                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Chafin, Russell and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              MARQUIS DEVON COOKE
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1976-16-2                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                               FEBRUARY 20, 2018
              COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                                           Joseph M. Teefey, Jr., Judge1

                               Paul S. Roskin (Vergara & Associates, on briefs), for appellant.

                               Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     A jury of the Circuit Court of the City of Petersburg (“trial court”) found appellant

              Marquis Devon Cooke guilty of carjacking and robbery.2 It sentenced him to twenty years in

              prison for those offenses. On appeal, Cooke argues that the trial court erred by denying his

              motion to suppress the victims’ identifications of Cooke because they were procured through an

              unconstitutionally suggestive procedure. For the following reasons, we affirm.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Although Judge Teefey sentenced Cooke, Judge Designate Pamela S. Baskervill
              presided over the trial, and Judge Designate James F. D’Alton, Jr. heard Cooke’s motion to
              suppress.
                     2
                       Cooke was also convicted of additional related charges, including felony destruction of
              property and felony eluding. These charges are not before this Court on appeal.
                                         I. BACKGROUND

                                      A. Standard of Review

       On review of the denial of a motion to suppress, “we view the facts in the light most

favorable to the Commonwealth, and draw all reasonable inferences from those facts.” Payne v.

Commonwealth, 65 Va. App. 194, 198, 776 S.E.2d 442, 444 (2015), aff’d, 292 Va. 855, 794

S.E.2d 577 (2016). “It is our duty to affirm the trial court’s judgment unless that judgment is

plainly wrong or without evidence to support it.” Reid v. Commonwealth, 65 Va. App. 745, 753,

781 S.E.2d 373, 377 (2016) (quoting Muhammad v. Commonwealth, 269 Va. 451, 536, 619

S.E.2d 16, 65 (2005)). In our review, “we consider facts presented both at the suppression

hearing and at trial.” Ross v. Commonwealth, 61 Va. App. 752, 757, 739 S.E.2d 910, 912

(2013) (quoting Smith v. Commonwealth, 61 Va. App. 112, 116, 733 S.E.2d 683, 685 (2012)).

Viewing the facts through this evidentiary lens, we then “review de novo the trial court’s

application of legal standards to the particular facts of the case.” Logan v. Commonwealth, 51

Va. App. 111, 114-15, 655 S.E.2d 30, 32 (2008).

                                             B. Facts

       In November 2012 at approximately 7:15 p.m., Priscilla Sootoo and James Flowers were

sitting in the front seats of a sedan, parked in front of Flowers’s house. The vehicle was a silver

Chevy Cavalier with vanity plates reading “BE CLEAR.” Sootoo and Flowers were talking

while Sootoo was using her iPhone.

       Suddenly, the front driver’s-side door opened and a man, later identified as Cooke,

reached in and grabbed Sootoo’s phone. She initially thought it was a prank and attempted to

retrieve it, at which point the robber pointed a gun at her head. Although it was “getting dark,”

the vehicle’s dome lights were illuminated, allowing her to see the robber, whom she described

as a “somewhat built,” light-skinned black man. He wore dark clothes and a hat, and his face

                                                -2-
was covered by a red bandana from the nose down. She noted that he had brown eyes and thick

eyebrows. Sootoo told him he could have the phone. While alternately pointing the gun at

Sootoo and Flowers, the robber leaned into the vehicle and frisked them both for money,

although neither had any. This took three to five minutes, giving them the opportunity to

observe the robber’s appearance. The robber pulled Sootoo out of the driver’s seat, and directed

Flowers to start the vehicle and then get out. Sootoo and Flowers ran into the house. The robber

got into the vehicle and drove off.

       “Within 30 seconds” of going into Flowers’s house, Sootoo left to call the police. On her

way, she ran into police officers at a gas station. She told them she had been robbed and

described the stolen vehicle and perpetrator. The police issued a “be on the lookout” advisory

over the radio, including a description of the stolen vehicle and vanity plates. The police drove

Sootoo back to Flowers’s house.

       Another patrolling officer saw the stolen vehicle on the road and attempted to initiate a

stop. The vehicle fled at speeds exceeding 100 miles per hour. During the chase, the vehicle

smashed into multiple parked cars, damaging both the stolen Cavalier and the other cars. Other

police cruisers joined the pursuit. Finally, the stolen vehicle crashed into a fence and the driver

(the only person in the vehicle) exited and fled on foot.

       Corporal Richard Marks, the canine unit supervisor for the Petersburg Bureau of Police,

was driving one of the police cruisers pursuing the suspect. After the crash, he and his dog

continued that pursuit on foot. Based on other officers’ reports as to where they last saw the

suspect, Corporal Marks went to that location to track him. The dog led them to a wooded area

behind a house, then found and immobilized the suspect, Cooke, who was hiding in the brush.

The police found two cell phones on the ground underneath Cooke, one of which was Sootoo’s

iPhone.

                                                -3-
       Police drove Sootoo and Flowers to the site of the wreck. The crashed vehicle matched

her description, including the vanity plates reading “BE CLEAR.” A detective told Sootoo and

Flowers that someone was in custody and asked them if they were willing to “see if you can

make a positive identification on the person that they have in custody.” This was to be done in

what is known as a show-up.3 They were brought to a man handcuffed in the back of a police

vehicle. He was not wearing a hat or bandana, but Sootoo identified him as the assailant. She

recognized his body size, his skin tone, and his thick eyebrows. She asked police to have him

open his eyes, at which point she confirmed that this was the perpetrator. Flowers was beside

Sootoo, and also confirmed Cooke’s identity as the person who had stolen the phone and vehicle.

