IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. 97-019-01 (EGS)

)

xxxxxxxxxxxxxxxx, )

)

Defendant. )

_________________________ )

MOTION TO SUPPRESS IDENTIFICATION EVIDENCE

Defendant xxxxxxxxxx, through undersigned counsel, respectfully moves the Court for an Order suppressing as evidence against him at trial testimony about out-of-court and in-court identifications, on the ground that law enforcement officers used identification procedures that were unnecessarily suggestive. The resulting identifications of Mr. xxxxxxxx are unreliable and testimony about them should not be permitted at trial. Mr. Harrington asks that the Court hold an evidentiary hearing on his motion.

The grounds for this Motion are set forth in the accompanying memorandum.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

__________________________

L. Barrett Boss

Assistant Federal Public Defenders

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. 97-019-01 (EGS)

)

JOHN M. xxxxxxxx, )

)

Defendant. )

_________________________ )

MEMORANDUM IN SUPPORT OF MOTION

TO SUPPRESS IDENTIFICATION EVIDENCE

Defendant xxxxxxxx has moved the Court for an Order suppressing identification evidence. As set forth below, law enforcement officers used identification procedures in this case that were unnecessarily suggestive and the resulting identification evidence is unreliable. As a result, testimony about out-of-court and in-court identifications should be excluded at trial.

BACKGROUND

According to discovery provided by the prosecution, on December 18, 1996, one (or possibly two) civilian witnesses told Officer Creamer that they had seen a man, wearing all black, who had a gun. At a later point, a "show-up" identification was conducted, and identified Mr. xxxxxxxx as a man whom they had seen earlier with a gun. It appears that a "show up" identification was then conducted and one (or possibly both) identified "show-u

ARGUMENT

I. LEGAL PRINCIPLES.

Identification evidence must be excluded at trial when police use a pretrial identification procedure so impermissibly suggestive that it gives rise to a "substantial likelihood of irreparable misidentification" in violation of the Due Process Clause. Manson v. Braithwaite, 432 U.S. 98, 107 (1977); see Simmons v United States, 390 U.S. 377, 384 (1968); Stovall v. Denno, 388 U.S. 293, 301-02 (1967).

"[R]eliability is the linchpin in determining the admissibility of identification testimony." Manson v. Braithwaite, 432 U.S. at 114. When a pretrial identification procedure is unnecessarily suggestive, the court must weigh "the corrupting effect of the suggestive identification" against the criteria for a reliable identification, including

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the degree of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

Id.

After an out-of-court identification that was unduly suggestive, the prosecution can elicit an in-court identification only after demonstrating that any in-court identification by the witness rests on a source independent of the tainted pretrial identification. See United States v. Wade, 388 U.S. 218, 241 (1967). If an out-of-court identification is unreliable and hence inadmissible, any subsequent in-court identification almost always will be inadmissible.

II. APPLICATION OF LEGAL PRINCIPLES.

In this case, police used unnecessarily suggestive identification procedures giving rise to a "substantial likelihood of irreparable misidentification" of Mr. xxxxxxxx. See Manson v. Braithwaite, 432 U.S. at 107. The Court should suppress evidence of both out-of-court and in-court identifications of Mr. xxxxxxxx. Because the defense has not received complete information about the circumstances of the identifications at this time (although that information is requested in our discovery letter to Ms. Baldwin-White), we request that, at an evidentiary hearing, the defense be permitted to inquire into the circumstances of the identification so that we can demonstrate to the Court the unnecessary suggestivity of the procedures and the unreliability of the resulting identifications. Based upon the information already provided by the prosecution in discovery, however, the defense has set forth below specific concerns with some of the identification procedures.⁽¹⁾

Mr. xxxxxxxx does not know what law enforcement officers said when they displayed him, or what the witness said when making his identifications. However, it is assumed that Mr. xxxxxxxx was in custody, handcuffed, and surrounded by police officers. This procedure itself was tainted, unnecessarily suggestive and unreliable. Finally, because Mr. xxxxxxxx has no information about what description(s) this witness provided to police after the offense but before viewing the defendant, the defense cannot tell the Court whether or not Mr. xxxxxxxx matched at all the description given by witnesses at the time of the offense.

Even without this information, however, the showup identification is problematic and may have been unnecessarily suggestive. The information available to the defense indicates that police used identification procedures that were impermissibly suggestive, giving rise to a "substantial likelihood of irreparable misidentification" of Mr. xxxxxxxx. See Manson v. Braithwaite, 432 U.S. at 107. Mr. xxxxxxxx requests an evidentiary hearing about the circumstances of the identifications, so that he can demonstrate to the Court the unnecessary suggestivity of the procedures and the unreliability of the resulting identifications of Mr. xxxxxxxx.

CONCLUSION

For the foregoing reasons, and any others which may appear to the Court following a hearing, Mr. xxxxxxxx requests that the Court grant a hearing and suppress the identification evidence.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

__________________________

L. Barrett Boss

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. 97-019-01 (EGS)

)

JOHN M. xxxxxxxx, )

)

Defendant. )

_________________________ )

ORDER

Upon consideration of Defendant xxxxxxxx's Motion to Suppress Identification Evidence, the Memorandum in Support thereof, the government's Response thereto, and the entire record in this matter, it is this ________ day of _____________, 1997, hereby

ORDERED that defendant xxxxxxxx's Motion is granted; and it is further

ORDERED that evidence of the out-of-court and in-court identifications of Mr. xxxxxxxx are hereby suppressed.

________________________________

THE HONORABLE EMMET G. SULLIVAN

UNITED STATES DISTRICT JUDGE

Copies to:

L. Barrett Boss

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

Brenda Baldwin-White

555 - 4th Street, N.W.

Washington, D.C. 20001

CERTIFICATE OF SERVICE

I hereby certify that on the 7^th day of February, 1997, the foregoing Motion to Suppress Identification Evidence, and the Memorandum in Support, were served by hand, upon:

Brenda Baldwin-White, Esquire

Office of the United States Attorney

for the District of Columbia

555 - 4th Street, N.W.

Washington, D.C. 20001

__________________________

L. Barrett Boss

1. Mr. xxxxxxxx may request leave to supplement this motion upon receipt of further discovery about the identification procedures, or following a hearing at which his counsel is able to elicit such information.