Anthony Bean v. State of Maryland,
No. 601, Sept. Term 2017
Opinion by Leahy, J.

Motion to Suppress Out-of-Court Identification > Due Process > State Action

To ameliorate the risk of an incorrect identification, criminal defendants may invoke the
Due Process Clause of the Fourteenth Amendment to combat “the introduction of evidence
of, or tainted by, unreliable pretrial identifications obtained through unnecessarily
suggestive procedures.” Webster v. State, 299 Md. 581, 599-600 (1984) (quoting Moore v
Illinois, 434 U.S. 220, 227 (1977)). A criminal defendant must first demonstrate, however,
that the identification was orchestrated or engineered by the actions of “law enforcement
officers[.]” Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012).

Motion to Suppress Out-of-Court Identification > Due Process > State Action

Courts engage in “[t]he due process check for reliability” only if the defendant
demonstrates “improper police conduct” in the form of “law enforcement officers us[ing]
an identification procedure that is both suggestive and unnecessary.” Perry v. New
Hampshire, 565 U.S. 228, 238-39, 241 (2012). Otherwise, the reliability of the witness’s
identification is a question for the jury, leaving the defendant with the typical protections
against unreliable evidence: the right to persuade the jury of the evidence’s lacking
reliability through the cross-examination of witnesses, general rules governing the
admissibility of evidence, and jury instructions on “the fallibility of eye-witness
identification.” Id. at 233, 237.

Motion to Suppress Out-of-Court Identification > Due Process > State Action

With no evidence that police arranged for a victim to view an extremely suggestive flyer
containing the defendant’s photo, the Due Process Clause of the Fourteenth Amendment
to the United States Constitution is not implicated. See Perry v. New Hampshire, 565 U.S.
228, 241 (2012).

Motion to Suppress Out-of-Court Identification > Due Process > State Action

Once a victim has already volunteered an out-of-court identification of the defendant based
on her independent viewing of a suggestive Be On the Lookout flyer, it was not improper
or unreasonable for police to use that flyer to confirm her identification. Cf. State v.
Greene, ___ Md. App. ___, ___, No. 2199, September Term, 2018, slip op. at 3-15 (filed
Jan. 31, 2019).
Circuit Court for Baltimore City
Case No. 116144037
                                                REPORTED

                                   IN THE COURT OF SPECIAL APPEALS

                                             OF MARYLAND

                                                  No. 601

                                           September Term, 2017



                                             ANTHONY BEAN

                                                     v.

                                         STATE OF MARYLAND



                                      Wright,
                                      Leahy,
                                      Raker, Irma S.,
                                         (Senior Judge, Specially Assigned),

                                                   JJ.


                                            Opinion by Leahy, J.


                                      Filed: March 28, 2019
       Appellant, Anthony Bean, moved to suppress the pre-trial identification in this case

because, he argued, it resulted from an impermissibly suggestive procedure and was

unreliable in violation of his right to due process of law guaranteed by the Fourteenth

Amendment to the United States Constitution. The Supreme Court has declared that the

“primary evil” that impermissibly suggestive identifications procedures generate is the

“very substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188, 198

(1972). To invoke the protections of the Due Process Clause of the United States

Constitution, however, a criminal defendant must first demonstrate that the eyewitness

identification was “procured under unnecessarily suggestive circumstances arranged by

law enforcement.” Perry v. New Hampshire, 565 U.S. 228, 248 (2012) (emphasis added).

Failure to show state action—that the police arranged the pre-trial identification—

effectively ends the constitutional inquiry. Id. at 232-33.

       Following an armed robbery and carjacking, the Baltimore City Police Department

created an internal “be on the lookout” flyer (“BOLO”) that showed images of the

assailants and the missing vehicle, and stated the particulars of the crime. The BOLO was

released on social media and seen by the victim’s brother, who showed it to the victim,

who then recognized her assailants on the BOLO. The victim informed the police that she

had seen the BOLO and that she recognized her assailants on the flyer. The next morning,

at the police station, police showed her the BOLO again to confirm her identification and

then showed her a single photo of each assailant, including one of Bean. She confirmed

for police that Bean was one of her attackers.

