United States ex rel. Riley v. Franzen
United States ex rel. Riley v. Franzen
Opinion of the Court
Petitioner-appellant Thomas Riley appeals from a judgment, entered after an evidentiary hearing, denying his petition for a writ of habeas corpus. Riley argues that for two reasons the district court erroneously concluded that his confession, given during a custodial interrogation, properly was admitted into evidence at his state court trial. First, Riley asserts that by requesting to speak with his father during the interrogation he invoked his rights to silence and to the assistance of counsel, as delineated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that by failing to honor that request the police violated those rights. Riley also contends that his confession was involuntary. For the reasons given below, we affirm.
I.
A.
After a jury trial in the Circuit Court of Cook County, Illinois, Riley was convicted of two counts of murder and one count of involuntary manslaughter. He was sentenced to two concurrent terms of imprisonment of 75 to 225 years for the murder counts and to a term of imprisonment of 3 to 10 years for the involuntary manslaughter count, concurrent with the murder sentence. Prior to trial, Riley unsuccessfully moved to suppress his confession, presenting, inter alia, the two arguments pressed in these habeas proceedings.
Riley’s conviction was affirmed by the Illinois Appellate Court. People v. Riley, 49 Ill.App.3d 304, 7 Ill.Dec. 145, 364 N.E.2d 306 (1st Dist. 1977). That court also rejected Riley’s challenges to the admissibility of his confession. The Illinois Supreme Court denied leave to appeal and, with Justices Brennan and Marshall dissenting, the Supreme Court denied certiorari. Riley v. Illinois, 435 U.S. 1000, 98 S.Ct. 1657, 56 L.Ed.2d 91 (1978).
Having exhausted his available state court remedies,
B.
For our purposes the facts regarding the homicides themselves are set forth adequately in the opinion of the Illinois Appellate Court. People v. Riley, 49 Ill.App.3d at 307, 7 Ill.Dec. 145, 364 N.E.2d 306. Conse
At approximately 5:15 p. m. on February 27, 1974, shortly after the shooting deaths of three young men at the Burr Oak Cemetery in Alsip, Illinois were reported to the police, Thomas Riley, then eight days short of his seventeenth birthday, and his brother Ernest, then eighteen years old, were arrested in connection with the homicides as they hitched a ride in the vicinity of the cemetery.
Officer Scaglione drove the two brothers to the Burr Oak Cemetery.
Riley and his brother were driven from the cemetery separately. As Riley left the ,'emetery he was given Miranda warnings by a plainclothes police officer. Although Riley testified that he was “scared” and “nervous,” E.H. at 23, he also acknowledged that he understood the warnings when they were read to him.
Riley arrived at the Alsip Police Station at approximately 6:00 p. m.
[His] clothing was taken for the purpose of a laboratory examination, but he was shortly thereafter allowed to put on his underclothes and socks. He was also given a blanket which he wrapped around his waist.8 He was put in a cell next to his brother Ernest and, when they began conversing between themselves, a police officer handcuffed one hand of each boy to his respective bunk. This did not cause any particular discomfort, since the boys were able to sit down on their bunks, but it did prevent them from communicating further. This restraint was removed at or shortly after 8:00 p. m.
Decision at 4, Finding No. 5 (footnote added).
During this initial two hour period in the police station Riley overheard the father of one of the victims “accost the older brother verbally. [The father] did not have any conversation with the petitioner, however.” Decision at 6, Finding No. 8. Also, “[Riley’s] older brother Ernest had told him that since [Riley] was a juvenile, he should take the ‘weight’ if any charges were made.” Id. at 5, Finding No. 7.
At approximately 8:00 p. m. Riley’s handcuffs were removed and he was given Miranda warnings. Riley replied that the warnings had been given twice previously. At this time, the interrogation of Riley was limited to questions concerning his age.
Without readministering Miranda warnings and having been misinformed by Riley’s parents that Riley was seventeen years old, Sgt. Reed again spoke with Riley in his cell at approximately 8:30 p. m. Sgt. Reed told Riley that he would be prosecuted as an adult. Riley denied knowledge of the crimes, saying that he was looking for a job at the time of their commission. A neutron activation analysis was performed on Riley’s hand to determine whether he had fired a gun and he was fingerprinted in an adjacent room.
