Opinion
04 Civ. 4909 (PKC).
July 19, 2005
MEMORANDUM ORDER
On this petition for a writ of habeas corpus, petitioner Warnell Owens challenges his September 12, 2000 conviction of Criminal Sale of a Controlled Substance in the Third Degree, Criminal Sale of a Controlled Substance on or Near School Grounds, and Criminal Possession of a Controlled Substance in the Third Degree in New York State Supreme Court, New York County. On the same day that the jury returned its verdict, Justice Edward McLaughlin, before whom the case was tried, sentenced petitioner as a second felony offender to concurrent terms of five and one-half to eleven years on each count. (S. 11-12)
Petitioner contends that he is entitled to the grant of a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, because he was denied the effective assistance of counsel; specifically, he asserts that his counsel failed to seek the suppression of a precinct identification following an arrest that the state court had determined to be improper.
For the reasons set forth below, Owens's petition is denied.Background
Petitioner's conviction stemmed from a December 28, 1999 police "observation sale" of crack cocaine in Manhattan. During the operation, Police Officer Edward Pressley, a member of the NYPD's Street Narcotics Enforcement Unit ("SNEU") who was stationed on a rooftop five to six stories above street level and viewing the street scene through a pair of binoculars, observed three individuals separately approach petitioner over the course of an hour and accompany him across the street. Petitioner was seen to bend down behind a parked car and retrieve items (later identified as small plastic bags of crack cocaine), and then receive what appeared to be money from the individuals in a hand-to-hand transaction. Also stationed on the rooftop with Officer Pressley was a "security officer," Officer Telly Waring, whose role was to watch the area behind Officer Pressley to ensure that the officers and their operation were secure and undetected. Officer Waring was also equipped with a pair of binoculars, with which he observed petitioner at least once during the operation.
After observing the transactions between the petitioner and others, Officer Pressley used a hand-held radio to give a description of the purchaser to another member of the team, who, in at least one case, approached and arrested the purchaser. After observing three transactions, Officer Pressley transmitted a description of the petitioner to the officers on the street via radio, and based upon that description, Officer John Gamble arrested petitioner. Officer Gamble conducted a search incident to the arrest and seized $68 in currency from petitioner's pocket. Other officers later retrieved a total of 82 small bags of crack cocaine from the vicinity of the operation, and recovered two small bags of crack cocaine that matched the 82 retrieved from the scene from a purchaser arrested during the operation. Less than a half-hour after petitioner's arrest by Officer Gamble, Officer Pressley returned to the precinct and identified petitioner as the man he had observed engaging in hand-to-hand transactions. Petitioner was subsequently charged with Criminal Sale of a Controlled Substance in the Third Degree, Criminal Sale of a Controlled Substance on or Near School Grounds, and Criminal Possession of a Controlled Substance in the Third Degree.
Prior to trial, petitioner moved to suppress the $68 that was seized, asserting that it was the fruit of an unlawful arrest. He also argued that because his arrest was not supported by probable cause, any evidence obtained as a result of that arrest — including Officer Pressley's identification — was tainted. Accordingly, petitioner's counsel sought a hearing pursuant toDunaway v. New York, 442 U.S. 200 (1979), and argued that the state should be required to demonstrate an independent source for any in-court identification made by Officer Pressley. Petitioner also sought a Wade hearing to determine whether Officer Pressley's precinct identification should be suppressed as unduly suggestive. (Davis Exh. C) See United States v. Wade, 388 U.S. 218 (1967).
On May 18, 2000, Justice Herbert I. Altman denied petitioner's request for a Wade hearing (which would have determined whether the precinct identification was unduly suggestive), because "the only identification procedure was a confirmatory observation by a police officer." Pre-hearing Decision (Davis Exh. C). Justice Altman did order a hearing to consider whether the physical evidence seized should be suppressed as the fruit of an illegal arrest. He did not explicitly address petitioner's application to suppress the precinct identification as also tainted by the allegedly illegal arrest.
