United States District Court, E.D. Wisconsin
ORDER ADOPTING JUDGE JONES'S RECOMMENDATION (DKT.
NO. 46) AND DENYING DEFENDANT'S MOTION TO SUPPRESS (DKT.
PAMELA PEPPER United States District Judge.
government charged the defendant with three Hobbs Act
robberies and brandishing a firearm in furtherance of one of
those crimes. On November 20, 2018, the defendant filed a
motion to suppress the lineup identification of the defendant
and any in-court identification at trial. Dkt. No. 20 at 1.
The defendant argues that the lineup identification violated
his Fifth Amendment right to due process because the
procedure was unduly suggestive. Id. Magistrate
Judge David E. Jones scheduled an evidentiary hearing, but
the defendant then asked him to adjourn the hearing and the
trial dates to accommodate the schedule of a potential expert
witness. Dkt. Nos. 28-29. Judge Jones granted that motion,
dkt. no. 30, and ended up holding the evidentiary hearing on
March 6, 2019, dkt. no. 37. He then issued a report
recommending that the court deny the motion to suppress. Dkt.
No. 46. The defendant filed his objection on July 29, 2019,
after receiving an extension of time. Dkt. No. 50. The
government filed a response, dkt. no. 51, and the defendant
filed a reply, dkt. no. 52. The court will adopt the
recommendation and deny the motion to suppress.
The Defendant's Motion to Suppress
defendant moved to suppress the identification procedure
because the witness, DC, did not identify the defendant in
the initial lineup. Dkt. No. 20. She changed her answer to
identify the defendant after meeting with the detective
involved with the investigation. Id. The defendant
alleged that the Milwaukee Police Department did not use a
double blind method (where the administering officer does not
know the target). Id. at 6 (citing Hart v.
Mannina, 798 F.3d 578, 588 n.1 (7th Cir. 2015)). He also
challenged the fact that the police did not record the
interview (even though they had recorded the lineup).
defendant argued to Judge Jones that this procedure was
unnecessary, unduly suggestive and unreliable. First, he
cited DC's testimony-she gave an inaccurate description
of the defendant. The witness described the suspect as
younger, shorter and darker-skinned than the police report
indicates. Id. at 8. Second, he asserted that DC had
limited opportunity to observe the suspects because the
robbery took place over two minutes according to surveillance
video in the store. Id. at 8-9. Third, the defendant
alleged that the number of people in the store and the
changes in location affected DC's ability to pay
attention, and that four days had passed between the incident
and the lineup. Id. at 9.
government agreed that a hearing was necessary. Dkt. No. 21.
parties prepared a stipulation, and produced the police
reports, lineup forms and the video of the robbery and
lineups for the evidentiary hearing. Dkt. Nos. 38-39, Exs.
1-11. At the hearing, the government called DC and Detective
Schlachter. Dkt. No. 39 at 11-108. The defendant called his
expert, Professor Lawrence T. White, who is a professor of
psychology in Beloit, Wisconsin. Id. at 109-156.
robbery charged in Count Five occurred at approximately 2:55
p.m. on August 25, 2018, at the Cricket Mobile Store located
at 1225 S. Cesar Chavez Drive in Milwaukee, Wisconsin. Dkt.
No. 34 at ¶1. DC called 911 at 2:57 p.m.; Officer Vance
Scollin arrived on the scene to interview DC. Dkt. No. 34 at
¶2. Schlachter also interviewed DC. Id.
reported that DC said two black males, one armed with a
silver pistol, entered the store and robbed her. Id.
at ¶3. She described suspect one (later identified as
the defendant) as being 5' 7” to 5' 8”
tall, thin, with a dark complexion and unknown clothing. She
described the second suspect (later identified as codefendant
Leon Barnes), as the same, a little taller with a silver
pistol. Id. at ¶3; Dkt. No. 3-1, Ex. 2.
also interviewed DC. Dkt. No. 34 at ¶4. DC told
Schlachter that two black males entered the store together on
August 25, 2018 at 2:55 p.m. They approached her as she was
positioned behind one of the two registers. Id.
