In re F.G.

NEWMAN, Associate Judge,

dissenting:

In Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981), the Supreme Court held that the Constitution does not require a per se rule compelling a judicial determination outside the presence of the jury of the admissibility of identification evidence in every case. The Court noted, however, that the prudence of such hearings had been emphasized by many decisions in the Courts of Appeals, id. at *306345 & n. 2, 101 S.Ct. at 657 & n. 2, and agreed that such a precedure “may often be advisable,” and even, “[i]n some circumstances[ ] not presented here, ... constitutionally necessary.” Id. at 349, 101 S.Ct. at 659.

Despite the holding in Watkins, many state courts have continued, as a matter of state law, to grant a hearing as of right whenever the admissibility of identification evidence is challenged.1 These courts, recognizing the inherently suspect qualities of eyewitness identification evidence,2 as well as its powerful impact on juries,3 have appropriately concluded that the utmost caution must be taken to verify the accuracy of identification evidence before presenting it to the jury.

A concern for heavy caseloads and economy of judicial resources, however, has led other courts to establish certain minimum requirements of specificity which a defendant's allegations must meet in order for him to obtain an evidentiary hearing on a motion to suppress identification evidence. For the most part, the thresholds established have been minimal, requiring merely that defendant’s allegations be “not frivolous,” United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (3d Cir.1976); or “more than conclusory,” Hill v. Wyrick, 570 F.2d 748, 751 (8th Cir.), cert. denied, 436 U.S. 921, 98 S.Ct. 2272, 56 L.Ed.2d 764 (1978); or that they “allege a ground constituting legal basis for the motion,” People v. Doyle, 134 Misc.2d 338, 510 N.Y.S.2d 987, 988 (1987) (by statute). Cf. Watkins, supra, 449 U.S. at 359, 101 S.Ct. at 664 (hearing should be mandated “whenever a defendant proffers sufficient evidence to raise a colorable claim” of impermissible suggestivity) (Brennan, J., dissenting).

A few courts have held defendants moving to suppress identification evidence to a slightly higher threshold. Analogizing from a test originating in Fourth Amendment jurisprudence, one federal circuit court has required that in order to obtain an evidentiary hearing, the defendant must allege facts which, if proven, will entitle him to relief. See, e.g., United States v. Poe, 462 F.2d 195, 197 (5th Cir.1972), cert. denied, 414 U.S. 845, 94 S.Ct. 107, 38 L.Ed. 2d 83 (1973), citing United States v. One 1965 Buick, 392 F.2d 672, 678 (6th Cir. 1968) (motion to suppress evidence obtained pursuant to illegal search), vacated on other grounds, 402 U.S. 937, 91 S.Ct. 1602, 29 L.Ed.2d 105 (1971).4 We have subscribed *307to this analogy at least to some extent, borrowing this test which we articulated in Duddles v. United States, 399 A.2d 59, 63 (D.C.1979), a case which concerned a motion to suppress on Fourth Amendment grounds, and transplanting it to the context of a motion to suppress line-up evidence on due process grounds. Jackson v. United States, 420 A.2d 1202, 1206 (D.C.1979) (en banc).

The majority now seeks to further extend the test to cases in which the challenged identification procedure is a “show-up”. It “see[s] no reason why the Duddles test should not apply with equal force here_” Maj. Op. at 302. I dissent. I see compelling reasons why the analogy should not be extended to this case.