       The suppression court denied the motion, finding that the release of the BOLO
constituted state action, and that the identification procedures were impermissibly

suggestive. Nevertheless, after applying the Biggers reliability analysis, the Court found

that the victim’s identification was reliable and admissible into evidence. Bean was

subsequently tried and convicted by a jury in the Circuit Court for Baltimore City. He

noted a timely appeal, challenging the court’s denial of the motion to suppress.

       We hold that, although the BOLO was impermissibly suggestive, the Baltimore City

Police Department did not arrange the victim’s identification of Bean and, therefore, there

was no state action. Absent “improper law enforcement activity,” the Due Process Clause

and its check on the reliability of witness identifications were not implicated in this case.

Perry 565 U.S. at 238-39. We conclude, although on different grounds relied upon by the

circuit court, that it was correct to deny Bean’s motion to suppress.

                                      BACKGROUND

                              A.      The Motion to Suppress

       On March 16, 2017, Bean moved to suppress the pretrial photo identification. The

following facts are derived from the suppression hearing.

                      1. The Robbery and Initial Police Involvement1

       Ms. Perry testified that at around 10:00 p.m. on March 22, 2016, she parked her

vehicle in the 1700 block of Johnson Street in Baltimore City and began walking toward

her home. She said, “[it was] kind of dark out” but that there was “[a] little” street lighting.



       1
         Ms. Perry’s testimony at the suppression hearing describing her assailants was, of
course, given after she viewed the BOLO and made the identification based on the single
photo at the police station.
                                               2
After walking about “50 feet or so” from her car, she observed three men, roughly 100 feet

away, walking directly toward her. One of the men, who was wearing a hooded sweatshirt,

“kind of, held back, [] I guess, like [a] lookout,” about five feet away, while two other men,

“both African-American gentlemen, about average height,” approached her to effectuate

the robbery. She believed that the lookout person, who was wearing a hooded sweatshirt,

was a male because “he seemed tall, built bigger than, you know, a girl.” When pressed,

“are you certain it wasn’t two males and a female,” she responded that “it seemed to me

like three males.”

       She explained that one of the men who approached her—the “main” robber—“got

closer to me, probably about two feet [away].” She stated that “he seemed taller, bulkier,

kind of chubby around mid-face. And he had a black hoodie on[.] . . . He, kind of, had,

like, a shaved face a little bit.” Ms. Perry noted that the other person who approached her

was “average height [and] skinny[,]” but she was unable to provide other details because

this person was wearing a mask and did not speak during the robbery.

       During the robbery, the “main” robber demanded to know where her car was and

threatened that he would “blow [her] brains out” if she did not cooperate. She pointed the

assailants in the direction of her car, surrendered her “keys, and [] just, kind of, handed

over everything.” After handing over her belongings, a car “came down the road,” which

caused the assailants to “scatter[,]” giving Ms. Perry a chance to run to her house and call

the police. She recalled that the entire interaction lasted “[p]robably about a couple

minutes, two or three minutes.” When asked about her state of mind at the time, Ms. Perry

testified that she was “[t]errified. Scared for [her] life.”

                                               3
       Officer Pennington from the Baltimore Police Department arrived at Ms. Perry’s

home 15-20 minutes after the robbery. At some point after Officer Pennington arrived,

Ms. Perry exited her home and discovered that her vehicle had been stolen. She testified

that she provided Officer Pennington with some initial details about the men who had

robbed her, and then he escorted her to the police station where she spoke with a detective

about the robbery.2 That night, Ms. Perry canceled her credit cards by phone, and a

representative informed her that her card had just been used at a local 7-Eleven.

                                   2. The Police Flyer

       The next morning, Detective William Bailey called Ms. Perry to obtain further

details about the robbery. Ms. Perry told Det. Bailey that her credit card had been used at

a nearby 7-Eleven. Det. Bailey and two other detectives went to the 7-Eleven and

recovered the stolen credit card that was left there, along with a receipt detailing the

transaction. Using the date and time of the transaction, Det. Bailey obtained the store’s

surveillance footage from the time of the purchase. The video showed two black males

enter the store with a black female, then stand behind the female as she made a purchase

with a credit card. Det. Bailey pulled still-frames of the three individuals shown in the

video and created the BOLO to aid in identification of the suspects from the robbery. He

also included two pictures of a red 2015 Toyota Rav4—the same color, make, and model

of Ms. Perry’s vehicle—and the instruction at the bottom in bold, underlined, red, and



