STATE OF NEW JERSEY v. KWESI GREEN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4316-15T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KWESI GREEN,
Defendant-Respondent.
____________________________
Submitted December 13, 2016 – Decided December 11, 2017
Before Judges Fisher, Leone and Vernoia
(Judge Leone dissenting).
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 14-06-1659.
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for appellant (Lucille M.
Rosano, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
Joseph E. Krakora, Public Defender, attorney
for respondent (Peter T. Blum, Assistant
Deputy Public Defender, of counsel and on the
brief).
PER CURIAM
The State appeals, by leave granted, the trial court's order
suppressing an out-of-court identification of defendant Kwesi
Green by the victim of an alleged armed robbery. For the reasons
that follow, we vacate the order and remand the matter for further
proceedings.
I.
The evidence presented during the court's hearing on
defendant's suppression motion showed that at 8:15 a.m. on February
11, 2014, C.F.1 was at a bus stop in Newark. A man approached
her, pointed a black handgun at her chest, demanded her pocketbook,
and asked questions about her belongings. She handed the man her
pocketbook, and he walked to a waiting vehicle and departed.
Later, at the police station, C.F. provided a description of
her assailant to Detective Donald Stabile. She said the assailant
was "approximately 5'7" in height, [with] dark skin, clean-shaved,
[] weight between 130 to 150 pounds," had short hair, and was in
his early twenties.
Based on C.F.'s description, Stabile input search criteria
into a database known as HIDTA (High Intensity Drug Trafficking
Area), which is comprised of digital photos of individuals who
were previously arrested. A computer photo management system
1
We employ initials to protect the privacy of the alleged victim.
2 A-4316-15T2
culls through the digital photos in the HIDTA database, selects
those sharing the search parameters, and makes the selected photos
available for viewing on a computer.
Stabile testified the following search criteria were entered
into the photo management system: black male, dark brown skin,
short hair, no facial hair, twenty to twenty-five years old, 130
to 150 pounds, and 5'7" tall. Stabile did not, however, record
or otherwise memorialize the search criteria when they were entered
into the system. He could not provide the number of photos the
system selected in response to his entry of the search criteria,
but testified that "[u]sually, it's a lot."
After the search criteria were entered, C.F. viewed the
selected photos on computer screen pages consisting of six photos
each. Stabile did not record or memorialize his instructions to
C.F., but testified that he told her to look at the screen pages,
and that if she did not see the assailant, she should click on the
computer screen to view the next page of photos. He told C.F. to
notify him if she saw the assailant or anyone that looked
"similar."
After several minutes, C.F. advised Stabile that she saw a
photo of someone who "look[ed] like [the assailant]." Stabile did
not know how many pages of photos C.F. looked through prior to
pointing out the individual she believed looked like the assailant,
3 A-4316-15T2
and he did not record or print the photo she selected or the photos
of the other five individuals whose pictures were on the same
computer screen page. Stabile testified he could not save the
photos C.F. had previously viewed on the computer, but acknowledged
he could have printed the six photos appearing on the page C.F.
viewed when she identified the person who looked like her
assailant.
Stabile used a feature on the photo management system to
highlight the photo of the person C.F. said looked like her
assailant. This resulted in a refined search of the photos in the
database based on the specific characteristics associated with the
person in the highlighted photo. Use of the revised search
criteria generated a smaller number of photos for C.F.'s review.
Stabile again instructed C.F. to review the screen pages of
photos and advise if she saw her assailant or anyone that looked
similar. After viewing only the first screen of six photos
produced following the revised search, C.F. said, "this is the
guy" and pointed to defendant's photo. Stabile downloaded and
printed defendant's photo but did not print the other five photos
on the screen page. C.F. then provided a formal statement
describing the robbery and identifying defendant, through his
photo, as her assailant.
4 A-4316-15T2
A grand jury returned an indictment charging defendant with
first-degree robbery,
N.J.S.A. 2C:15-1, second-degree unlawful
possession of a handgun,
N.J.S.A. 2C:39-5(b), and second-degree
possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-
4(a). Defendant moved to suppress C.F.'s out-of-court
identification, alleging the State failed to comply with the
requirement that law enforcement record out-of-court
identification procedures as required by State v. Delgado,
188 N.J. 48 (2006). The court conducted an evidentiary hearing on
defendant's motion, and heard testimony from Detective Stabile and
Robert Vitale, a computer systems engineer employed by DataWorks
Plus.2
Stabile testified concerning the HIDTA database and C.F.'s
identification of defendant's photo. Stabile used HIDTA "hundreds
of times" as an investigative tool and explained the photos in the
HIDTA database were from individuals arrested by the Newark Police
Department. Stabile also testified that an individual's photo may
appear multiple times in a single search of the database, depending
on the number of times the individual had been arrested and
photographed.
2
DataWorks Plus designed and owns the photo management system
used by the Newark Police Department to search the photos in the
HIDTA database.
5 A-4316-15T2
Vitale testified as an expert witness for defendant. Vitale
testified the HIDTA database includes photos of individuals
arrested in seventeen counties in Northern New Jersey, New York
City, and Pennsylvania, and "encompass[es] millions of
photographs." The photo manager computer system permits a search
of the HIDTA database in two different modes: "witness mode" and
"investigative mode."
In witness mode, photos meeting the selected search criteria
are displayed on the computer screen. The officer determines how
many photos will be displayed on each computer screen page. When
photos are viewed in witness mode, the individual is able to check
any of three boxes under each photo marked "yes," "no," or
"possible." Photos displayed or selected can be printed. At the
end of a viewing session, an officer can exit witness mode, save
the search on the computer, and generate a report identifying the
photos viewed, how long each photo was displayed, and the boxes
checked for each photo. A photo can appear multiple times during
a search conducted in witness mode, and if a report is generated
it can be determined how many times a particular person's photo
was shown during a viewing session.
In investigative mode, photos are displayed on the computer
based on the search criteria entered by the officer. The officer
also determines the number of photos that will appear on each
6 A-4316-15T2
computer screen page for viewing. Photos displayed or selected
can be printed. However, searches conducted in investigative mode
cannot be memorialized in a computer-generated report.
In investigative mode, the officer can highlight a photo of
a person that a witness indicates looks "similar" to an assailant.
In doing so, the officer narrows the search based on the criteria
associated with the highlighted photo. After a photo is
highlighted, it is automatically included in each of the succeeding
groups of selected photos appearing on the computer screen pages.
The officer can preserve a displayed page of photos by digitally
saving and printing it.
After hearing the testimony and oral argument, the court
granted defendant's motion to suppress C.F.'s out-of-court
identification. The judge found that although the testimony of
Stabile and Vitale was inconsistent in some respects, they were
credible witnesses. The judge determined it was feasible for the
police to have maintained a record of the following eleven photos:
the "initial" photo C.F. said looked like her assailant, and the
other five photos on the screen when C.F. chose the initial image
while viewing the photos in the investigative mode; and the
additional five photos that appeared on the computer screen with
the photo of defendant C.F. selected while viewing the photos in
7 A-4316-15T2
the investigative mode. The judge determined it was feasible to
print the photos because Stabile had printed defendant's photo.3
The court concluded that the State's failure to maintain a
record of the eleven photos violated Rule 3:11 and the requirement
to maintain records concerning out-of-court identification
procedures established in Delgado and State v. Earle,
60 N.J. 550
(1972). The court further determined the State did not provide a
satisfactory explanation for its failure. The judge found that
the suppression of C.F.'s out-of-court identification was
appropriate "in view of the clear fact that the officer [] had the
capability to print out the . . . six photographs in both the
initial viewing and the viewing where the defendant was identified,
and the officer inexplicably did not do that." The court further
noted the suppression did not bar C.F. from making an in-court
identification of defendant because there was no "taint issue"
presented, but rather a failure to comply with the recording
requirement.
The judge entered an order suppressing C.F.'s out-of-court
identification. The court stayed its order to permit the State
3
The judge determined he did not need to address whether it was
feasible for the police to maintain a record of all the images
C.F. viewed before she saw the photo of the person she said looked
like her assailant image. The judge found the identification
inadmissible based on the failure to save the eleven photos.
8 A-4316-15T2
to file a motion for leave to appeal. We granted the State's
request. On appeal, the State argues:
Point I
The Investigation Of "An As Yet-To-Be-
Determined Suspect"[] By The Use Of The HIDTA
System Is Not An Identification Procedure That
Must Be Recorded Per Rule 3:11. The Trial
Court Abused Its Discretion When It Found That
The Victim's Perusal Of Randomly-Generated
Photographs On HIDTA Triggered The Application
of Rule 3:11, Requiring The Preservation Of
The Last Twelves Photographs, When The Victim
Pointed To A Photograph Of An Individual Who
Looked "Similar" to The Perpetrator.
A. The Recordation Requirement of [Rule] 3:11
Does Not Apply to this Case Because Detective
Stabile did not Prepare, and the Victim did
not View, a Photo Array Containing the
Photograph of a Known Suspect.
B. Even if the Last Twelve Photographs
Constituted Arrays Which Should Have Been
Preserved, Detective Stabile Complied with the
Requirements of [Rule] 3:11(b) and (c) Because
He Made a Nearly Contemporaneous Recording of
the Identification Procedure.
C. The Application of System and Estimator
Variables as Described in [Henderson] Shows
that the Out-of-Court Identification of
Defendant was not Suggestive or Unreliable,
and Therefore Should Have Been Admitted.
D. Assuming the Failure to Preserve all
Twelves Photographs Violated [Rule] 3:11, the
Appropriate Remedy is a Properly Tailored Jury
Instruction, not Suppression of the Out-Of-
Court Identification.
9 A-4316-15T2
II.
"Our standard of review on a motion to bar an out-of-court
identification . . . is no different from our review of a trial
court's findings in any non-jury case." State v. Wright,
444 N.J.
Super. 347, 356 (App. Div.), certif. denied,
228 N.J. 247 (2016).
"We are bound to uphold a trial court's factual findings in
a motion to suppress provided those 'findings are "supported by
sufficient credible evidence in the record."'" State v. Watts,
223 N.J. 503, 516 (2015) (quoting State v. Elders,
192 N.J. 224,
243-44 (2007)). However, we do not defer to a trial court's
interpretation of the law, which is reviewed de novo. Ibid.
