United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendant's motion to
suppress. A hearing on the motion was held before the
undersigned on May 30, 2018, at Raleigh, North Carolina. For
the reasons that follow, defendant's motion to suppress
is charged by way of indictment with conspiracy to traffic in
contraband cigarettes in violation of 18 U.S.C. § 2342.
In this motion, defendant challenges his identification by a
co-conspirator but not co-defendant, Alpha Diallo.
Diallo previously pleaded guilty and agreed to
cooperate with the government. During a March 20, 2017,
debrief which followed Diallo's guilty plea, Internal
Revenue Service, Criminal Investigation Division Agent
Jennifer Velez showed Diallo six single photographs showing
six individuals and Diallo identified three individuals from
those photographs. During the debrief, Diallo was asked to
describe the driver of a tractor trailer that had
approximately two years earlier stopped at Diallo's
storage unit in Raleigh to load and transport boxes of
cigarettes. Diallo described a short, dark-skinned black male
in his forties as the driver. After that description, Agent
Velez showed Diallo a single photograph of who agents knew to
be defendant, and Diallo identified defendant as the driver
of that tractor trailer from that photograph. Diallo also
identified a photograph of the cab of defendant's tractor
trailer as being the tractor trailer that had been loaded
with cigarettes at Diallo's storage unit. Diallo stated
that defendant's co-defendants Jalloh and Barry were also
at the storage facility on that occasion, that they had all
met there during the day, that Diallo and defendant both
stood outside the storage unit watching while boxes of
cigarettes were being loaded on to the tractor trailer, and
that approximately fifteen minutes passed while the boxes of
cigarettes were being loaded. Agent Velez testified that
defendants Jalloh and Barry have confirmed Diallo's
information regarding this particular occasion loading boxes
of cigarettes from Diallo's storage unit on to a tractor
trailer. Agent Velez testified that Diallo is 6'4"
tall and that defendant is reported to be between
5'9" and 5' 11" tall.
seeks to suppress any out of court identification of
defendant or his tractor trailer and any subsequent in court
identifications of defendant or his tractor trailer by
Diallo. Defendant contends that the identification procedure
used was inherently suggestive and created a substantial risk
process principles protect criminal defendants from the use
of impermissibly suggestive identifications. United
States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007).
In order to determine whether a challenged identification
should be suppressed, a court engages in a two-step analysis.
First, the defendant "must prove that the identification
procedure was impermissibly suggestive." Holdren v.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994) (citing
Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). If
it was not, the inquiry ends. If it was impermissibly
suggestive, then "the court must determine whether the
identification was nevertheless reliable under the totality
of the circumstances." Id. The exclusion of
identification testimony is a drastic sanction which is
reserved for evidence which is manifestly suspect. Harker
v. State of Md., 800 F.2d 437, 443 (4th Cir. 1986).
government, without conceding the initial inquiry, but
see United States v. Johnson, 114 F.3d 435, 441 (4th
Cir. 1997) (Supreme Court has consistently questioned use of
single photograph for pretrial identification), focuses its
argument on the reliability of the identification under the
totality of the circumstances, and the Court thus focuses its
analysis there as well.
Factors used in assessing reliability include: (1)
witness' opportunity to view the perpetrator at the time
of the crime; (2) the witness' degree of attention at the
time of offense; (3) the accuracy of witness' prior
description of the perpetrator; (4) the witness' level of
certainty when identifying the defendant as the perpetrator
at the time of the confrontation; and (5) the length of time
between the crime and the confrontation.
Johnson, 114 F.3d at 441.
Diallo had ample opportunity to view defendant and there is
no evidence which would suggest that Diallo's attention
was elsewhere or that he was so distracted while the boxes of
cigarettes were being loaded on to the truck that he did not
have an opportunity to view defendant, who was out of the
tractor trailer while the boxes were being loaded.
Diallo's description of defendant was generally accurate,
including his description of defendant as short as Diallo
would stand up to seven inches taller than defendant. There
is no evidence which would suggest that Diallo had difficulty
identifying defendant or his tractor trailer from the
photographs. The factor weighing most against the reliability
of the identification is the length of time that passed
between Diallo's encounter with defendant and the
identification, but during the encounter at the storage unit
Diallo had approximately fifteen minutes within which to view
defendant under circumstances which were not highly
assuming, without deciding, that the identification procedure
employed was impermissibly suggestive, the Court finds that
the totality of the circumstances supports that Diallo's
identification both of defendant and his tractor trailer were
motion to ...