United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Suppress Identification
Testimony and Preclude In-Court Identification (Rec.
Doc. 46) filed by Defendant, Michael Portis, and an
opposition thereto (Rec. Doc. 49) filed by the United States
of America. Having considered the motion, the parties'
submissions, the record, and the applicable law, the Court
finds, for the reasons expressed below, that the motion
should be DENIED.
HISTORY AND BACKGROUND FACTS
matter arises out of an alleged carjacking. The government
contends that in the early morning hours of April 24, 2016,
two females (“Complainant One” and
“Complainant Two”) left a residence in New
Orleans and got into a vehicle that was parked in the
driveway. Complainant One reported that as they walked toward
the vehicle she noticed four black males, two of whom were on
bicycles, in the street nearby. She reported that she got
into the driver's seat and that Complainant Two sat in
the passenger seat. Complainant One further reported that she
heard a tap on the driver's side window. When she looked
out that window, she saw a black male wearing a dark hoodie
with his face covered by a black cloth. He pointed a handgun
at Complainant One and said, “You move, Imma
shoot.” At the same time, another perpetrator armed
with a handgun approached the passenger side of the vehicle
where Complainant Two was sitting. That perpetrator ordered
Complainant Two to exit the vehicle. Both Complainants got
out of the vehicle and went back into the residence. The two
subjects jumped into the vehicle and drove away while other
males on the block appeared to be “looking out”
for the subjects.
inside the residence, Complainant One instructed a male who
was there to call the police. According to that male's
account, he then went outside and saw two black males fleeing
the scene in the vehicle. He reported that he jumped into a
different car and attempted to follow the subjects for
“a short distance” before returning to the
residence. When he arrived home, the vehicle was back in the
driveway with the keys on the driver's seat. He also
reported seeing two black males walking in the area at that
time but did not provide further description.
New Orleans Police Department (“NOPD”) officers
first arrived on the scene, they asked the Complainants for a
description of the subjects. At that point, Complainant Two
provided an initial description of the subject who ordered
her to exit the passenger side of the vehicle at gunpoint.
She stated that he was a black male wearing black clothing
and had tattoos on his face. About an hour to an
hour-and-a-half later, a different officer asked Complainant
Two for a description of the same subject. This time,
Complainant Two stated that the subject was wearing a mask at
the time of the incident. The officer who had taken the
initial description overheard this exchange and reminded
Complainant Two that she had told him something different.
Complainant Two thought about what she said and amended her
description. Complainant Two then reiterated that the subject
was wearing black clothing with a black hood over his head
and that he had tattoos on his face.
officers canvassed the area to locate the subjects. They saw
four black males who they believed fit the description and
attempted to detain them. The subjects fled and the officers
chased them by foot. After setting up a perimeter, officers
eventually located three black males hiding in nearby bushes.
Two of the males were wearing dark clothing with dark hooded
sweatshirts. One of them, Portis, had multiple tattoos on his
officers then detained two of the suspects in a police
vehicle as other officers brought Complainants One and Two to
the scene for a show-up identification. When the Complainants
arrived, Portis was removed from the police vehicle. He was
handcuffed and was flanked by an officer on his left and on
his right. The headlights of another police vehicle were
flashed on Portis to illuminate him. Complainant Two
immediately identified Portis as the person who pointed a gun
at her and demanded she exit the vehicle. Complainant One
identified the other suspect.
jury returned an indictment charging Portis and Rodney Brown
with carjacking, in violation of 18 U.S.C. § 2119(1) and
(2) and brandishing a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. §
924(C)(1)(A)(ii) and (2). Portis was also charged as a felon
in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1) and 924(a)(2). A third suspect, a juvenile, was
also arrested. He was charged with carjacking by the State of
Louisiana and has pleaded guilty.
April 27, 2017, Portis filed the instant motion to suppress
identification testimony and preclude in-court
identification. Portis requests that Complainant Two's
identification be suppressed because the procedure was
impermissibly suggestive and led to a substantial likelihood
of misidentification. Portis also alleged a Sixth Amendment
violation but has subsequently withdrawn this allegation. On
May 25, 2017, the Court held a hearing on the motion and took
the matter under advisement.
Due Process Clause protects against the use of evidence
obtained from impermissibly suggestive identification
procedures.” United States v. Guidry, 406 F.3d
314, 319 (5th Cir. 2005). The court applies a two-step test,
often referred to as the Braithwaite test after
Manson v. Braithwaite, 432 U.S. 98 (1977), to
determine the admissibility of identification evidence.
United States v. Moody, 564 F.3d 754, 762 (5th Cir.
2009). The first step of the Braithwaite test is to
determine whether the identification procedure is
impermissively suggestive. United States v. Moody,
564 F.3d 754, 762 (5th Cir. 2009). If so, the second step
requires the court to analyze whether the procedure
“posed ‘a very substantial likelihood of
irreparable misidentification.'” United States