IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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THE UNITED STATES OF AMERICA
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v. Criminal No. xxxxxxxxxxxx
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xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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MOTION TO SUPPRESS PHOTO IDENTIFICATION AND
IN COURT IDENTIFICATION AND REQUEST FOR HEARING
The defendant, David xxxxxxxxxxxx, through his attorneys, Fred Warren Bennett, Federal Public Defender for the District of Maryland, and Mary French, Assistant Federal Public Defender, hereby moves this Honorable Court to suppress all evidence of and testimony relating to alleged pretrial photographic identifications of him by Government witnesses, and any attempted in-Court identification of him by those witnesses with respect to the crimes alleged in the pending Indictment. In support of his motion, the defendant states the following reasons:
1. The defendant is charged in a six-count Indictment with charges arising out of two bank robberies.
2. Defense counsel has information that Government witnesses to the Dominion Bank robbery on October 4, 1991 were shown photographic arrays. Defense counsel has reason to believe that these arrays contained a picture of the defendant. One or more witnesses may have identified the defendant as one of the individuals they had seen at the bank.
3. The photographs exhibited to the Government witnesses and the techniques used by law enforcement personnel in exhibiting the photographs denied the defendant due process of law in violation of the United States Constitution.
4. The pretrial showing of the photographs was so "impermissively suggestive as to give rise to a very substantial likelihood of irreparable misidentification." See Simmons v. United States, 390 U.S. 377 (1968); United States v. Marson, 408 F.2d 644 (4th Cir. 1968). Any attempted in-Court identification should be suppressed as unreliable and tainted by the pretrial identifications. For these reasons, and for such other and further reasons as may become apparent at a hearing on this Motion or after discovery is furnished in connection with the photographic array, the pretrial identifications and any attempted in-Court identifications of the defendant should be suppressed.
WHEREFORE, the defendant respectfully moves this Honorable Court to suppress all evidence of and testimony relating to the alleged pretrial photographic identifications of the defendant by Government witnesses, and any attempted in-Court identification of the defendant by those same witnesses.
Respectfully submitted,
FRED WARREN BENNETT
Federal Public Defender
for the District of Maryland
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Mary French
Assistant Federal Public Defender
100 S. Charles Street, Suite 401
Equitable Bank Center Tower II
Baltimore, Maryland 21201
(301) 962-3962 FTS: 922-3962
MEMORANDUM OF POINTS AND AUTHORITIES
1. Fifth Amendment to the United States Constitution.
2. Simmons v. United States, 390 U.S. 377 (1968).
3. United States v. Marson, 408 F.2d 644 (4th Cir.
1968).
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Mary French
Assistant Federal Public Defender
REQUEST FOR HEARING
Pursuant to Rule 105.6 of the Local Rules of the United States District Court for the District of Maryland, a hearing is requested on the defendant's Motion.
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Mary French
Assistant Federal Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of November, 1991, a copy of the foregoing Motion to Suppress Photographic and in Court Identification and Request for Hearing was delivered to Beth Gesner, Assistant United States Attorney, United States Courthouse, 101 W. Lombard Street, Baltimore, Maryland 21201; and mailed to Robert T. Durkin, Esquire, 8 E. Mulberry Street, Baltimore, Maryland, 21202.
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Mary French
Assistant Federal Public Defender