IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

vs. ) Criminal Action No.

)

xxxxxxxxxxxx ) xxxxxxxxxxxxxxxxxxx

______________________________)

PRELIMINARY MOTION TO SUPPRESS IN-COURT

IDENTIFICATION BASED ON SUGGESTIVE PRE-TRIAL

IDENTIFICATION AND BRIEF IN SUPPORT

NOW COMES Defendant, Rudy xxxxxxxxx through undersigned counsel, and hereby moves this Court, pursuant to the Due Process clause of the United States Constitution, to suppress any in-court identification testimony regarding Mr. xxxxxxx that is tainted by out-of-court error, showing this Court as follows:

(1)

Mr. xxxxxxx is charged in a multi-count indictment charging him and his co-defendants with violations of the "Hobbs Act" and weapons offenses in violation of 18 U.S.C. §§ 924(c), 1951 and 2119. The indictment alleges seven separate robberies.

(2)

There are indications from the discovery materials furnished by the government that Mr. xxxxxxx may have been identified from a photo array as having participated in one or more of the robberies alleged in the indictment, or with robberies not alleged in the indictment, but which may be admissible at trial.

(3)

Mr. xxxxxxx has not received a copy of the photo array or arrays.

(4)

In cases where identity is in issue, defendant 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 photo line-up is overly suggestive or unfair, 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).

(5)

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.

(6)

Discovery in this case is incomplete and on-going. In order to determine whether Mr. xxxxxxx needs to continue with this Motion, Mr. xxxxxxx needs to be informed whether during the investigation or preparation of this case or any related case, any persons have been shown any photographs (surveillance, photospread, mug shots, etc.) and if so, Mr. xxxxxxx requests with respect to each person:

(a) production of the photographs for inspection and copying;

(b) the name of the agents or person who displayed the photographs to the person;

(c) the dates the photographs were displayed to the person;

(d) the name of each such person; and

(e) the person's responses, whether verbal or non-verbal, to any questions in regard to the photographs.

(7)

Once Mr. xxxxxxx receives this information he will be in a position to either supplement or withdraw this motion. Mr. xxxxxxx, however, files this Motion at this time to preserve his right.

(8)

Defendant believes that he is entitled to and would greatly benefit from an evidentiary hearing with respect to the issues raised in this motion. Additionally, Defendant submits that such a hearing would greatly benefit this Court in making an important Constitutional determination. Therefore, Defendant reserves his rights to request an evidentiary hearing.

(9)

Defendant further believes that this Court would benefit if counsel had an opportunity to fully brief this matter after a suppression hearing is held. As so many facts may be in controversy, such an opportunity would allow this Court and counsel to seriously weigh the evidence and law before making such an important Constitutional determination. Therefore, Defendant respectfully requests an opportunity to supplement this motion after the suppression hearing.

WHEREFORE, Mr. xxxxxxx respectfully requests:

(i) that the Government be ordered to inform the Defendant whether during the investigation or preparation of this case or any related case, any persons have been shown any photographs (surveillance, photospread, mug shots, etc.). If such photographs have been shown, the Government should further be ordered to: (a) produce the photographs for inspection and copying; (b) provide the Defendant with the name of the agents or person who displayed the photographs to the person; (c) provide the Defendant with the dates the photographs were displayed to the person; (d) provide the name of each such person; and (e) provide the person's responses, whether verbal or non-verbal, to any questions in regard to the photographs.

(ii) that Mr. xxxxxxx be allowed to either supplement or withdraw this Motion after the requested information is provided to the Defendant.

(iii) that this Court hold an evidentiary hearing on this Motion if Mr. xxxxxxx proceeds with this Motion.

(iv) that Mr. xxxxxxx be allowed to further brief the issue prior to the Court's ruling on the Motion.

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