The Suppression Hearing
On August 1, 2000, a suppression hearing was held before Justice James A. Yates, who noted at the start of the hearing that "This is on for a Mapp hearing. Judge Altman denied an application for a Wade Hearing." (Hearing Tr. at 2)
At the hearing, the officers present during the SNEU operation described their actions preceding petitioner's arrest. Officer Pressley testified as to his narcotics work on the police force, and to his experience on the SNEU team. (Hearing Tr. at 74-75) Pressley testified that all three transactions between petitioner and the purchasers occurred at a location that he described as underneath "the beginning of" a scaffold. (Id. at 52-53, 58) Another officer testified that although there was no lighting under the scaffolding, lighting conditions were shady but not dark. (Id. at 116) Officer Pressley, however, testified that it was dark under the scaffold. (Id. at 52-53) Officer Gamble, who apprehended petitioner in response to a radio call from Officer Pressley, testified that he received "a description of a male black, wearing a — I think a green army jacket." (Id. at 123) Gamble did not recall anything else of the description radioed by Officer Pressley. (Id.) Gamble did not personally observe petitioner before arresting him, and had no personal knowledge of whether he engaged in any transactions. (Id. at 131-32)
Officer Gamble testified that he recovered $68 from Owens in front of 26 Macombs Place at about 3:10 p.m. (Hearing Tr. at 121-22) and presented petitioner to Officer Pressley at the precinct at about 3:25 p.m. on the day of the arrest. (Id. at 121)
During the cross-examination of Officer Gamble, counsel for petitioner attempted to inquire about events that took place at the precinct house following petitioner's arrest. (Hearing Tr. at 135-36) When the Assistant District Attorney objected on the ground that the suppression hearing was only to resolve the issue of probable cause, and anything that took place after petitioner's arrest therefore was irrelevant, Justice Yates asked whether "a hearing [was] granted as to the identification?" (Id. at 135) Counsel for petitioner responded that "[n]o hearing was granted." (Id. at 136) When asked by Justice Yates whether "identification is at issue in this case . . . Either under a Fourth, Fifth or Sixth Amendment [theory] . . .," petitioner's counsel responded that any identification issue "would be under the Fourth Amendment theory, but it wasn't granted." (Id. at 136) Justice Yates then asked "It was not? In other words, it's an issue before me?" (Id.) Counsel for petitioner responded, "There's no Wade, Crews, Dunaway issues." (Id.) Justice Yates sought clarification: "No Wade, Crews, Dunaway, Stoval issue . . . With regard to the identification because that was denied before it got here?", to which counsel responded "That's right." (Id. at 136-37) Justice Yates then sustained the objection to questions concerning events at the precinct, prompting petitioner's counsel to state that "Then I have no further questions." (Id. at 137) In a colloquy with petitioner's counsel shortly thereafter, Justice Yates asked him "If the identification is not at issue and there are no statements . . . And if there is no standing as to the stash, the only thing we're talking about is sixty-eight dollars now," to which counsel agreed, "That's right." (Id. at 141)
Following the hearing (at which petitioner presented no evidence), Justice Yates issued his rulings on the record, including his findings of fact and conclusions of law. He found that Officer Pressley was approximately seventy-five feet away from the location of petitioner's activity, equipped with powerful binoculars. Officer Pressley observed petitioner standing with another young man, and observed three interactions, each 10-15 minutes apart, in which a man or a woman walked up to petitioner, then, after a brief conversation, petitioner walked across the street, reached behind a car, and then engaged in an apparent hand-to hand exchange in which money passed to petitioner. (Hearing Tr. at 153-54) After the third transaction, Officer Gamble, based upon a description of the seller radioed to him by Pressley of a black male in a green jacket, approached petitioner and immediately handcuffed and arrested him, searching his pockets and seizing $68. (Id. at 155-56)
With respect to his conclusions of law, Justice Yates first stated that "Not at issue at this hearing is the later identification at the precinct, about an hour later, since the motion court has ruled that's not the subject of this hearing." (Hearing Tr. at 156) He then concluded that the stash of drugs recovered from the scene of the SNEU operation was admissible in evidence because there was no evidence that petitioner had any expectation of privacy in the stash, but that the $68 recovered from petitioner should be suppressed because the record did not establish that Officer Gamble "had probable cause to believe that the defendant was the seller." (Hearing Tr. at 157-58) On this point, Justice Yates found as follows:
"The record does not establish that there were no other people in the area at around two-thirty in the afternoon. It only establishes that one officer said he couldn't remember and the other officer said nothing about it. Therefore, I'm left with an ambiguous or empty record as to whether there were or weren't other people in the area. The People have not established that the defendant was the only person in the area, and especially not the only male black with a green jacket. In any event, even if that were true, that description was so vague and lacks particularity to such an extent that it would author[ize], at best, a temporary detention until a confirmatory I.D. had been made. But that's not the situation here. Here the officer said that based solely on the description, male black, green jacket, seller, that he went over and immediately arrested, handcuffed and searched the defendant. That description will not — without a confirmatory I.D. prior to the arrest would not support a full blown level 4 search and seizure. For that reason I'm granting the motion with respect to the sixty-eight dollars." (Hearing Tr. at 157-58)
Following Justice Yates's ruling suppressing evidence of the $68 seizure as the fruit of an unlawful arrest, counsel for petitioner did not urge the suppression of evidence of the precinct identification as also tainted by the arrest. Nor did he request a hearing to determine whether there was an independent basis for an in-court identification by Pressley.