Suspect one asked about switching providers and service on
his iPhone. DC responded that they did not have iPhones in
stock. Id. Suspect one then said something about
wanting money and DC realized the suspects were robbing the
store. Id. Suspect two pulled out a small silver
colored pistol with his right hand and pointed it at DC.
Id. at ¶5. Suspect one moved next to DC behind
the register but the registers were locked. Id.
Suspect two instructed DC to help suspect one unlock the
registers and DC went to the back room at gunpoint.
Id. Suspect one, who was wearing a glove covering
only his right thumb and index finger, located the key and
returned to the register. Id. Suspect one emptied
the funds from the cash drawer and placed them on the right
side of his body. Id. He then asked for DC's
phone and the phone she would use to call 911. Id.
She pointed to the cordless phone; he said he didn't want
that phone and they left. Id. The robbery lasted
approximately two and a half minutes. Id.
described suspect one as twenty-four to twenty-five years
old, 5' 7” to 5' 8”, 180 pounds, medium
build, dark skin, wearing a baseball cap, white shirt, dark
pants and a glove on his right hand covering only his right
thumb and index finger. Id. at ¶6. The
Milwaukee Police Department arrest report lists the defendant
as thirty-two years old, 6' 0” in height, 175
pounds, with light build, light brown complexion and a beard.
Id. at ¶7. DC described suspect two (later
identified as Barnes) as twenty-six to twenty-eight years
old, 5' 5” to 5' 6” in height, 150-160
pounds, thin build, dark skin, and dark pants. Id.
Police reports list Barnes as 5' 10” and 170 with a
medium build. Id. at ¶8.
days after the Cricket Mobile robbery, officers arrested the
defendant at his residence on North 91st Street in Milwaukee.
Id. at ¶9. On August 29, 2018, a day after the
defendant's arrest, law enforcement conducted a
videotaped interview with the defendant; his hair was styled
in two French braids. Id. The officers conducted
separate lineups for the defendant and Barnes that same day.
officers videotaped the lineups. The lineup for Barnes
started at 6:19 p.m. and ended sixteen minutes later. The
lineup for the defendant followed at 7:30 p.m. and lasted
approximately twenty minutes. Id. at ¶10.
Before each lineup, the officers gave each witness a Lineup
Identification form. Id. at ¶11. The officers
read the form to the witnesses in each lineup as they viewed
the subjects. Id. The form explained that the person
who committed the crime may not be in the lineup and that the
individuals would be displayed one at a time in no particular
order. Id. The form instructed witnesses not to
speak, raise a hand or signal to anyone in the lineup
procedure. Id. The form further stated that, after
the witnesses had viewed a subject in the lineup, the
moderator would ask if the subject in the lineup committed
the crime. Id. The witness was instructed to circle
“yes” or “no” for each numbered
subject. The witness was told that, after the process was
completed, the witness would be interviewed by an
lineup followed the same procedure. Id. at ¶12.
In both lineups, the witnesses viewed six subjects.
Id. Participants in the first lineup stood up for
the process. Id. Participants in the second lineup
were viewed in wheelchairs with hats on and their bodies
covered entirely from the neck down by a blanket.
Id. These measures were necessary because the
defendant would not change into an orange jail uniform or
stand, and he unbraided his hair before the lineup.
viewed both lineups and a filled out a Lineup Identification
Form for each. Id. at ¶13. After the first
lineup, DC circled “no” on the form for everyone
other than position four. Id. She put a question
mark next to number four on the form. Id. Then
Schlachter interviewed DC. Id. at ¶14. He did
not record the interview, but he filled out a report.
Id. DC told the detective that the subject in
position number four was the man armed with the gun during
the robbery. Id. Schlachter asked what made DC
certain that the robber was number four. Id. DC
responded that number four had the same jaw line and overall
facial structure as the robber with the gun. Barnes was
number four of the lineup. Id.
viewed the second lineup. Id. at ¶15. At the
end of the lineup, DC indicated she had not identified anyone
and circled “no” for each. Id.