The State argues the court erred by finding the police had
an obligation to preserve the eleven photos C.F. viewed during the
identification procedure resulting in her selection of defendant's
photo. The State contends the requirements of Rule 3:11(a) apply
only to "[a]n out-of-court identification resulting from a photo
array, live lineup, or showup identification procedure" that
includes a known suspect. The State asserts that Rule 3:11(a)
does not apply where, as here, the identification procedure
involves a review of photos for investigatory purposes to identify
an as-yet-to-be-determined suspect. We disagree.
Our courts have long held that law enforcement is required
to preserve and maintain records of identification procedures. In
10 A-4316-15T2
Earle, supra, the Court considered law enforcement's failure to
preserve the identity of individuals who were viewed during a live
lineup.
60 N.J. at 552-53. The Court held law enforcement was
required to "make a complete record of an identification procedure
if it is feasible to do so, to the end that the event may be
reconstructed in the testimony." Id. at 552. Law enforcement's
obligation includes preserving the identity of the individuals in
a live lineup, including taking a picture of the lineup if it is
possible to do so. Ibid. The obligation to preserve evidence is
not limited to procedures resulting in an identification. Ibid.
The Court held that "[i]f the identification is made or attempted
on the basis of photographs, a record should be made of the
photographs exhibited." Ibid.
In Delgado, supra, the Court considered whether "police have
a duty to record details of out-of-court identification procedures
that result in positive identifications and non-identifications
as well as near misses and hits."
188 N.J. at 58. Recognizing
the "frailty of human memory and the inherent danger of
misidentification," and that misidentification was "the single
greatest cause of wrongful convictions in this country," the Court
concluded that "[r]equiring the recordation of identification
procedures, to the extent feasible, is a small burden to impose
11 A-4316-15T2
to make certain that reliable evidence is placed before a jury and
that a defendant receive a fair trial." Id. at 60-61.
The recordation requirement is not limited to procedures
resulting in an identification of the defendant; it also applies
to identifications made of individuals other than the defendant,
and attempted identifications. Id. at 59; see also United States
v. Ash,
413 U.S. 300, 318-19,
93 S. Ct. 2568, 2578,
37 L. Ed. 2d 619, 632 (1973) ("Selection of the picture of a person other than
the accused, or the inability of a witness to make any selection,
will be useful to the defense in precisely the same manner that
the selection of a picture of the defendant would be useful to the
prosecution."); Earle, supra,
60 N.J. at 552 (holding the
obligation to make a record of photos shown applies where an
identification is "made or attempted"); State v. James,
144 N.J.
538, 561 (1996) ("The victim's initial choice of someone else's
photo suggests that some other person may have been the
perpetrator.").
The Delgado Court invoked its supervisory powers
under Article VI, Section 2, Paragraph 3 of the New Jersey
Constitution "to require that, as a condition to the admissibility
of an out-of-court identification, law enforcement officers make
a written record detailing the out-of-court identification
procedure, including the place where the procedure was conducted,
12 A-4316-15T2
the dialogue between the witness and the interlocutor, and the
results." Delgado, supra,
188 N.J. at 63. The Court found that
because preservation of the words exchanged between a witness and
police officer may be "as important as preserving either a picture
of a live lineup or a photographic array," "[w]hen feasible, a
verbatim account of any exchange between the . . . officer and
witness should be reduced to writing," and "[w]hen not feasible,
a detailed summary of the identification should be prepared."
Ibid.; see also State v. Henderson,
208 N.J. 208, 252 (2011) ("Of
course, all lineup procedures must be recorded and preserved in
accordance with the holding in Delgado, supra,
188 N.J. at 63, to
ensure that parties, courts, and juries can later assess the
reliability of the identification.").
The Court imposed the recordation requirement in accordance
with its "supervisory role over the court system to ensure the
integrity of criminal trials," and its "policy concerning pretrial
discovery [of] encourag[ing] the presentation of all relevant
material to the jury." Id. at 62 (quoting State ex rel. W.C.,
85 N.J. 218, 221 (1981)). The Court "refer[red] to the Criminal
Practice Committee the preparation of a rule for [the Court's]
consideration incorporat[ing] the recording requirements for out-
of-court identifications." Id. at 64.
13 A-4316-15T2
The Supreme Court Committee on Criminal Practice proposed a
rule in response to the Court's directive in Delgado, and the
Court's discussion of Delgado and related issues pertaining to
eyewitness identifications in Henderson and State v. Chen,
208 N.J. 307 (2011). Pressler & Verniero, Current N.J. Court Rules,
cmt. 1 on R. 3:11 (2017); Report of the Supreme Court Criminal
Practice Committee on Revisions to the Court Rules Addressing
Recording Requirements for Out-of-Court Identification Procedures
and Addressing the Identification Model Charges at 1-2 (Feb. 2,
2012) ("Committee Report"). In 2012, the Supreme Court adopted
Rule 3:11,4 "Record of an Out-of-Court Identification Procedure,"
which states:
(a) Recordation. An out-of-court
identification resulting from a photo array,
live lineup, or showup identification
procedure conducted by a law enforcement
officer shall not be admissible unless a
record of the identification procedure is
made.
(b) Method and Nature of Recording. A law
enforcement officer shall contemporaneously
record the identification procedure in
writing, or, if feasible, electronically. If
a contemporaneous record cannot be made, the
officer shall prepare a record of the
identification procedure as soon as
practicable and without undue delay. Whenever
a written record is prepared, it shall
4
The Rule was adopted on July 19, 2012, and became effective on
September 4, 2012. Pressler & Verniero, Current N.J. Court Rules,
note on R. 3:11 (2017).
14 A-4316-15T2
include, if feasible, a verbatim account of
any exchange between the law enforcement
officer involved in the identification
procedure and the witness. When a written
verbatim account cannot be made, a detailed
summary of the identification should be
prepared.
(c) Contents. The record of an out-of-court
identification procedure is to include details
of what occurred at the out-of-court
identification, including the following:
(1) the place where the procedure was
conducted;
(2) the dialogue between the witness and
the officer who administered the
procedure;
(3) the results of the identification
procedure, including any identifications
that the witness made or attempted to
make;
(4) if a live lineup, a picture of the
lineup;
(5) if a photo lineup, the photographic
array, mug books or digital photographs
used;
(6) the identity of persons who witnessed
the live lineup, photo lineup, or showup;
(7) a witness' statement of confidence,
in the witness' own words, once an
identification has been made; and
(8) the identity of any individuals with
whom the witness has spoken about the
identification, at any time before,
during, or after the official
identification procedure, and a detailed
summary of what was said. This includes
15 A-4316-15T2
the identification of both law
enforcement officials and private actors
who are not associated with law
enforcement.
(d) Remedy. If the record that is prepared is
lacking in important details as to what
occurred at the out-of-court identification
procedure, and if it was feasible to obtain
and preserve those details, the court may, in
its sound discretion and consistent with
appropriate case law, declare the
identification inadmissible, redact portions
of the identification testimony, and/or
fashion an appropriate jury charge to be used
in evaluating the reliability of the
identification.
[R. 3:11.]
Here, the court found that C.F.'s out-of-court identification
was inadmissible under Rule 3:11 because it was feasible to
preserve the eleven photos, but the police failed to do so. The
State, however, contends that Rule 3:11(a) is inapplicable because
the conditions for admissibility of out-of-court identifications
are limited to an "identification resulting from a photo array,
live lineup, or showup identification procedure," and C.F.'s
identification resulted from a review of an electronic "mug book"
of as-yet-to-be-determined suspects.
The State relies on three decisions that predated the
enactment of Rule 3:11. In State v. Ruffin,
371 N.J. Super. 371
(App. Div. 2004), we distinguished between identifications
resulting from a review of books containing hundreds of photos
16 A-4316-15T2
from those resulting from a review of "arrays of a relatively
small number of photographs to see if identifications could be
made of targeted suspects," id. at 395, and held that law
enforcement's failure to preserve mug books shown to a witness for
investigatory purposes did not render the witness's out-of-court
identification inadmissible, id. at 397-98.
Our decision, however, was based on the feasibility of law
enforcement's maintenance and preservation of mug books that are
used for investigative purposes. We concluded that the mug books
were "used as a[n] on-going photo display for investigative
purposes," and that "requiring the segregation of all photographs
and books viewed by witnesses who make identifications until
disposition of the matters, possibly through trial and appeal"
would "[n]ot only be cumbersome, but [] would also place an
unnecessary burden on investigating processes and hinder or even
eliminate the use of a traditional, non-invasive and proper law
enforcement tool for no justifiable purpose." Id. at 395.
Subsequently, we held computer-generated displays of photos
were akin to mug books, and thus, the failure to retain the photos
did not render an identification inadmissible. State v. Janowski,
375 N.J. Super. 1, 7-9 (App. Div. 2005). We reasoned that
"[i]nstead of going to a shelf and removing only the books
containing mug shot photographs of" individuals fitting the
17 A-4316-15T2
victim's description, the officer "went to the computer and
retrieved only the mug shot photographs of those with the same
characteristics." Id. at 6-7. Because "the computer system
contained large numbers of randomly selected photographs, kept for
the purpose of investigation, not confirmation, and [was] a
resource 'shown to witnesses as a matter of course to see if a
suspect [could] be found,'" we concluded the computer system was
equivalent to a mug book. Id. at 8-9. Relying on our decision
in Ruffin, we determined that the failure to retain the photos
viewed by the victim did not render the out-of-court identification
inadmissible. Id. at 9.
Following the Court's decision in Delgado, in State v. Joseph,
426 N.J. Super. 204, 221-24 (App. Div.), certif. denied,
212 N.J.
462 (2012), we considered the admissibility of an out-of-court
identification made during a review of photos in the HIDTA5
database. We relied on our decision in Janowski, found the HIDTA
system was "essentially a mug shot book," and again determined
"the failure to retain all photographs in a computer system viewed
5
In Joseph, we used the acronym HIDA for the same High Intensity
Drug Trafficking Area database used by Stabile here to show photos
to C.F. Joseph, supra,
426 N.J. Super. at 213. We employ the
acronym HIDTA for consistency with the motion court's references
to the database.
18 A-4316-15T2
by a victim is not fatal to the admission of an out-of-court
identification." Id. at 223.
Although the State relies on Ruffin, Janowski, and Joseph,
which were decided prior to the Court's adoption of Rule 3:11, the
motion court relied on the Rule as the basis for its decision
concerning the admissibility of C.F.'s out-of-court
identification. The State argues Rule 3:11 does not apply because
C.F.'s review of the mug books did not constitute "a photo array
. . . identification procedure" within the meaning of Rule 3:11(a),
and the Rule applies only to the preservation of a photo array
identification procedure that includes a known suspect, and not
to photo array identification procedures including only as-yet-
to-be-determined suspects. We therefore consider whether Rule
3:11 required the exclusion of C.F.'s identification.