Trial Testimony
On August 3, 2000, petitioner proceeded to trial before a jury, with Justice McLaughlin presiding. The trial testimony was largely the same as that during the suppression hearing. During trial, Officer Pressley identified petitioner as the individual he had observed selling drugs on December 28, 1999. Pressley testified that during the operation, he was approximately 75-100 feet away from petitioner, at a height of approximately five to six stories above street level. (Trial Tr. at 274) He arrived at about 2:00 p.m., and observed petitioner "carefully" for about an hour through binoculars, focusing on petitioner and following his movements continuously, losing sight of him for only a few minutes when petitioner entered a nearby store. (Id. at 279-80, 292, 301-04) The prosecution introduced photographs that were said to represent the view Officer Pressley would have seen through his binoculars, reflecting the same degree of magnification, and Officer Pressley confirmed that the photos presented a fair representation thereof. (Id. at 236-38) On re-cross, Pressley testified that he had a specific recollection of "some" but "not all" of the events about which he testified. (Id. at 308)
Officer Pressley testified that the lighting conditions that day were good, there was nothing obstructing his view of petitioner, and although it was dark under parts of the scaffold, he was able to see what was taking place there. (Trial Tr. at 225, 280, 288, 304-05) During the operation, he saw no one else who matched petitioner's description. (Id. at 257-58) After observing petitioner engage in what he believed to be three drug transactions over the course of an hour, Officer Pressley radioed a description of petitioner — specifically, of a "male Black with green wool army jacket and green wool hat and blue jeans" — to the apprehension team on the ground, and watched them apprehend defendant three to five minutes later. (Id. at 247-48) Pressley testified that he watched Officer Gamble proceed to arrest petitioner, who was then wearing the same clothes as in the description radioed minutes before, and he had no doubt that the person being apprehended was the person he had observed previously. (Id. at 230, 247-50) He then testified that he again identified defendant at the precinct house, and again had no doubt that it was the person he had observed from his observation post. (Id. at 252-53)
At trial, Officer Waring, the security officer who was stationed on the rooftop with Officer Pressley, testified that during the operation he also was equipped with binoculars, and although it was not his job to monitor the street, at one point was called over to Officer Pressley's observation post to observe petitioner and one of the individuals involved in a drug sale (Trial Tr. at 376-82), and had no doubt that petitioner was the person he observed selling what he assumed to be drugs (id. at 382-87). A third SNEU member, Sergeant Vega, who was stationed in a police van near the scene the day of the arrest, testified that he received a radio communication from Officer Pressley describing petitioner as the suspect to be arrested for the sale of drugs, and that he wrote down the description: "A male black with a green army cap, green army jacket, blue jeans and black boots." (Id. at 322-23)
A fourth SNEU member, Officer Palermo, testified that she was roughly 18 feet from petitioner when he was arrested, and that there was another man standing next to petitioner when the SNEU team moved in to arrest him, but that she did not recall hearing a description for that individual. (Trial Tr. at 360-63) Officer Palermo was shown a photograph of petitioner, People's Exhibit 1, and testified that it fairly and accurately depicted how petitioner appeared at the time of his arrest. (Id. at 360) Finally, Officer Gamble, the arresting officer, testified that he received a radio transmission describing the seller as wearing "a green army jacket, blue jeans, black boots, and green cap. Green bill cap, I think." (Trial Tr. at 433-34) Gamble also identified petitioner in court as the man he apprehended on the day in question. (Id. at 434) Gamble also testified that People's Exhibit 1, a photograph of petitioner, was "a fair and accurate representation" of how petitioner appeared the day of the arrest. (Id. at 435) No evidence other than the identifications by Officers Pressley and Waring was introduced connecting petitioner with the charged crimes.