A defendant is entitled to suppression of identification evidence if it is shown to be both (1) impermissibly suggestive, and (2) unreliable, given the totality of the circumstances. Paris v. United States, 515 A.2d 199, 207 (D.C.1986); Patterson v. United States, 384 A.2d 663, 665 (D.C.1978); see Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). A requirement that a defendant’s motion papers “make factual allegations which, if established, would warrant relief,” Jackson, supra, 420 A.2d at 1206, necessarily imposes upon the defendant the burden of making some factual allegations as to both suggestiveness and reliability of the identification.5

This may be a reasonable requirement when the challenged procedure is a lineup, as it was in Jackson. At a lineup, the accused has a right to counsel, whose primary function is to observe the procedure so that facts indicating suggestivity and/or unreliability may be later proven at trial. Wade, supra note 2, 388 U.S. at 236-37, 87 5.Ct. at 1937-38. The accused is, in other words, privy to the facts which might form the basis of a challenge, and can allege them with some specificity in his motion papers.6

But the Jackson requirement is not a reasonable one when the challenged identification is the type of show-up which occurred here. F.G. had no right to the presence of counsel at the show-up. Glass v. United States, 395 A.2d 796, 805 (D.C. 1978); Russell v. United States, 133 U.S.App.D.C. 77, 81, 408 F.2d 1280, 1284, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969). He was detained at a street corner while an undercover policeman drove by in an unmarked car and identified him. He could not see who was identifying him. He could not see how far away the identifying officer was, nor how fast the officer was driving when the identification was made; nor could he know if anything was obstructing the officer’s field of vision at the time of the identification. Although F.G. made a sufficient allegation of suggestiveness simply by alleging that a show-up occurred,7 he had no access to *308facts enabling him to make the allegations concerning reliability which the Jackson test would require. His motion alleged that “[t]he procedure was unreliable because the undercover officer made the identification from a distance while sitting in a moving car.” This is as much as can be reasonably expected of a defendant who has access neither to the facts surrounding the undercover officer’s original observations nor the resulting show-up, and who is not entitled under Super.Ct.R. 16 to obtain additional facts regarding the identification.8

In a police drive-by show-up of this type, the accused will rarely be able to make the allegations of fact necessary under the Jackson test. Defendants moving to suppress evidence of such identification procedures will necessarily, under the majority’s decision today, be subject to summary denial of their motions, without having been given the opportunity to elicit the necessary facts at an evidentiary hearing. When an accused is otherwise without the means to know if the identification procedure used by the police violated due process, a denial of his motion to suppress without benefit of a hearing must itself be a denial of due process.

Other courts have recognized this. In United States v. Allison, supra note 4, the Court of Appeals for the Ninth Circuit held that a defendant was not entitled to a hearing on his motion to suppress evidence of pretrial photo identifications, because his allegations were not “sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim [was] ... presented.” 414 F.2d at 410, citing Cohen, supra note 4, 378 F.2d at 761. The court was careful to point out, however, that “[i]t would be improper to apply the Cohen requirements strictly to a defendant who did not know the procedures followed by the government in exhibiting photographs to potential identification witnesses, and no doubt many defendants would fall in this category.” Id. at 410-11. The court was able to affirm because it found that the appellant was not in this category, having been furnished by the government with all the details of the photo identifications.

Another court, looking at the same problem in terms of burdens of proof, see supra note 5, has stated:

There is a major difficulty ... with putting such a burden on the defendant in all cases. In many types of confrontations the defendant will be totally unaware of the fact that witnesses are trying to identify him. When this happens it may well be impossible for defendant to know who was present at the confrontation, what was said or what facts existed which might make it ‘unnecessarily suggestive.’ ... Putting the burden of proof on defendant in these situations may well result in denying him procedurally a right which is purportedly granted substantively.

People v. Young, 21 Mich.App. 684, 176 N.W.2d 420, 425 (1970) (footnote omitted). Though we are concerned here not with the defendant’s burden of persuasion, but with his burden of producing an initial quantum of factual evidence, the problem is the same: a court may not in fairness demand what is impossible for the defendant to obtain.