Riley was taken to the office of the Chief of Police for further questioning at about 9:00 p. m. Miranda warnings were not readministered. Riley was told that the clothing and hair samples would be ana
[BJefore any statement was given by petitioner, he was told of the various investigative procedures which were being used and was advised of the evidence against himself as it was being collected by the police officers. This procedure was presumably an investigative technique to break down petitioner’s reluctance to confess, but the information was truthful and unembellished.
Decision at 6, Finding No. 8.
After confessing, Riley repeated what he had said in abbreviated form to his brother Ernest. He also signed a statement which was transcribed by a court reporter. The taking of that statement was completed at approximately 11:00 p. m. Following this interrogation session, Riley was fed a chicken dinner.
II.
Riley maintains that his request for his father was an invocation of his Fifth Amendment rights to silence and to counsel, apparently without distinguishing between these rights. However, the invocation of a defendant’s right to silence may have a different impact on the permissibility of subsequent police conduct than the invocation of his right to counsel. Compare Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (additional questioning of suspect who had invoked Fifth Amendment privilege permissible when preceded by “fresh” Miranda warnings and a significant time lapse), with Edwards v. Arizona, -U.S. -, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (interrogation of suspect who invokes right to counsel impermissible until suspect confers with counsel, unless he initiates subsequent contact with police). Consequently, the Supreme Court in Mosely, 423 U.S. at 101, n. 7, 96 S.Ct. at 325, n. 7, and this court in Kennedy v. Fairman, 618 F.2d 1242, 1248 n. 6 (7th Cir.), cert. dismissed, 449 U.S. 939, 101 S.Ct. 339, 66 L.Ed.2d 206 (1980), and White v. Finkbeiner, 611 F.2d 186, 193 n. 21 (7th Cir. 1979), vacated and remanded,-U.S.-, 101 S.Ct. 3000, 69 L.Ed.2d 385 (1981), have maintained a distinction between a suspect’s Miranda rights to counsel and to remain silent. Thus, we cannot accept uncritically Riley’s characterization of his request for his father.
First, we conclude that Riley’s request was not an invocation of his right to
[Tjhere is nothing inherent in the request for a probation officer that requires us to find that a juvenile’s request to see one necessarily constitutes an expression of the juvenile’s right to remain silent.. .. In the absence of further evidence that the minor intended in the circumstances to invoke his Fifth Amendment rights by such a request, we decline to attach such overwhelming significance to this request.
442 U.S. at 724, 99 S.Ct. at 2571. Similarly, in this case we see nothing in the circumstances that warrants construing Riley’s request for his father as an invocation of his right to silence. Consequently, we proceed to consider only whether that request constituted an invocation of his right to counsel.
The starting point for our inquiry into whether Riley’s request for his father constituted a request for an attorney is Miranda itself. In that seminal case the Court stated, inter alia, that during a custodial interrogation “[i]f ... [the defendant] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” 384 U.S. at 444-A5, 86 S.Ct. at 1612 (emphasis supplied). Plainly, Riley’s request for his father was not an explicit expression of a desire to consult with an attorney, but because under Miranda a request for an attorney need not be clear and unequivocal, White v. Finkbeiner, 611 F.2d at 189 n. 13, we must determine whether it reasonably may be so construed.
The Court stated in Miranda that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege . . . . ” 384 .U.S. at 469, 86 S.Ct. at 1625. This recognition of counsel’s role in protecting a suspect’s Fifth Amendment privilege is the basis for the pertinent aspect of the Miranda holding. Fare v. Michael C., 442 U.S. at 719, 99 S.Ct. at 2568. Additionally, the Court acknowledged that a “lawyer’s presence helps guard against overreaching by the police and ensures that any statements actually obtained are accurately transcribed for presentation into evidence.” Fare, 442 U.S. at 719, 99 S.Ct. at 2569 (citing Miranda, 384 U.S. at 470, 86 S.Ct. at 1625). With these facets of “the unique role the lawyer plays in [our] adversary system of criminal justice” in mind, the Court in Fare determined that a juvenile’s request for his probation officer did not constitute an invocation of his right to counsel. Id.
