United States v. Turner

482 F.Supp.3d 562

UNITED STATES of America, Plaintiff,

v.Terry Remon TURNER, Jr., Defendant.

Criminal Action No. 4:20-CR-63

United States District Court, S.D. Texas, Houston Division.

Signed August 28, 2020

Heather Rae Winter, Financial Litigation, Richard D. Hanes, Office of US Attorney, Houston, TX, for Plaintiff.

Joshua Bradley Lake, Federal Public Defender, Houston, TX, for Defendant.

ORDER

Andrew S. Hanen, United States District Judge

Pending before the Court is Defendant Terry Turner, Jr.'s ("Turner") Motion to Suppress an alleged faulty, suggestive, and unreliable eyewitness identification (Doc. No. 16). Turner filed a supplement to his motion (Doc. No. 17), the Government filed a response in opposition (Doc. No. 18), and Turner a reply (Doc. No. 19). Having considered the record in this case, the parties' briefs, and the applicable law, the Court denies Turner's Motion to Suppress.

I. Factual Background

The facts underlying this motion are basically uncontested, although to be clear Turner has not by any means admitted that he was involved in the robbery. On the morning of September 5, 2019, two men robbed a Cash America Pawn shop in Houston, Texas. (Doc. No. 18 at 2). The store's surveillance video showed the first suspect entering the premises wearing a hood pulled up around his face so that only his eyes and the bridge of his nose were visible. (Doc. No. 16 at 1). The second suspect—whom the Government believes and alleges was Turner—wore a mask covering the lower half of his face and a hat, so that only his eyes, ears, and the bridge of his nose were visible. (Id. ). The second suspect wore a gray Houston Texans baseball hat with a red brim, a black t-shirt, stone-washed jeans, black and brown tennis shoes with gold laces, and brandished a firearm. (Doc. Nos. 16 at 1 & 18 at 2). The suspects were in the store for approximately one minute and fifteen seconds. (Doc. No. 18 at 2). During this time, the men allegedly went behind the store's counter, and the suspect that the Government alleges to be Turner pointed a gun at the store manager and ordered her to open the safe, while the other employees were forced to the ground. (Doc. Nos. 16 at 2 & 18 at 2). The robbers stole nearly $4,000 and a firearm before fleeing the store. (Doc. No. 18 at 2).

The police arrived and they asked the store manager to provide a description of the suspects. (Id. ). She allegedly told the police that she recognized the "distinctive eyes" of the second suspect because she believed he had previously come into the store to buy an Xbox One several months earlier. (Doc. No. 16 at 3). Cash America's records, however, do not show that Turner has ever been a customer. (Doc. No. 19 at 6). The store manager further described the second suspect as "wearing a black shirt, baseball hat and black mask covering his mouth and nose," being about 30 years old, and older than the other suspect. (Doc. No. 18 at 2).

Approximately ten to fifteen minutes after the robbery occurred, police found Turner hiding in bushes about three miles away from the pawn store. (Id. ). According to the Government's response, the officers arrived at the location based on "GPS tracker data transmitted from the money stolen from the Cash America Pawn." (Id. ). The Government alleges that some of the stolen money contained a hidden GPS tracking device, although the police have not reported that they were able to recover any tracking device. (Doc. No. 16 at 2). Additionally, a tow truck driver informed officers that a man was hiding in the bushes. (Doc. No. 18 at 2). Officers reported that at the time Turner was wearing a black t-shirt, stone-washed jeans, and black and brown tennis shoes with gold laces. (Id. at 2-3). A Texans baseball hat was located nearby, along with a $100 bill. (Id. at 3).

Approximately two and a half hours after the robbery occurred, officers attempted a "show-up" procedure with the store manager. (Doc. No. 18 at 3). A show-up is an identification procedure where the police present a suspect "to an eyewitness [usually] within two hours following the commission of a crime for the purpose of identifying and eliminating suspects." (Doc. No. 16, Ex. 2). In this case, the show-up procedure involved the eyewitness store manager sitting in the back of a patrol vehicle, where she first read admonishments concerning the identification of a suspect, including the statements that: 1) the suspect may or may not be present; and 2) she was not required to identify an individual. (See Doc. No. 18, Ex. A.). An officer then drove the store manager slowly past Turner who was in handcuffs, standing outside of another patrol car in front of Cash America, staring down at the ground. (Doc. No. 18 at 3). The eyewitness did not make an identification because she was unable to see Turner's eyes. (Id. ). Although the officer wanted to attempt a second drive-by so that the store manager "could get another look" at Turner, the eyewitness elected to review a photographic lineup instead because she was nervous. The police then terminated the show-up. (Id. ). According to the Government's response, in a later interview, the eyewitness also stated that she was too far away from Turner during the procedure to identify him.