       2
         During the suppression hearing, no testimony was elicited about what details Ms.
Perry shared with Officer Pennington or what she told the unnamed detective at the police
station on the night of the robbery.
                                             4
capitalized font “FOR OFFICAL USE ONLY / LAW ENFORCEMENT

SENSITIVE.” In addition to his contact information, Det. Bailey included the following

paragraph on the BOLO, just below the still-frame photos:

       “In reference to an armed carjacking that took place in the 1700 Blk Johnson
       St on 3/22/16 @ 10:20pm, where a red 2015 Toyota Rav4 was taken, vehicle
       has raven & oriole sticker on the rear. This detective is attempting to identify
       the above individuals. Approach with caution, the individuals operating this
       vehicle should be considered armed and dangerous.”

Det. Bailey sent the BOLO to all the other police department districts in Baltimore in the

hope that other precincts could “possibly locate the car or maybe [identify] the individuals

from prior contact.” Det. Bailey testified that when he created the BOLO, he intended it

to remain internal. Unbeknownst to Det. Bailey, the public relations office of the Baltimore

City Police Department uploaded the BOLO onto several social media platforms later that

day, including Facebook.3 Det. Bailey testified that he had no influence, even as the lead

investigator, over the decision to place the BOLO on social media.

       Ms. Perry testified that later that afternoon, her brother told her that he had seen a

police flyer on Facebook concerning a robbery and carjacking that occurred the previous

night. Ms. Perry recalled:

           “My brother actually sent me something that he had saw [sic] on Facebook.
           Detective Bailey had, I think, put out, you know, a whatever, for – because
           the car was missing, and it was, like, a missing – ‘We’re looking for these
           people.’ And the people that came up on the ad with my vehicle, they –
           three pictures were taken in the 7-Eleven, and I recognized the one
           gentleman.”

       3
         Facebook is a social-media website on which “users create online profiles to share
information about themselves with other Facebook users.” Sublet v. State, 442 Md. 632,
637 n.5 (2015) (citing Joshua Briones & Ana Tagvoryan, Social Media as Evidence 1:5:1:1
(2013)).
                                               5
She testified further that the person she recognized was wearing “a black-hooded

sweatshirt.”

       Shortly after 5:00 p.m. on March 23, 2016, police located Ms. Perry’s vehicle. Det.

Bailey called Ms. Perry to report that they had located her vehicle and were sending it to

the crime lab for additional analysis. To his surprise, Ms. Perry said that she had seen the

BOLO on social media and recognized one of the men as one of the robbers. Det. Bailey

arranged for Ms. Perry to come to the police station the next day for an interview.

                                    3. The Interview

       Before Ms. Perry’s interview, officers patrolling the Cherry Hill area of Baltimore

City stopped a woman wearing the same dress as the woman who used Ms. Perry’s credit

card in the 7-Eleven surveillance video. When questioned, the woman identified the two

men with her in the surveillance footage, one of whom was Bean. Later that morning, Ms.

Perry arrived at the Southern District police station. During the suppression hearing,

defense counsel asked Det. Bailey what procedures he used during Ms. Perry’s interview,

and he responded:

       “. . . I had [Ms. Perry] come in. I couldn’t show her a photo array at that
       point, because she already had [seen the BOLO] through social media. So I
       used the BOLO we had, attempt to identify, had her look at that and sign off
       where the two individuals that she said she saw that night rob her.”

Det. Bailey indicated that Ms. Perry “signed both pictures” on the BOLO to indicate that

she recognized both men from the night of the robbery. After she had identified both

assailants in the BOLO, Det. Bailey showed Ms. Perry the MVA photos of the two men

she had identified in the BOLO. Det. Bailey explained why he then showed Ms. Perry a

                                             6
single photo of Bean rather than a full six-photo array:

       “After she already told us she looked at the BOLO, we already knew she saw
       the faces. And [] then I thought at that point i[t] would be a moot point to
       show a photo array that she already [knew] the people’s faces already. Now,
       I did show her individual photos of both of them. She wrote a statement out
       for each one, what particular – what part they played in the robbery.”

