United States v. Rulford

REPORT AND RECOMMENDATION

Katherine Menendez United States Magistrate Judge

This matter is before the Court on Defendant Tayrel Lamar Rulford's Motion to Suppress Eyewitness Identifications. (ECF No. 31). The Court held a hearing on June 1, 2021. The hearing included the testimony of former Brooklyn Center Police Department Officer Eric Wick, who was involved in Mr. Rulford's arrest and the subsequent eyewitness identifications, and numerous exhibits were introduced into evidence. Mr. Rulford asks the Court to suppress four separate “show-up” eyewitness identifications as unduly suggestive and unreliable in contravention of his due process rights. For the following reasons, the Court recommends that Mr. Rulford's motion be denied.

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I. Background^[1]

The facts are, for the most part, undisputed. On the night of July 21, 2020, at about 9:30 p.m., Brooklyn Center Police Department officers standing in the parking lot outside their station heard what sounded like a nearby gunshot. (Hr'g Tr. 5, 6, ECF No. 51). One of those officers, Eric Wick, saw a car had just “peeled off.” (Hr'g Tr. 6). He and his partner, Officer Lund, ^[2] pursued, believing it may have been involved in a shooting. They soon pulled over the car about a block away at a gas station on the corner of 69^th Avenue North and Humboldt Avenue North. (Hr'g Tr. 6-7; Gov't Ex. 6a at 0:22-1:00). Both officers drew their weapons on the car's two occupants and ordered the driver out of his car. (Gov't Ex. 6a at 0:45-3:02). Soon the officers realized the occupants were the victims of the gunshot rather than the aggressors and transitioned to interviewing them. (See Gov't Ex. 6a at 2:10).

Statements of L.M. and L.W.

Officer Lund questioned the driver and identified him as L.M. (Gov't Ex. 6a at 12:24). Officer Lund's initial conversation with L.M. was not submitted as evidence.

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Meanwhile, Officer Wick approached the passenger door and began questioning the other occupant, soon identified as L.W. (Gov't Ex. 6a at 3:00).

Both L.M. and L.W. gave Officers Wick and Lund a similar description of events prior to them being pulled over. Earlier that night, they encountered a man while at a “Pump N Munch” convenience store across the street from where they were pulled over. L.M. either mistook the man for someone else, or the man approached them on his own and asked for a ride, which L.M. refused.^[3] In either case, the other man became upset, and L.M. had a short argument or discussion with him. L.M. and L.W. then drove to a nearby apartment building about a block away. Moments after parking, the same man approached their car and shot at them-the shot heard by nearby officers. The witnesses quickly drove away before being stopped by Officer Wick. (See Gov't Ex. 6a 3:05-25:28; Hr'g Tr. 10).

Officer Wick later obtained video from a security camera at the Pump N Munch. (Hr'g Tr. 20; see also Gov't Ex. 6a at 1:13:20-1:12:10 (showing Officer Wick asking for video before being called to Mr. Rulford's arrest)). The security camera video was submitted as Gov't Ex. 6g, and shows L.M. pulling into the gas station with L.W. in the passenger seat. A man walks towards the driver door, stopping near the left taillight. L.M.

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gets out of the car and stands just outside the door while talking to the person for about a minute. L.M. then walks around the car towards the Pump N Munch, as does the man. L.M. finally returns to the car and drives away. (Gov't Ex. 6g). The person talking to L.M. is a black male wearing lightblue pants with holes near the knees, white shoes, a black sweatshirt with distinctive, non-symmetrical white styling on the sleeves, and a white head covering underneath his hood. (Id.).

After Officer Wick first approached L.W., but before she provided any details about the shooter, a suspect description was loudly broadcasted over Officer Wick's radio, describing “a black male with a white shirt and jeans.” (Gov't Ex. 6a at 3:32). Officer Wick asked L.W. if that sounded familiar, and she agreed. (Id.).

After asking L.W. several more questions about her personal information, Officer Wick returned to his partner and L.M., who were still by the squad car. (Gov't Ex. 6a at 5:55). L.M. then described the shooter as a black man wearing a white t-shirt, a white tie around his head, and face tattoos, pointing near his left cheek as he described the tattoo. (Gov't Ex. 6a at 6:28-7:03). Officers Wick and Lund repeatedly asked L.M. if the man was wearing a white beanie and was on a bicycle, seemingly in response to a previous sighting of a suspect on a bicycle and L.M.'s vague descriptions of something white wrapped around the suspect's hair or head. (See Gov't Ex. 6f at 2:33 (L.M.'s somewhat vague description of headwear); Hr'g Tr. 35 (Officer Wick testifying there had been reports of the suspect riding a bicycle)). After Officer Lund broadcasted L.M.'s description, L.M. clarified that the face tattoo was the letters “TC, ” and not a teardrop tattoo. (Gov't Ex. 6a at 7:56-8:07).