Petitioner does not argue that the in-court identifications by officers Palermo and Gamble should be suppressed, nor was any such argument made during the appellate process in state court. Of course, the testimony of the two officers makes clear that neither officer observed the drug transactions in question; each identified petitioner in court as the man arrested during the December 28, 1999 SNEU operation.
In his summation, the Assistant District Attorney highlighted Pressley's testimony and identifications, but did not indicate which identification he was referring to and did not explicitly refer to the out-of-court identification. The prosecutor also referred to Officer Waring's identification of petitioner: "Officer Waring told you the same thing. That there was no doubt that it was the defendant that he saw engage in the transaction with Alvira Davis." (Trial Tr. at 508)
The jury found petitioner guilty of all charges. (Trial Tr. at 553-54) Following his conviction on all charges, petitioner was sentenced as a second felony offender to concurrent terms of five and one-half to eleven years on each count. (S. 11-12)
Subsequent Proceedings
Petitioner pursued his appellate rights in the state courts. In the Appellate Division, First Department, petitioner argued that he had been denied effective assistance of counsel based upon his counsel's failure to request the suppression of Officer Pressley's confirmatory identification.
The Appellate Division, First Department, affirmed Petitioner's conviction on December 2, 2003. People v. Owens, 2 A.D.3d 105 (1st Dep't 2003). The Court concluded that petitioner had received effective assistance of counsel, citing People v. Benevento, 91 N.Y.2d 708 (1998) and Strickland v. Washington, 466 U.S. 668 (1984), and stated: "The defendant has not established that his attorney's failure to argue, at the suppression hearing, that the confirmatory police identification should be suppressed as the product of an unlawful seizure deprived him of a fair trial or affected the outcome of the proceedings." Id. By letters dated December 9 and 15, 2003, petitioner sought leave to appeal to the New York Court of Appeals. (Davis Exh. G) On February 13, 2004, the Court of Appeals denied leave to appeal. People v. Owens, 2 A.D.3d 105,leave denied, 1 N.Y.3d 632, 777 N.Y.S.2d 30 (2004).
On June 23, 2004, Owens, represented by counsel, filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Owens asserts that he is entitled to habeas relief because he received ineffective assistance from his trial counsel. Specifically, Owens asserts that his trial counsel failed to move to suppress Officer Pressley's post-arrest precinct identification as fruit of the poisonous tree despite the trial court's ruling that Owens's arrest violated the Fourth Amendment. It is not disputed in this case that petitioner's constitutional claim was presented to the state courts and is exhausted.
Discussion
To establish that he was denied effective assistance of counsel, petitioner must show that his counsel's performance was below "an objective standard of reasonableness" and must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-88 694. "Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
To prevail on the first prong of the Strickland test, petitioner must show that "counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman, 477 U.S. at 381. The reasonableness of counsel's performance is evaluated from the counsel's perspective at the time of the alleged error and in light of all the circumstances. Id. at 384.
In this case, respondents do not appear to dispute that that the first prong of the Strickland test is met, and that the failure of petitioner's counsel to seek the suppression of Officer Pressley's precinct identification was unreasonable in light of Justice Yates's ruling and suppression of $68 seized following Owens's arrest. (Opp. Br. at 14-15) Nor do they appear to dispute that the precinct identification would in fact have been suppressed had petitioner's counsel sought its suppression. (Id.) The test of whether evidence should be excluded following an illegal arrest is whether the evidence was obtained by "exploitation of [the] illegality or instead by means sufficiently distinguishable to be purged of the primary taint."Wong Sun v. U.S., 371 U.S. 471, 488 (1963). The prosecution bears the burden of demonstrating admissibility, and the court must focus on the causal connection between the illegality and the evidence. Dunaway, 442 U.S. at 218. Here, the trial court determined that there was no probable cause to arrest Owens, and that as a result, items seized in the subsequent search of Owens must be suppressed. Pretrial identifications may be suppressed as the fruit of an illegal arrest, even if not otherwise unduly suggestive. See United States v. Crews, 445 U.S. 463 (1980). Indeed, in People v. Gethers, 86 N.Y.2d 159 (1995), under circumstances similar to those in this case, the New York Court of Appeals held that a confirmatory identification after an illegal arrest must be suppressed even when the identification is not otherwise unduly suggestive, and ordered that a new trial be held after an independent source hearing. Here, petitioner was only at the station because of his arrest, which Justice Yates determined to have been illegal. As a result, the precinct identification would likely have been suppressed, and, as noted, the state appears to concede as much.
