United States District Court, N.D. Illinois
April 1, 2004.
UNITED STATES OF AMERICA
EDUARDO FA VELA, JR. and AURORA ALAYA
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
The United States of America (the "Government") brought a one-count
indictment against Defendants, Eduardo Favela, Jr. and Aurora Alaya, for
conspiring to possess with intent to distribute marijuana, in violation
of 21 U.S.C. § 846 and 841(a)(1). Presently before the Court are
Defendants' motions to suppress identifications as evidence. For the
following reasons, those motions are granted as to Defendant Alaya but
denied as to Defendant Favela, Jr.
The facts, for the purposes of this motion, are as follows. On July 19,
2000, Officer Fernando Carvajal was assigned as part of an undercover
surveillance team to a controlled marijuana delivery with the Drug
Enforcement Agency. (Tr. at 4). In the early evening hours of that day,
Officer Carvajal, from his vehicle, observed a confidential source meet
with a woman in the area of 126th and Old Western Avenue in Blue Island,
Illinois, from a distance of two blocks away. (Tr. at 4, 55).
Officer Carvajal saw the confidential source give the woman a set of
keys to the van the confidential source had been driving, and he then saw
the woman drive away in the van.*fn1 (Tr. at 25-26). From his vantage
point, Officer Carvajal saw the woman's face and "pretty much her body
description" "from a long view." He also observed that the woman "was
short and kind of chubby" with "light brown hair." (Tr. at 6, 26).
However, Officer Carvajal failed to recall what the woman was wearing.
(Tr. at 26). Moreover, when the female drove away with the van on July
19, 2000, Officer Carvajal failed to take notes or write a report of this
observation or any description of the female. (Tr. at 26).
Officer Carvajal then followed the van and another vehicle that was
following the van to a nearby house. (Tr. at 6-7). While Officer Carvajal
was following these vehicles, he was never closer than two blocks away.
(Tr. at 56). When the vehicles reached the house, Officer Carvajal drove
past the house's garage and observed the van being backed into the
garage's northernmost bay. (Tr. at 7,50).
A few minutes later, Officer Carvajal made a second pass by the garage
and saw "the van inside the garage, and standing next to the van was the
female that drove the van there, with an older male Hispanic in the rear
of the van." (Tr. at 7-8, 28-30). The older Hispanic male was in his late
forties or early fifties. (Tr. at 20). The female was standing about a
foot away from the van on the driver's side; Officer Carvajal had a side
view of the female "looking behind like
towards the van." (Tr. at 30). The older Hispanic male was standing
in the rear of the van unloading a box from inside the van. (Tr. at 7-8,
After Officer Carvajal drove past the house a second time, he
established a surveillance point in a wooded prairie across the street
from the house. (Tr. at 9, 51). Officer Carvajal did not use binoculars
or cameras to improve his observation of the events occurring in the
garage. (Tr. at 92).
At some points, Officer Carvajal was about thirty-five to forty yards
away from the house while standing in the prairie. (Tr. at 11, 32). At
different moments, Officer Carvajal was about ten to twenty yards inside
the wooded prairie. (Tr. at 33). Officer Carvajal was about fifty yards
from the garage where the van was located. (Tr. at 52).
From his vantage point inside the prairie, Office Carvajal was able to
see a garage bay next to the one where the van was parked, (Tr. at 13).
He was also able to see "a gangway area that leads to the side of the
house" and "the whole northeast of the house." (Tr. at 13). However,
Officer Carvajal could not see anyone at the rear of the van unloading
the van inside the garage from his position in the prairie. (Tr. at 53).
While Officer Carvajal was inside the prairie looking at the house, he
saw a younger Hispanic male who was approximately thirty years old
"coming out from that gangway area and going into the house carrying two
boxes, two cardboard boxes." (Tr. at 13). About thirty minutes later,
Officer Carvajal observed the same person he saw carrying the two
cardboard boxes get into a "SUV-type vehicle" and drive "westbound on the
street that's just north of the house." (Tr. at 15). About ten minutes
later, Officer Carvajal heard, over his police radio, that Blue Island
Police Department officers stopped the SUV and identified the driver.
(Tr. at 17).
About twenty minutes later, Officer Carvajal saw the same driver return
to the house in the SUV. (Tr. at 17).
Later that evening, Officer Carvajal saw the older Hispanic male, who
Officer Carvajal had previously observed unloading boxes from the rear of
the van, walking back and forth and looking around while watering the
grass. (Tr. at 19). By the time Officer Carvajal saw this man, it was
"already starting to get dark." (Tr. at 21).
Officer Carvajal remained in the prairie until law enforcement
authorities executed a search warrant at the house. (Tr. at 36). Officer
Carvajal did not see any of these three people the female he saw
driving the van, the older Hispanic male, or the younger Hispanic
On May 29, 2003, Officer Carvajal was interviewed by Drug Enforcement
Agency Special Agent Joseph Moussiaux. (Tr. at 66). During this
interview, Officer Carvajal was not shown any pictures of the individuals
he allegedly observed on July 19, 2000. (Tr. at 42). Moreover, Special
Agent Moussiaux's report of this interview fails to show that Officer
Carvajal provided a description of the female. (Tr. at 81-82). Special
Agent Moussiaux's report also contains an account by Officer Carvajal
inconsistent with his testimony regarding his first observation of the
female at 126th Street and Old Western Avenue, as set out in the footnote
On or around November 12, 2003, Special Agent Moussiaux showed Officer
Carvajal photographs of an older Hispanic male, Eduardo Favela, Sr.; a
younger Hispanic male, Defendant Eduardo Favela, Jr.; and a female,
Defendant Aurora Alaya. (Tr. at 41, 78-79, 91;
Gov't Resp., Ex. E). Before this meeting, Officer Carvajal was
never shown any pictures of the people he allegedly observed on July 19,
2000. (Tr. at 72).