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Officer Wick then returned to L.W., who had not moved from the front passenger seat of the car. (Gov't Ex. 6a at 8:21). L.W. described the man as wearing jeans, a white t-shirt, a zip-up jacket, and a hat. (Gov't Ex. 6a at 9:36-10:01). She was unable to remember details about the jeans or hat. (Id.). Officer Wick also noted a bullet hole in the left side of the car above the gas tank, but L.W. was not certain if it was from that night. (Gov't Ex. 6a at 10:33, 8:26).

The officers had L.M. and L.W. sit in the back of the squad car. (Gov't Ex. 6a at 11:21). Officer Wick joined them, working on the car's computer while talking to L.M. and recalling a time he had given L.M. a ride. (Gov't Ex. 6a at 12:04, 12:25). About five minutes later, Officer Wick left the car. (Gov't Ex. 6a at 17:34). He talked with his partner, including discussing a man he knew with a “TC” tattoo on his face, Johnny Bergen, ^[4] but also commented Mr. Bergen did not fit the size description. (Gov't Ex. 6a at 18:08). Officer Wick's partner noted they should wait to question the witnesses, saying, “you don't ask too many questions when you've got them next to each other.” (Gov't Ex. 6a at 18:34). Although Mr. Rulford contends the witnesses could have talked during this brief period alone in the back of the squad car, the car's backseat video shows they did not. (Gov't Ex. 6c at 17:37-18:57).

Officer Wick then had each witness individually step out of the car so that he could get a recorded statement while the other remained in the backseat. (Gov't Ex. 6a at 18:56). L.W. went first and again described the events leading up to the shooting. She then gave

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another suspect description, saying he was approximately Officer Wick's height and wearing baggy clothing, including an opened, zippered sweatshirt, white t-shirt, a beanie style hat, dreads, and pants. (Gov't Ex. 6a at 19:26-22:20). L.M. did the same, first discussing the encounter at the Pump N Munch and subsequent shooting. He too then gave another description, saying the man had dreads with his hair tied, and a TC tattoo. L.M. again pointed to his left cheek when describing the tattoo. When Officer Wick asked to confirm if it was on the suspect's right cheek, L.M. stopped, then pointed to his other cheek and said, “I think on the right.” He also clarified that he had never seen the person before. (Gov't Ex. 6a at 22:55-25:15).

While finishing L.M.'s statement, another call played over Officer Wick's radio, saying they had received a report from a nearby residence that a “tall black male with dreads and a white shirt was in the backyard.” (Gov't Ex. 6a at 24:22). Still talking to L.M., Officer Wick said, “That's him. I think we might have him.” (Gov't Ex. 6a at 24:29). When L.M. asked, “Ya'll got him?” Officer Wick said, “I think we might, yeah. Yeah that's him.” L.M. followed up, again asking, “You got him?” and Officer Wick responded, “Yeah, well or, he's, or close, ” and soon after concluded the recorded statement. (Gov't Ex. 6a at 24:39).

Officer Wick then placed L.M. back into the squad car, where he remained with L.W. for the next hour. (Gov't Ex. 6c at 25:31-1:34:00). During this time, they were driven to the police station, (Gov't Ex. 6c at 57:45), asked follow-up questions by other officers, (id. at 1:02:15 (asking about a bike, which both witnesses denied ever seeing), 1:06:49 (asking how old the suspect looked), 1:30:07 (telling them an arrest was made and they

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will be asked to identify him)), and both generally remained silent the entire time, (but see Id. at 27:02 (L.M. briefly talking to L.W. without much response)).

While the witnesses waited in the back of the police car, Officer Wick stood outside the gas station with Officer Lund. (Gov't Ex. 6a at 25:40-57:50). When Officer Lund asked Officer Wick if both L.M.'s and L.W.'s stories were the same, Officer Wick said, “Yeah, pretty much, ” but that L.W. seemed “pretty out of it.” (Gov't Ex. 6a at 52:00). Officer Wick also complained that L.M.'s description was inconsistent, as L.M. first told him the suspect was on a bike, then later told another officer there was no bike. (Gov't Ex. 6a at 1:07:34; see also Id. at 6:29 (Officer Wick asking L.M. if the suspect was on a bike); and Gov't Ex. 6c at 1:02:15 (L.M. telling another officer there was no bike)). Mr. Rulford also claims L.M.'s description was internally inconsistent for the same reasons. (Def. Br. at 3, ECF No. 44).^[5]

Statements of I.P. and H.R.

While Officer Wick and his partner interviewed L.M. and L.W., other officers responded to the shot-fired call, creating a perimeter and beginning an “all-out manhunt, ” including the use of about 20 police cars and a helicopter. (Hr'g Tr. 36, 50). Among them was...