United States v. Hopper, Crim. No. 19-538

UNITED STATES OF AMERICA v. JAMHEAR HOPPER

Crim. No. 19-538

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

October 20, 2020

Diamond, J.

MEMORANDUM

Jahmear Hopper is charged with armed carjacking and related firearms offenses. 18 U.S.C. § 2119; 18 U.S.C. § 924(c)(1); 18 U.S.C. § 922(g)(1). (Doc. No. 1.) Shortly after his arrest by Philadelphia Police, Hopper was identified by the victim during a show-up. (Gov.'s Opp. Mot. at 1-2, Doc. No. 36.) Defendant moves to suppress that identification and all subsequent in-court identifications. (Def.'s Mot. to Supp. at 5, Doc. No. 34.) I will grant Defendant's Motion.

FINDINGS OF FACT

On August 31, 2020, I conducted a suppression hearing at which the victim and two Police Officers testified. (Hrg. Tr. at 1-2.) Based on the evidence presented, I make the following findings. Fed. R. Crim. P. 12(d).

At around 9 PM on May 6, 2019, Terrell Boozer was in the front passenger seat of his parked pickup truck when he heard the driver's door open. (Hrg. Tr. at 51-52.) Boozer expected to see his wife, but instead saw a man "lunging into the vehicle." (Id. at 53-54; 55-56; 57.) Saying "hey bro," the man pointed a semi-automatic handgun at Boozer, who heard two "clicks." (Id. at 55-56.) Familiar with firearms, Boozer believed the assailant had caused the clicks when he tried to chamber a round of ammunition or fire the gun, which was so close to Boozer's face that he could look down the barrel. (Id. at 55, 75.) ("[T]he gun [was] pointed to my head. Literally right in between my eyes.") The carjacker—whom Boozer did not know—ordered Boozer to "get the fuck out." (Id. at 56.) "Horrified," Boozer quickly complied. (Id. at 56, 76.) As the assailant sped away, Boozer searched the immediate Southwest Philadelphia area for his wife. (Id.)

Boozer credibly estimates that the entire incident—from the door opening to him jumping from the truck—took two or three seconds. (Id. at 69.) Boozer testified that it was "dark in the car." (Id. at 54; 74.) The truck's 'dome' light was not working, leaving only the illumination provided by nearby "orange" streetlights. (Id.) Looking at his cellphone until the door opened, Boozer did not see the carjacker approach the truck. (Id. at 73-74.) Throughout, Boozer focused his attention on the gun pointed "a couple of inches" from his face, not on his assailant. (Id. at 56, 57, 75-76.)

Once Boozer confirmed his wife's safety, the two called the Police. (Id. at 56.) At 9:15 PM that night, Officer Timothy Dollarton, who was patrolling nearby, received a "robbery in progress" radio call and drove to the carjacking scene. (Id. at 13.) Boozer told Dollarton that the assailant was a Black man, around 5'9 tall, with a thin build, wearing dark clothing and a dark baseball cap. (Id. at 14, 44-45.) Boozer later told Dollarton that he could not see whether the carjacker was wearing a dark baseball cap or just "had a haircut" that made the "top of his head" appear black. (Id. at 70.) Boozer was "certain" that his assailant was not wearing a red cap. (Id.)

Dollarton and Boozer drove around the area, hoping that the stolen truck might be nearby; it was not. Dollarton drove Boozer to 12th District Headquarters and then on to Southwest Detectives Division Headquarters. (Id. at 15-17, 58-59.) At that time, Boozer realized that he could track the stolen truck by tracking the location of his daughter's phone, which he had left inside the truck. (Id. at 17-18.) Boozer provided location information to Dollarton, who broadcast it over police radio. (Id. at 17-20.)

Less than two hours after the robbery, Police found the stolen truck in Kensington, milesfrom the carjacking. (Id. at 86.) After a brief chase, the truck crashed into a parked car. (Id. at 86-87.) Defendant, who was driving the truck, immediately fled on foot, but was quickly apprehended and returned to the crash scene by Officer Stephen Vivarina. (Id. at 90-94.) While running, the Defendant discarded the red cap he had been wearing. (Id. at 91.) Police also detained the truck's three passengers. (Id. at 90.)

When Dollarton and Boozer learned that the stolen truck had been stopped, the two drove from Southwest Detectives to the crash scene—a trip that took around 20 minutes. (Id. at 20-22, 40.) Dollarton was ordered to take Boozer to the crash scene, "[j]ust to see if he could identity, you know, [if] that was his vehicle and also...to see if those [detained] males, if he recognized any of them....To see if any of the males he recognized from the robbery earlier at his house." (Id. at 22, 25.) No other reason for the procedure was offered by Dollarton or any other Officer. Dollarton explained to Boozer that his truck had been found and that the police had detained all those inside. (Id. at 23.) Boozer testified that Dollarton explained the identification procedure that would take place at the crash scene:

[Dollarton] said they got -- they retrieved the truck and they have four people, four suspects, and whether I'd ID them. And I told them, it was only one guy that robbed me that I know of. . . . the officer notified me that they -- he had got radioed in that there were four individuals in the truck.