These pictures were three inches by six inches and did not depict the
height of the individuals in the pictures. (Tr. at 43-44; Gov't Resp.,
Ex. E). When Officer Carvajal was shown these pictures, he "knew that
these were the three individuals that were involved with the activity"
that he observed on July 19, 2000. (Tr. at 91). Prior to November 12,
2003, Officer Carvajal did not give a written report or description
detailing the height, weight, or age of the three subjects he observed on
July 19, 2000. (Tr. at 42).
"A show-up `occurs when only one suspect is presented to the witness.'"
United States v. Punches, 84 F.3d 249, 254 (7th Cir. 1996)
(citations omitted) (Punches). A defendant must satisfy two
conditions to prevail on a due process claim and suppress a show-up
identification. First, a defendant must demonstrate "that the challenged
show-up identification procedure was unreasonably suggestive." United
States v, Newman, 144 F.3d 531, 535 (7th Cir. 1998)
(Newman). Second, a defendant must demonstrate that "the
identification, viewed under the totality of the circumstances, is
reliable despite the suggestive procedures." Funches, 84 F.3d at
253. If a pre-trial identification is inadmissible, a trial
identification by the witness may then be tainted. See Cossel v.
Miller, 229 F.3d 649, 656 (7th Cir. 2000).
Defendants argue that the pictures shown to Officer Carvajal
constituted a show-up and were, thus, unreasonably suggestive. An
identification procedure is impermissibly suggestive
only where it creates "a very substantial likelihood of irreparable
misidentification." Simmons v. United States, 390 U.S. 377, 384
(1968). Show-up identifications are "inherently suggestive" and should
only be used in "extraordinary circumstances." Newman, 144 F.3d
The Government contends that these pictures were not shown to Officer
Carvajal to identify suspects but, rather, to determine if the people
depicted in the photographs were the same ones Officer Carvajal observed
more than three years earlier on July 19, 2000. This procedure used in
this case meets the definition of a show-up for the purposes of
identification. Moreover, the Government has failed to show that any
extraordinary circumstances exist that required the use of this show-up.
Accordingly, the identification procedure used with Officer Carvajal in
this case was unreasonably suggestive.
Defendants then "must also establish that the identification is
unreliable under the totality of the circumstances." Newman, 144
F.3d at 535. If Officer Carvajal's identification of Defendants possesses
sufficient indicia of reliability, then the identification is admissible,
despite the suggestive show-up procedure used by the Government. See
Newman, 144 F.3d at 536. Five factors guide a court's inquiry in
determining whether the identification was sufficiently reliable: (1)
whether the witness had an opportunity to view the defendant at the time
of the crime, (2) the accuracy of the witness's prior description of the
defendant, (3) the length of time between the crime and the
identification, (4) the level of certainty demonstrated by the witness at
the time of the identification, and (5) the witness's degree of
attention. Newman, 144 F.3d at 536.
Officer Carvajal's opportunity to see the female involved was extremely
limited. When Officer Carvajal first observed the female he later
identified as Alaya, he was two blocks away. He remained two blocks away
from her as he followed the van to the house and garage in
question. When he passed the garage and observed a female, Officer
Carvajal only saw, for a few seconds, a side view of a female as she was
looking to the back of the van.
Officer Carvajal's testimony regarding the prior description of this
female was incomplete. He described her as short and kind of chubby with
long brown hair, and he could not describe the clothing she wore.
Officer Carvajal expressed certainty that the female he identified from
the picture he saw was the female he observed on July 19, 2000; and he is
a police officer trained to pay attention to detail. Manson v.
Brathwaite, 432 U.S. 98, 115 (1977). But, considering the totality
of the circumstances, particularly the two limited views he had of the
female from (1) two blocks away and (2) later, as he drove past her,
Defendant Alaya has established there is insufficient indicia of
reliability to permit identification by Officer Carvajal of Alaya during
However, as to Defendant Favela, Jr., Officer Carvajal was able to see
him on several occasions from the prairie. First, Officer Carvajal saw a
thirty-year-old Hispanic male coming out of the gangway area and going
into the house. Later on, Officer Carvajal observed this man get into an
SUV. Thirty minutes later, Officer Carvajal saw the same man return to
the house. There was still sufficient day-light outside at the times
Officer Carvajal made these observations of Defendant Favela, Jr.
Considering the facts set out above and the factors set out above used
to determine the reliability of the pre-show-up identification, including
the opportunities Officer Carvajal had to observe Defendant Favela, Jr.,
there exists sufficient indicia of reliability that Officer Carvajal's
identification of Favela, Jr. and Officer Carvajal's in-court
identification of Favela, Jr. are found to be admissible.
For the foregoing reasons, Defendant Ayala's Motion to Suppress
Identification as Evidence is granted, and Defendant Favela, Jr.'s Motion
to Suppress Show Up Identification Evidence is denied.