The following day, detectives met with the eyewitness to conduct a photographic lineup. (Doc. No. 18 at 3). The Houston Police Department ("HPD") showed the store manager a photo array of six individuals—Turner and five other men with similar physical features. (Id. ) The photos of the other men were chosen from HPD's booking database. The six photos were randomly arranged by a computer and presented to the store manager to "ensure color variations did not influence" her. (Id. ). An administrator conducted the lineup procedure to prevent witness coercion. (Id. ). After reading and signing the same witness identification admonishments as from the show-up procedure, (see Doc. No. 18, Ex. 1), and reviewing the photographic lineup, the eyewitness positively identified Turner as one of the robbers. (Doc. No. 18 at 4). One officer wrote that the witness was "100% sure." (Doc. No. 16, Ex. 1). Although Turner makes no actual complaint about the makeup of the photo array, it is this identification that he seeks to suppress based upon the argument that the earlier show-up prejudiced the later photo identification.

II. Legal Standard

As stated, before the Court is a motion to suppress an eyewitness's out-of-court identification from being used at trial. The Due Process Clause protects a criminal defendant from the prosecution's use of evidence derived from impermissibly suggestive procedures. Manson v. Brathwaite , 432 U.S. 98, 121-22, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ; United States v. Sanchez , 988 F.2d 1384, 1389 (5th Cir. 1993). The inquiry into whether identification evidence "and the fruits therefrom are admissible at trial is a mixed question of law and fact." United States v. Fletcher , 121 F.3d 187, 194 (5th Cir. 1997).

The standard for reviewing pretrial identification procedures has developed into a two-part test. United States v. Gidley , 527 F.2d 1345, 1350 (5th Cir. 1976). The first step in determining the admissibility of identification evidence is to determine whether the identification procedure was impermissibly suggestive. Id. If the identification procedure was not impermissibly suggestive, the inquiry ends there. Id. If the court finds the identification was impermissibly suggestive, the second step requires the court to analyze whether the procedure posed a substantial likelihood of irreparable misidentification. See United States v. Allen , 497 F.2d 160, 163 (5th Cir. 1974). If both inquiries are answered in the affirmative, then the identification is inadmissible in court. United States v. Moody , 564 F.3d 754, 762 (5th Cir. 2009).

Show-up identifications do not necessarily violate a defendant's right to due process, but some procedures can be "so unnecessarily suggestive and conductive to irreparable mistaken identification" that a defendant is denied due process of law. Neil v. Biggers , 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In determining whether a show-up identification was impermissibly suggestive, the totality of the circumstances are considered. Stovall v. Denno , 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). To determine whether an impermissibly suggestive identification procedure gave rise to a substantial likelihood of irreparable misidentification, courts consider five nonexclusive factors: (1) the witness's opportunity to view the suspect at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the suspect; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Manson , 432 U.S. at 114, 97 S.Ct. 2243. Against these factors, a court is to weigh the corrupting effect of the suggestive identification itself. Id. Thus, even if the identification was impermissibly suggestive, the identification may still be admissible if there is not a substantial likelihood of irreparable misidentification. Kelley v. Estelle , 521 F.2d 238, 240 (5th Cir. 1975). Reliability is "the linchpin in determining the admissibility of identification testimony." Manson , 432 U.S. at 114, 97 S.Ct. 2243.

III. Analysis

The question before the Court is whether the attempt to get an identification by the eyewitness using the show-up procedure was so suggestive and conducive to mistaken identification as to make the admission of the later photographic identification impermissible at trial. The court must first decide whether the police used an unnecessarily suggestive identification procedure.

Turner asks this Court to suppress the witness's identification, arguing that "impermissibly suggestive police procedures produced an unreliable eyewitness identification." (Doc. No. 17 at 1). Turner...