BARRY J. PORTMAN

Federal Public Defender

STEVEN G. KALAR

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA  94102

Telephone:  (415) 436-7700

 

Counsel for Defendant XXXXX

 

 

 

 

 

IN THE UNITED STATES DISTRICT COURT

 

FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

 

UNITED STATES OF AMERICA,

                                           Plaintiff,

v.

XXXXX XXXXX,

 

                                        Defendant.

 

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No. CR 00-0000 ABC.

 

MOTION TO SUPPRESS IDENTIFICATION

 

 

 

 

 

 

                                                                 INTRODUCTION

Mr. XXXXX is charged with violating 18 USC ' 1715, Mailing a Firearm, 18 USC ' 1716(i)(2), Mailing an Injurious Article; and 18 USC ' 922(g)(1) and (2), Unlawful Shipment and Transportation of a Firearm by a Felon and Fugitive.  A central item of evidence in the government's case will be the identification of Mr. XXXXX by Hardtner, Kansas Postmaster YYY YYYYY.  Mr. XXXXX's defense counsel received late yesterday afternoon,for the first time, a color copy of the photo line-up presented to Ms. YYYY by Postal Inspector Fitch.  Because this color photo line-up is impermissibly suggestive, Ms. YYYY's out-of-court identification of Mr. XXXXX must be suppressed, and no in-court identification of Mr. XXXXX may be permitted of Ms. YYYY.  In addition, the identification by any other government witnesses of Mr. XXXXX from this line-up must also be suppressed.

                                                                  BACKGROUND

On August 20, 1998, defense counsel Geoffrey Hansen wrote to AUSA Kane and requested disclosure of copies of documents exhibited to anyone who had made an identification of Mr. XXXXX.  Among other items, the request specifically asked for the following:

A statement as to whether the defendant's photograph, likeness, or image was exhibited to anyone during the course of the investigation of this matter, including details such as a list of the dates, times, and places of all such occurrences and the names of the persons, including counsel, who were present.  I further request copies of any and all such documents exhibited, including but not limited to photospreads and photographs of lineups.

 

Exhibit A, Letter from Hansen to Kane of 8/20/98.

 

In response to Mr. Hansen's discovery request, on September 2, 1998 the government disclosed a black and white photocopy of the line-up shown to Ms. YYYY in Hartdner, Kansas.  Exhibit B, Letter from Kane to Hansen of 9/2/98 and attached line-up at Bates 00 and G00011.

According to a report by investigating agent Fitch, he interviewed Ms. YYYY at her Post Office in Hardtner, Kansas and she identified XXXXX:

On August 24, 1998, I interviewed Postmaster YYY YYYYY at her Post Office in Hardtner, KS.  The interview was regarding the mailing of the parcel postmarked July 27, 1998, from the Hardtner, KS Post Office.  YYYY agreed to view photographs of six males I had assembled for this investigation.  Before viewing the photographs, I advised YYYY she was not compelled to identify anyone.  YYYY viewed the photo line-up and made a probable identification of XXXXX XXXXX as the individual mailing the parcel.  She stated that, if she had to choose the person, should would pick number three.  He had much shorter hair, was thinner in the face and clean shaven in person (See Exhibit Number 3).

 

Id. at G00003.

 

On January 28, 1999, the government disclosed a one page color photocopy of Poloroid photographs of shipment containers for evidence.  See Exhibit C, Letter from Kane to Hansen of 1/28/99.

On February 16, 1999, the government disclosed a one page black and white copy of the same photo line-up disclosed earlier.  See Exhibit D, Letter from Kane to Hansen and Kalar of Feb. 16, 1999.

The government has also disclosed a binder of the government's trial exhibits.  A black and white photocopy of the photo array presented to Ms. YYYY is found at Exhibit 17. 

In the week of February 15, 1999, undersigned counsel asked AUSA Kane in oral conversations and in phone messages for a color photocopy of the line-up.  In the late afternoon of February 18, 1999, the government provided, for the first time, a color copy of the line-up shown to Ms. YYYY.  See Exhibit E, Letter from Kane to Hansen and Kalar of 2/18/99 and attached color photocopy.  In a phone conversation with undersigned counsel on the same date, Ms. Kane explained that Agent Fitch did not show Ms. YYYY photographs, but instead gave her a color photocopy of a photo spread.

According to the proposed exhibit list of the United States, Ms. YYYY will be the sponsoring witness for the photo line-up admonition form, and Xerox of Exhibit 13 (XXXXX photo spread).  Proposed Exh. List of United States at 2 (dated Feb. 2, 1999). 

