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Appellate court finds Facebook identification of defendant did not violate rights

The state’s intermediate appellate court found that a robbery victim’s identification of her assailants through a “be on the lookout” flyer mistakenly posted on the Baltimore Police Department’s social media did not violate the defendant’s due process rights.

In an opinion published last week, the Court of Special Appeals found that the victim’s identification of appellant Anthony Bean was not arranged by the police department and therefore not a state action subject to the due process clause of the Fourteenth Amendment, the opinion states.

“With no evidence that police arranged for (the victim) to view the BOLO (be on the lookout), which was extremely suggestive, the Due Process Clause is not implicated,” wrote Judge Andrea M. Leahy for the unanimous three-judge panel.

One night in March 2016, three individuals in hooded sweatshirts approached the victim as she got out of her car and forced her to hand over her keys and belongings, the opinion states.

The police found security camera footage of three individuals entering a 7-Eleven where they also used the victim’s credit card. Police detectives used still frames from the security camera footage to create a “be on the lookout” flyer to help identify the suspects and two pictures of the victim’s car. The bottom of the flyer said “for official use only / law enforcement sensitive” in bold, underlined red and in capitalized, the opinion states.

The detective sent it to all the other police department districts in Baltimore, hoping that they could help find the car or provide information about the suspects from possible prior encounters. However, without the detective’s knowledge, the police department’s public relations office uploaded the flyer onto several of its social media platforms, including Facebook, the opinion states.

Shortly after the flyer was posted, the victim’s brother saw the flyer on Facebook and showed it to her. The victim recognized her car in the photo and one of the men on the flyer and told the detectives that she recognized one of the men, Bean, as one of the robbers, the opinion states.

At the police station, detectives showed the victim the flyer again (she identified two of the men) and their respective photos from the Motor Vehicle Administration, the opinion states.

Bean argued that the identification procedure was “impermissibly suggestive” and the identification was not reliable. Defense counsel also argued that the identification should be suppressed because the timing of the flyer release and the victim seeing the flyer was problematic because she saw it before she ever identified Bean as one of the robbers, the opinion states.

The suppression court rejected the motion, finding that while the release of the flyer was a state action and the identification of the suspect was suggestive, the victim’s identification was reliable. The appellate court took a different approach to the same conclusion, finding that the identification was not a state action and the suppression motion was correctly denied, the opinion states.

“I am deeply disappointed in the court’s opinion.  A police department’s decision to release an impermissibly suggestive flyer to the public seems to me the very definition of a “police arranged” procedure.  I am perplexed at the court’s decision to come to a contrary conclusion,” said Renée M. Hutchins, formerly a professor at the University of Maryland Francis King Carey School of Law who represented Bean pro-bono along with clinic students at the law school.

Appellate attorneys at the Maryland Office of the Public Defender are reviewing the decision, Hutchins said.

A spokeswoman for the attorney general’s office, which represented the state, declined to comment on the court’s decision.

Leahy was joined in the opinion by Judges Alexander Wright Jr. and Irma S. Raker, who was sitting by special assignment.

The case is Anthony Bean v. State of Maryland, No. 601, September Term 2017.

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