At least two of the factors relied upon in Fare support our conclusion that Riley’s request for his father was not the functional equivalent of a request for an attorney. Riley’s father is not trained in the law. Consequently, he was “not in a position to advise the accused as to his legal rights. Neither is he a trained advocate, skilled in the representation of the interests of his client before both police and courts.” Fare, 442 U.S. at 719, 99 S.Ct. at 2569.
A third factor present in Fare was the unprivileged nature of communications between a juvenile and his probation officer. The parties have not discussed wheth
On the other hand, unlike the probation officer in Fare, Riley’s father is not a state employee duty bound to report his son’s wrongdoing. See Fare, 442 U.S. at 719-720, 99 S.Ct. at 2568-2569. This probably would be true in most cases. We believe, however, that the result in Fare is based primarily upon the Court’s analysis of counsel’s unique role in protecting a defendant’s Fifth Amendment privilege and the inability of a probation officer to satisfy that role. 442 U.S. at 721, 723, 99 S.Ct. at 2570, 2571.
While Fare seems to preclude the possibility of ever construing a juvenile’s request for his probation officer during a custodial interrogation as an invocation of the suspect’s Miranda right to counsel, we decline to formulate such a broad rule with respect to requests for a parent or guardian. The parent-child relationship is appreciably different from that between a juvenile and his probation officer. A parent may significantly aid a juvenile in asserting his Fifth Amendment privilege. The parent may be, or be able to provide, an attorney for the child.
The only federal case involving this issue which we have found is Chaney v. Wainwright, 561 F.2d 1129 (5th Cir. 1977), rehearing en banc denied, 570 F.2d 1391
The Chaney court’s rejection of the petitioner’s contention was based in part upon its refusal to view the petitioner as a “child” for purposes of constitutional analysis. It noted that the petitioner had left home without saying good-bye to his mother or truthfully informing her of his plans. Also, the petitioner was streetwise; he knew he could have an attorney but did not want one. 561 F.2d at 1131-32. In other words, some juveniles are capable of independently exercising their Miranda rights. E. g., United States v. Miller, 453 F.2d 634 (7th Cir.) (per curiam), cert. denied, 406 U.S. 923, 92 S.Ct. 1790, 32 L.Ed.2d 123 (1972) (14 year old.)
Like the petitioner in Chaney, at the time of his arrest, for purposes of constitutional analysis, Riley certainly was no “child,” although under state law he was a juvenile, albeit by a mere eight days. Riley was sufficiently independent of his parents and had sufficient understanding of his right to counsel that it is reasonable not to construe his request as one for an attorney. For at least six weeks before his arrest Riley had lived independently of his parents with his brother Ernest. He had had three previous stationhouse encounters with police, although these did not involve the recitation of Miranda warnings, interrogation, or the assistance of counsel. Additionally, Riley had quit school in the eighth grade, another indication of his independence from his parents. Finally, although Riley had scored 57 in a group IQ test in 1970, he testified that he understood the Miranda warnings when they were read to him. Thus, Riley knew that he had a right to speak with an attorney, and that one would be provided for him free of charge if he could not afford to hire a lawyer.
Riley relies upon People v. Burton, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793 (1971) (In Bank), in which the California Supreme Court, with one justice dissenting, held that a sixteen year old’s request for his parents constituted an invocation of his privilege against self-incrimination. Burton was the basis for the California Supreme Court’s judgment which was reversed in Fare. As discussed above, under Fare we find that Riley’s request may not reasonably be construed as an invocation of his Fifth Amendment privilege. For this reason, we do not find Burton to be persuasive.