He had “no doubt” that this was the robber, based on his skin, his eyes, and, in particular, his

“bushy” eyebrows. The identifications took place within “not even 15, 20 minutes” from when

the car was stolen.

       Cooke moved to suppress these identifications, as well as those from the preliminary

hearing, arguing that they were “highly suggestive, unreliable and prejudicial,” and thus violated

his right to due process. At the hearing on the suppression motion, the judge acknowledged that

“show-ups, of course, are fraught with problems,” but that “the one thing that saves show-ups

over and over and over is the promptness of the confrontation.” Although Cooke was in custody

at the time of the identification, the judge found the circumstances had not been “arranged for

that purpose,” and were not unduly suggestive. The trial court judge therefore denied Cooke’s

motion to suppress.




       3
          A “show-up” describes a type of out-of-court procedure where the police present a
single suspect (as opposed to a lineup or array of photographs) to an eyewitness for
identification.
                                                -4-
                                             II. ANALYSIS

        Cooke argues that the circumstances surrounding Sootoo’s and Flowers’s identifications

violated his due process rights because of the suggestiveness of the show-up procedure. He

alleges that the identification was suggestive because of Cooke’s proximity to the stolen vehicle,

because he was handcuffed in the police cruiser, and because Sootoo and Flowers were both

present for, and thus could hear, each other’s identifications, possibly influencing each other. He

argues that those identifications, which he contends were unconstitutional, were the basis of, and

thus tainted, any subsequent in-court identifications.

        “[P]re-trial show-ups are not per se violative of constitutional rights . . . .” Blevins v.

Commonwealth, 40 Va. App. 412, 423, 579 S.E.2d 658, 664 (2003) (italics added) (quoting Ford

v. Commonwealth, 28 Va. App. 249, 258, 503 S.E.2d 803, 807 (1998)). In fact, it “may be the

most practical way to confirm or dispel an officer’s belief that a suspect is the perpetrator of a

crime,” Scott v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (Jan. 30, 2018),

and “fosters the desirable objectives of fresh, accurate identification which in some instances

may lead to the immediate release of an innocent suspect and at the same time enable the police

to resume the search for the fleeing culprit while the trail is still fresh,” id. at ___, ___ S.E.2d at

___ (quoting Martin v. Commonwealth, 210 Va. 686, 691, 173 S.E.2d 794, 798 (1970)).

        “Evidence of an out-of-court identification is admissible at trial if either ‘(a) the

identification was not unduly suggestive, or (b) the procedure was unduly suggestive, but the

identification is nevertheless so reliable . . . that there is no substantial likelihood of

misidentification.’” Logan, 51 Va. App. at 115, 655 S.E.2d at 32 (quoting Hill v.

Commonwealth, 2 Va. App. 683, 693, 347 S.E.2d 913, 918 (1986)). In this case, we need only

examine whether the identification was the product of unduly suggestive procedures.




                                                  -5-
       Some degree of suggestiveness is inherent in all police-directed identifications, including

show-ups. See Perry v. New Hampshire, 565 U.S. 228, 244 (2012) (“Most eyewitness

identifications involve some element of suggestion. Indeed, all in-court identifications do.”).

That suggestiveness is all the more unavoidable in circumstances like those here, given that

Cooke was the only suspect present and was in custody near the site of the crashed stolen

vehicle.

       The question, however, is not if the circumstances were suggestive, but whether they

were unduly so, because “due process concerns arise only when law enforcement officers use an

identification procedure that is both suggestive and unnecessary.” Id. at 238-39 (emphasis

added). Here, whatever suggestiveness existed served the practical purpose of expeditiously

obtaining an accurate identification. The police knew an armed robber had just stolen a vehicle

and other property. Someone driving that vehicle then led a dangerous, high-speed chase

through a residential area, not only damaging property, but also posing a threat to the safety of

other drivers, pedestrians, and law enforcement. After the stolen vehicle crashed, the suspect

fled on foot. During this pursuit, law enforcement lost sight of him and used a dog to track him

to where he was hiding. After finding and apprehending Cooke, police had a practical public

safety interest in confirming that he was the same individual who robbed Sootoo and Flowers at

gunpoint and then recklessly fled in the stolen vehicle. If they had arrested the wrong person, an

armed criminal would still be at large. Accordingly, the identification procedures employed

here, albeit suggestive, were not unduly so, as they served a practical and necessary function.4


       4
         Finding the identification procedure was not unconstitutionally suggestive, we need not
analyze why the identifications were reliable under Neil v. Biggers, 409 U.S. 188 (1972),
examine the subsequent in-court identifications, or address harmless error. Perry, 565 U.S. at
233 (“When no improper law enforcement activity is involved . . . it suffices to test [an
eyewitness identification’s] reliability through the rights and opportunities generally designed for
that purpose,” such as the presence of counsel, cross-examination of the eyewitness, evidentiary

                                               -6-
                                         III. CONCLUSION

       The identifications admitted here were not the product of an unduly suggestive

procedure. Therefore, the trial court did not err in denying Cooke’s motion to suppress.

                                                                                             Affirmed.




rules, and jury instructions on “both the fallibility of eyewitness identification and the
requirement that guilt be proved beyond a reasonable doubt.”).
                                                  -7-