"We apply familiar canons of statutory construction to
interpret the court rules." Robertelli v. N.J. Office of Att'y
Ethics,
224 N.J. 470, 484 (2016). "We look first to the plain
language of the rules and give the words their ordinary meaning."
Ibid. "We also read the language of a rule 'in context with
related provisions so as to give sense to the [court rules] as a
whole.'" Ibid. (quoting Wiese v. Dedhia,
188 N.J. 587, 592
(2006)). In addition, "[i]f the text of the rules is ambiguous,
19 A-4316-15T2
we can turn to extrinsic evidence, including committee reports,
for guidance." Ibid.
We begin with the plain language of Rule 3:11. To be sure,
it conditions the admissibility of "[a]n out-of-court
identification" upon law enforcement's recordation of a photo
array identification procedure.6 R. 3:11(a). The Rule, however,
does not define the term "photo array." Relying on Ruffin,
Janowski, and Joseph, the State contends that the term "photo
array . . . identification procedure" does not encompass a
witness's review of mug books or arrays containing as-yet-to-be-
determined suspects.
We recognize that prior to the enactment of the Rule, we
relied on the distinction between mug books used for investigatory
purposes and arrays consisting of a limited number of photos with
a known suspect as a line of demarcation for law enforcement's
obligation to preserve identification procedure evidence. See
Joseph, supra, 426 N.J. Super at 223; Janowski, supra,
375 N.J.
Super. at 8-9; Ruffin, supra,
371 N.J. Super. at 395-98. The
6
As discussed infra, a failure to record an identification
procedure in accordance with Rule 3:11 does not require that the
court find an out-of-court identification inadmissible. The
remedy for a failure to comply with the Rule is left to the court's
"sound discretion." R. 3:11(d).
20 A-4316-15T2
Supreme Court, however, did not incorporate the distinction into
Rule 3:11.
The plain language of Rule 3:11 does not limit its application
to photo array identification procedures that include a known
suspect, or exempt from the recordation requirements photo array
identification procedures that do not include known suspects. By
its express terms, Rule 3:11(a) requires the recordation of
identifications resulting from photo array identification
procedures without regard to whether a known suspect is included
in the photos shown. Thus, the State's argument that Rule 3:11
applies only where a known suspect is included in the photo array
identification procedure finds no support in the plain language
of Rule 3:11(a).
We also reject the State's contention that Rule 3:11(a) does
not apply because C.F.'s review of what the State characterizes
as an electronic mug book is not a photo array identification
procedure. See Joseph, supra,
426 N.J. Super. at 223 (finding
HIDTA database was equivalent to an electronic mug book). Again,
the argument ignores the language of the Rule.
Rather than excluding out-of-court identifications resulting
from a review of mug books from Rule 3:11's application, the Rule
affirmatively requires that the record of an out-of-court
identification procedure include the "mug books" used. R.
21 A-4316-15T2
3:11(c)(5). The Rule states that "[t]he record of an out-of-court
identification procedure is to include details of what
occurred . . . including . . . if a photo lineup, the
photographic array, mug books or digital photographs used." R.
3:11(c)(5). Thus, the Rule includes a witness's review of mug
books as part of the "record of an out-of-court identification
procedure" that must be made. R. 3:11(c).
Moreover, although subsection (a) of Rule 3:11 utilizes the
term "photo array . . . identification procedure" and subsection
(c) employs the term "photo lineup" identification procedure, we
are satisfied the only reasonable interpretation of the Rule
requires the conclusion that the "photo array . . . identification"
referred to in subsection (a) includes each of the "photo lineup"
identification procedures that are the subject of the recordation
requirement set forth in subsection (c). A contrary interpretation
renders meaningless Rule 3:11(c)(5)'s requirement that a record
of mug books used be maintained, and would be inconsistent with
our obligation to give effect to all of the provisions of the
Rule. See Burgos v. State,
222 N.J. 175, 203 (2015) ("We do not
support interpretations that render statutory language as
surplusage or meaningless . . . ."), cert. denied, __ U.S. __,
136 S. Ct. 1156,
194 L. Ed. 2d 174 (2016).
22 A-4316-15T2
We disagree with our dissenting colleague's reasoning that
the term "photo lineup" in Rule 3:11(c)(5) limits the photo
identification procedures for which preservation of "the photo
array, mug books or digital photographs used" must be maintained.
The dissent asserts that because the ordinary use of the term
"photo lineup" is limited to photo arrays when a known suspect is
included, the Rule requires only the preservation of photo arrays,
mug books and digital photographs where they include a known
suspect. In the first instance, the dissent disregards that photo
lineups do not always, and need not, include a known suspect. In
Henderson, the Court recognized that arrays may not include a
known suspect.
208 N.J. at 267. The Court referenced a study
involving "target absent arrays" in its discussion of the effect
of "memory decay" on the accuracy of delayed out-of-court
identifications. Ibid.
In our view, the dissent's reliance on the ordinary usage of
the terms used in Rule 3:11(c)(5) is selective and inconsistent.
The dissent asserts that the ordinary meaning of the term "photo
lineup" includes only photo arrays with known suspects, but in its
interpretation of Rule 3:11(c)(5), the dissent casts aside what
it contends is the ordinary meaning of the term "mug books." The
dissent argues that the ordinary meaning of the term "mug books"
does not include the exhibition of a photograph of a known suspect
23 A-4316-15T2
and, for that reason, there is no duty under Rule 3:11(c)(5) to
preserve mug books used during an identification procedure. But
Rule 3:11(c)(5) lists the use of mug books as an element of a
photo lineup identification procedure. Thus, under the dissent's
logic and its stated commitment to the ordinary usage of the Rule's
terms, a mug book could never constitute a photo lineup because a
mug book never includes a known suspect.
The dissent avoids this obvious inconsistency by wandering
even further from the plain meaning of the Rule's terms. The
dissent asserts that the Rule's use of the term "mug books"
requires only the production of the page of a mug book used during
a photo lineup that includes a photo of a known suspect.7 This
interpretation finds no support in the Rule's plain language; the
Rule states that "mug books" must be preserved, not a page of a
mug book that the police used as a photo array.
The dissent's interpretation of the term "mug books" to
encompass only a page of a mug book that includes a known suspect
means that "mug books" under the Rule are identical to a "photo
array." Of course, subsections (a) and (c)(5) of Rule 3:11
separately require preservation of photo arrays and, thus, the
7
Again, this interpretation contradicts the dissent's argument
that mug books, by definition, do not include known suspects.
24 A-4316-15T2
dissent's interpretation renders the inclusion of the term "mug
books" meaningless and a mere surplusage.
Moreover, under the dissent's interpretation of Rule
3:11(c)(5), a photo lineup identification procedure is no
different than the display of a photo array. But the Rule lists
a photo array as only one of three records of photo lineup
identification procedures that must be preserved. R. 3:11(c)(5).
It separately requires preservation of the mug books and digital
photographs used. Our interpretation of Rule 3:11(c)(5) gives
effect to the plain and ordinary meaning of these different terms,
and the Rule's requirement that they each be preserved.
We also reject any interpretation of Rule 3:11 that would
limit its application to identification procedures using "typical"
photo arrays "contain[ing] a small number of photographs,"
Janowski, supra,
375 N.J. Super. at 7. We are convinced such an
interpretation is not supported by the language of the Rule, and
is inconsistent with its clear purpose of ensuring defendants are
provided with a record of the identification procedures utilized
by law enforcement. Where, as here, the police displayed photos
to C.F. in multiple pages consisting of six photos each, it would
be illogical to conclude that C.F. was not shown "typical" photo
25 A-4316-15T2
arrays,8 or that the State could avoid the effects of Rule 3:11 by
combining the multiple pages and characterizing what was shown as
a mug book.
The Criminal Practice Committee's Report further supports
this interpretation. In its discussions concerning the required
contents of the record, the Committee "agreed that [the] factor
involving photo lineups must include references to photo arrays,
mug books and digital photographs, as it must cover the various
technology used for photo lineups." Committee Report, supra, at
22. A subcommittee "discussed whether its proposed rule . . .
would govern all identification procedures or if an exception
[was] needed . . . for identifications made at show ups or using
mug books," and whether a "good cause" exception should be made
in those circumstances. Id. at 23. However, the Committee decided
to "include[] 'mug books' in the subsection of the rule addressing
photo lineups." Id. at 24. Thus, the Committee informed the
8
We also reject the State's position because a photo array
identification procedure is not defined or limited by the number
of the photos shown. For example, in State v. Madison,
109 N.J. 223, 225 (1988), the Court considered "out-of-court identification
procedures" that included showing a witness separate "arrays" of
"twenty-four" and "thirty-nine" photos. In State v. Gunter,
231 N.J. Super. 34, 37 (App. Div.), certif. denied,
117 N.J. 80, and
certif. denied,
117 N.J. 80, 81 (1989), we addressed law
enforcement's failure to preserve "three separate photographic
arrays," consisting of thirty-five to forty photos, fifteen
photos, and six photos respectively.
26 A-4316-15T2
Court of its discussion concerning whether there should be an
exception to the recordation requirement for mug books, and the
Court included the requirement in Rule 3:11(c)(5).9
Moreover, separate from requiring a record of the mug books
used during an identification procedure, Rule 3:11(c)(5) requires
a record detailing the "digital photographs" used. Although the
HIDTA database has been characterized as "essentially a mug shot
book," Joseph, supra,
426 N.J. Super. at 223, and the State argues
it should be considered as such here, the evidence showed it was
a compilation of digital photos. As such, the plain language of
R. 3:11(c)(5) requires that when digital photos are shown during
an identification procedure, a record of the photos used must be
made.
Our interpretation of the plain language of Rule 3:11 is also
consistent with the Court's longstanding policy of ensuring that
criminal defendants are entitled to broad discovery. See State
v. Hernandez,
225 N.J. 451, 461 (2016) ("In New Jersey, an accused
has a right to broad discovery after the return of an indictment
9
The Attorney General's guidelines for identification procedures,
revised following Henderson, supra,
208 N.J. 208, and Rule 3:11,
also reflect the new standards under the Rule. See Office of the
Att'y Gen., N.J. Dep't of Law and Pub. Safety, Memo of
Clarification 1 (2012). Question 21 on the Attorney General's
Photo Array Eyewitness Identification Procedure Worksheet asks,
"[d]id you preserve the photo array, mug books, or digital photos
used?" Id. at 2.