The majority maintains that a defendant is not prejudiced by his inability to adequately support a pretrial motion to suppress, because if evidence later adduced through cross-examination at trial reveals *309that the procedures used by the police produced a substantial likelihood of misidenti-fication, the defense can then move for a judicial determination of admissibility outside the presence of the jury, if there is one. Maj.Op. at 303. But [“t]his court has stated on several occasions that the decision on a pretrial motion to suppress becomes the law of the case,” Duddles, supra, 399 A.2d at 64, and a new motion to suppress should not be entertained during trial absent exceptional circumstances. Smith v. United States, 295 A.2d 64, 65 n. 2 (D.C.1972), cert. denied, 411 U.S. 951, 93 S.Ct. 1932, 36 L.Ed.2d 414 (1973); Bailey v. United States, 279 A.2d 508, 510 n. 2 (D.C. 1971).

The purpose of the law of the case doctrine is twofold. First, it is intended to expedite the trial and accord finality to pretrial rulings. “[A]bsent unusual circumstances, permitting reassertion of the pretrial motion will waste valuable time, relegate decisions on those motions to mere advisory or tentative opinions, and convert the motions hearings into nothing more than unpermitted depositions.” Jenkins v. United States, 284 A.2d 460, 464 (D.C. 1971); see also United States v. Dockery, 294 A.2d 158, 163 (D.C.1972); Rouse v. United States, 123 U.S.App.D.C. 348, 351 n. 1, 359 F.2d 1014, 1017 n. 1 (1966) (McGowan, J., concurring).

More important, the doctrine is adjunct to our statutory scheme granting to the government the right to appeal rulings on motions to suppress, and providing that such motions be made before trial “unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.” D.C.Code § 23-104(a)(2) (1981). “[T]he timing of the motion is essential to this right.... [Fjinality of most pretrial rulings on such motions will avoid the necessity of intratrial prosecution appeals under D.C.Code ... § 23-104(b) [1981].” Jenkins, supra, 284 A.2d at 464; see Dockery, supra, 294 A.2d at 163.

The majority, in its readiness to compromise the law of the case doctrine, ignores the intent of Congress in establishing the government’s right to appeal motion rulings with minimal disruption of the proceedings. In an effort to preserve “efficient” summary dispositions of pretrial motions, the majority proposes a substitute procedure likely to create even greater inefficiencies. This is no solution to the problem of safeguarding the defendant’s due process rights. The trial judge may best protect those rights by conducting, upon motion, a pretrial evidentiary inquiry into the suggestivity and reliability of the identification. Miles v. United States, 483 A.2d 649, 655-56, n. 7 (D.C.1984); Johnson v. United States, 470 A.2d 756, 759 n. 1 (D.C.1983); Patterson, supra, 384 A.2d at 668 n. 7; Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). When the identification at issue is the result of a show-up of the type conducted here, the hearing will often be the defendant’s only means of uncovering facts to which he has no other access. By holding that a defendant may be denied a hearing because he is not already in possession of those facts, the majority throws “Catch 22” in the way of the defendant’s due process rights.9

. See, e.g., State v. Smith, 146 Ariz. 491, 707 P.2d 289, 294 (1985); State v. Stolp, 133 Ariz. 213, 650 P.2d 1195, 1196 n. 1 (1982) (en banc); Coralin v. State, 377 N.W.2d 14, 18-19 (Minn.1985) (hearing required by rule); Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376, 1383 (1984) (required by rule); Carter v. State, 428 So.2d 751, 753 (Fla.App.1983) (required by rule); People v. Bynum, 102 Ill.App.3d 461, 58 Ill.Dec. 168, 430 N.E.2d 110, 114 (1981); People v. Prast, 114 Mich.App. 469, 319 N.W.2d 627, 634 (1982); State v. Swiger, 169 W.Va. 724, 289 S.E.2d 497, 499 (1982); see also Brown v. Commonwealth, 564 S.W.2d 24, 28-29 (Ky.App.1978) (pre-Watkins; hearing required by state law).

. "The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: *What is the worth of identification testimony even when uncontradicted? The hazards of such testimony are established by a formidable number of instances in the records of English and American trials....’ The Case of Sacco and Vanzetti 30 (1927).” United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967) (footnote omitted).

