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United States v. Lovejoy

United States District Court, E.D. Wisconsin

October 15, 2019



          HON. PAMELA PEPPER United States District Judge.

         The 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.

         I. Background

         A. The Defendant's Motion to Suppress

         The 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). Id.

         The 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.

         The government agreed that a hearing was necessary. Dkt. No. 21.

         B. Facts

         The 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.

         1. Stipulation

         The 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.

         Scollin 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.

         Schlachter 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.

         DC 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.

         Three 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. Id.

         The 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 investigator. Id.

         Each 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. Id.

         DC 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.

         DC next 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 states:

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 this offense.
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.

         2. Hearing

         DC 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.

         On 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.

         Law 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. Id.

         DC went 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 your mind?
A. No.
Q. Okay. You knew that it was him?
A. Yes.

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 ...

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