Hicks v. United States

¶1concurring:

¶2I agree with the majority opinion that the show-up identification by the complaining witness and the shotgun that was recovered from the car Hicks was driving were both admissible under the doctrine of inevitable discovery. I do not, however, join the majority’s analysis and conclusion that the police’s alleged actions in stopping Hicks’ car, with several officers from three patrol cars approaching with guns drawn, ordering the occupants out of the car, and then frisking, handcuffing, securing and keeping them in a police van for fifteen to twenty-five minutes for a show-up identification, when viewed in totality, were all part of a proper Terry stop and did not impermissibly cross over into an arrest. In the circumstances of this case, it is unnecessary to address this issue because the specific incidents on which the majority correctly bases its application of the inevitable discovery theory do not depend on whether the police’s handling of Hicks and the other occupants after the car was stopped continued to be within the scope of a proper Terry stop or became an unlawful arrest.1

¶3The factors relied upon for inevitable discovery are: 1) the complaining witness’ detailed description to Officer Loepere of the older model American-made station wagon with plastic covering the missing rear window in which the assailant drove away after the robbery, 2) the radio report of that description to officers in the field, 3) the police stop of Hicks and the other occupants when they saw a car fitting that distinctive description ninety minutes later a few blocks from where the robbery took place and, finally, 4) the radio call to Officer Loepere who, in turn, called the complaining witness at home and accompanied him to the scene where Hicks was being detained. These factors — none of which is challenged by Hicks as improper police conduct2 — either preceded the police actions that Hicks challenges as impermissible in a Terry stop, or, in the case of the call to Officer Loepere to bring the complaining witness for a show-up, had been set in train as a result of those preceding actions. Although the inevitable discovery *663doctrine allows no “speculative elements,” see Nix v. Williams, 467 U.S. 431, 445 n. 5, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), there is nothing speculative in the belief that, once the distinctive car was seen and stopped, the radio call would have issued to Officer Loepere and that he would bring the complaining witness to identify the suspects. As the trial court stated, and the majority notes, what would be speculative is to believe otherwise as it would be “outside the realm of reasonableness.” Where the police have information sufficient to stop a suspect and subject him to a show-up identification, as here, and there is nothing in the record to suggest that the' identification would not have occurred but for some supervening illegality, the inevitable discovery doctrine permits us to conclude that the identification would have resulted from the lawful conduct. See id. at 444, 104 S.Ct. 2501. Once the identification was made, the police had probable cause to arrest Hicks and to conduct a lawful search of the car which would have revealed the shotgun. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Thus, both the identification and the shotgun were admissible.

¶4In sum, I see no need to decide whether the police crossed the fine after their initial stop of the car in order to conclude that, regardless, the evidence sought to be suppressed was admissible because it inevitably would have been discovered as a result of proper police procedures. I do not suggest, of course, that it will always be possible, in the fast-moving pace of police activity, to parse police conduct so that clearly permissible actions are separable from other, questionable conduct and to conclude that the former, standing alone, support eventual inevitable discovery of evidence. But in this case, the record supports that we can rely on police conduct that is untainted by possible illegality.