       Ms. Perry testified to her recollection of the events at the police station. Before

being presented with any of the photos at the suppression hearing, Ms. Perry said that when

she was shown the BOLO at the police station, she pointed out who she recognized from

the robbery. Ms. Perry said that when she first saw the BOLO on Facebook, she was

“[i]nstantly” able to identify both men—Bean as the “main” robber, Walker as the

“lookout,” but was unable to identify the woman.

       The State showed Ms. Perry Bean’s MVA photo that she had viewed at the police

station. She stated that when she viewed Bean’s photo, she wrote a statement on the picture

describing his role in the robbery and how she recognized him. The court permitted Ms.

Perry to read her statement at the suppression hearing and she recited the following:

       “I recognize this man who robbed me at gunpoint. He pointed a gun at me
       and demanded I show them where my car was. He stated he would blow my
       brains out if I didn’t show them where my car was. I recognize [him] based
       on his stockier, full face, darker complexion, dark eyes, and full lips. He also
       had a shaved head with fine black hair. I also recognize this man from the
       social media ad on the police flyer.”

Ms. Perry admitted that she wrote this description “after viewing the photos.”

       Following Ms. Perry’s testimony, defense counsel argued for the suppression of the

pretrial identification, maintaining that the procedure was impermissibly suggestive and

the underlying identification was not reliable. Defense counsel argued that the timing of


                                              7
the release and subsequent exposure to the BOLO was problematic because Ms. Perry

viewed it before she ever made an identification of Bean. Counsel pressed:

       “If you look at just the layout of the [BOLO] itself, it’s got a big picture of
       her car. It’s got a description of not that we’re looking for these folks that
       were in the 7-Eleven on Hanover Street on the 23rd, we’re looking for these
       folks that robbed this lady and took this car. And it suggests very plainly that
       these are the people that we think did it.”

Counsel continued, noting that before Ms. Perry saw “the single photograph at the precinct

. . . the way [the BOLO] was put together and the information that’s contained in it []

definitely suggested the answer to her.” Counsel insisted that regardless how she came

into contact with the BOLO, its release constituted state action because it “was generated

by the police department, and it was disseminated by them[.]” Defense counsel reiterated

that the message relayed to viewers of the BOLO was inherently suggestive and noted that

the BOLO “gives a really strong statement, and it’s a statement by the police. This is a

police government-generated document[.]”             Finally, defense counsel argued that the

identification lacked independent reliability.

                                  4. The Court’s Ruling

       The suppression court denied Bean’s motion to suppress the pre-trial identification.

First, however, the court found that the release of the BOLO constituted state action:

       “[T]he [BOLO] is, in fact, a bulletin that was prepared by the Baltimore City
       Police Department, specifically references the date and time of the incident,
       that they were looking for these individuals in relating [sic] to a car jacking,
       and that that car jacking place [sic] at the 1700 block Johnson Street, and that
       these individuals were armed and dangerous and should not be approached.”

       “Even though that did pass to a neighborhood association and maybe through
       Facebook, ultimately, to the alleged eyewitness in this case, the Court does
       find that, that state action, as that it did originate and was created by the

                                                 8
       Baltimore City Police Department[.]”

       Next, the court found that the procedure used was impermissibly suggestive, and

stated the following:

       “. . . I don’t think there’s any doubt, and the State has conceded that the
       [BOLO] itself is suggestive.[4] The Police Department is basically saying,
       ‘This is the individual, or these are the individuals that we believe were
       responsible for this.’”

       “So the Court does find that [Bean] has met [his] burden to establish that the
       pretrial identification at issue here was impermissibly suggestive when it was
       provided to Ms. Perry.”

Finally, the court considered the reliability of the identification, and found that the factors

enumerated in Biggers, 409 U.S. at 198, weighed in favor of reliability, and denied motion

to suppress.

                                          5. Trial

       This case proceeded to trial from March 16-20, 2017. On the morning of the third

day of trial, Bean made a motion for judgment of acquittal, arguing that besides Ms. Perry’s

pretrial identification, there was no other evidence linking Bean to the crime. Defense

counsel pressed:

       “. . . [T]here is no other corroborating evidence. It’s not like, well, maybe
       she’s mistaken, and – but you can look at the fact that his fingerprints were
       in the car or there was property recovered, or there’s an association between
       he and Mr. [Daikon] Walker. There’s none of that in this case. The case
       hinges on her identification. So I think that considering that the Court ought
       to issue a judgment of acquittal on all counts.”

