Opinion
Criminal Action No. 02CR0263-GAO
February 10, 2003
MEMORANDUM AND ORDER
The defendants, Carlton Santiago, Michael S. White, and Jonathan L. Glover, have been indicted on various counts for their alleged parts in a conspiracy to sell cocaine. The government's case against Glover hinges principally on a "controlled" drug transaction that the government set up between Santiago and a cooperating witness. According to the government, Santiago drove to a pre-arranged meeting with a second man who actually carried out the sale transaction. The government alleges that Glover was this second man, in part because the day after the drug sale, the cooperating witness identified Glover's picture from a photo array. Glover has moved to suppress this identification, arguing that the manner in which the government assembled and showed the photo array to the witness was impermissibly suggestive and was likely to give rise to irreparable misidentification. He also seeks an evidentiary hearing to help establish that the identification procedure was unreliable. After consideration of the parties' submissions, both the motion to suppress and the request for an evidentiary hearing are denied for the reasons set out herein.
A. Summary of Facts
Santiago was a target in a drug investigation carried out by a gang task force in Lawrence, Massachusetts. As part of the investigation, the government obtained a copy of Santiago's cell phone records. When the government learned that one of the telephone numbers that frequently appeared in the records belonged to Glover, it obtained a black and white faxed copy of Glover's picture from the Massachusetts Registry of Motor Vehicles ("RMV").
Subsequently, the government set up a drug sale between Santiago and a cooperating witness. On August 22, 2002 at around 8:00 p.m., Santiago parked on a street near a Little Peach store in Lawrence to meet the cooperating witness and to complete the transaction. A young Hispanic male whom the cooperating witness did not recognize got out of Santiago's car, walked over to the cooperator's car, and got in. The Hispanic male gave packages of crack cocaine and marijuana to the cooperating witness in exchange for $650.00. The man then returned to Santiago's car, which drove away. Immediately after the transaction, the cooperating witness told the agents that the man was "wearing a gray shirt. He's got a lot of hair, jeans and he's smoking a cigarette." Glover asserts that on the audio recording of the transaction, the witness seems to emphasize the words "a lot."
As Santiago was leaving the scene, he drove by a car occupied by Special Agent Karangekis, who says that he was able to get a look at the person sitting in the passenger seat of Santiago's car. Karangekis claims that based on the picture he had received from the RMV, he was able to identify Glover as the second man.
The next day, Karangekis showed the cooperating witness a photo array which included the picture of Glover that the government had obtained from the RMV. Along with Glover's picture, there were five other pictures of young Hispanic males with hair of varying lengths in the array. A copy of the photo array is appended as Exhibit 1 to Glover's motion to suppress. Karangekis asked the witness whether he recognized anyone in the array, and if so, from where he recognized the person. The witness identified Glover as the man who had sat in his car and sold him drugs the previous day.
On September 12, 2002, a grand jury indicted Jonathan Glover, Carlton Santiago, and Michael White as co-conspirators in a drug distribution conspiracy. Santiago has pled guilty and has agreed to cooperate with the government. Since his guilty plea, Santiago has told the government that Glover was the other person in the car with him on August 22. Santiago initially identified some one else, but then stated that his girlfriend had been threatened by Glover's father, causing him initially to identify some one other than Glover as his associate. Glover proffers evidence tending to show that the identification of him was erroneous, including evidence that his hair was closely cropped on the day of the event.
B. Discussion
The law regarding when pre-trial identifications violate a defendant's right to due process requires a two step analysis. First, the Court must determine "whether the procedure was impermissibly suggestive." United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996). If it so finds, the Court next "must decide whether the identification itself was reliable under the totality of the circumstances, notwithstanding the suggestive procedure." Id. However, if the defendant fails at the first step and cannot show that the identification procedure was impermissibly suggestive, "no further inquiry by the court is required, and `[t]he reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury.'" Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001) (citing Foster v. California, 394 U.S. 440, 442-43 n. 2 (1969)). This two-step analysis ensures that the Court only excludes evidence that was the product of a process so unreliable that it would violate due process even to present it to the jury. This inquiry is not an invitation to the Court to step into the shoes of the jury and determine how credible the identification was. See also Watson, 76 F.3d at 6 ("before suppressing identification evidence, a court must be persuaded that there was a very substantial likelihood of irreparable misidentification, and only in extraordinary circumstances should identification evidence be withheld from the jury").
