United States v. Hill, CRIMINAL NO. 1:12-CR-0243

UNITED STATES OF AMERICA

v.CARLOS C. HILL

CRIMINAL NO. 1:12-CR-0243

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: February 22, 2013

JUDGE SYLVIA H. RAMBO

MEMORANDUM

In this criminal case, Defendant was charged with two counts related to his alleged possession of a firearm in the Middle District of Pennsylvania. (Doc. 1.)¹ Presently before the court is Defendant's motion to suppress, in which he seeks to suppress two out-of-court photo array identifications made by the alleged victim.² For the reasons stated herein, Defendant's motion to suppress will be denied.

I. Background

On September 26, 2012, Carlos C. Hill ("Defendant") and Elijah U. Brown, Jr., ("Brown") were each charged with two counts related to an incident involving an unlawful handgun. (See Doc. 1.)³ On January 29, 2013, Defendant filed a motion to suppress (Doc. 48) and brief in support (Doc. 49), which requestedthat the court suppress two out-of-court identifications of Defendant made by the alleged victim, Tamela Corish ("Corish"). The basis for Defendant's motion was as follows:

9. [Defendant] seeks suppression of the identification made from the photo arrays because it was impermissibly suggestive and there is a substantial likelihood of misidentification.

10. [Defendant] asserts that the arrays shown to the "victims" were of individuals who were not sufficiently similar as to make the identification reliable.

11. [Defendant] also asserts that the description gave by the "victims" did not match the individuals selected for the photo array. Manson v. Brathwaite, 432 U.S. 98, 113-114 (1977); Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

12. [Defendant] also moves this Honorable Court to suppress any in-court identification as fruit of the impermissibly suggestive out-of-court identification procedures.

(Doc. 48 at ¶¶ 9-12.) On February 11, 2013, the court conducted a suppression hearing on Defendant's motion.⁴ Based upon the following facts established at the hearing and the court's independent assessment of the two photo arrays at issue, the court finds that neither the arrays themselves nor procedures utilized in connection therewith were unnecessarily suggestive, and concludes that the totality of thecircumstances would otherwise establish the independent reliability of the identifications.

II. Findings of Fact

Harrisburg Bureau of Police Detective Timothy Carter ("Detective Carter"), who was one of the detectives involved with the investigation of the incident giving rise to the instant charges, testified on behalf of the government at the suppression hearing regarding the circumstances surrounding the initial identification. On July 13, 2012, Detective Carter joined the investigation into an incident arising at the City Gas and Diesel station, located on State Street in the City of Harrisburg, involving the theft of Corish's motor vehicle, during the course of which a person involved in the theft had threatened Corish and her boyfriend, Rodney Nicholson ("Nicholson"), with a silver handgun. (Hr'g Tr. at p. 2-3.) At approximately 1:50 a.m. on July 13, 2012, Officer Anthony Fiore of the Harrisburg City Police Department was dispatched to the 1600 block of Park Street in response to an emergency call placed by Corish. (Def. Ex. 101.) During an interview that occurred several hours after the incident, Corish told Detective Carter that, in the early morning of July 13, 2012, she met Nicholson at the City Gas and Diesel station. (Def. Ex. 104.) Corish and Nicholson had driven separately; Corish drove Nicholson's vehicle, and Nicholson drove Corish's Dodge Stratus. (Id.) Nicholson and Corish exited their vehicles. (Id.) Upon exiting, Nicholson did not remove the keys from the ignition of the Dodge Stratus. (Id.) Corish noticed a green SUV enter the parking lot of the gas station, and subsequently witnessed an individual exit thegreen SUV, enter Corish's Dodge Stratus, and drive the Dodge Stratus out of the gas station's parking lot, followed by the green SUV. (Id.)⁵

Corish and Nicholson reentered Nicholson's vehicle and pursued the green SUV to the 1600 block of Park Street, at which time they witnessed two individuals exit the green SUV. (Id.; see also Def. Exs. 101 & 102.) Corish and Nicholson exited Nicholson's vehicle and confronted the two individuals regarding the location of the Dodge Stratus. (Def. Ex. 101.) Initially, the two individuals attempted to verbally dismiss Corish and Nicholson's inquiries. (Def. Ex. 104.) However, Corish and Nicholson continued to question the two individuals, at which point one of the individuals displayed a silver handgun and threatened that, if Corish and Nicholson did not leave the area, they would be harmed. (Id.; see also Def. Exs. 101 & 102.) Corish then called 911. (Def. Ex. 108, Track 1.)

