[259 NJSuper Page 218] Defendant seeks a Wade Hearing to contest the admissibility of his pretrial identification. The confrontation resulting in defendant's identification was arranged by private persons. The Prosecutor argues that defendant is not entitled to a hearing since no state action brought about the confrontation. The issue presented is not unusual, yet is one of first impression
in this State. The defendant's application for a hearing is granted.
On January 2, 1992, at approximately 8:00 P.M., several customers entered the Tribal Arts Store at the Newport Center Mall in Jersey City. Hilda Gonzalez was working alone in the store. While Ms. Gonzalez was waiting on a customer, a black male went behind the counter, opened the showcase and stole a display case of rings. The thief placed the case in his jacket and left the store. The suspect was described as a light skinned black male, 5'6" to 5'8" tall. The man was not apprehended that evening.
The next day the defendant, Jeffrey McCord, was detained in the Newport Center Mall by Security Officer Reginald Watkins. Watkins suspected that McCord had committed the theft. Why Watkins suspected McCord is unknown. McCord was handcuffed and detained in the security office. Ms. Gonzalez was summoned to the security office and asked if McCord was the person who stole the rings from her store. Ms. Gonzalez positively identified Mr. McCord as the thief. The Jersey City Police were summoned and defendant was placed under arrest.
On July 7, 1992, defense counsel requested a Wade Hearing to test the reliability of defendant's identification.
A Wade Hearing is a preliminary inquiry to determine the admissibility of an identification. U.S. v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). To secure this Hearing a defendant must make a threshold showing of an impermissibly suggestive identification, or a violation of his Sixth Amendment right to counsel. State v. Ortiz, 203 N.J. Super. 518, 497 A.2d 552 (App.Div.1985); contra; State v. Cooper, 165 N.J. Super. 57, 397 A.2d 702 (App.Div.1979) aff'd., 87 N.J. 304, 434 A.2d 61 (1979) [rendered moot by the defendants having pled guilty]. Defendant alleges a violation of due process arguing that his identification was impermissibly suggested, unreliable and apt to result in a substantial likelihood of his misidentification. See
Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
Should an identification procedure, conducted by private citizens, be subject to the scrutiny of a pretrial hearing to determine admissibility? The issue presented, deceptively simple on its face, is the subject of judicial disagreement.
One line of decisions limits Wade protection to confrontations arranged by government action. These decisions focus on the restraint of governmental excess. U.S. v. Venere, 416 F. 2d 144 (5th Cir.1969); State v. Pailon, 590 A.2d 858 (R.I.1991); People v. Coleman, 66 A.D. 2d 982, 412 N.Y.S. 2d 44 (N.Y.App.Div. 1978); People v. Calinda, 83 Misc. 2d 520, 372 N.Y.S. 2d 479 (N.Y.S. Ct. 1975); People v. McLoughlin, 103 Misc. 2d 1046, 427 N.Y.S. 2d 398 (Cty.Ct.1980).
In McLoughlin, the court felt bound to limit the Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), "totality of the circumstances," test to police action and not apply it across the board to private action. The Judge, however, expressed the view that the rule should be applied to private action as well. The court noted the, "proliferation of private security forces many of whose employees have criminal records," 427 N.Y.S. 2d at 398 and, that a defendant's rights are equally trampled when a privately engineered or police sponsored confrontation is suggestive. 427 N.Y.S. 2d at 402.
Two New York cases hold that a private identification procedure should be subject to the scrutiny of a pretrial hearing. People v. Blackman, 449 N.Y.S. 2d 842, 113 Misc. 2d 814 (S. Ct. 1982); People v. Walker, ...