To summarize, we do not hold that a juvenile’s request for a parent or guardian must never be construed as a request for counsel or as an invocation of his Fifth Amendment privilege. Rather, we believe that the proper characterization of such a request depends upon an examination of the abilities of the parent or guardian requested on the one hand, and of the accused juvenile on the other. Lay parents must be distinguished from lawyers, or those with the ability to protect their child’s Fifth Amendment privilege. Independent, older juveniles must be distinguished from younger ones, still living with their parents. “If it were otherwise, [any] juvenile’s request for almost anyone he considered trustworthy enough to give him reliable advice would trigger the rigid rule of Miranda.” Fare v. Michael C., 442 U.S. at 723, 99 S.Ct. at 2571. Also, a request which manifests the juvenile’s desire to see his parent in order to obtain an attorney must be treated differently from a request, such as the one in this case, in which there is no such manifestation. Finally, a single re
Moreover, because of the special problems associated with uncounseled confessions by juveniles, In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527 (1967), it probably is desirable as a matter of policy for police to consent to a juvenile suspect’s request for his parents or guardian during an interrogation.
Thus, we do not believe that Riley’s request for his father constituted an invocation either of his right to silence or of his right to counsel. Consequently, the refusal to comply with that request did not deprive Riley of his Miranda rights. We also conclude that Riley’s behavior during the interrogation constituted a valid waiver of his Miranda rights. See Fare v. Michael C., 442 U.S. at 724-27, 99 S.Ct. at 2571-73 (applying implicit waiver doctrine of North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), to a juvenile). For these reasons, the admission into evidence of Riley’s confession was proper under Miranda.
III.
We also are satisfied that under the familiar totality-of-the circumstances test Riley’s confession was voluntary. In determining the validity of a challenged confession the “constitutional inquiry is not whether the conduct of the state in obtaining the confession was shocking, but whether the confession was ‘free and voluntary . .. ’ [Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568 (1897)].” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964).
Riley argues that the district court erred in its application of the “totality” analysis because it failed to exercise “special care” as required by Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962) and Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948). More recently, regarding confessions by juveniles the Court also remarked:
If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.
In re Gault, 387 U.S. at 55, 87 S.Ct. at 1458.
We do not view these cases as requiring us to give nearly dispositive significance to the age of the suspect, as Riley apparently would have us do. The Court’s closing remarks in Gallegos are instructive:
There is no guide to the decision of cases such as this, except the totality of*1163 circumstances that bear on the two factors we have mentioned. The youth of the petitioner, the long detention, the failure to send for his parents, the failure immediately to bring him before the judge of the Juvenile Court, the failure to see to it that he had the advice of a lawyer or a friend — all these combine to make us conclude that the formal confession on which this conviction may have rested (see Payne v. Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844 [850], 2 L.Ed.2d 975, 981) was obtained in violation of due process.
370 U.S. at 55, 82 S.Ct. at 1213.
Also, although the test for establishing a valid waiver of a suspect’s Miranda rights encompasses more than just voluntariness, Edwards v. Arizona, 101 S.Ct. at 1883-1884, the Court has found the traditional totality approach “adequate to determine whether there has been [such] a waiver even where mterrogation of juveniles is involved.” Fare v. Michael G, 442 U.S. at 725, 99 S.Ct. at 2572.
The facts of this case are in stark contrast to those present in both Gallegos and Haley. In Gallegos the defendant was only fourteen years old, not nearly seventeen like Riley. Prior to signing his confession he had been in detention for five days, without his mother being allowed to see him. Here, Riley was detained for only approximately two hours before his first confession.
Haley is an even more extreme case. There, a fifteen year old boy was arrested at midnight and questioned by two policemen at a time in relays for five hours and shown his co-defendants’ confessions before succumbing. Unlike Riley, he was not advised that he had a right to an attorney. Nor was he orally advised of his right to silence, although that information was contained on a written form which he was shown. Thereafter, the boy was held incommunicado for five days. 332 U.S. at 598, 68 S.Ct. at 303. Indeed, Justice Douglas in his plurality opinion observed: “What transpired would make us pause for careful inquiry if a mature man were involved.” 332 U.S. at 599, 68 S.Ct. at 303.
