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United States v. Webb

United States District Court, Seventh Circuit

June 13, 2013

PHILLIP D. WEBB, Defendant.



I. Introduction and Background

Pending before the Court is defendant’s motion to suppress identification evidence (Doc. 36). Webb argues that the photo displays conducted by the Madison Police Department were not fairly conducted and deprived him of his due process right. The government opposes the motion (Doc. 39). On June 3, 2013, the Court held a suppression hearing and took the matter under advisement. After reviewing the record and applicable law, the Court DENIES the motion.

On January 23, 2013, the grand jury returned a four-count superseding indictment against Webb (Doc. 23). Count 1 is for bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d); Count 2 is for use and carry of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §942(c)(1)(A); Count 3 is for possession with the intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and Count 4 is for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The superseding indictment also contains a forfeiture allegation as to firearms and ammunition.

The motion to suppress pertains to Counts 1 and 2 of the superseding indictment as it is directed to a photograph line-up identification stemming from a carjacking and bank robbery that occurred on June 28, 2011.[1] The hearing on the motion to suppress was limited to the suggestibility of the line-up, thus, the Court sets forth only the pertinent facts surrounding the June 28, 2011 incident.

On June 28, 2011, Lynn Lanham and her mother were carjacked at gun point by an African-American male at a Quick Trip gas station in Madison, Illinois. The African-American male got in the back seat of the car on the driver’s side, pointed the gun at the women, demanded their money and ordered them to drive to an ATM.

Ms. Lanham testified that while she was in the car with the man that she was able to see his face through her rear-view mirror. She further testified that he was not wearing a mask, that his face was not covered and that she looked at him a lot.[2] She noted that the person did not have a mean appearance. She also stated that since he did not have hair she focused on the roundness of his face, eyes and checks. Once he was out of the car, Ms. Lanham reported the incident to police and gave a description of the male.

Thereafter, Ms. Lanham and her mother went to the Madison Police Department where she gave a written statement. Ms. Lanham’s description of the male matched Sergeant Dennis Pinero’s observance of Webb in the vicinity of the Quick Trip gas station 30 or 45 minutes before the robbery. Thus, defendant Webb became a suspect for the crime.

Officer Michael Renth searched the Madison Police department PIP system for a photograph of Webb and could not find one. He also searched Webb’s criminal history and contacted the Madison County Sheriff’s department after he noticed that it had a photograph of Webb on file. He asked Detective Sergeant Carol Presson to prepare a line-up with Webb’s dated booking photograph. She did so and emailed it back to Officer Renth. Renth reviewed the line-up and showed the line-up to Ms. Lanham. Ms. Lanham was unable to identify a suspect. In the dated line-up picture, Webb had hair, while at the time of the incident, Webb was bald.

Thereafter on July 7, 2011, Officer Renth obtained a second photo array containing Webb’s picture from Special Agent Mike Swindle of the Illinois State Police. Special Agent Swindle compiled another line-up using an up-to-date photograph of Webb from the Illinois Department of Corrections. Special Agent Swindle made a template and pulled individual pictures off the Illinois Department of Corrections Website and fit them into the template.

After obtaining the line-up, Officer Renth contacted Ms. Lanham and went to her house. Officer Renth showed her the line-up. She reviewed the line-up and identified suspect Number 5. She initialed the array and wrote on the array “man who robbed me.” Officer Renth put the date, the time, “viewed by Lynn Lanham”, his name and “Madison PD” on the array.

II. Legal Standard

On February 28, 2013, in United States v. Sanders, 708 F.3d 976 (7th Cir. 2013), the Seventh Circuit set forth the standard for identification testimony.