The court denied Bean’s motion for judgment of acquittal.


       During the State’s argument, it conceded that “there is some suggestiveness in
       4

what [Ms. Perry] saw once she was presented this BOLO.”
                                              9
       The jury found Bean guilty of all crimes stemming from the armed carjacking and

theft of Ms. Perry’s belongings.       The court then sentenced Bean to 15 years of

incarceration.

       Bean timely appealed to this Court, presenting the following question for our

review:

       “Whether the trial court erred in denying Anthony Bean’s motion to suppress
       the complainant’s extrajudicial identification where the complainant viewed
       an internal police flyer containing details about the crime prior to meeting
       with police and then made a photographic identification based solely on that
       same police flyer and a single photograph of Mr. Bean?”

       We will include additional facts as they pertain to the discussion below.

                                      DISCUSSION

                                             I.

                                   Standard of Review

       We limit our review of the denial of a motion to suppress to the record of the

suppression hearing. James v. State, 191 Md. App. 233, 251 (2010). The suppression

court’s factual findings and witness credibility determinations will not be disturbed absent

clear error, and we view all the evidence, as well as inferences that can be reasonably drawn

therefrom, in a light most favorable to the State. McFarlin v. State, 409 Md. 391, 403

(2009). Issues of law—specifically whether a constitutional right has been violated—

receive no deference. State v. Andrews, 227 Md. App. 350, 371 (2016) (citing Williams v.

State, 372 Md. 386, 401 (2002)) (additional citation omitted). Therefore, we review the

suppression court’s findings of fact for clear error and its ultimate decision de novo.



                                             10
                                            II.

                                       Due Process

       The ability of law enforcement to ascertain reliable pre-trial identifications from

witnesses is a vital part of the American criminal justice system. A criminal defendant’s

ability to defend against the admission of identifications that are unreliable and obtained

through impermissibly suggestive means, however, is equally important. To guard against

the risk of an incorrect identification, criminal defendants may invoke the Due Process

Clause of the Fourteenth Amendment to combat “the introduction of evidence of, or tainted

by, unreliable pretrial identifications obtained through unnecessarily suggestive

procedures.” Webster v. State, 299 Md. 581, 599-600 (1984) (quoting Moore v. Illinois,

434 U.S. 220, 227 (1977)). A criminal defendant must first demonstrate, however, that the

identification was orchestrated or engineered by the actions of “law enforcement

officers[.]” Perry, 565 U.S. at 238-39.

       Once a defendant successfully demonstrates that the identification procedure

involved actions by law enforcement officials, Maryland suppression courts undertake a

two-step inquiry to determine whether to suppress an extra-judicial identification. Smiley

v. State, 442 Md. 168, 180 (2015). First, the defendant bears the burden of demonstrating

“some unnecessary suggestiveness in the procedures employed by police.” (Charles)

Thomas v. State, 213 Md. App. 388, 417 (2013) (internal quotations omitted). The inquiry

ends here if the procedure is not impermissibly suggestive. Id; Smiley, 442 Md. at 168. If

the procedure is impermissibly suggestive, then the inquiry proceeds to the second step

wherein the burden shifts to the State to “prove, by clear and convincing evidence, that the

                                            11
independent reliability in the identification outweighs the ‘corrupting effect of the

suggestive procedure.’” Gatewood v. State, 158 Md. App. 458, 475 (2004) (quoting

(Jerrod) Thomas v. State, 139 Md. App. 188, 208 (2001), aff’d, 369 Md. 202 (2002)). To

apprise the reliability of an identification, the Supreme Court fashioned a five-factor test

in Biggers. 409 U.S. at 199-200. Only if the State cannot prove that the identification is

independently reliable will the court suppress a suggestive pretrial extrajudicial

identification. Conyers v. State, 115 Md. App. 114, 121 (1997).