. "Juries seem most receptive to, and not inclined to discredit, testimony of a witness who states that he saw the defendant commit the crime.

‘[E]yewitness testimony is likely to be believed by juries, especially when it is offered with a high level of confidence, even though the accuracy of an eyewitness and the confidence of that witness may not be related to one another at all. All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says “That’s the one!” ’"

Watkins, supra, 449 U.S. at 352, 101 S.Ct. at 661 (Brennan, J., dissenting) (emphasis in the original), citing E. Loftus, Eyewitness Testimony 19 (1979).

. See also United States v. Allison, 414 F.2d 407, 410 (9th Cir.1969) (allegations must be “sufficiently definite, specific, detailed, and noncon-jectural, to enable the court to conclude that a substantial claim [was] ... presented") (citing Cohen v. United States, 378 F.2d 751, 761 (9th Cir.1967), a Fourth Amendment case), cert. denied, 396 U.S. 968, 90 S.Ct. 449, 24 L.Ed.2d 433 (1969).

.The majority recognizes that the Jackson rule alters, at least to some extent, the usual burden of proof in identification cases. Maj.Op. at 302. "Most courts have held that once the defendant shows that pretrial identification procedures were suggestive, the burden shifts to the state to show by clear and convincing evidence that the identification was nonetheless reliable.” N. Sobel, Eyewitness Identification § 9.3, at 9-12 (2d ed. 1986). See People v. Cooks, 141 Cal.App.3d 224, 190 Cal.Rptr. 211, 270 (1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 718, 79 L.Ed.2d 180 (1984); State v. True, 464 A.2d 946, 950 (Me.1983); see also cases cited in N. Sobel, Eyewitness Identification, supra, at 9-12 n. 61. To place upon the defendant "the burden of factually establishing a substantial likelihood of irreparable misidentification,” Maj.Op. at 302 citing Jackson, supra, is to shift the burden of proof with respect to reliability, in part, from the government to the defendant. This is especially unfair where the defendant is not privy to, and cannot obtain by discovery, the information necessary to sustain the burden. See text infra.

. Such is the case also in the Fourth Amendment context with which we dealt in Duddles, supra. An accused is present when an illegal arrest is made, when he or his environs are searched illegally, when a Miranda violation occurs, or when he is compelled to give a confession involuntarily. In addition, he may discover any warrant used by the police under Super.Ct.Crim.R. 16.

. "Unquestionably, confrontations in which a single suspect is viewed in the custody of the police are highly suggestive." Russell, supra, 133 U.S.App.D.C. at 81, 408 F.2d at 1284 (foot*308note omitted). Police officers, though perhaps somewhat less likely than the untrained observer to make an erroneous identification, are not immune from the suggestivity inherent in such confrontations. See P. Wall, Eye-witness Identification in Criminal Cases 14 (1965).

. I find incomprehensible the majority’s bald statement, accompanied by no reasoned discussion, that "[w]ith regard to the difficulty of discovering facts upon which to base a pretrial motion to suppress, we perceive no difference between fourth and fifth amendment constitutional claims. Hence, Duddles cannot be meaningfully distinguished on this ground.” Maj.Op. at 304 n. 7. As I have tried to explain, the defendant seeking to suppress evidence on fourth amendment grounds has considerably more access to the necessary facts than does the subject of a drive-by show-up such as occurred here. See supra note 6.

. In addition to dissenting from the majority’s opinion, I dissent from its criticism of defense counsel for the latter’s characterization of the trial court’s written opinion. See Maj.Op. at 302. To my mind, the statement in counsel’s brief to which the majority objects does not accuse the trial court of disingenuousness; it does accurately depict the court's opinion as being result-oriented and based upon improper reasoning. For the reasons stated in my dissent, I find the majority opinion of this court similarly flawed.