the suspect. (7)   Always go back over a witness' statement to avoid miscommunication.  Tell him exactly what you are going to put in your report. IV.   SHOWUPS - SEARCHES AND SEIZURES The general rule is that an officer who detains (seizes) a suspect pending a showup should not: -   move him to a different location; or -   conduct a full-scale search of the suspect. A.   Seizures You may detain a suspect if there is reasonable suspicion to believe the suspect committed a crime. If the detention occurs soon after the crime, it is all right to arrange a showup between the witness(es) and the suspect. However, the courts require that you inconvenience the suspect as little as possible in making this arrangement.  As a general rule, this means the witness should be brought to the suspect; do not take the suspect to the witness if there is any reasonable alternative.  (Harris (1975) 15 Cal.3d 384; but see Carlos M. (1990) 220 Cal.App.3d 372.) Note:   While you are awaiting the arrival of the witness, you may place the suspect in your patrol car, handcuff him, or take whatever other steps are necessary for your safety, based on specific facts. (Craig (1978) 86 Cal.App.3d 905.) But remember, the showup will be less "suggestive" if the suspect is outside the car, mixed in with others, not handcuffed, etc. There are three exceptions to the general rule of "bring the witness to the suspect." 1.   Probable Cause to Arrest If you have probable cause to arrest the suspect, you may transport him to the witness(es) for identification. (Rafael (1982) 132 Cal.App.3d 977.) Note:   If there is any doubt as to whether probable cause to arrest exists, do not move the suspect unless consent is obtained or it is impracticable to bring the witness (see below). 2.   Consent If you obtain the valid, voluntary consent of a detainee to move him to the witness for a showup, the movement is lawful. (Ortega (1982) 135 Cal.App.3d 244.) A conditional consent is still voluntary. Example:   Suspect says he will agree to be transported if his companion can come too or if you will bring him back afterwards (assuming he is not identified).  Such a consent is valid. 3.   Impracticability If it is impossible or impractical to bring the witness to the suspect, the courts will often permit the movement of the suspect to the witness. a.   The Witness or Victim Is Injured or Incapacitated If the witness is injured, it is clearly permissible to transport the suspect to the witness. (Hall (1979) 95 Cal.App.3d 299; Carlos M. (1990) 220 Cal.App.3d 372.) b.   Availability of Officers Is Limited If the detention occurs in an area where there are not enough officers to secure the scene, chase other suspects, transport the witnesses, etc., courts have permitted the immediate transportation of the suspect to the witness. (Gatch (1976) 56 Cal.App.3d 505.) V.   RIGHT TO AN ATTORNEY If "adverse judicial proceedings" have been initiated, a suspect has the right to an attorney at a physical lineup.  However, a suspect does not have a right to an attorney at a showup or a photographic lineup. A.   Lineups 1.   Physical A suspect has the right to the presence of a qualified attorney (but not necessarily his counsel or counsel of his choice) at a physical lineup that occurs after the commencement of criminal judicial proceedings.  (Kirby (1972) 406 U.S. 682; Lynch (2010) 50 Cal.4th 693, 711; see Wade (1967) 388 U.S. 218.)  Two California appellate decisions provide that a criminal action "commences" upon (1) the return of a grand jury indictment or (2) the filing of a criminal complaint, pursuant to Penal Code section 691, subdivision (c).  (Reese (1981) 121 Cal.App.3d 606; Viray (2005) 134 Cal.App.4th 1186, 1194-1195.) The federal court has held that this right includes the right to have counsel view not only the people in the lineup itself but also what the witnesses say and do in the observation room during the lineup.  (LaPierre (9th Cir. 1993) 998 F.2d 1460, 1463-1464.) Example:   Prior to a criminal complaint being filed, Cook, a murder suspect was identified in a physical lineup.  Cook had asked that counsel be appointed after his Miranda advisements, but counsel was not secured before the lineup.  On appeal, Cook claimed that it was improper to conduct a lineup without counsel because (1) he was the focus of the investigation, and (2) he had requested counsel.  HELD:  Cook was not entitled to counsel until "the initiation of adversary judicial proceedings."  (Cook (2007) 40 Cal.4th 1334, 1352-1353.) 2.   Photographic A suspect does not have a right to an attorney during a photographic lineup, no matter when the pictures are shown.  (Ash (1973) 413 U.S. 300, 321; Virgil (2011) 51 Cal.4th 1210, 1250; Rist (1976) 16 Cal.3d 211; Odom (1980) 108 Cal.App.3d 100.) B.   Showups A suspect does not have the right to an attorney during a lawful "in-field" showup. (Kirby (1972) 406 U.S. 682; Danpier (1984) 159 Cal.App.3d 709.) VI.   SUMMARY OF PROCEDURES As discussed in the Introduction to this chapter, effective January 1, 2020, Penal Code section 859.7 will set forth the minimum requirements for each law enforcement agency's and prosecutor's lineup procedures.  