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06/26/90 F.G.

June 26, 1990

IN RE F.G., APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Frank E. Schwelb, Motions Judge; Hon. Harriett R. Taylor, Trial Judge

Rogers, Chief Judge, Newman, Ferren, Belson, Terry, and Steadman, Associate Judges, and Mack, Senior Judge.*

Opinion for the court by Associate Judge Ferren.

Minority OPINION(S)ing opinion by Associate Judge Steadman, with whom Associate Judges Belson and Terry join.

The opinion of the court was delivered by: Ferren

On Rehearing En Banc

Appellant was adjudicated delinquent for distribution of phencyclidine (PCP) and marijuana, D.C. Code § 33-541 (a) (1988). He contends the trial court erred in refusing to conduct a pretrial evidentiary hearing on his motion to suppress evidence of his showup identification by an undercover police officer. We agree. Under our supervisory power over the administration of criminal Justice in the District of Columbia, *fn1 we hold that every defendant is entitled to an evidentiary hearing on a motion to suppress a showup identification unless it clearly appears from informal discovery that the defendant is seeking a hearing in bad faith. We therefore reverse the adjudication and remand for an evidentiary hearing on the motion to suppress. *fn2

I.

Following an undercover purchase of marijuana laced with PCP on April 12, 1985, Officer Gerald Awkard radioed the location and description of the seller to two other officers of the Metropolitan Police Department. The description identified the seller as wearing a white T-shirt, dark blue sweat pants, and light blue tennis shoes. The two officers found appellant sitting on a car directly in front of his home. They detained appellant until Officer Awkard drove by and identified appellant as the person who had sold him the drugs about four minutes earlier. A search incident to arrest uncovered neither PCP nor the prerecorded funds used by Awkard to make the purchase.

In his pretrial motion to suppress Awkard's identification testimony, appellant argued the showup identification was unduly suggestive and unreliable. Appellant alleged no unusual facts about his particular identification, however; rather, he argued that showup identification procedures are inherently suggestive. At a pretrial hearing on the motion, appellant maintained he was entitled to an evidentiary hearing because only through cross-examination of the government's witnesses could he discover additional facts which might support the motion to suppress.

The motions court denied appellant's motion without an evidentiary hearing. In a written opinion supporting its ruling, the court first noted that it is common practice in this jurisdiction to hold a pretrial evidentiary hearing on a motion to suppress an identification. 113 Daily Wash. L. Rptr. 1445, 1451 (June 4, 1985). The court then emphasized, however, both the extreme unlikelihood of success for such motions and the strain on judicial resources caused by evidentiary hearings. Id. The court relied substantially on Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L. Ed. 2d 549 (1981), in which the Supreme Court held that the due process clause does not require a hearing out of the jury's presence whenever a defendant claims an identification was obtained improperly. 113 Daily Wash. L. Rptr. at 1451. While the court acknowledged that showup identifications are inherently suggestive, it stressed the reliability of on-the-scene identifications by trained police officers and concluded that any suggestively was not impermissible. Id. at 1451-52. The court added that appellant was not prejudiced from its denial of his motion without a hearing because appellant could attack the reliability of the identification at trial. Id at 1452.

II.

In Jackson v. United States, 420 A.2d 1202 (D.C. 1979) (en banc), we considered the question whether the fifth amendment requires an evidentiary hearing on a motion to suppress a lineup identification. We adopted the test established in Duddles v. United States, 399 A.2d 59 (D.C. 1979), where we had concluded that, in order to justify a hearing on a fourth amendment suppression motion,

the defendant is obliged, in his [or her] definitive motion papers, to make factual allegations which, if established, would warrant relief (based on evidence discovered of the government and, if ...


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