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United States v. Heard

United States District Court, M.D. Louisiana

June 2, 2017





         Before the Court is the Motion to Suppress (Doc. 18), filed by Defendant Jonathan Heard (“Defendant”), which is opposed by the Government (Doc. 20). The Court held an evidentiary hearing on March 22, 2017. (Docs. 22, 25.) Defendant and the Government filed Post-Hearing Memoranda (Docs. 26 and 30, respectively). After careful consideration of the law, the facts of this case, and the parties' arguments, for the reasons set forth below, Defendant's Motion to Suppress (Doc. 18) is DENIED.


         At approximately 12:11 AM on the morning of September 9, 2016, and again at 12:12 AM, the BRPD received separate telephone calls from a man, later identified as Jackie Ross, who reported that another man had pointed a gun at him.[1] (Doc. 25 at 18, 20.) In the first call, Ross described a man wielding a gun as a tall male with a cap on, wearing a blue shirt and blue-jean shorts, and that he was accompanied by a female who was wearing a long dress. (Docs. 18-1 at 1; 20 at 1-2.) After BRPD dispatched Officers J. Stewart and Blaine Dupuy Wilkes to the scene, [2] BRPD received a second call from Ross, this time Ross stated that the man waving a gun around was a “tall skinny black male wearing a blue shirt and blue jeans, and that he was with a female with a long dress.” (Doc. 18-1 at 1 (internal quotation marks omitted).) In only one of the calls, did Ross allegedly report that his assailant was bald. (Doc. 25 at 18.)

         After Officers Stewart and Wilkes arrived at the area, they were informed by one or more homeless persons that the man with the gun was walking down St. Vincent DePaul. (Docs. 18-1 at 2, 20 at 2.) At approximately 12:25 AM, officers located Defendant, a tall, thin, black male, walking down St. Vincent DePaul with his girlfriend; he was wearing a blue shirt and blue jeans or blue jean shorts, [3] and his girlfriend was wearing a long dress. (Docs. 18-1 at 2, 20 at 2; 25 at 20.) When Defendant saw the officers approach, he allegedly turned away from them briefly and threw something on the ground, which the officers later recovered and identified as a .380 caliber handgun. (Docs. 18-1 at 2, 20 at 2.) The officers searched Defendant and found three rounds of .380 caliber ammunition in his pocket. (Docs. 18-1 at 2, 20 at 2.) The officers advised Defendant of his Miranda rights, and he indicated he understood. (Doc. 20 at 2-3.) When questioned about the handgun, Defendant denied having it on his person. (Id. at 3.)

         The officers placed Defendant in the back of a patrol car and proceeded toward the BRPD station. On the way to the station, a black male, who subsequently identified himself as Ross, flagged down the car to speak with the officers. (Docs. 18-1 at 2, 20 at 3.) The officers stepped outside the car to speak with Ross. According to the Government, Ross stated that he knew Defendant and referred to him as “that mother****** Heard” and that Defendant “is always in the area harassing and threatening people.” (Doc. 20 at 3 (internal quotation marks omitted).) The Government further alleges that when asked to describe the gun, Ross responded that “it was a small gun, possibly a .380, 22 or a 25” and Ross was also able to identify Defendant's girlfriend as the woman in the long dress. (Doc. 20 at 3.) It was only after Ross made these identifications that the officers rolled down the backseat window, illuminated the backseat with a flashlight, and asked Ross whether the man in the backseat was the man who pointed a gun at him, to which Ross emphatically responded in the affirmative. (Id.)

         Defendant, however, claims that Ross did not identify Defendant as the assailant until after he observed Defendant in the backseat of the patrol car. (Doc. 18-1 at 2.) He concedes that Ross was able to describe the gun as a small gun and that he was able to identify it as possibly a .380, a 22 or 25. (Id.) He further admits that Ross was able to provide a description of his assailant, specifically that “he was ‘a skinny black male with blue shirt and blue jeans and that he was with a female.” (Id.)

         A hearing on this matter was held on March 22, 2017. (Docs. 22, 25.) Ross did not appear in court to testify. Officer Dupuy stated that he was unable to locate Ross to request his presence in Court.[4] (Doc. 25 at 121.)


         a. Standard

         A suppression hearing allows the court to make a preliminary determination regarding the admissibility of certain evidence allegedly obtained in violation of the defendant's constitutional rights under the Fourth Amendment. United States v. Merritt, 695 F.2d 1263, 1269 (10th Cir. 1982). The proponent of a motion to suppress bears the burden of establishing by a preponderance of the evidence that the evidence at issue was obtained in violation of his [constitutional] rights.” United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993) (quoting United States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992)); see also United States v. Matlock, 415 U.S. 164, 177 n.14, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974) (“the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.”).

         The Supreme Court has held that the Due Process Clause of the Fifth Amendment guarantees criminal defendants the right to exclude identification testimony that results from unnecessarily suggestive procedures that are conducive to mistaken identification. See Perry v. New Hampshire, 565 U.S. 228, 239 (2012); Stovall v. Denno, 388 U.S. 293, 302 (1967). Courts are instructed to apply a two-pronged test to determine the admissibility of an out-of-court identification. First, a court must determine whether the pretrial identification procedure was impermissibly suggestive. Neil v. Biggers, 409 U.S. 188, 198-99 (1972); Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir. 1997). If the Court determines the identification procedure was not impermissibly suggestive, it may end its analysis. See United States v. Honer, 225 F.3d 549, 553 (5th Cir. 2000); Livingston, 107 F.3d at 309. However, if the Court finds the procedure was impermissibly suggestive, it must then determine “whether based on the totality of the circumstances, the [procedure] posed a very substantial likelihood of irreparable misidentification.” Honer, 225 F.3d at 553 (citation omitted). The Supreme Court has set forth five factors that bear on the likelihood of irreparable misidentification: (1) the witness's opportunity to view the perpetrator at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the level of certainty demonstrated when making the identification; and (5) the time between the crime and the identification. Biggers, 409 U.S. at 199-200; see also United States v. Burbridge, 252 F.3d 775, 780 (5th Cir. 2001).

         b. Parties' Arguments

         i. ...

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