As to Strickland's second prong — prejudice — "in determining the existence vel non of prejudice, the court `must consider the totality of the evidence before the judge or jury.'"Kimmelman, 477 U.S. at 381 (quoting Strickland, 466 U.S. at 695). A "reasonable probability that . . . the result of the proceedings would have been different . . . is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."Strickland, 466 U.S. at 694.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), where a state court has rejected petitioner's claim on the merits, a federal court "must defer to the state court's rejection of the claim, and must deny the writ unless . . . the state-court adjudication (1) `was contrary to,' or (2) `involved an unreasonable application of,' clearly established Federal law `as determined by the Supreme Court of the United States.'"Henry v. Poole, 409 F.3d 48, 67 (2d Cir. 2005) (quoting 28 U.S.C. § 2254(d)(1)); see also Rompilla v. Beard, ___ U.S. ___, S. Ct. 2456, 2462 (2005). "Thus, a petitioner whose claim is that he received ineffective assistance of counsel not only must satisfy the Strickland standard but also must show that the state court's rejection of his claim was either contrary toStrickland or was an unreasonable application of Strickland."Henry, 409 F.3d at 68.
A decision is contrary to clearly established federal law if it "contradicts the governing law" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from" the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). In Williams, the Supreme Court observed that "[i]f a state court were to reject a prisoner's claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be `diametrically different,' `opposite in character or nature,' and `mutually opposed' to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a `reasonable probability that . . . the result of the proceeding would have been different.' . . . [In this] scenario, a federal court will be unconstrained by § 2254(d)(1) because the state-court decision falls within that provision's `contrary to' clause." Williams, 529 U.S. at 405-06 (quoting Strickland, 466 U.S. at 694). As a result, "if the state court's rejection of a claim is grounded on part of a state-law principle that is inconsistent with part of the Strickland standard, it meets the AEDPA `contrary to' test." Henry, 409 F.3d at 70-71. In this case, it is not possible to determine from the somewhat ambiguously-worded Appellate Division decision whether that Court improperly required petitioner to establish by a preponderance of the evidence that the result of his criminal proceeding would have been different or whether it permissibly concluded that petitioner had failed to demonstrate a reasonable probability that the result of the proceeding would have been different. The Appellate Division's ruling says nothing about petitioner establishing anything by a preponderance of the evidence. Nor does it speak of reasonable probabilities. It states that "[t]he defendant has not established that [the improperly admitted identification] deprived him of a fair trialor affected the outcome of the proceeding." People v. Owens, 2 A.D.3d 105 (emphasis added). Notably, the Appellate Division cites to both the New York Court of Appeals decision inBenevento and the Supreme Court's decision in Strickland. Nothing in the Benevento decision or New York law suggests that a petitioner must meet a "preponderance of the evidence" standard to succeed on a claim of ineffective assistance of counsel. Because the Appellate Division implicitly found that petitioner failed to satisfy either the New York test for ineffective assistance claims ("deprived him of a fair trial") or the federal test ("reasonable probability" that the conduct "affected the outcome of the proceeding"), I conclude that the state court did not rely upon a rule of law contrary to Strickland. In citing to Strickland without stating a rule or citing to a state case that contradicts Strickland, it is fair to assume the Court did not apply a rule "contrary to" Strickland.
