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United States v. Tempo

United States District Court, E.D. Michigan, Southern Division

September 5, 2017

DEMARCO TEMPO, et al., Defendants.



         I. Introduction

         This is a criminal case. Defendants are: (1) Demarco Tempo; (2) Haratio Heard; (3) Juwan Allen; (4) Darius Gordon; (5), Alvin Coates; (6) Javon Brown; (7) Greg Howard; (8) Dennis Jones; (9) Amacio Alexander; (10) Marcus Gilbert; (11) Kenneth Sadler; (12) Darreyl Coneal; and (13) Randy Stewart.

         All of the defendants are charged with conspiracy to distribute heroin. Other charges facing some defendants are: (1) death or serious bodily injury resulting from use of a controlled substance (enhanced penalty); (2) conspiracy to possess firearms in furtherance of drug trafficking; (3) distribution of a controlled substance resulting in serious bodily injury; (4) distribution of a controlled substances resulting in death; (5) distribution of a controlled substance; (6) possession of a controlled substance with intent to distribute near a school; (7) possession of a controlled substance with intent to distribute; and (8) possession of firearm and ammunition by a convicted felon. Some of the defendants have plead guilty and are awaiting sentencing. Others have been sentenced.

         On July 26, 2017, the Court held a hearing on several pending motions, including the motion by Darius Gordon to suppress identification testimony. Gordon and Coats ask the Court to suppress past out-of-court and any future in-court identifications of them by the person identified in the Second Superseding Indictment as “Victim 3.” They argue that the procedures used were impermissibly suggestive and that the prior identification, on May 10, 2016, constitutes a due process violation. They further contend that any in-court identification would be irredeemably tainted by the illegality of the May 10 identification. The government says the identification was not unduly suggestive and is reliable. For the reasons that follow, the motion is DENIED.

         II. Background

         The details of the interviews as explained at the hearing will be discussed later. What follows is background information from the parties' papers, particularly the government's response to the motion.

         In the late winter and early spring of 2016, the community in Warren, Michigan experienced an increase in drug overdoses caused by heroin and fentanyl. Warren police began an investigation into the Polo drug-trafficking organization which mostly involved interviewing confidential informants, overdose victims, other customers, and witnesses, as well as reviewing existing law enforcement information to gather intelligence about the Polo organization. As of April 1, Warren police detectives had identified only Demarco Tempo, Haratio Heard, and Darreyl Coneal as suspected members of the Polo Organization. The police had photographs of each of them.

         One adult woman, previously identified on the Second Superseding Indictment as Victim 3, overdosed twice, on March 17 and 31, 2016. Her second overdose happened while she was being taken into custody for drug possession.

         Victim 3 was interviewed twice, on April 1, 2016 and May 10, 2016. At the April 1 interview, Victim 3 was shown photos of the only known suspects, Tempo, Heard, and Coneal. Police did not have photos of Gordon or Coats at that time. Victim 3 did not identify anyone.

         After the April 1 interview, police were able to obtain photos of Gordon and Coats. To identify additional suspects such as Gordon and Coats, Warren police officers conducted a series of undercover purchases from the Polo organization. As members were photographed or video-recorded in connection with these buys, the detectives worked to identify them, including by sending their images to the Michigan State Police to be run through facial-recognition software. Potential matches were confirmed by the undercover officer who had seen the members. As previously unknown members of the Polo organization were identified, their photographs were added to the investigation's working photo book, consisting of a series of full-page, color photographs, with no identifying markers, that included both suspects and non-suspects (“fillers”). The photos were generally taken from mugshots. The number of photographs changed over time, as more suspects were added. All of the photos are of African-American men.

         At the time of the May 10 interview, police had a mugshot type photo of Gordon. Police had a photo of Coats which was not a mugshot. Rather, the photo was taken outside, likely during an undercover purchase. Both photos were part of the working photo book.

         III. Legal Standard

         A defendant seeking to suppress identification testimony under the due process clause must first establish that the identification procedures were unduly suggestive. See Neil v. Biggers, 409 U.S. 188, 198 (1972); United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992) (defendant's burden on this prong). If that showing is made, the inquiry shifts to whether, under a totality ...

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