The 22-Minute Show-Up and the Phone the Sergeant Wants You to Scroll
At 21:15 a convenience store clerk reports that a man in a gray hoodie, about 5'8", showed "something silver" in his waistband and took $180 from the register. Twenty-two minutes later, four blocks away, you stop a man who matches the description. He is sweating, has $180 in one-dollar bills in his pocket, and a phone in his hand that keeps vibrating with incoming calls. The clerk is driven to the scene in a patrol car and, from 15 feet under a streetlight, with the man handcuffed and standing beside your cruiser, says, "That's him, I'm 100% sure." Before the show-up, you told the clerk, "We caught a guy, we need you to see if it's him." You seize the phone. Your sergeant asks you to "scroll through and see if there's anything good" before you book it, and adds that a warrant "will take three hours."
1. Evaluate the show-up identification. What makes it admissible or suppressible, and what should have been done differently?
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Show-ups are lawful but inherently suggestive, and the question is whether the suggestiveness was unnecessary and whether the identification is still reliable.
Facts favoring admissibility: the confrontation happened 22 minutes after the robbery, four blocks away, and the suspect matched the description. Prompt, near-scene show-ups serve a real purpose - a wrong stop can be corrected immediately and an innocent person released.
Facts creating a suppression problem:
- "We caught a guy, we need you to see if it's him" tells the clerk the person in custody is the offender. That is the classic suggestive instruction.
- Handcuffs, a patrol car, a spotlight, and a single suspect displayed alone amplify it.
- The clerk's overconfident "100% sure" after a brief, stressful look is a weak confidence signal, not a strong one - confidence is a poor predictor of accuracy.
Legal test: courts weigh the Neil v. Biggers factors - the witness's opportunity to view the offender during the crime, degree of attention, accuracy of the prior description, level of certainty, and time elapsed. Suggestiveness alone does not require suppression if the identification is otherwise reliable; but the defense will hammer all of this.
What you should have done: preserve the clerk's original description before the show-up, in writing; use neutral language - "We're investigating a report. This person may or may not be involved. Tell me if you recognize him; if you don't, that's fine"; record the show-up on body-worn camera; avoid repeating the show-up with the same suspect; and if a lineup is needed later, use a blind or blinded administrator with a proper array. Document the exact words you used - your own phrasing is the fact the court will evaluate.
2. The sergeant wants you to scroll through the phone without a warrant. Analyze the request.
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The answer is no, and the case law is not close.
Riley v. California (2014) held that officers generally must obtain a warrant to search the digital contents of a cell phone seized incident to arrest. The search-incident-to-arrest rationale - officer safety and preventing destruction of evidence - does not extend to a phone's data. The fact that the phone was in the suspect's hand at the time of the stop does not change the analysis; the phone is still a container full of private information, and the arrest is what triggered the seizure.
Exceptions are narrow:
- Exigency - imminent remote wiping, a child abduction, a ticking bomb. A phone that buzzes with calls is not an exigency. It is a signal that the data exists and someone may be trying to reach the owner, which supports a preservation step, not a search.
- Consent - not present here, and it would have to be voluntary, knowing, and documented.
- Plain view - what you can see on the screen when it rings or lights up without manipulating the device may be observable; that does not authorize opening apps.
What to do instead: seize and document the phone's condition and any visible lock-screen display; isolate it from the network with airplane mode or a Faraday bag to prevent remote wiping; do not scroll, do not attempt guesses at the passcode; apply for a warrant describing the device and the data sought - messages, call logs, photographs, location data, and account identifiers. If the phone is locked and the prosecutor wants to compel a biometric unlock, raise that legal question with the prosecutor before acting - the law there is unsettled and jurisdiction-dependent.
A three-hour wait is not a reason to skip the warrant. Three hours of evidence collected without one can cost the entire prosecution, and the sergeant will not be the one cross-examined about it.
3. What documentation does this case need before it goes to the prosecutor?
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Chain of custody - phone: who seized it, from where, exact time, its condition (on or off, locked or unlocked, what was visible on the lock screen), the serial or IMEI, how it was isolated from the network, and every transfer and storage location with initials and dates. Sealed, logged, and photographed.
Chain of custody - cash: count, denominations, photograph before packaging, evidence envelope, initials across the seal, and every hand it passes through. One-dollar bills are highly identifiable in a robbery case; treat them as evidence, not as property to be returned.
Show-up documentation: time of the confrontation, distance, lighting, who was present, the clerk's description before the show-up, the exact words you used and the exact words the clerk used, and the body-worn camera file identifier. Write down that you said "we caught a guy" - the defense will get the video, and a report that omits it looks like concealment.
Other evidence: store video preserved and copied before the retention window closes, with any time offset noted; the 911 audio; witness statements; your report; a supplement covering the warrant application and any subsequent phone examination; and photographs of the store counter and the suspect's clothing.
Disclosure: everything goes to the prosecutor, including the suggestive comment and the complainant's confidence statement. This is potentially impeaching and exculpatory material. Your credibility with the prosecutor is built on turning over the bad facts along with the good ones - the alternative is having them produced at trial by the defense.