Schlachter interviewed DC again. Id. His report
On 8-29-18 at 7:55 p.m., I assisted with the live line-up,
which took place at the Police Administration Building. The
target of this lineup was Christopher C. LOVEJOY, B/M,
01-04-86 who was in-custody for several business robberies. I
was then instructed to conduct an interview of the victim in
I located the victim, DC, and the interview was conducted on
the 4th Floor of the Police Administration Building. DC
showed me her lineup form and stated she circled
“no” for everyone in the lineup. DC then stated
to me that the individual who was in position #2 was the only
individual in the line-up that she believed was a suspect in
the armed robber. I asked DC if she believed that the
individual in position #2 was the suspect in the offense why
did she circle “No.” DC stated she really wanted
to see the individuals standing up for the line-up. DC paused
for a brief second and stated she wanted to change the
“no” to a “yes” for the individual in
position #2. DC then circled “yes” for the
individual in position #2 and placed her initials next to it.
I asked DC what made her certain the individual in position
#2 was the same suspect in the offense. DC stated when she
saw the individual in position #2 with the glasses on, she
stated it was the same individual, who she stood next to that
removed the money from the register. DC also stated the
individual had the same facial structure and the jaw line as
the suspect in the robbery. DC stated this was the other
suspect in the offense who removed items from thestore.
I thanked DC for her time and cooperation. It should be noted
that LOVEJOY was the individual in position #2.
Dkt. No. 34-6 at 1.
testified at the March evidentiary hearing. Dkt. No. 39 at
12. She said that while working as a cashier at a Speedway,
she received training that taught her to remember as much as
possible about a person committing a robbery-physical
features, height and whatever she could try to memorize.
Id. at 13. At the time of the hearing, she worked at
Cricket Mobile on South 16th Street. Id. at 14.
August 25, 2018, DC was alone in the store-eating lunch-when
two individuals entered the store. Id. It was sunny
and warm outside; both individuals wore sunglasses.
Id. at 15-16. They approached where she was sitting,
coming very close. Id. at 16. DC engaged them in
conversation and one of the individuals pulled out a gun.
Id. They said they were robbing the place.
Id. One of the individuals pointed the gun at her
torso; DC stepped back. Id. at 17. They instructed
DC to help them obtain the keys to the register. Id.
at 18. DC followed them into the back room, standing between
the one with the gun and the one without the gun.
Id. at 19. DC testified that she focused on
remembering as much as she could about the features of the
man looking for the key (the man without the gun).
Id. They returned to the front room and the
defendant without the gun put the key in the box and started
taking money. Id. at 20. DC stood in the doorway
focusing on the features of the man with the gun.
Id. at 21.
enforcement arrived on the scene and DC provided a statement
without looking at any photographs of any suspects or the
video of the robbery. Id. at 22. DC participated in
a lineup, relying solely on memory without reviewing
photographs or the video. Id. at 22, 23. DC
completed a lineup identification form. Id. She
recalled having a gut feeling that the individual who held
the gun was in the first lineup. Id. at 23. DC put a
question mark instead of identifying the defendant on the
form. Id. She later changed her mind because she was
100 percent sure that it was the individual. Id. at
24. She explained that she wanted to see the rest of the
people, using the checkmark as a place keeper. Id.
DC testified that she had no doubts about the identification.
with Schlachter to a different room after the lineup.
Id. at 25. She did not recall anything that
Detective Schlachter said to her in the course of the
meeting. Specifically, DC testified:
Q. Okay. What do you recall happening in regard to your-your
change, your identification with the defendant with the gun?
Can you tell us about that?
A. I knew then for sure it was him. I had no doubts in my
mind it was him.
Q. Did Detective Schlachter say anything to you that changed
Q. Okay. You knew that it was him?
Id. at 26. DC remained in the room with Detective
Schlachter “maybe five, ten minutes.”
Id. at 26. DC said she talked with the detective,
but does not remember “exactly” what was said.
Id. at 27-28. She does not remember ...