27 A-4316-15T2
in a criminal case."); State v. Scoles,
214 N.J. 236, 252 (2013)
("a defendant has a right to automatic and broad discovery of the
evidence the State has gathered in support of its charges"). The
policy protects the interests of defendants facing the loss of
liberty and other repercussions flowing from a criminal
conviction, and ensures the integrity of the criminal justice
process in our courts. See id. at 251-52 ("The sharing of pretrial
information has received general support in recognition of its
role in promoting a just and fair trial . . . [which] is a shared
concern of both the defendant involved and the State.").
In addition, our interpretation of Rule 3:11 also gives effect
to the Court's concerns about identification procedures expressed
in Delgado and Henderson. In Henderson, supra, the Court addressed
the danger of eyewitness misidentification, and identified
variables that "can affect and dilute memory and lead to
misidentifications."
208 N.J. at 218. Among the system variables,
or variables within the State's control, the Court included pre-
identification instructions, lineup construction, avoiding
feedback and recording confidence, multiple viewings, simultaneous
versus sequential lineups, and composites.10 Id. at 248-59.
10
The dissent asserts that Rule 3:11 could not be intended to
require preservation of mug books because there is no possibility
of undue suggestiveness by law enforcement until there is a known
28 A-4316-15T2
These variables, which the Court found could affect the
reliability of identifications, are pertinent not only when law
enforcement has identified a suspect, but also in cases in which
a suspect has not yet been determined. Of particular relevance
to the present appeal is the multiple viewing variable. See id.
at 255-56. As the Court noted, "[v]iewing a suspect more than
once during an investigation can affect the reliability of the
later identification. The problem . . . is that successive views
of the same person can make it difficult to know whether the later
identification stems from a memory of the original event or a
memory of the earlier identification procedure," and explained
that "[m]ultiple identification procedures that involve more than
one viewing of the same suspect . . . can create a risk of 'mugshot
exposure' and 'mugshot commitment.'" Id. at 255. "Mugshot
suspect. However, in Henderson, supra, the Court identified
numerous system variables that are unrelated to whether law
enforcement has a known suspect, but which may result in
suggestiveness and affect the reliability of an identification.
208 N.J. at 248-59. Therefore, the fact that the officers may not
have identified a suspect prior to showing C.F. the photographs
does not, as suggested by the dissent, end the inquiry. The
photographs reviewed by C.F., whether in mug books, photo arrays
or otherwise, and the manner in which the photographs were shown
to her are directly relevant to an assessment of the system
variables necessary to determine if an identification procedure
is suggestive in the first instance. The plain language of the
Rule requires preservation of that relevant evidence. The
dissent's contrary interpretation deprives defendants of the only
evidence upon which a challenge to the reliability of the out-of-
court identification based on the system variables could be based.
29 A-4316-15T2
exposure is when a witness initially views a set of photos and
makes no identification, but then selects someone—who had been
depicted in the earlier photos—at a later identification
procedure." Ibid. Accordingly, the Court stated, "law
enforcement officials should attempt to shield witnesses from
viewing suspects or fillers more than once." Id. at 256.
In the computer-based photo search employed here, there was
a risk of mugshot exposure. Both Stabile and Vitale testified
that an individual's photo could appear multiple times in a single
search of the HIDTA database, depending on how many times the
individual had been arrested and photographed. Further, Vitale
testified that when an officer highlights a "similar" photo in
investigative mode, the "similar" photo will continue to be
displayed on each succeeding page that is viewed. This evidence
permits the possibility that C.F. viewed defendant's photo prior
to finally selecting his photo,11 making it difficult "to know
whether the later identification stems from a memory of the
original event or a memory of the earlier
identification procedure." Id. at 255. The risk of such an
11
There was no evidence presented concerning the number of times,
if any, defendant had been arrested in the counties contributing
to the HIDTA database prior to C.F.'s review of the photos.
30 A-4316-15T2
occurrence reinforces the need for adequate recording procedures
discussed by the Court in Delgado, supra,
188 N.J. at 63.12
In any event, the State's proffered interpretation of Rule
3:11 would create a void in the record of every case where mugshot
exposure could affect the reliability of an identification. Under
the State's and dissent's interpretation of Rule 3:11, there would
be no obligation to preserve the record of a review of mug books,
and thus there would be no record permitting a defendant to
challenge a misidentification based on mugshot exposure. We are
convinced such an interpretation is not only inconsistent with the
plain language of Rule 3:11, but is also incompatible with
Henderson's explanation of the variables affecting the reliability
of identifications and Earle's requirement that where an
"identification is made or attempted on the basis of photographs,"
Earle, supra,
60 N.J. at 552, there must be a record made of the
photos shown.13
12
Preservation of the mug books during an identification may also
affect a determination concerning the "simultaneous versus
sequential" presentation of photos that the Court in Henderson
found was a variable that can affect the reliability of an out-
of-court identification. Henderson, supra,
208 N.J. at 256-58.
13
We do not offer an opinion as to whether it was feasible for
the officers to record or make a record of all of the photographs
viewed by C.F. as she viewed them in the investigative mode. The
court did not decide that issue. The court only determined that
it was feasible to preserve the eleven photos at issue. We are
31 A-4316-15T2
In our view, the dissent is unduly concerned about a perceived
minor inconvenience for law enforcement rather than the protection
of the rights of the accused – rights which, under our colleague's
interpretation of Rule 3:11, are largely if not completely
disregarded. Moreover, our interpretation of Rule 3:11 will not
interfere with law enforcement's ability to effectively use mug
books, will not render use of mug books unduly burdensome and
should not discourage law enforcement's use of mug books.
Rule 3:11(d) requires that a court determine "if it was
feasible to obtain and preserve" the record of the identification
procedure otherwise required under subsections (a), (b) and (c).
As such, a court must first determine whether it was feasible for
law enforcement to preserve a mug book, whether it be a physical
mug book or a computerized version, or otherwise make a record of
all of the photographs reviewed during an identification
procedure. R. 3:11-(d). There is nothing new in the requirement
that a court consider the feasibility of the preservation of
evidence of out-of-court identifications, see, e.g., Delgado,
supra,
188 N.J. at 61 (observing that "[r]equiring the recordation
of identification procedures, to the extent feasible, is a small
satisfied that determination is supported by sufficient credible
evidence in the record. See Watts, supra,
223 N.J. at 516.
32 A-4316-15T2
burden to impose"); Earle, supra,
60 N.J. at 552 (holding law
enforcement must "make a complete record of an identification
procedure it is feasible to do so"), and therefore our
interpretation of Rule 3:11 does not impose an obligation on law
enforcement that it does not already have – preserving mug books
used during identification procedures when it is feasible do so.14
In sum, we are satisfied the court correctly determined that
Rule 3:11 applied to C.F.'s review of the six photos she was shown
when she initially identified the person that looked like her
assailant, and the five photos shown with defendant's photo when
C.F. made the identification. We next address the court's
determination that the failure to preserve the photos required the
suppression of C.F.'s identification.
III.
Although Rule 3:11(a) conditions the admissibility of an out-
of-court identification upon the making of "a record of the
identification procedure," the court has discretion in fashioning
a remedy where, as here, "the record that is prepared is lacking
14
Our dissenting colleague asserts that our interpretation of
Rule 3:11 renders "unlawful" law enforcement's failure to comply
with its requirements. We respectfully disagree. There is nothing
in either the Rule or our interpretation of it that renders a
failure to comply with its terms an "unlawful" act. Instead, a
failure to comply with the Rule constitutes only a violation of
the Rule permitting imposition of an appropriate remedy. See R.
3:11(d).
33 A-4316-15T2
in important details as to what occurred at the out-of-court
identification procedure, and . . . it was feasible to obtain and
preserve those details." R. 3:11(d). "[T]he court may, in its
sound discretion and consistent with appropriate case law, declare
the identification inadmissible, redact portions of the
identification testimony, and/or fashion an appropriate jury
charge to be used in evaluating the reliability of the
identification." Ibid.
The trial court suppressed C.F.'s identification based on
Stabile's failure to preserve the eleven photos. The judge noted
there was a "range of remedies" available, but found it was
feasible for the officer to print the photos. The court relied
on the officer's "inexplicabl[e]" failure to print the eleven
photos and determined that suppression of the identification was
appropriate.
The court's determination that it was feasible to preserve
the eleven photos is supported by the evidence. As the court
noted, the photos could have been preserved by simply printing
copies of them. Moreover, had C.F. been shown the photos in the
available witness mode,15 a report showing the photos viewed and
15
The evidence showed Stabile showed Fuller the photos in
investigative mode. Stabile highlighted the photo of the person
C.F. said looked like her assailant and refined the search criteria
34 A-4316-15T2
the time each was displayed. Thus, it was feasible not only to
preserve the eleven photos at issue here, but also to obtain a
report detailing all of the photos viewed by C.F.16
In our view, however, the court's decision to exclude C.F.'s
out-of-court identification was made without a full consideration
of the alternative remedies available under Rule 3:11(d), and
without an explanation as to why suppression was the appropriate
remedy under the circumstances presented. Accordingly, we vacate
the court's order and remand for the court to consider if it is
appropriate to "declare the identification inadmissible, redact
portions of the identification testimony, and/or fashion an
appropriate jury charge to be used in evaluating the reliability
of the identification." R. 3:11(d).
on that basis. That feature of the photo management system is
available only in investigative mode.
16
The digital nature of the photos, their retention in a computer
database, the ability to print the photos, and the availability
of a computer-generated report concerning the photos viewed
requires a different assessment of feasibility than the one
undertaken in Ruffin. In Ruffin, we considered the feasibility
of preserving physical books of photos that were otherwise required
for use during the daily course of police investigations. Ruffin,
supra,
371 N.J. Super. at 395. There is no similar issue regarding
feasibility where, as here, the photos viewed may either be
separately printed or preserved through a computer-generated
report. We also observe that in Joseph, supra,
426 N.J. Super.
at 221-24, and Janowski, supra,
375 N.J. Super. at 7-9, we were
not required to consider the feasibility of making a record of the
photographs shown to the witnesses.
35 A-4316-15T2
Rule 3:11(d) requires that the court's discretion be
exercised "consistent with appropriate case law." Our case law,
however, has not mandated suppression of an out-of-court
identification in every case where there is a failure to maintain
an adequate record of an identification procedure. In Earle,
supra, the Court addressed the remedy for a failure to preserve
identification procedure evidence. The Court held that a failure
is not fatal to the admissibility of the out-of-court
identification, but "if not explained, should be weighed in
deciding upon the probative value of the identification, out-of-
court and in-court."
