United States District Court, N.D. Ohio, Western Division
Jeffrey J. Helmick United States District Judge
matter is before me on Defendant Ira Brown's motion to
suppress the identifications of him made by the confidential
informant (“CI”) and by the undercover agent who
accompanied the CI during the transaction in question. (Doc.
No. 13). The government responded (Doc. No. 15), and Brown
replied (Doc. No. 19). On March 2, 2017, I conducted a
suppression hearing. (Doc. No. 26). At that time, the parties
agreed to construe Brown's motion to suppress to include
any identification made of Brown, including that made by
Detective William Noon. (Id. at 4-5).
end of the hearing, I gave the parties time to further brief
the matter, and I granted Brown leave to renew his motion for
release of the CI's identity. (Id. at 43-51).
Brown subsequently declined, without prejudice, to renew his
motion seeking release of the CI's identity. (Doc. No. 27
at 2). Brown also asked that I hold the motion to suppress in
abeyance so that he could further develop his factual
information. (Id.). I granted Brown's motion.
(Doc. No. 30 at 2). During a pretrial conference call, held
on May 15, 2017, Brown withdrew his motion to hold the matter
of suppression in abeyance. The matter is now decisional. For
the reasons stated below, I deny Brown's motion to
suppress with respect to Detective Noon's personal
observations. And I deny, without prejudice, Brown's
motion to suppress the identification made by the CI. The
latter is subject to renewal if the CI becomes a trial
Noon was the sole witness to testify at the suppression
hearing. (Doc. No. 26). Detective Noon has been a member of
the Toledo Police Department for twenty years, and he has
been assigned to the gang unit for fifteen of those years.
(Id. at 5-6, 8). Detective Noon has also been a task
force officer with the Bureau of Alcohol, Tobacco, Firearms
and Explosives for eight years. (Id. at 6).
with whom Detective Noon had been working arranged for the
purchase of a gun. (Id.). Prior to the transaction,
the CI told law enforcement officials the seller was Brown
and gave them Brown's street name. (Id. at 9,
29-30). At that time, Detective Noon did not know Brown's
street name. (Id. at 25). But Detective Noon was
familiar with Brown and had met him face-to-face once.
(Id. at 8). Detective Noon also looked at a booking
photograph of Brown, after speaking with the CI, to check for
any recent change in Brown's appearance. (Id. at
October 16, 2013, Detective Noon took part in an undercover
operation, during which the CI bought a firearm from a man
alleged to be Brown. (Id. at 7-8). While an
undercover agent drove the CI to the meeting place for the
transaction, Detective Noon and ATF Special Agent Greg Cooper
followed behind until a designated point, at which they took
at different route to surveil the neighborhood “to try
to get an eye on the transaction . . . .” (Id.
at 10-11). Detective Noon and SA Cooper were traveling
eastbound on Page Street and were crossing Mulberry Street
when Detective Noon observed Brown standing on the north side
of Page Street. (Id. at 12). Detective Noon, who was
driving, recognized Brown, noted what he was wearing, and
told SA Cooper that Brown was standing at the corner.
(Id. at 12-16).
Noon and SA Cooper continued around the block and drove west
on Moore Street, stopping about a block from the meeting
place. (Id. at 17-18). The undercover agent and CI
arrived soon thereafter and parked near the corner of
Mulberry and Moore Streets. (Id. at 18). Detective
Noon then observed an individual approach the passenger side
of the vehicle driven by the undercover agent.
(Id.). Detective Noon thought it might be Brown
based on the individual's build, race, and clothing.
(Id.). Detective Noon used a pair of handheld
binoculars and observed a man he identified as Brown
“pass on either side of the vehicle.”
(Id.). Detective Noon observed “hand-to-hand
action taking place” but could not tell what was
exchanged. (Id. at 18-19). This transaction took
place during daylight hours, and there was nothing
obstructing Detective Noon's view. (Id. at
weeks after the transaction, on November 8, 2013, Detective
Noon met with the CI. (Id. at 19-20). Detective Noon
again asked the CI who had sold him the gun during the
undercover operation. (Id. at 20-21). Without
hesitation, the CI said the seller was Brown. (Id.).
After folding back the top of the photograph containing
Brown's identifying information, Detective Noon showed
Brown's booking photograph to the CI. (Id. at
20-22). The CI identified Brown as the subject of the
photograph. (Id. at 20-22).
before the suppression hearing, Detective Noon was informed
that his observations of Brown from the transaction in 2013
were never memorialized in the undercover agent's written
report. (Id. at 26-28). So on February 28, 2017,
Detective Noon wrote a report detailing his observations.
(Id.). Detective Noon also used his report to
correct some of the mistakes recorded in the original report.
(Id. at 26-28, 30-31).
identification violates a defendant's right to due
process where the “identification procedure was so
impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable
misidentification.” Simmons v. United States,
390 U.S. 377, 384 (1968). “It is the likelihood of
misidentification which violates a defendant's right to
due process . . . .” Neil v. Biggers, 409 U.S.
188, 198 (1972). Where an identification is based on the
examination of a single photograph, the court should
determine the reliability of the identification using the
factors set forth in Neil. Manson v.
Brathwaite, 432 U.S. 98, 114 (1977). “These
include the opportunity of the witness to view the criminal
at the time of the crime, the witness' degree of
attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the
confrontation.” Id. “Against these
factors is to be weighed the corrupting effect of the
suggestive identification itself.” Id.
“[T]he essential question is whether under the totality
of the circumstances the identification was reliable even
though the confrontation procedure was suggestive.”
United States v. Causey, 834 F.2d 1277, 1284-85 (6th
Cir. 1987) (internal quotation marks and citations omitted).
asks me to suppress the CI's identification of him,
claiming the method used was “unnecessarily
suggestive.” (Doc. No. 13 at 2). Brown further argues
Detective Noon's identification of Brown should be