In addition to those requirements, agencies also may wish to consider the following practices. A.   General (All Types of Identifications) 1.   Always get as good a description as possible of the suspect, especially as to distinguishing characteristics, such as scars, moles, tattoos, etc. 2.   Never make suggestions or "lead" the witness to give a description he does not mean to give. 3.   Never say anything about the suspect. 4.   Always tell the witness to keep an open mind. 5.   Always tell the witness that it is possible she may not be viewing the suspect. 6.   Never say anything during the actual viewing. 7.   Never allow multiple witnesses to talk together about the identification. 8.   Never allow multiple witnesses to view the lineup or showup at the same time. 9.   Never ask a witness to state his certainty on a scale of 1-10 or as a percentage. The witness will rarely say 100 percent no matter how sure he is, and a couple of percentage points might give a naive juror a "reasonable doubt" about the defendant's guilt. 10.   Document everything that occurs and the witness' exact words in your report.  Tell the witness what you are putting in your report. B.   Physical Lineup 1.   Include at least six participants, if possible. 2.   Choose participants of the same race and sex and with similar characteristics (especially those noticed by the witness). 3.   If the suspect refuses to fully participate or cooperate in the lineup, tell him that his resistance may be commented upon in court as an admission of guilt. 4.   If the suspect wore distinctive clothing, have all participants wear similar clothing. 5.   If voice identification is necessary, have all participants say the same words. 6.   Document the names of all participants in the lineup and all other persons present. 7.   Take frontal and profile photographs of the lineup. 8.   Preserve the photos for trial. 9.   Remember that a suspect has the right to an attorney at a physical lineup. 10.   If a defense attorney is present, try to get a prosecutor to come to the lineup too. C.   Photographic Lineups There are a number of theories regarding the best method of presenting photographic lineups to witnesses.  The methods are discussed here in the terms used in current P.O.S.T. training materials.  You will want to check with your agency to determine the method used in local investigations. Photographic Spreads.  The first method is the six-pack group photographic lineup in which a group of photographs is shown to a witness.  (P.O.S.T. Basic Course, Learning Domain 16:06.): 1.   Use the most recent picture of the suspect. 2.   Obtain photos of other persons of the same sex and race with similar facial characteristics. 3.   Use all color or all black-and-white photos of similar size overall, if possible. 4.   Use at least six photos, if possible.  Note this is only a recommendation, not a requirement.  Photo lineups with five pictures have been upheld (even where only four of them were similar).  The key is whether the process is "impermissibly suggestive," not the precise number of pictures used.  (Williams (1970) 11 Cal.App.3d 970, 980-981.) 5.     Number each photo on the back. 6.   Record separately the names, dates of birth and numbers assigned to each photo. The officer administering the lineup should give each witness the following directions prior to showing the spread:  "I am going to show you six photographs.  Please look at all six photographs before making any comment.  The person who committed the crime may or may not be among those shown in the photographs you are about to see.  If you recognize any of the persons in the photographs as the suspect, go back and pick out the person you recognize.  If you recognize any of the persons, please do not ask me whether your choice was 'right' or 'wrong,' as I am prohibited by law from telling you."  Note:   Telling a witness "You have picked the right person" is considered unduly suggestive and will corrupt any subsequent identification.  (Gordon (1990) 50 Cal.3d 1223, 1241-1242.)  The administrator should then complete the following steps: 7.   If the witness picks a photo, ask him to initial the back of the photo and then initial the photo yourself. 8.   Regardless of whether the witness picks the "right" or "wrong" picture, do not discuss his choice with him. 9.   Place all photos in an evidence envelope, seal, initial, date and place the evidence in property storage in accordance with departmental policy. Note:   "[I]t is the duty of the officers to preserve the photographs which are used for identification, and the better practice would be to make a list of the photographs so used." (Kaiser (1980) 113 Cal.App.3d 754.) Note:   The California Supreme Court has never required a "double blind" procedure in which the administrator is unaware of which photograph depicts the suspect.  (Lucas (2014) 60 Cal.4th 153.)  As discussed at Ch. 8-I-A Sequential Photographic Lineups.  This alternative method of administering a photo lineup is taught in some P.O.S.T.-certified investigations courses.  The lineup should be administered by an officer who does not know the identity of the suspect ("blind administration").  