(Id. at 60, 62.)

At the crash scene, Dollarton and a Police Supervisor instructed Boozer as follows:

[He] told me when we get there, he needs me to ID my vehicle, and if I could ID the person that took the vehicle. . . . He said if I could ID the person that took thetruck. He basically told me would I recognize the individual if I saw him again. . . . I said yes. Once I get there another officer may ask me some questions about what happened and I need to ID the individual, but there was four individuals in the truck. . . . he told me he wants me to take a look at some -- the guys that they found in the vehicle. And he just -- and the police officer told me if you don't -- just if you don't see the guy who robbed you, it's okay, if you do, let me know, yes or no.

(Id. at 61-64.)

There were at least five police cars and many Officers at the crash scene. (Id. at 77-78.) Defendant and each of the three passengers were brought to Boozer, who sat in Dollarton's vehicle, some 35-40 feet from the men. (Id. at 25-34.) Each "suspect" was illuminated by spotlights, handcuffed from behind, and escorted by one or two police officers, who held the arms of each man. (Id. at 32.) Boozer saw the men separately taken from and returned to different police vehicles. (Id. at 43.) Upon being shown each man, Boozer was asked "do you recognize this person...who was involved in tonight." (Id. at 31.) Boozer said he did not recognize the first two men, but identified the third man (the Defendant, who was not then wearing a hat), saying "yes, that's him." (Id. at 34, 70.) Dollarton testified that Boozer "seemed pretty sure" in making the identification. (Id. at 50.) Boozer did not recognize the fourth man.

Significantly, Boozer said the four men all had "distinctive looks." He said the first two were not African American but Hispanic. (Id. at 66.) ("Q. And these, all four of these individuals, were they all African Americans? A. No. . . . The first two appeared to be Hispanic.") Boozer described the fourth man as African American, with dreadlocks. (Id. at 66, 71-73.) Because Boozer had not described his assailant as Hispanic or as having dreadlocks, Defendant was the only man among the four who could fit even the spare description Boozer had provided (a thinBlack man of medium height). Boozer's sole basis for recognizing Defendant on May 6 was thus the show-up itself.

Boozer was shown the "suspects" between 11:40 PM to midnight—some three hours after the carjacking. (Id. at 35, 94.) Boozer then made a formal statement to the Police. (Id. at 91.) Dollarton did not know if the three other "suspects" were released after show-up. (Id. at 35.)

Defendant was initially charged in state court with carjacking and related offenses. (Gov.'s Resp. Mot. ¶ 12.) His preliminary hearing took place on June 14, 2019, when Boozer again identified Defendant as the carjacker. (Id.) Boozer also identified Defendant at the suppression hearing before me. (Hrg. Tr. at 33.)

CONCLUSIONS OF LAW

Method of Identification

A "show-up" is a procedure by "which a single individual arguably fitting a witness's description [of the criminal] is presented to that witness for identification." United States v. Brownlee, 454 F.3d 131, 137 (3d Cir.2006). During a "line-up," the witness views several individuals at the same time, each of whom should generally fit the witness's prior description. See United States v. Wade, 388 U.S. 218, 230-31 (1967). The May 6 procedure Philadelphia Police employed here was thus something of a hybrid. It was not a usual show-up: Boozer viewed four men seriatim, only one of whom could fit the description he had previously given. Nor was this a lineup, because he viewed the "suspects" one at a time, and again because only one fit Boozer's description. Indeed, as I have found, each of the four had a "distinctive" appearance. (Hrg Tr. at 66.) Defendant was thus the only "suspect" not excluded by Boozer's earlier description. In these circumstances, even though four men were presented to Boozer, I will referto the identification procedure as a show-up. See, e.g., United States v. Shavers, 693 F.3d 363, 382 (3d Cir. 2012) (terming it a "show-up" when witnesses simultaneously viewed and identified two suspects held in a police vehicle, where the witnesses had seen three men commit the crime); United States v. Scott, 816 Fed.Appx. 732, 739 (3d Cir. 2020).

Defendant urges that allowing Boozer to identify Defendant at trial would violate due process because the show-up procedure was unnecessarily suggestive, created a substantial risk of misidentification, and tainted all subsequent identifications. (Doc. No. 46 at 8-11.) I agree.

Constitutional Standards

Eyewitness identifications must pass due process muster. United States v. Clausen, 328 F.3d 708, 713...