Criminal Procedure

Fact pattern

Police arrive on the scene of a convenience-store robbery, only minutes after it happens. The storeowner, A, tells the police that a man approached the cashier’s counter with a gun and demanded all the cash in the store. A was working the register at the time. Though it was early evening, the store was well lit. So, A could easily tell that the man was of average height and build, wore a red hooded sweatshirt, and hid his face with a bandana.

A, seeing a gun stuck in his face, went into a state of shock. Due to this, he took several minutes to gather the cash from the register and the safe under the counter. Worse yet, the robber remained at the counter screaming at A the entire time.

While interviewing people at the hectic scene, the police notice a young man, B, wearing a red hooded sweatshirt and standing outside the store. B approaches the police and tells them that he was walking by the store while the crime was taking place. However, he didn’t see much through the convenience store’s small, barred, street-side window and door.

Wanting to be as helpful as possible, B agrees to accompany the police to the station to provide a full statement. At the station, B gives his statement, and then, at a police officer’s request, remains at the station. A few hours later, B agrees to stand in a lineup for the storeowner. B does not realize he is a suspect, so he does not request counsel, and no lawyer is present with him at the lineup.

The police ensure that the other five men in the lineup are all similar to one another in height, build, and physical appearance. However, they all wear different-colored hooded sweatshirts, B’s being the only red one, and each man in the lineup is instructed to conceal his face with a white bandana.

The police lead all six men into a room facing a large mirrored glass window. A and the police, standing behind the glass, can see the six men, but the men cannot see them. The police say nothing while A scrutinizes each man to see whether any might be the robber. After doing so, A quickly and without hesitation identifies B as the robber. B is subsequently arrested and charged with robbery.

Question

B raises a constitutional challenge to exclude A’s pre-trial, out-of-court identification from the evidence. Will the constitutional challenge succeed? Explain, but do not analyze any other issue that may be raised by these facts.