Petitioner argues that the Appellate Division's decision nonetheless was an "unreasonable application" of Strickland. "An `unreasonable application' occurs when a state court `identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts' of petitioner's case." Rompilla, 125 S. Ct. at 2462 (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003); other citations omitted). An "unreasonable application" of federal law is more than an incorrect application, but "a federal habeas court may permissibly conclude that federal law has been unreasonably applied by the state court even though not all reasonable jurists would agree that the state court's application was unreasonable." Henry, 409 F.3d at 68; see also Williams, 529 U.S. at 409-12. Instead, a federal court should review a state court's interpretation of federal law using a standard of objective reasonableness. Rompilla, 125 S. Ct. at 2462 ("That is, `the state court's decision must have been [not only] incorrect or erroneous [but] objectively unreasonable.'") (citations omitted; alterations in original); Williams, 529 U.S. at 409. This standard "falls somewhere between `merely erroneous and unreasonable to all reasonable jurists.'" Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (citation omitted). The "increment of incorrectness beyond error . . . need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks and citation omitted). "We must presume the state court's factual findings to be correct and may overturn those findings only if petitioner offers clear and convincing evidence of their incorrectness." Yung v. Walker, 341 F.3d 104, 109 (2d Cir. 2003) (citing 28 U.S.C. § 2254(e)). "If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail."Williams, 529 U.S. at 389.
In this case, then, the issuance of a writ depends on whether the Appellate Division's determination that petitioner had not established that the failure to seek suppression of the precinct identification "deprived him of a fair trial or affected the outcome of the proceeding," People v. Owens, 2 A.D.3d at 105, was contrary to or involved an unreasonable application of, clearly established federal law.
If Officer Pressley's post-arrest identification had been suppressed, it does not follow that Pressley's in-court identification would also have been suppressed. In U.S. v. Crews, the Supreme Court held that the Fourth Amendment would not require the exclusion of an in-court identification if (1) the witness is present at trial to testify as to what transpired between him and the offender; (2) the witness "possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from [his] observations of him at the time of the crime"; and (3) "the defendant is also physically present in the courtroom, so that the [witness] can observe him and compare his appearance to that of the offender." 445 U.S. 463, 471 (1980). If "none of these three elements `has been come at by the exploitation' of the violation of the defendant's Fourth Amendment rights," the identification is admissible. Id. (quoting Wong Sun, 371 U.S. at 488). In Crews, the Supreme Court noted that in that case, the witness's presence in the courtroom "was surely not the product of any police misconduct" because it was "not a case in which the witness'[s] identity was discovered or her cooperation secured only as a result of an unlawful search or arrest of the accused." Crews, 445 U.S. at 471-72.
Although the in-court identification at issue in Crews was by the crime victim, its analysis seems equally applicable where the in-court identification is by a police officer, other than the arresting officer, whose extended and "careful" observations preceded the unlawful arrest, and whose presence in the courtroom cannot be said to be the product of petitioner's unlawful arrest. In this case, Officer Pressley had a prolonged opportunity over the course of an hour to observe petitioner closely through high-powered binoculars prior to the illegal arrest and tainted post-arrest identification. Petitioner does not contend that Pressley's in-court identification should be suppressed as influenced by the precinct identification. Even if petitioner had raised such an argument, there is no evidence that Pressley's in-court identification rested on anything but his independent recollection of his pre-arrest observations of petitioner. Pressley's presence in the courtroom was as a result of what he saw from the rooftop and not as a result of the unlawful arrest and post-arrest identification.
Five members of the Crews Court believed that "a defendant's face can [n]ever be considered evidence suppressible as the `fruit' of an illegal arrest," 445 U.S. at 477-79 (Powell and White, JJ., concurring), concluding that the issue was foreclosed by the Court's prior decision in Frisbie v. Collins, 342 U.S. 519 (1952). While three members of the Crews Court did "not decide whether [a defendant's] person should be considered evidence, and therefore a possible `fruit' of police misconduct," they noted that in that case "the record plainly discloses that prior to his illegal arrest, the police both knew respondent's identity and had some basis to suspect his involvement in the very crimes with which he was charged . . . In short, the Fourth Amendment violation in this case yielded nothing of evidentiary value that the police did not already have in their grasp." 445 U.S. at 475. In this case, Officer Pressley's in-court identification was based on his pre-arrest observations of petitioner. Here, as in Crews, the investigation at issue "had already focused on [petitioner], and the police had independent reasonable grounds to suspect his culpability." Id. at 476. Thus, Davis v. Mississippi, 394 U.S. 721 (1969), in which the defendant's identity and connection to the illicit activity were only discovered through an illegal arrest or search, is distinguishable.