Here, Riley was not mistreated. When his clothes were taken from him for testing, a blanket was provided. The room was not uncomfortably cool. Rather than being questioned incessantly over a long period immediately after his arrest, initially Riley was left alone in his cell. When Riley was questioned, he was familiar with one of the interrogators because Riley had worked on his car. As described above, the police did not attempt to exploit Riley’s youth. Rather, they made extensive efforts to determine whether he was a juvenile, and only proceeded with the interrogation after they reasonably believed that he was not. Finally, even. assuming that Riley was misinformed that his brother had confessed, as Riley alleges, that would not render his confession involuntary. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684 (1969).
Riley also relies upon United States v. Fowler, 476 F.2d 1091 (7th Cir. 1973), in which we reversed an order committing a sixteen year old to the custody of the Attorney General. The defect which we found in Fowler was that the youth was not adequately advised of his Miranda rights. 476 F.2d at 1092, n. 5. Thus, Fowler would not support reversal in this case because Riley acknowledges that he was given adequate Miranda warnings which he understood.
Upon consideration of Riley’s characteristics, including his age and intelligence, and the circumstances surrounding his confession, we find that although he justifiably was emotionally upset his confession was made freely and voluntarily. It was not “the product of ignorance of rights or of adolescent fantasy, fright or despair.” In re Gault, 387 U.S. at 55, 87 S.Ct. at 1458.
AFFIRMED.
. See 28 U.S.C. § 2254(b).
. Specifically we stated:
[T]he district court should conduct a hearing to determine with as much specificity as possible the historical facts relating to defendant’s arrest, incarceration and subsequent confession. In particular, we believe that the district court should determine whether defendant was returned to the scene of the killings and, if so, for what purpose and for how long. It is also significant for the totality of the circumstances test to determine whether and for how long defendant was manacled to the bars of his cell, how long defendant was clothed in only his underwear and a blanket, and whether and when defendant asked to speak with his father. We do not intend this list to be exhaustive by any means. The district court should resolve conflicts in testimony and determine facts necessary to conclude whether defendant’s confession was voluntary.
United States ex rel. Riley v. Franzen, 79-2029, Unpublished Order at 3 (7th Cir. April 7, 1980). 622 F.2d 590.
. No challenge is made to the validity of the arrest, obviating the need to discuss its circumstances, the bases for probable cause, and the like.
. According to Riley, upon apprehending them Officer Pennix asked the brothers where the weapons were. The brothers responded “What weapons?” Then Officer Pennix said, “The weapons you niggers used to kill that guy with.” Evidentiary Hearing Transcript at 15-16 (hereinafter cited as “E.H.”). Officer Pen-nix, who is black, denied interrogating the brothers or referring to them as “niggers.”
The district court made no specific findings on these factual issues. In this appeal Riley does not argue that Officer Pennix’s interrogation or reference to him as “nigger,” if true, rendered his confession involuntary. Also, because any statements made by Riley at this time apparently were not admitted at trial, we need not determine the propriety of Officer Pennix’s interrogation, if any, of Riley immediately after he was apprehended. Consequently we leave these factual issues unresolved.
. Riley testified that another police officer was in the squad car on the way to the cemetery. However, Officer Scaglione testified that he was alone with the two brothers with a second squad car following them to the cemetery. Again, we see no need to resolve this factual issue.
. Officer Scaglione testified that Sgt. Rice may have advised the brothers of their Miranda rights. However, the parties stipulated that Riiey was not given Miranda warnings at the time of his arrest.
. The Illinois Appellate Court found that the brothers were detained at the cemetery for approximately one and a half hours. People v. Riley, 49 Ill.App.3d at 306, 7 Ill.Dec. 145, 364 N.E.2d 306. In our previous order we refused to afford a presumption of correctness under 28 U.S.C. § 2254(d) to this finding of fact because it was made by the state appellate court, rather than by the state trial court. U. S. ex rel. Riley v. Franzen, 79-2029, Unpublished Order at 2-3 (7th Cir. April 7, 1980). It is now clear that findings of fact made by a state appellate court must be given the benefit of the § 2254(d) presumption if the statutory criteria are satisfied otherwise. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Neither party has briefed or argued the question of the effect of Sumner, which was decided after the district court’s decision on remand in this case, upon this appeal in general or upon our review of the district court’s finding on this factual issue in particular. However, in light of the consistency of the evidentiary hearing testimony of both sides’ witnesses on this issue, Riley’s relatively light emphasis upon the length of time spent at the cemetery while arguing that his confession was inadmissible, and the fact that no challenged statements were elicited during the time at the cemetery, we accept the district court’s finding on this factual issue.