60 N.J. at 552; see also Joseph, supra,
426 N.J. Super. at 223 (finding that a failure to preserve photos used
in an array did not "automatically result in the suppression of
an out-of-court identification" (quoting Janowski, supra,
375 N.J.
Super. at 9)).
In making the determination whether to suppress an out-of-
court identification, "[t]he question is whether the procedure was
so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification." Janowski, supra,
375 N.J. Super. at 9. In Ruffin, supra, we overturned the trial
court's suppression of an out-of-court identification because
there was no showing the photos or identification procedure used
were "so impermissibly suggestive as to give rise to a very
36 A-4316-15T2
substantial likelihood of irreparable identification," and we
found "[d]efendant's argument that the procedure might have been
unfair is insufficient to suppress the photographic identification
in light of the neutral procedure followed."
371 N.J. Super. at
397-98. These decisions are in accord with Henderson, which
requires the suppression of an out-of-court identification only
where it is shown that an identification procedure is impermissibly
suggestive, and not "any time a law enforcement officer makes a
mistake." Henderson, supra,
208 N.J. at 303.
We have also considered whether the police acted in bad faith.
In Ruffin, supra, we reversed the trial court's exclusion of an
identification where there was no showing the photos "were
destroyed or withheld with the intent to subvert the rights of the
accused or any other acts of bad faith."
371 N.J. Super. at 398.
In Delgado, supra, we found that law enforcement's failure to
provide details of the identification procedure in the police
reports did not require suppression of the identification in part
because "the police did not fabricate evidence."
188 N.J. at 66.
Similarly, in Joseph, supra, we determined that "[the failure of
law enforcement to preserve [the] photographs does not require
suppression of a victim's out-of-court identification, where there
is no evidence they acted in bad faith."
416 N.J. Super. at 223;
see also Gunter, supra,
231 N.J. Super. at 39 (finding failure to
37 A-4316-15T2
preserve photos used during identification procedure was not
required in part because there was no showing of bad faith "on the
part of the State"); cf. State v. Peterkin,
226 N.J. Super. 25,
42-43 (App. Div.) (affirming suppression of identification where
the officer did not preserve photos shown to the victim and covered
up the failure by manufacturing evidence), certif. denied,
114 N.J. 295 (1988).
We have further considered whether a defendant had an
opportunity to develop an adequate record regarding the
identification procedure during pretrial hearings. See Joseph,
supra,
426 N.J. Super. at 224. Moreover, Rule 3:11(d) requires
that the court consider whether, consistent with the applicable
case law, an appropriate jury charge can be "used in evaluating
the reliability of the identification."
We do not express an opinion on the remedy that should be
imposed on remand. We direct only that the court consider the
appropriate case law as required by Rule 3:11(d), make appropriate
findings of fact and law, R. 1:7-4, and impose the remedy it deems
appropriate based on the circumstances presented.
Vacated and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
38 A-4316-15T2
___________________________
LEONE, J.A.D., dissenting.
I am reluctantly compelled to dissent. The majority opinion
contravenes our precedent, lacks legal support, and jeopardizes
time-honored and modern methods to search for unknown
perpetrators.
After C.F. was robbed at gunpoint, she was able to provide a
description. However, the police had no idea of the identity of
her assailant. Accordingly, Detective Donald Stabile had C.F.
engage in the modern version of what witnesses in such cases have
been doing for decades - looking through mug books. He inputted
her description into the HIDTA database of arrestees' photographs,
and the computer photo management system displayed photos sharing
those characteristics. This was the computerized equivalent of
mug books organized by characteristics such as sex, race, or age.
Like a witness viewing page after page of photos in a mug book,
C.F. viewed screen after screen of photos on the computer, until
she saw a photo of someone who "look[ed] like" her assailant.
Stabile then clicked to highlight that photo, which caused
the HIDTA system to perform a refined search of the database and
display similar photos based on the specific characteristics of
the highlighted photo. C.F. looked at the computer-refined next
set of six photos, pointed to defendant's photo, and exclaimed
"this is the guy." Stabile printed that photo.
The majority opinion rules that once C.F. told Stabile she
saw a photo of someone who looked like her assailant, Stabile
should have printed that photo, the other five photographs being
displayed on the screen with that photo, and the other five photos
the system displayed in its refined search with defendant's photo.
However, the majority's ruling contravenes our recent and
well-reasoned precedent, namely State v. Ruffin,
371 N.J. Super.
371 (App. Div. 2004), State v. Janowski,
375 N.J. Super. 1 (App.
Div. 2005), and State v. Joseph,
426 N.J. Super. 204 (App. Div.),
certif. denied,
212 N.J. 462 (2012). In each case, the police had
victims use mug books or their computer equivalent to search for
a perpetrator whose identity was unknown. In each case, we held
it was appropriate to do exactly what Stabile did here – preserve
only the photo the victim identified.
In Ruffin, supra, a police lieutenant had a victim look
through "several loose-leaf books containing photographs of
African-American males," with four arrest photos on each page.
371 N.J. Super. at 378. After reviewing many pages, the victim
saw a photo of her assailant, and the lieutenant preserved only
that photo. Id. at 378-79. The trial court excluded the victim's
out-of-court identification, asserting the police were required
2 A-4316-15T2
to preserve the other photos under State v. Earle,
60 N.J. 550
(1972). Ruffin, supra,
371 N.J. Super. at 380-81, 393.
We reversed. We ruled Earle and other "cases relied on by
defendant are distinguishable because the photographic arrays or
lineups were comprised of few photographs and a targeted suspect."
Id. at 397. We differentiated such photo arrays containing a
known suspect from the use of mug books to search for an unknown
perpetrator. "Here [the victim] was given books to review
containing hundreds of photographs in the hope of finding a
suspect. The purpose was investigatory, not confirmatory.
Defendant was not a suspect until he was identified by [the
victim]." Id. at 395.
In Ruffin, we refused to require the police to preserve the
other photos both because it was impractical and because the use
of mug books to search for unknown perpetrators was a valuable,
non-suggestive, investigative tool. "Not only would the procedure
be cumbersome, but it would also place an unnecessary burden on
investigating processes and hinder or even eliminate the effective
use of a traditional, non-invasive and proper law enforcement tool
for no justifiable purpose." Id. at 395. We found "there was no
suggestion that either the photographs or their arrangement in the
mug books was anything other than a neutral presentation." Ibid.
3 A-4316-15T2
We applied Ruffin to computer-generated mug books in
Janowski, supra. The detective had the victim use a computer to
view photos of photos of arrestees of the sex, race, and age of
the unknown assailant.
375 N.J. Super. at 4-5. The computer
displayed twelve photos at a time, and the victim reviewed thirty-
six to sixty photos. Id. at 5. When she identified the photo of
her assailant, the detective preserved only that photo. Ibid.
The trial court excluded the victim's out-of-court identification,
finding all the photos viewed constituted a photo array. Ibid.
In Janowksi, we again reversed, distinguishing Earle. Id.
at 6. We also held "the motion judge erred when he construed the
display of photographs viewed by the victim as an array." Ibid.
"While photographic arrays must be preserved to be admissible, the
use of mug shot books to develop an as-yet-to-be-determined suspect
does not require that all the photographs viewed in the mug shot
books be preserved." Ibid. (citing Ruffin, supra,
371 N.J. Super.
at 395). We found that, like a physical mug book, "the computer
system here contained large numbers of randomly selected
photographs, kept for the purpose of investigation, not
confirmation, and is a resource 'shown to witnesses as a matter
of course to see if a suspect [can] be found.'" Id. at 8 (quoting
Ruffin, supra,
375 N.J. Super. at 395). We ruled that the computer
photo system "was, in effect, a mug shot book," and that each
4 A-4316-15T2
computerized display containing the twelve photographs was the
equivalent of a page of a mug shot book." Id. at 6-7. We concluded
the other photos, "'whether . . . physical or computer generated'
. . . therefore need not be preserved." Id. at 6.
In Janowski, we ruled "[a] photographic array . . . is a
different investigative device" than "the use of [physical or
computerized] mug shot books to develop an as-yet-to-be-determined
suspect." Id. at 6-7. "The police typically have someone in mind
when they prepare a photographic array to be shown to a witness."
Id. at 7. Thus, "police use photographic arrays to confirm or
eliminate suspects." Ibid. As a result, "[p]hotographic arrays
typically contain a small number of photographs." Ibid.
"Moreover, police construct photographic arrays and personally
present them to witnesses, unlike a mug shot book, which is already
assembled." Id. at 8. Because photo arrays thus pose a risk of
police suggestiveness, all of the photos "must be preserved [for
the identification] to be admissible." Id. at 6.
By contrast, "[n]othing in the testimony given by [the
detective] or the victim indicates that the [computerized mug
book] procedure was suggestive." Id. at 10. "[O]ther than
initially inputting the sex, race and age range provided by the
victim, [the detective] had no control over how the system
displayed the photographs." Ibid. "Because nothing . . . about
5 A-4316-15T2
the manner in which the [computer system] displayed the images
could be construed as an attempt to influence the victim to choose
defendant's photograph, there is nothing to suggest that the
identification procedure 'was anything other than a neutral
presentation.'" Ibid. (quoting Ruffin, supra,
371 N.J. Super. at
395).
We reaffirmed Janowski and Ruffin in Joseph, supra. Moreover,
Joseph applied their holdings to the very HIDTA photo management
system at issue here. The officers inputted the victims'
description of the sex, race, skin tone, height, build, and facial
hair of the unknown assailant into the HIDTA system, and had each
victim view the computer-generated photos separately.
426 N.J.
Super. at 213-15. After each victim identified defendant's photo,
the officer preserved only that photo. Id. at 214-15.
We affirmed the denial of Joseph's motion to suppress. Id.
at 223-24. Again distinguishing photo arrays, we reaffirmed "the
use of mug shot books to develop an as-yet-to-be-determined suspect
does not require that all the photographs viewed in the mug shot
books be preserved." Id. at 223 (quoting Janowski, supra,
375 N.J. Super. at 6 (citing Ruffin, supra,
371 N.J. Super. at 395)).
We also reaffirmed "a collection on a computer of large numbers
of randomly selected photographs, which are kept for the purpose
of investigation and shown to witnesses as a matter of course to
6 A-4316-15T2
see if a suspect can be found, is essentially a mug shot book."
