DC: No bright line rule on how long a detention for a show up can go before it becomes unreasonable; here, an hour was unreasonable

There is no bright line rule on how long a detention for a show up can go before it becomes unreasonable. SCOTUS has said that the least intrusive means should be followed. Here, it was over an hour and it was not reasonable, and the case is reversed. In re D.M., 2014 D.C. App. LEXIS 195 (July 10, 2014):

It would be merely speculative on this record to conclude that there was no unnecessary delay in the show-up identification or that the police acted diligently. Cf. United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (“It is the government’s burden to show that the evidence at issue would have been acquired through lawful means …. However, the Supreme Court made clear in Nix that the analysis should focus upon the historical facts capable of ready verification, and not speculation.” (citing Nix v. Williams, 467 U.S. 431, 444 n.5 (1984)); United States v. Driver, 776 F.2d 807, 810-11 (9th Cir. 1985) (“Because of the intrusive nature of a warrantless arrest, the government must demonstrate specific and articulable facts to justify the finding of exigent circumstances, and this burden is not satisfied by leading a court to speculate about what may or might have been the circumstances.”). We likewise cannot say that it is an obvious conclusion from the record that it reasonably and necessarily took seventy-five minutes for Pickett to be notified and return from work. Cf. Womack, 673 A.2d at 614 (recognizing obvious inferences in the record). The record is too thinly developed to conclude that it is more likely than not that the police acted diligently and that any delay was necessary to complete their investigation. See Sanders, 751 A.2d at 955.

It may well be that D.M.’s “longer detention was simply the result of a graduated response to the demands of the particular situation.” Sharpe, 470 U.S. at 688 (alterations and ellipses omitted) (quoting Place, 462 U.S. at 709 n.10). However, because of the limited factual record established by witness testimony the evidence in the record is insufficient to support the trial court’s factual conclusion that the police acted diligently. Cf. Sanders, 751 A.2d at 956 (finding evidence in record insufficient to establish, as a fact, the reliability of a tipster). As such, the government failed to meet its burden to prove the show-up identification was not the product of an unlawful seizure, and the trial court therefore erred in denying D.M.’s motion to suppress and his adjudication of delinquency must therefore be reversed. See In re K.P., 951 A.2d 793, 798 (D.C. 2008). The case is remanded for further proceedings consistent with this opinion.