       But we engage in “[t]he due process check for reliability” only if the defendant

demonstrates “improper police conduct” in the form of “law enforcement officers us[ing]

an identification procedure that is both suggestive and unnecessary.” Perry, 565 U.S. at

238-39, 241. Otherwise, the reliability of the witness’s identification is a question for the

jury, leaving the defendant with the typical protections against unreliable evidence: the

right to persuade the jury of the evidence’s lacking reliability through the cross-

examination of witnesses, general rules governing the admissibility of evidence, and jury

instructions on “the fallibility of eye-witness identification.” Id. at 233, 237. Our analysis

in this case begins with the threshold determination of whether law enforcement arranged

Ms. Perry’s identification of Bean.

                                         State Action

       The State maintains that because law enforcement did not specifically facilitate Ms.

Perry’s initial viewing of the BOLO, her identification of Bean did not constitute state

action geared specifically towards obtaining an identification. Consequently, the State

argues, the suppression court erred in conducting a due-process inquiry. Bean, for his part,

                                             12
argues that there was state action because “Ms. Perry viewed the impermissibl[y]

suggestive BOLO that was released by the Baltimore City Police Department” before she

made a “formal identification,” and Det. Bailey then “reinforced the initial prejudice” by

showing Ms. Perry the BOLO at the station before finally showing her a single MVA photo

of Bean.

       The Supreme Court in Perry underscored the principle that the Due Process Clause

protected against suggestive identifications only when law enforcement arranged the

circumstances of the witness’s identification. Id. at 232. In rejecting Perry’s arguments to

the contrary, the Court acknowledged the likelihood that witnesses’ out-of-court

identifications would result from suggestive circumstances not arranged by law

enforcement: “For example, suppose a witness identifies the defendant to police officers

after seeing a photograph of the defendant in the press captioned ‘theft suspect,’ or hearing

a radio report implicating the defendant in the crime.” Id. at 244.

       Since Perry, courts nationwide have confronted suggestive circumstances that lack

the requisite state action and have ruled that the witness’s identification did not implicate

the Due Process Clause. For instance, the Supreme Judicial Court of Maine held that there

“was no improper state conduct” when a witness identified the defendant out of court after

the jail released a picture of the defendant (at that point, only a suspect) to a news outlet

but “took no other actions with regard to the witness’s out-of-court identification.” State

v. Davis, 191 A.3d 1147, 1154 (Me. 2018). Similarly, the Supreme Court of Arizona ruled

that “although police disseminated [a defendant’s] composite sketch and photo to the

media,” state action was lacking because “there [wa]s no evidence that police attempted to

                                             13
influence any of the[] witnesses’ pretrial identifications, for example, by arranging for or

encouraging victims to view the media coverage.” State v. Goudeau, 372 P.3d 945, 980

(Ariz. 2016) (citations omitted). See also United States v. Elliot, 732 F.3d 1307, 1309-10

(11th Cir. 2013) (holding that a witness’s independent viewing of the defendant’s photos

on the internet and surveillance footage of the robbery at the store where the robbery

occurred prior to the lineup was not the result of police misconduct); Young v. State, 374

P.3d 395, 411 (Alaska 2016) (“Because there was no state action involved in [the witness’s]

identification of Young from a picture on the television news, due process did not require

that the superior court screen it for reliability under Brathwaite.”); State v. Gilmore, 156

So. 3d 46, 52-53 (La. Ct. App. 2013) (holding that there was no “suggestive pre-trial

procedure arranged by police” when the witness saw the defendant’s photos on a local

news website before she viewed the photographs in a police lineup), writ denied sub

nom. State ex rel. Gilmore v. State, 119 So. 3d 600 (La. 2013); In re Johnny H., 111 A.D.3d

576, 576 (N.Y. App. Div. 2013) (“We find no basis for suppression in the fact that there

may have been a civilian-arranged single-photo identification, made prior to

the police procedure and without any police involvement.”); State v. Martin, 505 S.W.3d

492, 502-03 (Tenn. 2016) (holding that a victim viewing the defendant’s booking

photograph on the County’s “Who’s In Jail?” website did not involve improper state

conduct, even when police later included the same photo in an array shown to the victim);

Gilmore v. State, 397 S.W.3d 226, 238-39 (Tex. App. 2012) (declining to address

reliability, in part, because there “[wa]s no evidence that law enforcement officials

arranged for [the witnesses] to watch the news to see a photograph of Appellant”).