Id. at 273 (citing Janowski, supra,
375 N.J. Super. at 6-9).
We rejected Joseph's claim that preservation of the other
photos was required, and distinguished Earle and State v. Delgado,
188 N.J. 48 (2006). Joseph, supra,
426 N.J. Super. at 221-22. We
also reiterated that "[b]ecause neither [officer] . . . made any
attempt to influence the victims to choose defendant's photograph,
there is no evidence to support the claim that the out-of-court
identifications were impermissibly suggestive." Id. at 226.
Thus, defendant's claim is clearly contrary to our recent
precedent in Ruffin, Janowski, and Joseph. The majority opinion
lacks any solid legal authority to justify contravening our three
decisions and reaching a contrary result.
The motion court and the majority opinion relied on Earle and
Delgado, but neither case addressed the use of physical or
computerized mug books to search for an unknown perpetrator.
Rather, they concern witnesses who viewed known suspects in
physical and photo lineups, respectively. Earle, supra,
60 N.J.
at 553; Delgado, supra,
188 N.J. at 53. Earle required
preservation "if it is feasible to do so" of the names of "the
persons participating in a lineup" and a photo of the lineup, and
added that when "'the identification is made or attempted on the
basis of photographs,' the array should be preserved." 188 N.J.
7 A-4316-15T2
at 59 (quoting Earle, supra,
60 N.J. at 552). Delgado required
preservation "[w]hen feasible" of other information about "a live
lineup or a photographic array." Id. at 63.
We already distinguished Earle and Delgado in Ruffin,
Janowski, and Joseph. We explained why the preservation
requirements in Earle and Delgado for lineups and photo arrays
containing a known suspect, which carry the risk of police
suggestiveness, were inapplicable to the use of physical and
computerized mug books to search for an unknown perpetrator, which
lacks the same opportunity for police suggestiveness. There is
no reason to second-guess our prior rulings.
The majority opinion also relies in part on State v.
Henderson,
208 N.J. 208 (2011). In Henderson, "the Court revised
the Manson/Madison test for evaluating eyewitness identification
evidence in criminal cases." Joseph, supra,
426 N.J. Super. at
225 n.5.1 However, the Court's seminal ruling in Henderson did
not purport to address the issue before us.
Instead, like Manson and Madison, Henderson involved lineups,
showups, and photo arrays containing a known suspect. See, e.g.,
208 N.J. at 221-22 (noting the witness viewed "a photographic
array" of eight photos including the suspect), 239-40. Our Supreme
1
See Manson v. Brathwaite,
432 U.S. 98,
97 S. Ct. 2243,
53 L. Ed. 2d 140 (1977); State v. Madison,
109 N.J. 223 (1988).
8 A-4316-15T2
Court used "the term 'lineup' to refer to live lineups and/or
photo arrays" in which the suspect was included. Id. at 242. The
Court described showups of a known suspect as "essentially single-
person lineups." Id. at 259.
The Court in Henderson addressed concerns arising from the
presence of known suspects in live and photo lineups, which raised
the risk of police suggestiveness. For example, the Court reviewed
the "system variables" and expressed concern that: "lineups should
not feature more than one suspect"; the "suspect should be included
in a lineup comprised of look-alikes"; the police "should attempt
to shield witnesses from viewing suspects . . . more than once";
the police cannot construct the lineup so "'the suspect stands out
from other members of a live or photo lineup'"; the officer
administering the lineup must be shielded "from knowing where the
suspect is located in the lineup or photo array"; the witness must
be instructed "that the suspect may or may not be in the lineup
or array"; the police should not "signal to eyewitnesses that they
correctly identified the suspect"; and "all lineup procedures must
be recorded and preserved in accordance with the holding in
Delgado." Id. at 248-52 (citation omitted).
The Henderson Court's later "list of system variables"
reiterated that courts must consider whether: "the array or lineup
contain[ed] only one suspect"; "the suspect st[oo]d out from other
9 A-4316-15T2
members of the lineup"; "the witness view[ed] the suspect more
than once"; "the administrator had no knowledge of where the
suspect appeared in the photo array or lineup"; the witness was
instructed "that the suspect may not be present in the lineup";
and the witness received feedback "about the suspect." Id. at
289-90.
The Court in Henderson made clear the purpose of its revised
test was to deter and correct "suggestive police procedures." Id.
at 293-94. The Court required a Wade hearing2 "only if the
defendant offers some evidence of suggestiveness." Id. at 218,
290-91. "To evaluate whether there is evidence of suggestiveness
to trigger a hearing," courts consider the "system variables"
designed for live or photo lineups, all of which concern police
suggestiveness. Id. at 289-90. "[I]f no . . . evidence of
suggestiveness has been demonstrated by the evidence, the court
may exercise its discretion to end the hearing." Id. at 290-91.
Only "[i]f some actual proof of suggestiveness remains" may courts
"evaluate the overall reliability of an identification and
determine its admissibility." Id. at 291.3
2
See United States v. Wade,
388 U.S. 218,
87 S. Ct. 1926,
18 L. Ed. 2d 1149 (1967).
3
"Henderson, like Madison and Manson, addresses . . . the need to
deter police misconduct." State v. Chen,
208 N.J. 307, 326 (2011).
10 A-4316-15T2
A live or photo lineup poses a risk of police suggestiveness.
It is constructed by an investigating officer seeking to confirm
a known suspect. The investigating officer chooses the persons
or photos used to fill out the lineup.
By contrast, use of physical or computerized mug books where
there is no known perpetrator does not provide the same incentive
or opportunity for suggestiveness by the police. The decision to
include photos in physical and computerized mug books is made not
by individual officers creating a lineup to build a case against
a known suspect, but by a police department or by multiple law
enforcement agencies which have no particular crime or suspect in
mind and no incentive to be suggestive. Nor is there opportunity
to be suggestive. Rather than selectively including photos based
on a known suspect, physical and computerized mug books generally
include all photos from every arrest in the jurisdiction(s) over
a period of time. This comprehensiveness makes the mug books more
useful, because mug books are used to solve not just recent crimes
but crimes from earlier periods when the perpetrator was younger-
looking or had different hairstyles, facial hair, or scars.
Chen addressed "suggestive conduct by a private party." Id. at
310. "[W]here there is no police action, [Chen] require[d] a
higher, initial threshold of suggestiveness to trigger a hearing,
namely, some evidence of highly suggestive circumstances as
opposed to simply suggestive conduct." Id. at 327.
11 A-4316-15T2
Moreover, when an officer asks the witness to view physical
or electronic mug books to search for an unknown perpetrator, he
has no obvious incentive to be suggestive, because the perpetrator
is unknown. The photos displayed are those that happen to be on
a particular page, or are chosen by computer algorithm.
The majority opinion does not assert there is a risk of
suggestiveness by the police when physical or computerized mug
books are used to search for an unknown perpetrator. Rather, the
opinion contends the absence of suggestiveness does not end the
inquiry under Henderson. However, under Henderson, absent "actual
proof" or "evidence" of suggestiveness, the inquiry is over. Id.
at 288-91.
The only time the Henderson Court mentioned mug books was to
note that "[i]t is typical for eyewitnesses to look through mugshot
books in search of a suspect." Id. at 255. The Court then
discussed that many investigations "involve multiple investigation
procedures," that "mugshot exposure" may result if the same suspect
is viewed "at a later identification procedure," and that "mugshot
commitment" may occur if "a witness identifies a photo that is
then included in a later lineup procedure." Id. at 255-56. The
discussion makes clear the Court's concern was not with the initial
"search" through the physical or computerized mug books, but with
the "later lineup procedure[s]," where the police may engage in
12 A-4316-15T2
suggestiveness by again showing the witness the suspect's photo.
Id. at 255-56.
The majority opinion nonetheless asserts its rationale is
supported by the following discussion in Henderson:
Viewing a suspect more than once during
an investigation can affect the reliability
of the later identification. The problem
. . . is that successive views of the same
person can make it difficult to know whether
the later identification stems from a memory
of the original event or a memory of the
earlier identification procedure. . . .
Multiple identification procedures that
involve more than one viewing of the same
suspect, though, can create a risk of "mugshot
exposure" and "mugshot commitment."
[Id. at 255 (emphasis added).]
However, the quoted language simply reiterated the Court's concern
about repeating a suspect or suspect's photo in a later live or
photo lineup procedure involving a known suspect. The Court did
not impose any restrictions on the initial use of physical or
computerized mug books to search for an unknown perpetrator.
The majority opinion cites the Henderson Court's conclusion
that "law enforcement officials should attempt to shield witnesses
from viewing suspects or fillers more than once." Id. at 256.
However, the Court's reference to "suspects" and "fillers" shows
the Court was discussing live and photo lineups, where the police
include the known suspect and "fill" out the lineup by adding
13 A-4316-15T2
several "fillers." Thus, the Court ruled "lineups should include
a minimum number of fillers" and "one suspect," and instructed
courts to consider whether "the array or lineup contain[ed] only
one suspect embedded among at least five innocent fillers." See
id. at 251, 277, 290.
By contrast, when physical or computerized mug books are used
to search for an unknown perpetrator, there is no known "suspect."
Further, there are no "fillers," both because law enforcement
officials are not filling out a lineup, and because any or none
of the photos might be the unknown perpetrator.
Thus, the majority opinion incorrectly applies Henderson's
rules for lineups with a known suspect to the use of physical or
computerized mug books to search for an unknown perpetrator. See
Joseph, supra,
426 N.J. Super. at 221-23 (upholding mug book use
despite the defendant's challenge that the HIDTA "system could
have included more than one photograph of defendant").
Moreover, such application would be impractical. Officers
cannot remove multiple photos of a perpetrator whose identity they
do not know. The officers would have to remove all multiple photos
of every single person in the physical mug books or the
computerized mug book database. That is a far greater task than
to "shield witnesses from viewing suspects or fillers more than
once" in a police-created lineup involving a few persons or photos.
14 A-4316-15T2
Henderson, supra,
208 N.J. at 256. It would be difficult to pick
the most appropriate photo of each person and cull out all other
photos of each person from physical mug books containing several
hundred photos. See Ruffin, supra, 371 N.J. Super. at 378
(involving mug books containing at about 640 photos or more). It
may be even more difficult with computerized mugbooks containing
many thousands of pictures. See Joseph, supra,
426 N.J. Super.
at 213 (involving "a database of photographs of individuals
previously arrested in Essex County"); Janowski, supra,
375 N.J.
Super. at 6 (involving a database of "the photographs of all
individuals arrested by the Trenton Police").