In the context of determining the reliability of an in-court identification following an unduly suggestive out-of-court identification — a situation different from that presented in this case — the Supreme Court has stated that the factors to be considered include "[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness'[s] degree of attention, [3] the accuracy of his prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation." Manson v. Brathwaite, 432 U.S. 98, 114 (1977). While the New York Court of Appeals in Gethers, supra, appears to consider establishing reliability of an in-court identification a constitutional requirement even where the out-of-court identification at issue was suppressed on Fourth Amendment grounds, 86 N.Y.2d at 163, the Second Circuit has stated that absent the use of impermissibly suggestive procedures, "independent reliability is not a constitutionally required condition of admissibility, and the reliability of the identification is simply a question for the jury." United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (citations omitted),cert. denied, 514 U.S. 1113 (1995); accord, e.g., Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998). On such occasions, "questions as to the reliability of a proposed in-court identification affect only the identification's weight, not its admissibility." United States v. Matthews, 20 F.3d 538, 547 (2d Cir. 1994). For the reasons noted above, I conclude that Officer Pressley's in-court identification not only satisfies the Crews standard for admissibility. I also conclude it would satisfy the standard set forth in Manson v. Brathwaite for establishing independent reliability. Although petitioner argues that the matter must be remanded for a state-court "independent source" hearing (Pet. Mem. at 21 n. 6), a federal court reviewing a habeas petition may conclude that an in-court identification is independently reliable where, as here, the record before it provides a basis for such a conclusion. See Dunnigan, 137 F.3d at 129-30 (concluding that "the proper factors were appropriately aired without a pretrial Wade hearing" where the relevant factors were explored at trial). In this case, of course, a pretrial hearing was held, and although the purpose of that hearing was not to establish an independent source, the testimony from that hearing was sufficient to demonstrate both that Officer Pressley can be considered a trained observer, and that he had sufficient opportunity to focus on and observe the defendant so as to provide an independent source for his in-court identification. See Hearing Tr. at 74-75; Trial Tr. at 222-23, 307-08.
In Gethers, the Court of Appeals concluded that a detective's in-court identification of the defendant "was `also improperly admitted as there was no evidence at the suppression hearing of an independent source' upon which the hearing court could rely to find that the in-court identification was `come at by * * * means sufficiently distinguishable to be purged of primary taint.'" 86 N.Y.2d at 163 (citation omitted). The court found that "although the detective's status as a trained observer may be relevant to an independent source determination, that status must be established at a pretrial hearing, rather than inferred from evidence adduced at trial, and does not, in and of itself, constitute an independent source." Id. The Gethers court further concluded that "the erroneous admission of the identification cannot be deemed harmless error as it was used to bolster the People's case, which hinged on identification of defendant." Id. As noted in the text, it is far from clear that where an out-of-court identification is suppressed not because it was unduly suggestive, but rather because it followed an illegal arrest, an independent source determination is required as a matter of federal constitutional law. See, e.g., United States v. Wong, 40 F.3d at 1359.
Because I conclude that the in-court identification would not have been suppressed, the only evidence that would have been excised from the trial record absent the asserted ineffective assistance of counsel would have been Pressley's precinct identification of petitioner. That identification was mentioned only briefly over two pages of trial transcript, and was not specifically referred to in the People's closing. In addition, petitioner does not contend that there is any basis on which to suppress Officer Waring's in-court identification. Instead, petitioner argues that without Officer Pressley's precinct identification, a jury would have placed less weight on Pressley's in-court identification and the evidence of Officer Waring's identification would have been "far from overwhelming" (Pet. at 19), and there is therefore a reasonable probability that the result of the trial would have been different. The state court found that petitioner did not demonstrate that the improper post-arrest identification affected the outcome of the proceedings, and petitioner has not demonstrated that this finding was an unreasonable application of federal law. As a result, the petition for a writ of habeas corpus is DENIED.
Petitioner has not made a substantial showing of the denial of a constitutional right and, therefore, a certificate of appealability will not issue. See 28 U.S.C. § 2253(2); Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997),abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917 (1962).
SO ORDERED.