United States District Court, D. Alaska
ORDER RE FINAL REPORT AND RECOMMENDATION TO GRANT
DEFENDANT'S MOTION TO SUPPRESS IDENTIFICATION
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 19 is defendant Michael Joseph
Cooksey's Motion to Suppress Identification. The
government responded in opposition at Docket 29. The motion
was referred to the Honorable Magistrate Judge Deborah M.
Smith. Judge Smith held a hearing on the motion on June 11,
2019.[1] At Docket 55, Judge Smith issued her
Initial Report and Recommendation, in which she recommended
that the motion be granted. At Docket 57, the government
sought clarification of the Initial Report and
Recommendation, specifically as to whether any in-court
identification of Mr. Cooksey could be made by William Shane
during trial. Judge Smith treated this request for
clarification as an objection to the Initial Report and
Recommendation.[2] Judge Smith issued her Final Report and
Recommendation at Docket 60, in which she recommended that
the motion be granted, including any future in-court
identification by the witness. The government objected to the
Final Report and Recommendation at Docket 63.
The
matter is now before this Court pursuant to 28 U.S.C. §
636(b)(1). That statute provides that a district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.”[3] A court is to “make a de novo
determination of those portions of the magistrate judge's
report or specified proposed findings or recommendations to
which objection is made.”[4]But as to those topics on which no
objections are filed, “[n]either the Constitution nor
[28 U.S.C. § 636(b)(1)] requires a district judge to
review, de novo, findings and recommendations that the
parties themselves accept as correct.”[5]
Here,
the government objected to a factual discrepancy: The Final
Report and Recommendation states both that Mr. Cooksey spent
“roughly an hour” at a witness's house and
that Mr. Cooksey spent “roughly half an hour” at
the witness's house.[6] Based on the transcript of the
witness's testimony, the Court finds that Mr. Cooksey
spent “[r]oughly about an hour” at the
witness's house.[7]
The
government also objected to “three factual
omissions” from the Final Report and Recommendation:
(1) the witness testified that he is near sighted and has
difficulty seeing things at a distance, (2) the witness
testified that he was able to see Mr. Cooksey at close range
when he opened the door to him, and (3) the witness testified
that he had not sold any other firearms to
anyone.[8] As to the first and third statements, that
Final Report and Recommendation expressly addressed the fact
that they were not included in the Initial Report and
Recommendation, but found that consideration of those
statements “do[es] not alter the totality of the
circumstances so greatly as to change the [Magistrate]
Court's conclusions.”[9] As to the second statement, the
Final Report and Recommendation does not omit this testimony;
it is expressly included in the Final Report and
Recommendation.[10]Upon review of the witness's
testimony, the Court finds that he did testify to the three
statements, but agrees with the Magistrate Judge that they do
not alter this Court's conclusion that the witness's
identification of Mr. Cooksey to Officer Haywood should be
suppressed.[11]
The
government does not intend to use the out-of-court
identification at trial. However, the government objected to
the suppression of future, in-court identification of Mr.
Cooksey by the witness.[12] In doing so, the government objected
to the weight the Magistrate Judge gave to certain factors in
concluding that “the totality of the circumstances
suggests that BBPD's identification procedures created a
substantial likelihood of
misidentification.”[13] Neil v. Biggers lists
five factors to be considered in determining whether
unnecessarily suggestive identification procedures created a
“substantial likelihood of misidentification”:
(1) the witness's opportunity to view the suspect at the
time of the crime, (2), the witness's degree of
attention, (3) the accuracy of the witness's prior
description of the suspect, (4) the witness's level of
certainty as to the identification, and (5) the length of
time between the crime and the confrontation.[14]
Here,
the government asserts that the Magistrate Judge's
decision that “the most significant factor ‘is
the lack of a prior description by [the witness]' does
not constitute a proper analysis of the ‘totality of
the circumstances' to determine whether the
identification is sufficiently reliable.”[15] The
government contends that “case law does not indicate
how much weight to provide” to each of the factors set
forth in Neil v. Biggers.[16] The Court finds that the
Magistrate Judge properly analyzed the Biggers
factors with respect to the out-of-court identification.
Biggers states that the central question requires a
consideration of the totality of the
circumstances.[17] In considering the totality of the
circumstances, it was not improper for the Magistrate Judge
to weigh the lack of any prior description of Mr. Cooksey by
the witness. Because “the Biggers factors
assume that a witness has made a description in the first
place, ” the Magistrate Judge correctly noted that the
lack of any prior description by the witness was
“significant.”[18]
The
Magistrate Judge recommended that the Court grant the Motion
to Suppress Identification. The Court has reviewed the Final
Report and Recommendation and agrees with its analysis with
respect to the out-of-court identification. Accordingly, the
Court adopts the Final Report and Recommendation at Docket
60, and IT IS ORDERED that the Motion to Suppress
Identification at Docket 19 is granted. However, with respect
to any future in-court identification, the motion is granted
without prejudice to the government to make a showing outside
the presence of the jury as to witness William Shane's
ability to make a reliable and untainted in-court
identification of Mr. Cooksey pursuant to the factors set
forth in Biggers.
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Notes:
[1] Docket 54 (transcript of
hearing).
[2] Docket 60 at 2 n. 1, 13-14.
[3] 28 U.S.C. § 636(b)(1).