Robert Vitale, the computer systems engineer, testified the
HIDTA database contained "millions of photographs" of persons
arrested in seventeen counties in Northern New Jersey, New York
City, and Pennsylvania. Each person's photo could appear multiple
times in the database, depending on how many times the person had
been arrested and photographed. Vitale did not believe it was
possible to remove all other photographs of each person.4
4
The majority opinion is also impractical in suggesting
Henderson's discussion of "Simultaneous v. Sequential Lineups"
applies to the use of physical or computerized mug books.
Henderson, supra,
208 N.J. at 256. "Traditional, simultaneous
lineups present all suspects at the same time, allowing for side-
by-side comparisons. In sequential lineups, eyewitnesses view
suspects one at a time." Ibid. Using a physical or computerized
15 A-4316-15T2
The majority opinion's extension of Henderson's conclusion
from lineups of known suspects to mug book searches for unknown
perpetrators is not only impractical but also unnecessary, because
there is no police suggestiveness to be counteracted. It would
also jeopardize the utility of mug books, which contain all arrest
photos, including multiple photos or persons arrested multiple
times, in part because it makes the mug books more comprehensive
and of greater use in solving crimes occurring over a period of
time when the appearance of the perpetrator may have changed.
In any event, there is no evidence C.F. saw defendant's photo
more than once. There is no claim that defendant was depicted in
the photo she said "look[ed] like" the perpetrator. It was only
after Stabile clicked on that photo and similar photos were
displayed that C.F. saw defendant's photo and exclaimed "this is
the guy." Thus, Henderson does not support the result the majority
opinion reached.
The motion court and the majority opinion largely rely on
Rule 3:11, but that rule was "adopted in response to" Henderson
mug book to search for an unknown perpetrator would be
impracticably time-consuming and exhausting if a witness had to
look at each photo one at a time. In any event, the Court found
"insufficient, authoritative evidence . . . for a court to make a
finding in favor of either procedure," and so the Court did not
preclude viewing multiple photos or suspects simultaneously. Id.
at 257-58.
16 A-4316-15T2
and Delgado. Pressler & Verniero, Current N.J. Court Rules,
comment 1 on R. 3:11 (2018); see Delgado, supra,
188 N.J. at 68.5
Like Henderson and Delgado, Rule 3:11 addressed "[a]n out-of-court
identification resulting from a photo array, live lineup, or
showup" involving a known suspect. R. 3:11(a); see R. 3:11(c)(6).
The rule does not purport to address the use of physical or
computerized mug books to search for an unknown perpetrator.
To support the opposite conclusion, the majority opinion
notes the rule does not define "lineup" or "photo array," and thus
does not restrict those terms to live or photo lineups including
a known suspect. However, as discussed above, both Henderson and
Delgado used the terms "lineup" and "photo array" to refer to
physical or photo lineups containing a known suspect. The common
legal definition of a "lineup" defines it as containing a known
suspect: "A police identification procedure in which a criminal
suspect and other physically similar persons are shown to the
victim or a witness to determine whether the suspect can be
5
See also Report of the Supreme Court Criminal Practice Committee
on Revisions to the Court Rules Addressing Recording Requirements
for Out-of-Court Identification Procedures and Addressing the
Identification Model Charges (Fed. 2, 2012) [Committee Report] at
5-6 (stating the rule is based on Delgado and Henderson, which
concerned police photographic and live lineup procedures, rather
than on Chen, which concerned conduct by private actors.
17 A-4316-15T2
identified as the perpetrator of the crime." B. Garner, Black's
Law Dictionary 1014 (9th ed. 2009).6
There is no reason to believe the Supreme Court or the
Committee used the terms of art "lineup" or "photo array" in a
different way than used in Henderson, Delgado, and common legal
usage. "We apply familiar canons of statutory construction to
interpret the court rules. We look first to the plain language
of the rules and give the words their ordinary meaning."
Robertelli v. N.J. Office of Attorney Ethics,
224 N.J. 470, 484
(2016) (citing
N.J.S.A. 1:1-1; other citations omitted). As with
a statute, a rule's
words and phrases shall be read and construed
with their context, and shall, unless
inconsistent with the manifest intent of the
[drafters] or unless another or different
meaning is expressly indicated, be given their
generally accepted meaning, according to the
approved usage of the language. Technical
words and phrases, and words and phrases
having a special or accepted meaning in the
law, shall be construed in accordance with
such technical or special and accepted
meaning.
[N.J.S.A. 1:1-1.]
Thus, we "must 'ascribe to the [words of the rule] their ordinary
meaning and significance . . . and read them in context.'" Wiese
6
Similarly, a "showup" is defined as a one-person lineup involving
a known "suspect." Black's Law Dictionary, supra, at 1413.
18 A-4316-15T2
v. Dedhia,
188 N.J. 587, 592 (2006) (alteration in original)
(citation omitted).
Applying those canons of construction, we must read Rule 3:11
as governing live and photo lineups involving a known suspect.
The rule provides that "[a]n out-of-court identification resulting
from a photo array, live lineup, or showup identification procedure
conducted by a law enforcement officer shall not be admissible
unless a record of the identification procedure is made." R.
3:11(a) (emphasis added). Specifically, "if a live lineup, a
picture of the lineup" is required. R. 3:11(c)(4). Similarly,
"if a photo lineup, the photographic array, mug books or digital
photographs used" in the photo lineup must be preserved. R.
3:11(c)(5). Thus, the rule only sets recording requirements for
"a live lineup," "a photo lineup," or "a showup," all of which
contain a known suspect.
The majority opinion notes that Henderson, supra, discussed
"target-absent arrays," which are defined as "lineups that
purposely excluded the perpetrator and contained only fillers."
208 N.J. at 234 (emphasis added). However, that phrase was not a
reference to the use of physical or computerized mug books to
search for an unknown perpetrator. Nor was the Court suggesting
that law enforcement perversely conducts lineups from which it
purposefully excludes the perpetrator. Rather, the Court was
19 A-4316-15T2
merely referring to the use of "target-absent arrays" in scientific
research to study the accuracy of staged identification
experiments. Id. at 234-35, 242, 250, 257, 260, 263, 265, 267.
The Court's reference to scientists' experimental "target-absent
arrays" was not a reference to law enforcement's use of physical
or computerized mug books to search for an unknown perpetrator.
In holding the requirements of Rule 3:11 apply here, the
majority opinion primarily relies on its reading of subsection
(c)(5). That provision states:
The record of an out-of-court identification
procedure is to include details of what
occurred at the out-of-court identification,
including the following:
. . . .
(5) if a photo lineup, the photographic
array, mug books or digital photographs
used[.]
[Rule 3:11(c)(5).]
Thus, subsection (c)(5) covers mug books and digital photos
only "if [they are used in] a photo lineup," the Supreme Court's
term for a lineup containing the photo of a known suspect. Ibid.
The majority opinion's contrary reading ignores the limitation "if
in a photo lineup."
The majority opinion asserts that subsection (c)(5) must
apply to the use of physical or computerized mug books to search
for an unknown perpetrator because otherwise the words "mug books
20 A-4316-15T2
or digital photographs" in subsection (c)(5) would be meaningless
surplusage. However, mug books and digital photographs could be
used for a photo lineup of a known suspect by officers who do not
go to the trouble of constructing a "photographic array." Ibid.
If an officer investigating a known suspect conducts a photo lineup
by showing the witness a page of a mug book containing the known
suspect's photo, then the photographs on the page must be
preserved.7 Similarly, if an officer simply shows a witness
digital photos including a known suspect's photo, then the digital
photos must be preserved.
Therefore, when physical or computerized mug books are used
in a photo lineup of a known suspect, subsection (c)(5) requires
their preservation. When mug books are instead used to search for
an unknown perpetrator, subsection (c)(5) does not require their
preservation.
This commonsense reading gives meaning to the entire
subsection. This reading gives meaning to the terms "mug books
or digital photographs" because it recognizes that occasionally
mug books and digital photos are used as photo lineups containing
a known suspect which might not be a police-constructed
7
The majority opinion argues a mug book could never be used for
a photo lineup because a mug book never includes a known suspect.
However, once a suspect is known, his photo may be found in a
physical or computerized mug book if he has been arrested before.
21 A-4316-15T2
"photographic array" as commonly understood. This reading
respects subsection (c)(5)'s plain language by applying that
subsection to mug books or digital photographs only "if [they are
used in] a photo lineup" of a known suspect. R. 3:11(c)(5). This
reading also is consistent with the remainder of Rule 3:11, which
limits its applicability to "[a]n out-of-court identification
resulting from a photo array, live lineup, or showup," all of
which contain a known suspect. R. 3:11(a). Moreover, this reading
recognizes that use of a physical or computerized mug book to
search for an unknown perpetrator is not "a photo lineup" or "a
photo array" as those phrases have been used in the rule, in the
precedent, or in common legal parlance.
This reading also reflects the legislative history of the
Rule. "If the text of the rules is ambiguous, we can turn to
extrinsic evidence, including committee reports, for guidance."
Robertelli, supra,
224 N.J. at 484 (citation omitted). The history
of the drafting of Rule 3:11, including the Committee Report,
confirm its plain language does not apply to the use physical or
computerized mug books to search for an unknown perpetrator. The
initial drafters of Rule 3:11 "discussed whether [the] proposed
rule . . . would govern all identification procedures or if an
exception needed to be made for identifications made at showups
or using mug books." Committee Report, supra, at 23. The drafters
22 A-4316-15T2
recognized "the unique circumstances surrounding 'showups' and
'mug books' as compared to traditional line ups and photo arrays."
Ibid. As a result, the drafters did not include showups, and only
"included 'mug books' in the subsection of the rule addressing
photo lineups." Id. at 24 (emphasis added). The drafters
explained, "this factor involving photo lineups must include
references to photo arrays, mug books and digital photographs, as
it must cover the various technology used for photo lineups."
Committee Report, supra, at 22 (emphasis added). They did not
require the preservation of all the photos viewed when using
physical or computerized mug books are instead used to search for
an unknown perpetrator.
Rather, the initial drafters of Rule 3:11 limited its
requirements to "a photographic or live lineup identification
procedure." E.g., Committee Report, supra, at 5-6, 9, 11 & App.
A (quoting the proposed Rule 3:11(a)). The Supreme Court altered
the rule to limit its requirements specifically to "a photo array,
live lineup, or showup." R. 3:11(a). By using these terms of
art, and by including showups but not mug books, the Court chose
not to apply the rule's requirements to the use of physical or
computerized mug books to search for an unknown perpetrator. Thus,
both the plain language and the history of the drafting of the
rule are contrary to the interpretation of the majority opinion.
