IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

v. )

)

xxxxxxxxxxxxxxxxxxxxxxxx, )

xxxxxxxxxxxxxxxxxxxxxxxxxx )

____________________________________)

PRELIMINARY MOTION TO SUPPRESS IN-COURT

IDENTIFICATION BASED ON SUGGESTIVE PRE-TRIAL

IDENTIFICATION AND BRIEF IN SUPPORT

COMES NOW xxxxxxxxxxxxxxxxxxxx, defendant in the above-styled action, by and through undersigned counsel, and hereby moves this Court, to suppress any in-court identification testimony regarding Mr. xxxxxxxx that is tainted by out-of-court error. In support of this Motion, defendant shows the following: 1.

Mr. xxxxxxxx and co-defendant Donna Faye xxxxxxxxx were arrested by Clayton County officials on March 16, 1995 after the pick-up truck driven by Ms. xxxxxxxxx hit a pole near the Boulevard exit of I-20.

2.

Ms. xxxxxxxxx was arrested on the scene, but the male subject with Ms. xxxxxxxxx fled the scene on foot after which Mr. xxxxxxxx was arrested on a neighborhood street near the accident site.

3.

The alleged victim in this case, James Mason, was brought to the scene of the arrests and asked to identify the defendants.Mr. Mason had previously described the people who allegedly robbed him to include a black male. When Mason arrived at the scene, he was shown the defendant sitting the back of a squad car in hand cuffs and asked if he could identify the person as the one who had allegely robbed him of his pick-up truck.

5.

Mr. Mason apparently responded that that was the person.

Argument

In cases where identity is in issue, defendants may move under the Due Process Clause to suppress an in-court identification testimony that is tainted by out-of-court error. Foster v. California, 394 U.S. 440 (1969). When the out-of-court identification is tainted by an overly suggestive or unfair procedure, the defendant is entitled to have the expected in-court identification suppressed. Simmons v. United States, 390 U.S. 377 (1968); Williams v. Lockhart, 736 F.2d 1264, 1266 (8th Cir. 1984).

In Manson v. Brathwaite, 432 U.S. 98 (1977), the Supreme Court elaborated on the standards to use in determining the procedure for a motion to suppress due to suggestive pre-trial identification, The Court held that "reliability is the linchpin" in determining the admissibility of identification testimony, and applied the "totality of the circumstances" standard of Stovall v. Denno, 388 U.S. 293 (1967), to determine the reliability of the factors to be weighed: (1) the opportunity of the witness to view the criminal at the time of the offense, (2) the witness' degree of attention, (3) the accuracy of any prior description by the witness, (4) the level of certainty demonstrated by the confrontation, and (5) the time between the occurrence of the crime and the confrontation.

In United States v. Crews, 445 U.S. 463 (1980), involved a motion to suppress identification testimony based on a photographic identification of the defendant in which photographs of the defendant, taken after he was illegally arrested, were used. After several unsuccessful attempts to photograph the defendant prior to his arrest, the defendant was taken into custody on a pretext, detained, questioned, photographed and released. Thereafter the victim identified the photograph and later identified the defendant in court. The Supreme Court allowed the in-court identification, but only because the police already knew the defendant's identity and because the identity and presence of the victim at trial were not the result of any illegal police conduct.

Because the circumstances surrounding the show-up are not known to counsel at this time, Mr. xxxxxxxx requests that a hearing be held to inquire into the circumstances of the out-of-court identification in order to determine its suggestiveness. Defendant further requests that counsel be allowed to fully brief the matter after a hearing is held on the suggestiveness of the out-of-court identification.

WHEREFORE, Mr. xxxxxxxx prays that an evidentiary hearingbe held on the suggestiveness of the out-of-court identification in this case with briefs to be submitted after the hearing.C:\wwwfpd\id2.wpd