                                                                     ARGUMENT

I.              BECAUSE UNCONSTITUTIONALLY SUGGESTIVE PROCEDURES COMPELLED MS. YYYY'S OUT-OF-COURT IDENTIFICATIONS, ALL EVIDENCE OF THOSE IDENTIFICATIONS, AS WELL AS ANY IN-COURT IDENTIFICATIONS, MUST BE EXCLUDED FROM TRIAL

 

A.        Due Process Forbids Use of Tainted Identifications from Postmaster YYYY 

 

If unduly suggestive procedures cause a witness to identify a defendant as the person who committed an offense, the defendant's constitutional due process rights are violated, and all evidence about the identification must be excluded from trial.  See Simmons v. United States, 390 U.S. 377, 384 (1968).  The proscription against admission of identification evidence applies not only to a witness' in-court identification of the defendant, but also to evidence respecting a witness' out-of-court identification.  See Neil v. Biggers, 409 U.S. 188, 198 (1972).

The test of whether an identification procedure violates due process is whether, by a totality of the circumstances, the procedures were so impermissibly suggestive as to lead to the substantial likelihood of mistaken identification.  See Foster v. California, 394 U.S. 440, 442 (1969) (quoting Stovall v. Denno, 388 U.S. 293, 302 (1967)); Simmons, 390 U.S. at 384.  See also United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987); United States v. Hamilton, 792 F.2d 837 (9th Cir. 1986); United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985); United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985); United States v. Monks, 774 F.2d 945, 957 (9th Cir. 1985); United States v. Pheaster, 544 F.2d 353, 369 (9th Cir. 1976).  Federal courts have found lineup procedures impermissibly suggestive when either the procedure itself or the composition of the lineup leads to the substantial likelihood of misidentification.  Foster, 394 U.S. at 442-43.  See also Solomon v. Smith, 645 F.2d 1179 (2nd Cir. 1981); Swicegood v. State of Alabama, 577 F.2d 1322 (5th Cir. 1978); United States v. DeBose, 433 F.2d 916 (6th Cir. 1970).

If a procedure is found to be unduly suggestive, the corrupting effect of the tainted procedure is then weighed against the indicia that the identification is nonetheless reliable.  See Monks, 774 F.2d at 957 (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)).  See also Johnson, 820 F.2d at 1072.  Reliability is the key to determining whether an eyewitness identification is admissible in court.  Brathwaite, 432 U.S. at 114-15; see United States v. Field, 625 F.2d 862, 866 (9th Cir. 1980).


Federal courts have held that differences in height or weight may lead to impermissible suggestiveness in the composition of a lineup.  See, e.g., Foster, 394 U.S. at 441 (along with suggestive multiple identification procedures, suspect was taller than other lineup participants and only one wearing jacket similar to that worn in robbery); Solomon, 645 F.2d at 1183 (suspect two to six inches shorter and sixteen to sixty five pounds lighter than other lineup participants, in addition to other suggestive aspects of procedure); Israel v. Odom, 521 F.2d 1370, 1372 (7th Cir. 1975) (suspect considerably shorter than other lineup participants and only one to wear glasses similar to those worn during crime); DeBose, 433 F.2d at 918 (suspect taller than other lineup participants and asked to state name, though witness knew name of person arrested).

Courts have found lineups impermissibly suggestive when, in combination with other factors, hair style was an important part of the witnesses' description and the suspect's hair style did not resemble other participants in the lineup.  See, e.g., Grubbs v. Hannigan, 982 F.2d 1483 (10th Cir. 1993); United States v. Fernandez, 456 F.2d 638 (2nd Cir. 1972).

B.        The Photo Line-Up Used Repeatedly by Inspector Fitch was Impermissibly Suggestive

 

In its most recent decision on the issue, the Ninth Circuit held that a photo array where the defendant was in the center of the picture, his picture was darker than the rest, and he was the only one where his eyes were closed was not impermissibly suggestive.  United States v. Burdeau, No. 97-30388, 1999 WL 55989, *5 (9th Cir. Feb. 9, 1999).  The photo line-up in the present case, by contrast, deliberately focuses the viewer=s eye directly at Mr. XXXXX, and is therefore impermissibly suggestive.

The most striking feature of the photo array used by Inspector Fitch--and a fact only revealed in the color photocopy--is that only two of the six pictures have blue backgrounds.  See Exhibit E, Color Line-Up (photos 3 and 6).  Mr. XXXXX is found in one of these two blue-background photos.  Id. at photo 3. The remaining four photographs have a grey background.  Id. at photos 1, 2, 4, 5, 6.

Mr. XXXXX's portrait is found upon a blue background in photo three.  The only other portrait upon a blue field is found at photo number six, and portrays a man much shorter than Mr. XXXXX, much darker, with no or little visible hair.  Id. at photo six.

