United States District Court, D. Maine
ORDER ON MOTION TO SUPPRESS TESTIMONY REGARDING
OUT-OF-COURT AND IN-COURT IDENTIFICATIONS
GEORGE
Z. SINGAL UNITED STATES DISTRICT JUDGE
Defendant
Carey Ackies has moved to suppress out-of-court
identifications of him made by two cooperating witnesses, as
well as any in-court identifications that would be made by
these witnesses at trial (ECF No. 117). The Court held an
evidentiary hearing regarding several motions to suppress by
Defendant on June 29th and 30th, 2017, at which time the
Court informed the parties that it intended to defer ruling
on Defendant's Motion. At a conference of counsel in
preparation for trial held on November 16, 2017, the parties
consented to the Court deciding the Motion in advance of
trial based on the parties' briefs and the evidence taken
at the suppression hearing. After reviewing the undisputed
facts in Defendant's Motion and the Government's
Response (ECF No. 122), as well as the suppression hearing
evidence, the Court DENIES Defendant's Motion.
I.
FACTUAL BACKGROUND
During
the investigation leading to Defendant's arrest, law
enforcement received information from cooperating defendant
#1 (“CD #1”), a suspected drug trafficker in
Maine. CD #1 told law enforcement that he had previously
purchased substantial quantities of drugs on multiple
occasions from a black male drug connection in New York that
CD #1 knew as “Boyd.” CD #1 also told law
enforcement that he had traveled to New York about a month
prior and had met with Boyd at a motel in the New York City
area. CD #1 represented that he had also met with Boyd in New
York on at least one previous occasion and provided details
about several vehicles that he had seen Boyd
driving.[1]
Based
on phone calls and text messages between CD #1 and Boyd that
appeared to discuss the details of a drug delivery from Boyd
to CD #1, law enforcement intercepted “Mike, ” a
suspected drug runner for Boyd, at a bus station in Portland,
Maine. Law enforcement found a package of drugs on the man
and arrested him. He decided to cooperate and is hereinafter
referred to as cooperating defendant #2 (“CD
#2”). In an interview with law enforcement following
his arrest, CD #2 said that he had picked up the drugs from
“the main guy, ” a man he knew as “Boy,
”[2]“Killer, ” or “KO,
” at Boy's apartment in New York City less than
twenty-four hours earlier; provided details of the building
that matched the details of Defendant's suspected
residence; described visiting Boy's apartment previously
and accurately described details of its contents; accurately
described aspects of Defendant's family and living
arrangements; accurately described a vehicle associated with
Defendant; and reported that he had met Boy through his wife
or fiancée, who bears some type of close familial
relation to Boy. Later that same day, CD #2 also recalled
Boy's real name as being “Curry” or
“Carey.”
After
law enforcement identified Defendant as a suspect, a drug
taskforce officer showed CD #1 a single photograph of
Defendant, a booking photograph from a prior criminal
proceeding. CD #1 said that he was not certain that the
person in the photograph was Boyd because the person in the
photograph looked “meaner.” CD #2 was shown the
same photograph and positively identified Defendant as Boy,
the person who had given him the drugs to take to Maine. CD
#1 was later shown a photograph of Defendant being arrested
in this matter and positively identified Defendant as Boyd.
At some later point, however, the Court understands that CD
#1 may have told law enforcement that he did not believe the
person in the photograph was in fact Boyd. CD #2 also
subsequently told law enforcement that he did not recognize
the photograph he had seen of Defendant and no longer wished
to cooperate.
II.
ANALYSIS
The
Court must determine whether the out-of-court identifications
present a very substantial likelihood of irreparable
misidentification. Courts use a “two-step analysis when
considering whether a pretrial identification procedure
raises a very substantial likelihood of irreparable
misidentification: [a court] first determine[s] whether the
identification procedure was impermissibly suggestive, and if
it was, [the court] then look[s] to the totality of the
circumstances to decide whether the identification was still
reliable.” United States v. DeCologero, 530
F.3d 36, 62 (1st Cir. 2008) (quotation marks omitted). At the
second step of the analysis, a court must consider “(1)
the opportunity of the witness to view the criminal at the
time of the crime; (2) the witness' degree of attention;
(3) the accuracy of the witness' prior description of the
defendant; (4) the level of certainty demonstrated by the
witness at the confrontation; (5) the length of time between
the crime and the confrontation.” United States v.
Henderson, 320 F.3d 92, 100 (1st Cir. 2003) (citing
Neil v. Biggers, 409 U.S. 188, 199-200 (1972)). In
general, “[a] court should exclude an out-of-court
identification based on a photo array only in those
extraordinary cases where there is a very substantial
likelihood of irreparable misidentification.”
DeCologero, 530 F.3d at 61 (quotation marks
omitted). Outside the extraordinary case, “such
evidence is for the jury to weigh . . . Juries are not so
susceptible that they cannot measure intelligently the weight
of identification testimony that has some questionable
feature.” Id. (quoting Manson v.
Brathwaite, 432 U.S. 98, 116 (1977)).
Assuming
for purposes of deciding this motion that the single-photo
identification procedures at issue were impermissibly
suggestive, the Court concludes that, considering the
totality of the circumstances in light of the
Biggers factors, the out-of-court identifications of
Defendant are still sufficiently reliable that there is no
substantial likelihood of irreparable misidentification.
Specifically, both cooperating witnesses represented that
they had met multiple times with the man they identified in
situations which would have afforded them ample opportunity
to closely observe him. In addition to the drug conspiracy
connection, CD #2 also reported having some sort of familial
relationship with the man he identified. Both witnesses had
seen the man they identified relatively recently. Finally,
both witnesses' accounts of familiarity with the man they
identified were corroborated by accurate information they
provided concerning Defendant's legal name, familial
living arrangements, apartment, and vehicles. In short, the
identifications did not arise from the type of
“fleeting encounter” that might provide an
inadequate basis for reliable identification testimony.
See United States v. García, 452 F.3d 36, 42
(1st Cir. 2006) (contrasting hypothetical identification
testimony based on a “fleeting encounter” with
admissible identification testimony based on a meeting during
which the witness likely had an opportunity to “fully
observe” the defendant). The fact that CD #1 was
initially uncertain in identifying Defendant is not
dispositive because “not all the Biggers
factors must point in one direction for an identification to
be upheld.” DeCologero, 530 F.3d at 63.
The
Court recognizes that there are several elements that could
undermine the weight or credibility of any identification
testimony by CD #1 or CD #2.[3] However, the Court is confident
that a jury will be able to properly weigh and assess the
accuracy and credibility of the out-of-court identifications.
See Henderson, 320 F.3d at 101-02 (noting, in
determining that identification testimony was properly
submitted to the jury, that factors undercutting the
credibility of the identification testimony were before the
jury for it to consider); see also United States v.
Melvin, 730 F.3d 29, 34 (1st Cir. 2013) (opining, in
discussing admissibility of identification evidence, that
“[j]urors should not be treated as gullible
dupes”). Finally, because the Court determines that the
out-of-court identifications by CD #1 and CD #2 are
sufficiently reliable, there is no question of
“taint” and any in-court identification of
Defendant by these witnesses is also admissible if a proper
foundation is otherwise laid. See Simmons v. United
States, 390 U.S. 377, 383-84 (1968) (explaining that an
in-court identification may be tainted by an earlier,
improper, out-of-court identification).
III.
CONCLUSION
For the
foregoing reasons, Defendant's Motion (ECF No. 117) is
DENIED. This denial, however, is WITHOUT PREJUDICE to
Defendant moving to exclude the challenged identification
evidence at trial to the extent this evidence is presented.
SO
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