Whether Glover should have the benefit of an evidentiary hearing on his motion to suppress also turns on whether he has made at least an initial showing that the photo array was suggestive. A criminal defendant "has no absolute or presumptive right to insist that the district court take testimony on every motion." United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990). Instead, a defendant seeking a hearing has the burden to show that it is needed. See United States v. Isom, 85 F.3d 831, 838 (1st Cir. 1996) ("a party seeking an evidentiary hearing must carry a fairly heavy burden of demonstrating a need for special treatment"). If the defendant does not make such a showing, a district court may rule on a motion to suppress without an evidentiary hearing. See e.g., United States v. Torres Rodriguez, 10 F. Supp.2d 87, 90 (D.P.R. 1998) (holding that defendant had not offered sufficient evidence to entitle him to an evidentiary hearing on his motion to suppress identifications); United States v. Richardson, 837 F. Supp. 570, 573 (S.D.N.Y. 1993) (same); United States v. Jones, 652 F. Supp. 1561, 1573 (S.D.N.Y. 1986) (holding that an evidentiary hearing was not required as to certain witness identifications because the photo array was not impermissibly suggestive).
Glover has not demonstrated that the photo array was unduly suggestive. He argues that his picture is the only one in the array depicting a man with "a lot" of hair, and therefore the cooperating witness was seduced into choosing his picture. However, an examination of the array reveals that this is not so. Although the men in the photographs numbered three and four have fairly closely cropped hair on the sides of their heads, all of the men have a substantial amount of hair. In particular, the man in photograph number 5 could easily be described as having "a lot" of curly hair.
The men pictured in the array were sufficiently similar to one another that the array was not unduly suggestive. When the government assembles a photo array, it is not required to compile a series of clones. See United States v. Galati, 230 F.3d 254, 260 (7th Cir. 2000) (array not unduly suggestive where defendant was only younger looking, brown-haired man with a chain around his neck). See also United States v. Flores, 149 F.3d 1272, 1278-79 (10th Cir. 1998) (array not unduly suggestive where defendant had distinctive eyes and was only one with a goatee). What matters is whether the people pictured "all fit the general descriptions" offered by the witnesses before the identification. Galati, 230 F.3d at 260. In this case, all of the pictures are of young Hispanic males with curly hair, and at least one other picture in the array depicts a man with "a lot" of hair.
Glover also has not demonstrated that the government showed the photo array to its witness in an unduly suggestive manner. Glover alleges several improprieties in the way in which the identification procedure was carried out. First, he argues that it was improper for Karangekis to compile the photo array since he was the other percipient witness. Second, he argues that the government did not know whether the photograph it retrieved from the RMV was current. Third, he complains that the government should have instructed the witness that he might not recognize any one in the array. Fourth, he says that the government failed to document what the witness said when he identified Glover in the array. None of these facts, if true, would render the government's procedures unduly suggestive. There is nothing in the account of how the government showed the photographs to the witness that indicates that he was encouraged or coached to pick out Glover. Cf. United States v. Smith, 156 F.3d 1046, 1050-51 (10th Cir. 1998) (procedure unduly suggestive where comments by agent to witnesses bordered on coaching, and where the witnesses were left alone in the room with loose photographs with signatures of other witnesses on the back of the picture they had chosen).
Even if Glover could meet the first step in the constitutional test for identifications, he has made little effort to show that he could meet the second step. To determine whether an unduly suggestive identification was nevertheless reliable, the court looks at five factors: "(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 criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation." United States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993). Glover makes no proffer of facts tending to show that his procedure was unreliable. Admittedly, he has not had an opportunity to question the cooperating witness to probe further the circumstances of the identification. But he is not entitled to an evidentiary hearing as a discovery tool, to see what he might develop as a basis for challenging the identification. On the present record, there is no reason to believe that examination in an evidentiary hearing would produce testimony favorable to Glover.
In fact, all of the evidence that is currently available to the Court tends to show that the identification was reliable. The cooperating witness had an opportunity to observe the second man closely for the period of the drug and money exchange, the witness's attention was focused on the man during the exchange, and the photo array was shown to the cooperating witness the day after the transaction. The only support Glover has for the argument that the identification is unreliable is his evidence that in August 2002 he had very short hair. If that is true, then it certainly would undercut the credibility of the government's witness. However, the fact that an identification is mistaken does not establish that the identification procedure itself was unfair or violated Glover's right to due process.
C. Conclusion
Glover has not demonstrated that the photo array was unduly suggestive, and he proffers no evidence that would tend to suggest that an evidentiary hearing would produce additional evidence in support of his motion to suppress. Therefore, his motion to suppress the identification (docket no. 46) is DENIED without an evidentiary hearing.
It is SO ORDERED.