The photos are assembled and identified in the same manner (1-6 above) as for a photo array: 1.   Admonish the witness. 2.   Present each photo to the witness separately. 3.   Remove the photo before presenting the next one. 4.   Record positive and negative results in writing, using the witnesses own words. 5.   Record the procedure used and retain photos in accordance with departmental policy. D.   Showups 1.   Always take the witness to the suspect unless: -   you are sure there is probable cause to arrest; or  -   the suspect unequivocally consents to the movement; or -   it is very impractical to move the witness. 2.   Avoid a full search of the suspect or any search of her vehicle prior to positive identification. 3.   Patsearch the suspect prior to the identification only if there are specific reasons to believe she may be armed. 4.   If at all possible, avoid any indications that the suspect is in custody (handcuffs, placement in the back seat of the patrol car, spread-eagle position, etc.), although you may do whatever is reasonable for your safety. 5.   Avoid saying anything to the witness just prior to the identification.  It is very helpful if you can testify at trial, "As we drove up, Mr. (Victim) said, 'That's the guy who robbed me!'" rather than "I asked him if he recognized anyone and he responded, 'The guy in handcuffs looks familiar.'" 6.   If the witness fails to make a positive identification or rules the suspect out, be sure to get the suspect's name and address so that the suspect cannot be used as a "red herring" at trial. VII.   THE SUPPRESSION HEARING If identification is in issue, the defense attorney will bring one or more motions to "suppress" the identification.  The basis of these motions usually will be that identification procedures were unduly suggestive or that the suspect was unlawfully deprived of her right to counsel.  In most cases, both you and the witness will be called to the witness stand.  For that reason, you should tell the witness at the scene that you may have to quote her identification word for word in court someday.  Tell her exactly what you are going to put in your report. As discussed in the Introduction to this chapter, the failure to implement the new requirements set forth in Penal Code section 859.7 will not result in the suppression of identification evidence unless the procedures used result in a violation of the U.S. Constitution. VIII.   IDENTIFICATIONS AT TRIAL One of the most dramatic moments in any criminal trial is when the witness points at and "identifies" the defendant as the perpetrator of the crime. A.   The Witness' Testimony An eyewitness may identify the defendant in court as long as the original identification was not "suggestive," or even if it was, as long as the in-court identification has an "independent origin." However, in order for the witness' testimony to have an effect upon the jury, the witness must testify consistently with whatever you documented in your report(s). If he does not, you will be called by the defense to impeach the witness. B.   The Officer's Testimony Sometimes, by the time the trial occurs, the witness can no longer identify the defendant because of forgetfulness. When this happens (as opposed to when the witness intentionally changes his story), it is possible that the case can still be saved by your testimony. Although it is not always permitted, you may be able to testify about the witness' earlier identification, including the exact words used by the witness at that time. Such testimony can be very dramatic and persuasive and is another reason why you should always review your report(s) before going to court. (Miguel L. (1982) 32 Cal.3d 100; Richard W. (1982) 136 Cal.App.3d 733.) IX.   POLICE ART AS AN INVESTIGATIVE TOOL A composite drawing or sketch of a suspect, composed by a police artist, is another investigative tool available to the beat officer. A composite sketch is a likeness - not a portrait - of a suspect under investigation for a crime. The sketch is prepared by a police artist from an eyewitness' account, and it should be treated the same as any other information gleaned from an eyewitness. The first officer on the scene of a crime plays an important role in preserving the witness for the purpose of rendering a composite sketch. Great care must be taken not to influence, offend or frighten the witness or otherwise taint the memory of the witness in any way. A composite sketch serves to eliminate many classes of suspects (for example, by race, sex, age, build, scars and deformities) and helps the officer on the street focus attention on subjects who closely match the witness' description. A composite sketch provides an officer with sufficient reasonable suspicion to stop and question a subject who resembles the drawing. Whether the sketch may also be relied on in court will depend greatly on the experience and expertise of the police artist and the validity of the techniques which he used (Palmer (Conn. 1985) 491 A.2d 1075), as well as the "foundation" for the sketch which is established by the prosecution. (Cooks (1983) 141 Cal.App.3d 224.)