. The parties stipulated that Riley “was clad in underpants, socks and a blanket while being interrogated from 8:00 p. m. through 10:55 p. m.” Stipulations, ([ 12. However, Sgt. Reed testified that he was comfortable in his shirtsleeves while in Riley’s cell.
. “[Riley] was in fact about 8 days short of becoming 17 years old, but he had originally told the officers that he was 17. The officers attempted to verify his age as well as they could and reasonably believed that the petitioner was 17 before they proceeded in the questioning or took any statement.” Decision at 5-6, Finding No. 7. The measures which the police took in trying to verify Riley’s age included inquiries to his parents, both of whom told the police that Riley was seventeen years old.
. Riley’s hand twitched while the neutron activation analysis was being performed.
. At the evidentiary hearing, Riley testified that Sgt. Reed commenced the interrogation by telling Riley that his brother Ernest had made a confession identifying Riley as the shooter, that the neutron activation analysis showed that Riley had fired a gun and that an eyewitness could prove that Riley had been at the cemetery. Sgt. Reed denied making these statements to Riley, although he did acknowledge telling Riley that two people of the brothers’ descriptions had been viewed leaving the cemetery. Officer Jackson, who was in the office when Sgt. Reed supposedly made these statements, did not hear them.
In this appeal Riley does not argue that the district court’s findings on this matter are clearly erroneous or incomplete. We view the court’s findings as having discredited Riley’s testimony in this regard. Consequently, we will assume that Sgt. Reed did not make the statements attributed to him by Riley.
. The state trial and appellate courts also accepted this as true. People v. Riley, 49 Ill. App.2d at 310, 7 Ill.Dec. 145, 364 N.E.2d 306, see also U. S. ex rel. Riley v, Franzen, 79-2029, Unpublished Order at 2.
. ”[T]here is no evidence that [Riley] asked for anything or was intentionally deprived of food as a condition of giving a statement.” Decision at 7, Finding No. 10.
. This aspect of Fare is discussed below.
. This is the question which Riley pressed in the Supreme Court in his unsuccessful petition for a writ of certiorari. 435 U.S. 1000, 98 S.Ct. 1657, 56 L.Ed.2d 91 (Brennan and Marshall, dissenting.)
. Another of the bases for Miranda discussed in Fare — to insure accurate transcription of the suspect’s statements — is inapplicable here because Riley makes no challenge to the accuracy of the transcription of his confession.
. The conclusion that the right to counsel recognized in Miranda is different than, but inextricably linked to, the defendant’s right to silence is buttressed by the Court’s continued maintenance of the distinction between the Miranda right to counsel and the Sixth Amendment right to counsel, which becomes effective only after the commencement of formal criminal proceedings. See Edwards v. Arizona, 101 S.Ct. at 1882 n. 7.
. In this case, apparently Riley’s father unsuccessfully attempted to obtain a lawyer for his sons.
. However, the police in this case apparently had valid reasons for denying Riley’s request. Sgt. Reed mistakenly believed that Riley already had seen his father. Also, prior to Riley’s request, Riley’s father unsuccessfully had attempted to obtain a lawyer and had indicated that he did not wish to see his sons.
. Because our focus is not on the conduct of the police but upon its effect upon Riley, we do not place great emphasis upon the district court’s finding that the police had a proper purpose for bringing the two brothers to the cemetery — to have eyewitnesses view them for an identification. Decision at 3, Finding No. 3. We note that absent exigent circumstances such a suggestive identification procedure ordinarily is improper and might render a resultant identification inadmissible. See Stoval v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); see also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Because no identification was made at this time, however, we need not inquire into the propriety of this police conduct.
Reference
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