Our Constitution protects against “conviction based on evidence of questionable reliability.” Perry v. New Hampshire, ––– U.S. ––––, 132 S.Ct. 716, 723, 181 L.Ed.2d 694 (2012). Despite the importance of this right, the admission of evidence rarely implicates due process. See Id . Rather, courts typically rely on other means to ensure reliable evidence—state and federal rules, as well as different constitutional guarantees, such as the Sixth Amendment rights to counsel and confrontation. Id. Yet, “when evidence ‘is so extremely unfair that its admission violates fundamental conceptions of justice, ’ ” due process, like the sleeping giant, awakens. Id. (quoting Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)). In those situations, other protections have proven insufficient, and courts must step in to prevent injustice.
Unduly suggestive identification procedures represent one example of those fundamentally unfair situations. A procedure becomes so flawed as to implicate due process when it creates a “very substantial likelihood of irreparable misidentification.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). In such cases, the identification must be suppressed. Perry, 132 S.Ct. at 724–25. To decide whether a situation has risen to that level, we follow a two-pronged approach. First, we consider whether the identification procedure used by law enforcement was “both suggestive and unnecessary.” Id. at 724; accord United States v. Gallo–Moreno, 584 F.3d 751, 757 (7th Cir.2009). Second, we examine the “totality of the circumstances” to determine whether other indicia of reliability “outweigh[ ] ... the corrupting effect of law enforcement suggestion.” Perry, 132 S.Ct. at 725 (internal quotation marks omitted); accord Gallo–Moreno, 584 F.3d at 757.
As the Supreme Court recently reiterated, courts will only consider the second prong if a challenged procedure does not pass muster under the first. See Perry, 132 S.Ct. at 730. To fail the first prong, however, even a “suggestive” procedure must also be “unnecessary.” Id. at 724. In other words, the situation must have involved “improper state conduct”—one in which the circumstances did not justify law enforcement's suggestive behavior. Id. at 728. As these descriptions show, both prongs are highly situation-dependent, which may seem to blend the two inquires. Yet, they are distinct. The first prong focuses on police conduct—its suggestiveness and necessity in the specific situation at hand. In contrast, the second prong focuses on the identifying witness and her knowledge of the suspect absent the suggestive procedure. Perhaps, for example, the witness saw the suspect for several minutes in broad daylight. See United States v. Kimbrough, 528 F.2d 1242, 1246–47 (7th Cir.1976). Such considerations could lead us to conclude that an unduly suggestive identification was nonetheless reliable, such that its admission would not violate the Due Process Clause. See id.

United States v. Sanders, 708 F.3d 976, 983-984 (7th Cir. 2013). With these principles in mind, the Court turns to the merits of the motion.

III. Analysis

“The Supreme Court has warned that showing witnesses a photograph of the same person several times may increase the risk of misidentification.” Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003)(citing Simmons v. United States, 390 U.S. 377, 383-85, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). “The danger to be avoided in identification procedures is that of orchestrating the procedure so that one particular suspect stands out from the others and the procedure implicitly suggests to the witness that “this is the man.” Id. “[T]here is nothing per se unconstitutional about showing witnesses the photograph of a particular suspect multiple times as part of an array.” Id. (citations omitted).

Moreover, the Seventh Circuit has “approved repeatedly line-ups composed of individuals who have like features.” United States v. Harris, 281 F.3d 667, 670 (7th Cir. 2002). “[T]here is nothing per se impermissible about placing the same suspect in two different identification procedures.” Id. (citing Gullick v. Perrin, 669 F.2d 1, 5 (1st Cir. 1981)). Furthermore, the Seventh Circuit has repeatedly held that six individuals is a sufficient number of photographs for a line-up. United States v. Carter, 410 F.3d 942, 948 (7th Cir. 2005); United States v. Galati, 230 F.3d 254, 260 (7th Cir. 2000); United States v. Moore, 115 F.3cd 1348, 1360 (7th Cir. 1997); United States v. Sleet, 54 F.3d 303, 309 (7th Cir. 1995).

Defendant places his entire focus and reliance on the sole issue of suggestibility. Specifically, he maintains that the identification process was flawed because there were more photographic arrays than those that were produced. His first focus on this inquiry is that the primary officer, Officer Michael Renth, of the Madison Police Department, is untrustworthy. Thus, defendant contends that because of Officer Renth’s untrustworthiness, the Court cannot believe that his testimony is true or that the identification process was done legitimately. The Court disagrees with defendant’s assessment.

Clearly, there are personal and personnel issues with regard to Officer Renth. He has been demoted from Detective to police officer of some lesser rank. Further, there is an ongoing internal affairs investigation regarding an incident that happened while off-duty which was precipitated from a softball game involving his girlfriend and others who had some history of disagreement.