In response to Corish's emergency call (Def. Ex. 108), Harrisburg City police officers located the green SUV parked on the 1600 block of Park Street,⁶ at which time the officer in charge directed the vehicle be towed to the police station (Def. Ex. 101). The green SUV was registered to Robert Hearn ("Hearn"), who resided at 1624 Park Street. (Def. Exs. 102 & 103.)

Later that day, Officer Christopher Krokos arrived at Hearn's residence to gather additional information regarding the incident. (See Def. Ex. 102.)According to the police report, Hearn confirmed that he was the owner of the green SUV, and told the officers that he had loaned the vehicle to one of the residents of 1622 Park Street, who was present at the scene and identified as Elijah Brown. (Id.; see also Def. Exs. 102 & 103.) When questioned, Brown did not deny Officer Krokos's accusation that he had been involved in the theft of Corish's vehicle. (See Def. Ex. 102.) Brown further stated that there was a gun in his bedroom, and subsequently provided consent for an officer to search his residence. (Id.) Brown was arrested thereafter. (Id.)

During a statement he provided following his arrest, Brown implicated Defendant in the July 13, 2013 incident. (Id.) Brown stated that, in the morning of July 13, 2012, Hearn had loaned him the green SUV, and that he, Defendant, and two other males went to the City Gas and Diesel station, at which time one of the other males stole a woman's vehicle. (Id.) He further stated that he, Defendant, and the second male traveled back to the 1600 block of Park Street, at which time the other male gave Defendant a handgun. (Def. Ex. 102) When Corish and Nicholson confronted Brown and Defendant regarding the theft of the Dodge Stratus, Defendant threatened them with the handgun. (Id.) Brown's account of the incident corroborated many of the material facts set forth by Corish.

Defendant's name was provided to Detective Carter prior to his interview of Corish, at which time, Detective Carter compiled a photo array. (Hr'g Tr. at pp. 3-4.) At the suppression hearing, Detective Carter explained how he created the photo array. (Id. at pp. 4-5.) Detective Carter testified that he input Defendant's name into JNET, an internet-based law enforcement website that allows access to records and information, which produced a photograph of Defendant. (Id.at p. 4.) Detective Carter utilized JNET's functions to compile a photographic array of other individuals that had characteristics similar to those of Defendant. (Id. at pp. 4-6; Gov't Ex. 1.) Specifically, Detective Carter testified that, after inputting Defendant's name, JNET produced a picture of Defendant, and that, by selecting a link titled "similar images," the program generated a large pool of photographs of individuals who possessed similar physical attributes to those of Defendant. (Hr'g Tr. at p. 4.) From that pool, Detective Carter selected seven additional photographs of individuals to create the array. (Id. at p. 5.) The computer program merely generated the selection pool, and the photo array itself was created by the user. (See id. at p. 4-5.) Detective Carter utilized the program in the manner it was designed to be used. (See id.)⁷

At the time of her interview, Corish was unaware that Detective Carter had already been given Defendant's name. During a statement she gave to Detective Carter at 12:00 p.m. on July 13, 2012, Corish provided the following description of that individual:

Q: Can you describe [the person that pulled a gun on you]? Let's start with his complexion.

A: Dark skinned.

Q: And hairstyle[?]

A: Well cut or a bald head.

Q: Okay. . . . [A]ny facial hair?

A: Yes.

Q: Tell me about it.

A: I think he had a goatee beard.

Q: Okay. Full or half goa . . . a full coming down on both sides of his face or just under his chin, under his lip?

A: . . . I couldn't really tell.

* * *

Q: Okay. What about his height?

A: Between five-ten and six foot maybe.

Q: Okay.

A: Um kinda thick. Chubby a little bit. I'm not sure if I can remember.

Q: What about his buil[d]?

A: I know he was broad and wide . . .

Q: Okay.

A: I don't know it was just little heavy set I think. I can't . . . like I couldn't really tell it was dark.

(Def. Ex. 104.)

Corish was shown an eight-photograph photo array,⁸ which had been compiled by Detective Carter through the use of JNET and contained a photograph of Defendant. (Hr'g Tr. at p. 7.)⁹ Each individual depicted in the photo array was an African-American male of roughly the same complexion and age, had facial hair that ranged from a goatee to full beard, and had short hair. (See Gov. Ex. 1.) None of the individuals had any distinguishing marks or features. (Id.) Detective Carter instructed Corish to "identify anyone on th[e] photo array." (Hr'g Tr. at pp. 7-8.) Within "a matter of seconds," Corish identified the picture of Defendant as the "person that pointed the gun at her" with no hesitation or uncertainty. (Id. at p. 8.) Corish indicated that she was 100-percent sure of her identification. (Id.)

Following the arrests of Defendant and Brown, the case was referred to the Bureau of Alcohol, Tobacco, and Firearms for possible federal prosecution in...