132 S. Ct. 716 (2012)
On August 15, 2008, around 3 a.m., Joffre Ullon reported to the Nashua, New Hampshire, Police Department that an African-American male was attempting to break into cars in the parking lot of his apartment building.1 Officer Nicole Clay responded and observed petitioner Barion Perry standing between two cars holding two car-stereo amplifiers, with a metal bat on the ground nearby.2 Perry stated that he had found the amplifiers on the ground.3
Nubia Blandón, Ullon's wife, had woken her neighbor Alex Clavijo and informed him that she had seen someone break into his car.4 Clavijo inspected his vehicle and found a shattered rear window along with missing speakers, amplifiers, a bat, and a wrench.5
Blandón later described to Clay and Clavijo from her fourth-floor apartment hallway that she had seen from her kitchen window a tall African-American man roaming the parking lot, circling Clavijo's car, opening the trunk, and removing a large box.6 When asked for a more specific description, Blandón pointed out the window to Perry, who was standing in the parking lot next to a police officer.7 Perry's arrest followed this identification.8 Approximately one month later, police presented Blandón with a photographic array including Perry's picture, but she was unable to identify him.9
Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief.10 Before trial, he moved to suppress Blandón’s identification on the ground that admitting it at trial would violate due process. Blandón witnessed what amounted to a one-person showup in the parking lot, Perry asserted, which all but guaranteed that she would identify him as the culprit.11 The New Hampshire Superior Court denied the motion after finding that the identification did not stem from an unnecessarily suggestive procedure manufactured by the police, as Blandón pointed to Perry spontaneously without inducement.12 At trial, Blandón and Clay testified regarding the out-of-court identification, and the jury convicted Perry of theft while acquitting him of criminal mischief.13 On appeal, the New Hampshire Supreme Court affirmed the conviction, holding that the Due Process Clause requires a trial court to assess the reliability of identification evidence before permitting a jury to consider it only where the police employ suggestive identification techniques.14 The United States Supreme Court granted certiorari. The question presented was whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.15
Whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police?16
The Due Process Clause requires courts to assess the reliability of an eyewitness identification tainted by police arrangement only when law enforcement officers use an identification procedure that is both suggestive and unnecessary.17 If the indicia of reliability outweigh the corrupting effect of the improper procedure, the identification evidence is admitted and the jury determines its worth.18 When no improper law enforcement activity is involved, it suffices to test reliability through the rights and opportunities generally designed for that purpose, including the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.19
No. In this case the suggestive circumstances surrounding Blandón's identification of Perry were not arranged by law enforcement officers. Officer Clay did not ask Blandón to identify Perry or to move to the window; instead Blandón spontaneously pointed to Perry standing next to the officer in the parking lot.20 Because the police did not manufacture the suggestive circumstances, the New Hampshire courts correctly declined to conduct a pretrial reliability screening.21 The court left the assessment of Blandón's identification to the jury through cross-examination and other traditional protections.22
This occurred at Perry's trial when defense counsel highlighted the distance, lighting, obstructions, and Blandón's later failure to select Perry from a photographic array.
The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.23
Related opinions on this issue
Justice Thomas concurred in the judgment.24 He agreed that the Court's precedents establish a due process right to the pretrial exclusion of an unreliable eyewitness identification only if the identification results from police suggestion.25 He wrote separately because he would not extend Stovall v. Denno and its progeny even if the reasoning of those opinions applied to this case.26
In his view, those cases are wrongly decided because the Fourteenth Amendment's Due Process Clause is not a secret repository of substantive guarantees against unfairness.27 Accordingly, he would limit the Court's suggestive eyewitness identification cases to the precise circumstances that they involved.28
Justice Sotomayor dissented.29 She argued that the due process concern arises from the corrosive effects of suggestion on the reliability of the resulting identification rather than from the act of suggestion itself or from police intent.30 She contended that the majority's limitation to police-arranged circumstances grafts a mens rea inquiry onto the rule, ignores precedents' sensitivity to both intentional and unintentional suggestion, and recasts the driving force of the decisions as police deterrence rather than reliability.31
She would apply the ordinary two-step inquiry to assess whether an identification derived from impermissibly suggestive circumstances poses a very substantial likelihood of misidentification.32 This would apply regardless of whether the suggestive circumstances were intentionally or inadvertently created by the police.33