Another key fact revealed only in the color photo is the darkness of the subjects' skin tone.  While all of the subjects are black men, Mr. XXXXX is by far the lightest-toned subject in the array.  Compare photo 3 with photos 1, 2, 4, 5, 6.  In fact, Mr. XXXXX is the only light-toned subject in the array.  Id.

The camera angle of the pictures and flash or lighting is another important indication to the viewer that Inspector Fitch wanted XXXXX's photo selected.  In each one of shots one, two, four, five, and six, the subject looks straight ahead or slightly to their left, and the lighting is coming from their left, leaving a shadow to their right.  See photos 1, 2, 4, 5, 6.  In Mr. XXXXX=s portrait, by contrast, he is looking to his right, the lighting comes from his right, and the shadow is cast to his left.  See photo 3.

Finally, the portrait of Mr. XXXXX fills the entire frame of the photo.  See photo 3.  His hair brushes the upper edge of the shot and his face covers two thirds of the width of the photo.  In marked contrast, the only other blue-background photo shows a diminutive subject whose face barely fills one-half of the shot.  Id. at photo 6.

An objective and impartial viewer cannot help but feel their eye drawn to the lighter, larger, and more colorful picture at photograph number three.  An eyewitness with a tentative memory of a suspect, as was the case with Postmaster YYYY, would naturally select that picture.

C.        The Testimony of Ms. YYYY is Crucial, Her Identification, Tentative

 

Only one eyewitness can testify that they possibly saw Mr. XXXXX deliver a package to be shipped in Hardtner, Kansas:  Postmaster YYY YYYYY.  While Ms. YYYY=s testimony is crucial, her identification of Mr. XXXXX is doubtful.  She stated that if she Ahad to choose one@ identify a suspect, it would be Mr. XXXXX in photo three.  See Exhibit B.

In undertaking an analysis of the totality of the circumstances, this Court should weigh the hesitancy of Ms. YYYY=s identification and the suggestiveness of the photo array.  Unsure of her own memory, Ms. YYYY was more easily swayed by the verbal clues contained within the line-up.  Uncertain of her original identification, Ms. YYYY could only identify Mr. XXXXX in court by relying on tainted evidence.

This Court should accordingly suppress Ms. YYYY=s out-of-court identification of Mr. XXXXX, as well as any potential in-court identification of the defendant.[1]

 

II.     THIS MOTION TO SUPPRESS IS A TIMELY RESPONSE TO THE GOVERNMENT'S DISCLOSURE OF THE COLOR PHOTOCOPY

 

As described in greater detail above, there are a number of features in the photo line-up that render it impermissibly suggestive.  The two most distinctive of these features are the fact that only two of the pictures have a blue background, and that Mr. XXXXX is the only light-toned subject portrayed in the six pictures.  These important features are only visible in the color photocopy of the photo array. Compare Exhibit B (black and white photocopy) with Exhibit E (color photocopy). 

Counsel for Mr. XXXXX certainly do not intend to imply that the government deliberately withheld disclosure of the color copy until the Thursday before a Monday trial.  The fact nonetheless remains, however, that the defense requested disclosure of copies of exhibits shown to eyewitnesses on August 20, 1998. See Exhibit A.  A meaningful copy of the array, a copy that revealed the color of the background and the darkness of the subject's skin tone, was revealed to the defense in the late afternoon of February 18.  Undersigned counsel drafted and filed the present motion by the next morning, February 19. 

Moreover, the government had the capacity to provide color photocopies earlier in the discovery process. By contrast, the government disclosed color photocopies of shipment containers on January 28, 1999.  See Exhibit C.  The government disclosed black and white photocopies of the photo array before and after January 28.  See Exhibits B, D.

Counsel for Mr. XXXXX instantly reacted to the impermissible evidence upon full disclosure of its true content.  This Court should deprive Mr. XXXXX of his constitutional guarantees of due process because the government chose to disclose this information immediately before trial.

III.    CONCLUSION

For the foregoing reasons, Mr. XXXXX respectfully requests the Court to do the following:

1)        Suppress the out-of-court identification by Ms. YYYY of Mr. XXXXX;

2)        Issue a protective order precluding any in-court identification of Mr. XXXXX by Ms. YYYY, because such an identification would necessarily arise out of the tainted photo array;

3)        Suppress the out-of-court identification of Mr. XXXXX by any government witness, based upon the defective photo array;

4)        Issue a protective order precluding any in-court identification of Mr. XXXXX by any government witness previously shown the tainted photo array.

 

Dated: February 18, 1999

 

Respectfully submitted,

 

BARRY J. PORTMAN

Federal Public Defender

 

 

 

STEVEN G. KALAR

Assistant Federal Public Defender

 


[1]    The same rationale applies to the suppression of all identifications made by other government witnesses.  See, e.g., Government Trial Exhibits 14, 15.  Ms. YYY is, however, the witness most central to the government=s case.