Opinion
Case No. CR02-0011
July 17, 2002
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to defendant's April 29, 2002, motion to suppress evidence (docket number 21) as amended on June 26, 2002 (docket number 40). The court held an evidentiary hearing on this motion on July 8, 2002, at which the defendant was present and represented by Anne Laverty. The government was represented by Assistant United States Attorney Sean Berry.
In the motion to suppress, the defendant seeks to prohibit witnesses David VanMarm and Michelle Allsup from testifying. Both of these witnesses identified the defendant from pictures shown by FBI agents. The pictures were of the defendant. No photo spread was given to them. The defendant contends that this procedure was impermissibly suggestive and taints their trial testimony. The government contends that the unusual circumstances under which these witnesses were able to identify and remember the defendant show that the identifications of the defendant have independent reliability. It is recommended that the motion to suppress be denied. In addition, the defendant seeks to exclude evidence on the basis of "spoliation." After the hearing, the court was convinced that this is not a suppression issue but rather a simple authentication issue that should be addressed at trial.
FINDINGS OF FACT
The defendant is accused of committing a bank robbery at a Firstar Bank in Cedar Rapids on February 27, 2002. The robber gave the bank teller a demand for money written on a receipt from Payless Shoe Source in Des Moines. Shortly after the robbery, surveillance photographs of the bank robber were published in the Cedar Rapids Gazette.
David VanMarm, a house manager at the St. John's Catholic Worker House in Cedar Rapids, recognized the picture of the bank robber. On February 25, 2002, defendant Mark Robinson had come to VanMarm's shelter. The defendant was requesting shelter. He had a discussion with VanMarm about the fact that VanMarm's shelter did not admit single men because it was predominantly for single parents or couples with children. VanMarm directed the defendant's attention to another shelter in Cedar Rapids that admits single men. The defendant was aware of it, stating that his uncle had resided there. The defendant then asked if he could look at the free items of toiletries and clothes at the shelter and VanMarm told him that he could.
While the defendant looked at the free items, VanMarm received a telephone call from a woman requesting a free food basket. The shelter gives away approximately $30 worth of free groceries to individuals every three months. The defendant overheard this conversation and requested free groceries from VanMarm after VanMarm finished his conversation with the woman. The defendant was told that he could sign up for them and receive them later that day. He signed up for the free groceries but did not come back.
The defendant was in the shelter for approximately ten minutes. He and VanMarm were alone together. They had significant and detailed contact pertaining to the business of the shelter. The contact was polite and purposeful.
The defendant came back to the shelter the next day, February 26, 2002. He came in the afternoon and asked about the food basket. The defendant was informed that he should have picked up the food basket the day before and that he could not get another one for 90 days. VanMarm remembers the defendant breathing a disappointed sigh.
When VanMarm saw the picture of the bank robber in the Cedar Rapids Gazette, he believed he knew the robber. He called Officer Christie Hamblin at the Cedar Rapids Police Department to tell the police that the bank robber had been in his shelter. Officer Hamblin called the FBI.
Special Agent Jason Amoriell of the FBI called David VanMarm and then visited him on March 1, 2002. Special Agent Amoriell showed VanMarm seven pictures of the defendant and asked whether they were pictures of the same man who had been in the shelter. VanMarm immediately recognized the pictures as that of the defendant. VanMarm stated that one of the pictures definitely looked like him and he was adamant that the pictures shown to him were the same person who had been in the shelter.
As a part of the investigation, the defendant has also been identified by Michelle Allsup. Ms. Allsup is a 20-year-old sales associate at Payless Shoe Source in the Merle Hay Mall in Des Moines, Iowa. The defendant came to her store on two occasions immediately preceding the bank robbery. He came in on February 20, 2002, and February 23, 2002. Ms. Allsup remembers that the first time the defendant came in he was with two females, one African American and one Caucasian. She spent about three to four minutes with him while he exchanged a pair of shoes. On February 23, 2002, the defendant came back to the store. Ms. Allsup remembered him simply because he came in twice in a short period of time. In fact, when he came in, she remarked that he had just been there to make a shoe return. The defendant stated that he had been there to make a shoe exchange, not a return. In fact, the defendant was right.See Government's Exhibits 1 and 2. Ms. Allsup remembered that the defendant came in the second time alone. On each of these occasions, she spent three to four minutes talking to the defendant and processing his transactions.
Ms. Allsup was visited by a special agent with the Federal Bureau of Investigation on March 1, 2002. She was shown a picture of the defendant. She was immediately sure that the man in the picture was the defendant. She had previously described the defendant as an African American male with black hair, a pony tail, skinny, probably under thirty years old, five feet seven inches tall, wearing jeans and a t-shirt. She was inaccurate with respect to the defendant's height but this could be accounted for because Ms. Allsup herself is a very petite female.
She had excellent opportunities to view the defendant under circumstances that were not stressful but required her to focus on the defendant and give him her attention. She was very certain that the person in the picture was the man who had shoe transactions with her. She made these identifications within a week to ten days of her observations of him.
CONCLUSIONS OF LAW Identification Procedures
The defendant claims that the witnesses' trial testimony should be suppressed because he was identified at unnecessarily suggestive photo identification procedures which violated his due process rights. InManson v. Brathwaite, 432 U.S. 98, 114 (1976), the Court concluded that reliability is the linchpin in determining the admissibility of identification testimony. See Stovall v. Denno, 388 U.S. 293 (1967) (Suspect taken to a nearby hospital where victim identified him the day after the crime); Neil v. Biggers, 409 U.S. 188 (1972) (Rape victim identified her assailant at a station house show-up seven months after the crime). The Court determined that the admission of evidence from a show-up, without more, does not violate due process. Manson, supra, at 106. Even though the Court expressed concern about the seven-month time lapse between the crime and the identification in Biggers, the Court said the central question was whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. Id. Police officers need not limit themselves to station house line-ups when the opportunity for a quick, on-the-scene identification arises. Such identifications are essential to free innocent suspects and to inform the police if further investigation is necessary. United States v. King, 148 F.3d 968, 970 (8th Cir. 1998). Absent special elements of unfairness, prompt on-the-scene confrontations do not entail due process violations. Id.
