CA11: On habeas, because law was “murky” about transportation on RS for an eyewitness ID, counsel can’t be ineffective for not challenging it

By John Wesley Hall
Law Offices of John Wesley Hall
Jul 14, 2016

The law was murky at the time, and still is, that a Terry stop includes moving a suspect for a possible victim ID without requiring probable cause. Focusing somewhat on the merits, but mostly on whether the Florida appellate court was unreasonable in concluding it was not ineffective assistance for defense counsel to not move to suppress, the court finds it not unreasonable. On the merits of the claim, it’s never been clear that an eyewitness’s identification was suppressible for this alleged violation, because of the independent source rule. Marshall v. Fla. Dep’t of Corr., 2016 U.S. App. LEXIS 12812 (11th Cir. July 12, 2016):

It makes good sense for transportations for identification to be allowable as part and parcel of Terry stops. The purpose of a Terry stop is to verify or dispel the officer’s suspicion of wrongdoing as soon as possible so that the stopped person is quickly free to continue on his way. See Royer, 460 U.S. at 500, 103 S. Ct. at 1325-26. Minimally invasive transportations for identification like the ones in McCargo and here are completed quickly and with minor inconvenience to the defendant. If the defendant is not identified, he is free to continue on his way. If he is identified, the police may have apprehended the criminal quickly.

“Admittedly,” there may be some “difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest. Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.” Sharpe, 470 U.S. at 685, 105 S. Ct. at 1575. But the Supreme Court has declined to apply a rigid rule when determining whether a seizure is appropriately analyzed as a Terry stop or an arrest. United States v. Hardy, 855 F.2d 753, 759 (11th Cir. 1988) (“[I]n distinguishing a true investigative stop from a de facto arrest, we must not adhere to ‘rigid time limitations’ or ‘bright line rules.'” (quoting Sharpe, 470 U.S. at 685, 105 S. Ct. at 1575)). At the time Marshall’s conviction became final, none of the Supreme Court cases discussing transportation of a defendant without probable cause confronted the situation here, where the defendant was transported to the scene of a crime for the purpose of identification. Rather, all of the available cases discuss transportation, either directly or indirectly, to an official police room for questioning or fingerprinting. No Supreme Court law extant at the time Marshall’s conviction became final declared that a Terry stop like the one here constituted a full-blown arrest. McKinley reviewed the issue and could have reasonably concluded that a motion to suppress the Pizza Hut identification would have failed.

Alternatively, McKinley’s failure to file a motion to suppress on Fourth Amendment grounds did not render his performance deficient because Marshall could not show that the Fourth Amendment exclusionary rule would unquestionably have barred the Pizza Hut identification even if the detention and transportation violated the Fourth Amendment. The exclusionary rule precludes the introduction into evidence of the fruit of a search or seizure in violation of the Fourth Amendment. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 415-16, 9 L. Ed. 2d. 441 (1963). However, not

all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

Id. at 487-88, 83 S. Ct. at 417 (quotation marks omitted).

The Supreme Court cases at the time that come closest to showing that an identification made after the defendant has been illegally detained would have been suppressed are Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972), and United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980). In Johnson, the Supreme Court held that a line-up identification obtained following an illegal arrest need not have been excluded because the identification had not been obtained by exploiting the illegal arrest; instead, it had been obtained under circumstances that purged the primary taint of the illegal arrest. 406 U.S. at 365, 92 S. Ct. at 1626. Those circumstances were the defendant’s representation by counsel and presentation before a magistrate judge to advise him of his rights and to set bail. Id. In Crews, the Supreme Court held that an in-court identification of a defendant by a victim did not need [to] be suppressed as fruit of an illegal arrest, because the victim’s identification did not stem from the police’s illegal conduct. 445 U.S. at 470-73, 100 S. Ct. at 1249-51.

Additionally, a case from the former Fifth Circuit illuminates Supreme Court law at the relevant time: Passman v. Blackburn, 652 F.2d 559 (5th Cir. Unit A Aug. 1981). In Passman, two men, later identified as Walter Burnette and Glenn Passman, gained entry to a home, committing robbery and sexual assault. Id. at 563-64. The two men fled the home, and a description of them was radioed to police in the area. Id. at 564. That night, Passman was arrested in his home and taken to the police station, where he was identified by a member of the family as one of the perpetrators of the crimes. Id. at 564-65. The former Fifth Circuit held that even though probable cause to arrest Passman was lacking, evidence that a family member identified him following his arrest on the night of the crime was not fruit of an illegal arrest that had to be excluded because the identification stemmed from the family member’s personal identification of the defendant, not from the illegal arrest. Id. at 565.

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Overall, Marshall had a plausible Fourth Amendment claim, but even “a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief. Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ.” Morrison, 477 U.S. at 382, 106 S. Ct. at 2586-87; see also Richter, 562 U.S. at 102, 131 S. Ct. at 786 (“It bears repeating that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable. If this standard is difficult to meet, that is because it was meant to be.” (citation omitted)). Assuming that Marshall has shown that his seizure without probable cause was in violation of the Fourth Amendment, he has not established that the Pizza Hut identification would have been suppressed as fruit of the illegal seizure. See Woods v. Donald, 575 U.S. __, __, 135 S. Ct. 1372, 1377, 191 L. Ed. 2d 464 (2015) (per curiam) (“[W]here the precise contours of [a] right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner’s claims.” (second alteration in original) (quotation marks omitted) (quoting White v. Woodall, 572 U.S. __, __, 134 S. Ct. 1697, 1705, 188 L. Ed. 2d 698 (2014))); cf. id. (noting that because no Supreme Court “cases confront ‘the specific question presented by this case,’ the state court’s decision could not be ‘contrary to’ any holding from [the Supreme Court.]” (quoting Lopez v. Smith, 574 U.S. __, __, 135 S. Ct. 1, 4, 190 L. Ed. 2d 1 (2014) (per curiam))). Therefore, the DCA could have reasonably determined that McKinley was not ineffective in failing to pursue a motion to suppress the Pizza Hut identification. Cf. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”). The DCA’s decision that McKinley was not ineffective for failing to pursue a motion to suppress the Pizza Hut identification based on a violation of the Fourth Amendment was not an unreasonable application of Supreme Court law. Because Marshall has not shown that McKinley rendered deficient performance, we need not reach the issue of prejudice.