                                            14
       These cases make clear that courts will not conclude that “improper police conduct”

influenced a witness’s out-of-court identification when police merely release a photograph

of the defendant to the media as part of an on-going investigation. That police in this case

released Bean’s photograph on social media5 rather than a legacy media outlet is a

distinction without a difference as it relates to the propriety of the state action. The release

of the BOLO on social media in this case was not “improper police conduct” that triggers

a Biggers analysis because police did not “arrange or encourage” Ms. Perry to view the

BOLO, see Goudeau, 372 P.3d at 980; nor was there any evidence that the police directed

the BOLO toward Ms. Perry in any sort of targeted manner. Cf. O’Connell v. State, 742

N.E.2d 943, 948 (Ind. 2001) (“One can imagine an orchestrated prompting of a witness by

means of the media.”). In fact, Det. Bailey, the lead investigator in this case, testified that

he was surprised that Ms. Perry saw the BOLO and volunteered that she had identified the

men it depicted. Moreover, to the extent the identification was arranged, it was arranged

by Perry’s brother, not the police department. With no evidence that police arranged for

Ms. Perry to view the BOLO, which was extremely suggestive, the Due Process Clause is

not implicated. See Perry, 565 U.S. at 241.

       Det. Bailey’s use of the BOLO to confirm Ms. Perry’s identification at the police

station does not alter this result. Once Ms. Perry had already volunteered an out-of-court

identification of Bean based on her independent viewing of the BOLO, it was not improper

or unreasonable for Det. Bailey to confirm her identification. Com. v. Currier, 455 N.E.2d


       5
        For purposes of assessing state action in this case, it makes no difference whether
Det. Bailey or the public relations department released the BOLO on Facebook.
                                              15
158, 158 (Mass. App. Ct. 1983) (“[W]here it has been established ‘that the initial

identification is the product of something other than improper action by the State, due

process does not require the suppression of it or its repetitions.” (emphasis added)). Cf.

State v. Greene, ___ Md. App. ___, ___, No. 2199, September Term, 2018, slip op. at 3-

15 (filed Jan. 31, 2019) (explaining that the due-process requirements for reliable

identifications are not implicated when police conduct a “confirmatory identification” as

opposed to a “selective identification”).

       The Supreme Court of Rhode Island reached a similar result last year in State v.

Alves, 183 A.3d 539 (R.I. 2018). In that case, a witness printed out the defendant’s

photograph from the internet and brought it to the police station. Id. at 541. Police had the

witness circle the defendant on the printed image and later showed him a single photo of

the defendant to confirm his prior identification. Id. The Court reasoned that this “was not

so much an identification procedure as it was a confirmation of the identification that [the

witness] had already made[,]” and, therefore, was not unnecessarily suggestive “nor did it

implicate defendant’s right to due process.” Id. at 543. See also State v. Darveaux, 318

N.W.2d 44, 47 (Minn. 1982) (holding that a “physical lineup was merely confirmatory”

and, therefore, “did not cause a substantial likelihood of misidentification” because the

witnesses “had already positively identified defendant in a valid photographic display”);

State v. Liverman, 727 S.E.2d 422, 424, 427-28 (S.C. 2012) (holding that a show-up

identification procedure, which would have “normally [been] considered unduly

suggestive,” was “merely confirmatory” because the witness had already identified the

defendant for the police prior to the show-up); Martin, 505 S.W.3d at 502-03 (Tenn. 2016)

                                             16
(holding that it was not improper for the police to include in a photo array the same booking

photograph that the victim had viewed previously on the County’s “Who’s In Jail?”

website); State v. Aponte, 391 P.3d 327, 330-31 (Utah Ct. App. 2016) (rejecting the

defendant’s argument that it was improper for police to show a photograph of the defendant

to a witness “only for the limited purpose of confirming the accuracy of an identification

already made by someone who should have known the [defendant’s] identity”).

       In conclusion, we cannot say the Baltimore City Police Department arranged Ms.

Perry’s identification of Bean. Absent “improper law enforcement activity,” the Due

Process Clause and its check on the reliability of witness identifications were not

implicated in this case. The circuit court was correct to deny Bean’s motion to suppress

Ms. Perry’s identification.

                                          JUDGMENT FOR THE CIRCUIT COURT
                                          FOR BALTIMORE CITY AFFIRMED.
                                          APPELLANT TO PAY COSTS.




                                             17