Generally speaking, single photograph displays are impermissibly suggestive. United States v. Patterson, 20 F.3d 801, 806 (8th Cir. 1994). The question then becomes whether, under the totality of the circumstances, the suggestive single photograph procedure created a very substantial likelihood of irreparable misidentification. Id. Reliability is the lynchpin in determining admissibility. Id.
The factors to be considered in determining whether a pre-trial identification violated the defendant's due process rights are set out inBiggers, 409 U.S. at 199-200. These include (1) the opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification.Manson, supra, at 114.
In United States v. Lank, 108 F.3d 860, 862 (8th Cir. 1997), the court determined that even if the pretrial displays of defendant's photograph were unduly suggestive, as the district court found, in the totality of the circumstances, the displays did not create a "very substantial likelihood of irreparable misidentification." InLank, the bank teller who waited on the defendant testified that she was with him for about ten minutes and was so close that she could have "reached out and touched him."
The Opportunity to View
Both Mr. VanMarm and Ms. Allsup had a good opportunity to view the defendant. Both had purposeful and meaningful contact with the defendant at very short distance in well lit rooms under conditions that were not stressful. Mr. VanMarm had to converse with the defendant in order to explain the availability of homeless shelters to him as well as the procedures for securing free food. Ms. Allsup had to converse with the defendant in order to get him to fill out the exchange forms and to process his transactions. Both of them had an excellent opportunity to view the defendant.
The Witness's Degree of Attention
Both Mr. VanMarm and Ms. Allsup had the kind of transactions with the defendant that required them to speak directly to the defendant, to listen to his responses and to process the information in either the charitable or business functions that they were responsible for. These were not casual contacts. They required eye contact and responsive communication.
The Accuracy of the Prior Description of the Criminal
Neither of the descriptions given by the witnesses were particularly detailed. This was due in Mr. VanMarm's case to the unusual nature of his contact with the police. Unlike the typical photographic line-up situation, the police did not seek out information from Mr. VanMarm. Mr. VanMarm went to the police and told them that he believed that he had recently had contact with the bank robber. He volunteered information to the police simply to the effect that he recognized the bank robber from surveillance photographs published in the Cedar Rapids Gazette newspaper.
Ms. Allsup was slightly inaccurate about the defendant's age. He is 33 years old and she suggested that he was probably under 30. She also said that he was about five feet, seven inches tall. He represents that he is six feet, two inches tall. The rest of the description given by Ms. Allsup is accurate but was generic enough to identify a significant percentage of the African American male population.
The Level of Certainty Demonstrated At the Confrontation
In both Mr. VanMarm and Ms. Allsup's situations, they were extremely confident that the person whom they had contact with was the person in the photographs given to them by the FBI. Mr. VanMarm immediately recognized the photographs as those of the defendant. He was adamant. He had already identified the defendant as the same person in the newspaper surveillance photograph.
Similarly, Ms. Allsup had no trouble identifying the defendant from his picture. Ms. Allsup remembered who the defendant had been with on the first occasion and that he was alone on the second. She remembered that on the second occasion she had called to his attention the first occasion that he came in the store. Although she inaccurately remembered the first transaction as a return instead of an exchange, she was able to distinguish the first transaction from a typical sale. Again, she was very confident in her identification of the defendant's picture.
The Time Between the Crime and the Confrontation
These identifications are different from typical bank robbery photo identifications. Neither VanMarm nor Allsup observed the defendant under stressful conditions. Both observed the defendant under routine business conditions. Both were visited by the FBI within ten days after first observing the defendant. These events were fresh in their memories and this is demonstrated by the vivid recollections that they had of their dealings with the defendant.
Given the circumstances under which these pretrial identifications were made, the court is confident that the totality of the circumstances do not show a very substantial likelihood of irreparable misidentification. The court is confident that these witnesses had an independent recollection of the defendant that was both vivid and accurate. These identifications were made based on contact that was significant in time, meaningful in purpose, and gathered under circumstances that were not stressful. The motion to suppress should be denied.
Amended Motion to Suppress
The amendment to the motion to suppress filed June 21, 2002, pertains to what the defendant has referred to as "spoliation" of evidence. After the bank robbery in question, the defendant was recognized by a Des Moines police officer while driving a stolen car. The defendant stopped the stolen car and ran from the police. The police seized the stolen automobile and placed it in an impound lot before returning it to the couple from whom it had been stolen. A number of items of incriminating evidence were left in the stolen car including identification belonging to the defendant and receipts from purchases he had made in the Cedar Rapids area after the bank robbery.
Because the police who initially seized the car did not do an inventory of the contents and seize the incriminating documents, the defendant contends that they have engaged in spoliation. The documents were ultimately gathered up by the owner of the car, placed in a bag and were kept inside another vehicle at their residence until FBI Agent Jason Amoriell picked them up from him. The defendant contends that the opportunities for tampering with this evidence at the impound lot and at the owner's residence are such that this evidence should be suppressed due to spoliation.
The issue presented by the defendant's motion is not an issue of spoliation. There is no evidence that the government has knowingly destroyed evidence or permitted it to be destroyed or lost. What the defendant appears to this court to be arguing is a chain of custody or more accurately an authentication issue. This is an evidentiary issue for trial and is not a Constitutional or a statutory issue that should be addressed in the context of a motion to suppress.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the motion to suppress be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).