23 A-4316-15T2
The majority opinion asserts that because the HIDTA
computerized mug book displayed six photos on the screen at a
time, it would be illogical to conclude it was not a photo array.
However, a photo array includes a known suspect. This was not a
photo array because the perpetrator was unknown. Contrary to the
majority opinion, the State was not trying to avoid the effects
of Rule 3:11 by combining multiple pages and characterizing what
was shown as a mug book. Rather, this was a traditional use of
mug books, here computerized, to search for an unknown perpetrator.
Rule 3:11 does not apply because it governs lineups, photo arrays,
and showups including a known suspect.
The majority opinion cites the Court's general policy of
broad discovery in criminal cases. However, that cannot override
the conscious decision of the drafters of Rule 3:11 to require the
preservation of all photos only for lineups, photo arrays, and
showups containing a known suspect, but not for the uniquely
different use of physical or computerized mug books to search for
an unknown perpetrator. Nothing in the Committee Notes or
elsewhere suggests that the drafters of the rule intended to
overrule Ruffin, Janowski, or Joseph, which were published before
or while the Supreme Court was considering the proposed rule.
Nonetheless, the majority opinion holds that Rule 3:11
requires that a record of the mug books and digital photos used
24 A-4316-15T2
be maintained whenever physical and computerized mug books are
used. The majority opinion asserts its interpretation of Rule
3:11 does not impose an obligation on law enforcement that it does
not already have. That assertion is based on its mistaken reading
of Earle and Delgado, a reading we already rejected in Ruffin,
Janowski, and Joseph. The majority opinion misconstrues Rule
3:11(c)(5) to impose a requirement to preserve all mug books used
to investigate an unknown perpetrator, in direct contravention of
Ruffin, Janowski, and Joseph.
The majority opinion's holding, carried to its logical
conclusion, would require the preservation of all photos viewed
when a witness uses physical mug books and computerized mug books
such as the HIDTA system to search for an unknown perpetrator.
That would make such use of mug books impractical.
As we recognized in Ruffin, supra, such a requirement is
incompatible with the traditional use of physical mug books. Mug
books are used to search for unknown perpetrators not just by one
witness in one case but by many witnesses in numerous cases on an
"on-going" basis, and the photos and books are "periodically
changed or substituted."
371 N.J. Super. at 395.
To require preservation of all photographs
shown to witnesses during an investigation
before suspicion focused on a suspect or
suspects would create an exclusionary rule
requiring the segregation of all photographs
25 A-4316-15T2
and books viewed by witnesses who make
identifications until disposition of the
matters, possibly through trial and appeal,
at the pain of suppressing an otherwise proper
identification.
[Ibid.]
Requiring preservation would "be cumbersome" and place a "burden
on investigating processes and hinder or even eliminate the
effective use of a traditional, non-invasive and proper law
enforcement tool." Ibid.
Such a requirement could also make impractical the use of the
HIDTA computerized mug book system to search for unknown
perpetrators. Because the perpetrator was unknown, Stabile used
the system's "investigative mode," which selects photos based on
the key criteria in the witness's description. Investigative mode
does not permit the officer to use the computer to save a record
of the actual photos displayed to the witness. At best, the
officer can print the photos while they are on the screen. That
would require the officer to interrupt the witness after every
screen to print the photos, slowing the witness's review of the
numerous screens in the computerized mug book, and making an
already time-consuming process more frustrating and exhausting.
The majority opinion notes that Vitale testified a record of
all of the photos viewed could be obtained if the HIDTA system had
been operated in the witness mode. However, Vitale also testified
26 A-4316-15T2
witness mode lacks a key feature available in investigative mode.
Investigative mode allows an officer to click on a photo the
witness believes looks similar to the perpetrator and have the
computer display similar photos. That feature is of obvious value
in refining a search for an unknown perpetrator, and here it
resulted in the computer displaying the photo of defendant. Using
witness mode would have limited or thwarted the search for the
unknown perpetrator.8
Even if the police could record all of the photos a witness
viewed in a search for an unknown perpetrator, such a requirement
would needlessly burden investigations using this traditional and
proper law enforcement tool. Our decision in Ruffin rejected such
a requirement for physical mug books not just because it was
8
The majority opinion argues its holding will not burden law
enforcement's use of mug books because the "Remedy" provision,
Rule 3:11(d), requires a court to determine "if it was feasible
to obtain and preserve" the information required to be preserved
by subsections (a), (b), or (c) before imposing a sanction for
breach of the rule. However, the majority opinion burdens law
enforcement's use of physical and computerized mug books to
investigate an unknown perpetrator by making it a violation of
Rule 3:11(c)(5) not to preserve all mug books and photos used.
The majority opinion makes unlawful a traditional law enforcement
tool we have repeatedly held to be lawful, requires what we have
ruled is impractical, and tells officers who cannot use the tool
without violating impractical rule not to worry because no remedy
will be granted. The majority opinion will discourage officers
from using mug books to investigate unknown perpetrators to avoid
being labelled rulebreakers, or label as rulebreakers those who
continue to use this traditional and necessary law enforcement
tool.
27 A-4316-15T2
impractical, but also because it was "unnecessary" and served "no
justifiable purpose." Ruffin, supra,
371 N.J. Super. at 395. Our
decisions in Janowski and Joseph rejected such a requirement for
computerized mug books precisely because it was unnecessary and
unjustifiable, and thus did not even need to consider whether it
was practical. Because use of a computerized or physical mug book
to search for an unknown perpetrator does not carry the risk of
police suggestiveness posed when investigating officers construct
a photo array or lineup containing a known suspect, the majority
opinion's ruling is equally unnecessary and unjustifiable.
Moreover, there is no clear utility in preserving all the
photos seen by a witness searching for an unknown perpetrator
using a physical or computerized mug book. Preservation of the
other photos in "a live or photo lineup" is useful because a lineup
should be "constructed" by the officers so the known suspect does
not "stand out from other members of the lineup." Henderson,
supra,
208 N.J. at 251, 290. A physical or computerized mug book
is not constructed by the investigating officers, and there is no
known suspect on which to base such fine-tuning. Moreover, the
screens or pages of a physical or computerized mug book cannot be
held to the same standard as a constructed lineup.
Thus, it would be unnecessary and unjustifiable to require
preservation of all photos viewed by a witness using physical or
28 A-4316-15T2
computerized mug books to search for an unknown perpetrator. Yet
the majority opinion's rationale, including its mistaken reading
of Delgado, Henderson, and Rule 3:11, would inexorably lead to
requiring the preservation of all photos viewed.
I recognize that the majority opinion's ruling, like that of
the motion court, is more limited. The motion court ruled C.F.'s
out-of-court identification was inadmissible because it was
feasible to print "at least" the initial photo she said looked
like the assailant, the other five photos being displayed at that
time, and the six photos displayed after the initial photo was
highlighted. The motion court said it "need not address whether
it was feasible . . . to retain a record of all the images that
Ms. [C.F.] viewed" because "it is sufficient to make the ruling
of inadmissibility that it was certainly feasible . . . to save
those twelve [photos]."
The majority opinion's ruling is similar, but it rejects any
interpretation of Rule 3:11 that would limit its application to a
small number of photos, denies a photo array is normally
constrained in the number of photos shown, and observes the HIDTA
system can preserve a record of all of the photos viewed in its
more limited witness mode. Thus, the majority opinion's rationale
and its preservation requirement could extend to all the photos a
witness views while using physical or computerized mug books to
29 A-4316-15T2
search for an unknown perpetrator. Such a requirement unduly
burdens the use of these valuable investigative tools for searching
for unknown perpetrators.
Even considering only the last eleven photos, the majority
opinion's ruling contravenes our precedent, lacks legal support,
and imposes an unnecessary burden on the use of the HIDTA system
for no justifiable purpose. The motion court and the majority
opinion imposed a requirement to print these eleven photos because
it was feasible to print them. However, just because something
is feasible does not make it required, especially as the
justification for the requirement – police suggestiveness – is
absent.
The penultimate six photos were just another screen of the
several screens C.F. had viewed from the computerized mug book,
selected randomly by the computer without any opportunity for
suggestiveness by the officer. The only difference between this
screen and all the screens previously viewed is that C.F. stated
that one photo looked like her assailant. However, C.F. did not
identify the person in that photo as her assailant, so there still
was no known suspect and it was not a photo array.
It would be burdensome to require the preservation of all
photos viewed after a witness sees a photo which looks like an
unknown perpetrator, because the witness could have to look at
30 A-4316-15T2
many screens before she sees a photo of the unknown perpetrator.
Such a burden is unjustifiable absent police suggestiveness.
The next screen displayed photos of people who shared
characteristics with the person in that photo. Although Stabile
clicked on that photo, the computer selected the other photos.
Creating it was not creating a photo array because there was still
no known suspect. There is no showing that Stabile had any ability
or incentive to insert a photo of a particular person into the
photos displayed. Indeed, defendant agreed he was not claiming
any type of impermissible suggestiveness by Stabile or any other
officer. Thus, there was no reason to require the other five
photos to be preserved.
As it happened, C.F. saw the photo of her unknown perpetrator
– defendant - on that next screen. Stabile preserved defendant's
photo because C.F. said defendant was her assailant. In doing so,
Stabile followed the governing law set forth in our decisions in
Ruffin, Janowski, and Joseph. Nothing in Delgado, Henderson, or
Rule 3:11 made that choice improper. Therefore, I would rule
Stabile properly preserved the requisite photo, and would reverse
the motion court's decision.9
9
The majority opinion instead vacates and remands for
reconsideration of the remedy. Such reconsideration is
appropriate because Stabile's actions were justified under Ruffin,
31 A-4316-15T2
The record here does not fully explore the variety and
capabilities of computerized mug books used throughout New Jersey,
or the extent to which physical mug books are used in the many
jurisdictions in the State. It may be that computerized mug book
systems will become so capable and universally used, and the
printing or saving of the photos viewed will become so effortless,
that it will be viewed as desirable to extend the preservation
requirement to the other photos seen when using mug books to search
for an unknown perpetrator, even though there is no police
suggestiveness to justify preserving the photos. However, that
determination should be made by the rulemaking process, which can
consider the many systems and jurisdictions. Until then, we should
hew to our decisions in Ruffin, Janowski, and Joseph.
Janowski, and Joseph, because he preserved the photo C.F.
identified and other important details of what occurred during the
use of the mug book to search for the unknown perpetrator, and
because that search did not have the risk of police suggestiveness
posed by a live or photo lineup containing a known suspect.
32 A-4316-15T2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