Based on the Court’s observation of Officer Renth and how his testimony fit with the other testimony presented at the suppression hearing which the Court found credible, the Court assessed Officer Renth’s testimony as it relates to this case as credible. Specifically, Officer Renth testified the following as to the photograph arrays and identification process utilized in this case.

Ms. Summers: Did you talk to her on scene?
Officer Renth: Yes, briefly.
Ms. Summers: And did she give you a description at the time of the offender?
Officer Renth: She – myself and the Chief Shelby at the time arrived and she had brief description and then the location that she – that it had occurred.
Ms. Summers: Okay. And brief description of the offender, what he looked like, what he was wearing, those kinds of things?
Officer Renth: That’s correct.
. . .
Ms. Summers: Okay. And did Sergeant Pinero give you any information at that time?
Officer Renth: He later advised that he had observed a light complected black male that fit the description of Phillip Webb approximately 30 to 45 minutes prior to the robbery about two blocks from that area.
Ms. Summers: He said matching the clothing description that victims had given, is that correct?
Officer Renth: That’s correct.
Ms. Summers: Based on that information, it’s fair to say that at that point Phillip Webb became a suspect for your department.
Officer Renth: Yes, he did.
. . .
Ms. Summers: Okay. But with regard to possibly identifying this individual, in talking with Lynn Lanham, were you able to – did you compile a photographic line-up?
Officer Renth: We had no photos of Phillip Webb. I searched his criminal history and contacted the Madison County Sheriff when I noticed they had a photo on file.
Ms. Summers: What would be your normal process for conducting a photographic line-up?
Officer Renth: We have the PIP system. Basically I would be able to go in there – if there’s a suspect in mind I can put their name in there and actually pull that person to place them on the line-up, and from that point I would use characteristics similar to the suspect to find like persons to put in the line-up.
Ms. Summers: But you can only use the photographs that are in your system to do that?
Officer Renth: That’s correct.
. . .
Ms. Summers: And you did not have a photograph of Mr. Webb? Officer Renth: I did not.
Ms. Summers: Had you any prior dealing with Mr. Webb yourself? Officer Renth: No, I did not.
. . .
Ms. Summers: And as you testified on direct examination, there was an IDOC picture that had been show to people at your department prior to this robbery, correct?
Officer Renth: That’s correct.
Ms. Summers: And Sergeant Pinero had seen that picture?
Officer Renth: Yes.
Ms. Summers: Had you seen that picture?
Officer Renth: I did not.
Ms. Summers: But did you know it existed?
Officer Renth: I knew there was a person of interest, yes.
. . .
Ms. Summers: But that picture was not in your system? Officer Renth: No, it was not.
. . .
Officer Renth: I contacted Carol Preston with the Madison County Sheriff’s Department, asked her if she could take the time to prepare a line-up for me. I provided Phillip Webb’s name and date of birth. She said that she had a dated photo but she could try to put on together, which she did, and then she e-mailed it back to me. I reviewed it, let the – showed it to the victim. She was unable to make an ID at that time. At the time Phillip Webb was actually had a shaved head and the photo he had hair.
. . .
Ms. Summers: And did you – when you printed it out did you print it out once or more than once?
Officer Renth: I printed out a copy without the names to show to the victim, and then I had a master copy, which was the same pictures but it just had names on every photo to identify each person.
Ms. Summers: And you only showed her the one without names?
Officer Renth: That’s correct.
Ms. Summers: And she was not able to make an identification?
Officer Renth: That’s correct.
Ms. Summers: Did you show her other photo arrays?
Officer Renth: Not that day.
. . .
Ms. Summers: And when you showed that to her did you suggest to her in any way that you had a suspect?
Officer Renth: No.
Ms. Summers: Did you suggest to her who – the name of the suspect?
Officer Renth: No.
Ms. Summers: Did you point out a picture and say, really take a good look at this guy, it’s an old picture, but you may be able to recognize him?
Officer Renth: No.
Ms. Summers: What did you say to her?
Officer Renth: Basically what I do with every person I show a line-up to, I explain to them they’re under no obligation to make an identification; the suspect may or may not appear in the ...

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