MEMORANDUM OPINION

MATTHEW W. BRANN, District Judge.

Before the Court is Defendant Tarron Dennis' Motion to Suppress Pretrial Identification Due to an Overly Suggestive Photo Array and Preclude In-Court Identification. For the following reasons, that motion will be denied.

I. BACKGROUND1

In December 2016, Pennsylvania State Police traveled to the Rite Aid in Loyalsock Township, Lycoming County, to respond to a heroin overdose. Two individuals—Aaron Peters and his friend—had recently purchased heroin and injected themselves with it while their car was parked in the Rite Aid parking lot. Aaron Peters survived; his friend died.

Police arrived at the Rite Aid and questioned Peters as to how he obtained the heroin. Peters said that he contacted his usual heroin dealer—an individual from whom he had purchased heroin on multiple occasions over the past year.2 To obtain heroin for this particular binge, Peters said he and his dealer made arrangements to meet at Weis Market in Williamsport. Peters explained that when he and his friend arrived at Weis, two black males—one of whom was Peters' dealer—entered Peters' car, and the four individuals drove to an apartment complex. Both black males exited the vehicle, and Peters' dealer went inside a residence and returned to the vehicle with heroin. They drove up the road a short distance, exchanged money for drugs, and the dealer exited the vehicle. Peters and his friend then drove to the Rite Aid, purchased needles, and injected themselves with heroin. After passing out for a few hours, Peters awoke to find his friend unresponsive, and so called for help.

Although an ambulance and the police arrived, they were unable to revive Peters' friend. Police questioned Peters as to how he had obtained the heroin. Peters didn't know his dealer's name, but described him a black male. He showed an officer the phone number he used to contact his dealer, and the officer recognized the number as one under investigation by federal, state, and local law enforcement for heroin trafficking in the Williamsport area.3 Police also knew Defendant Tarron Dennis was one of several subjects associated with that phone number.

One month later in January 2017, an agent with the Federal Bureau of Investigation ("FBI Agent") and two other law enforcement officials met with Peters. The FBI Agent testified that he decided to meet with Peters after "information related to the overdose" was brought to his attention. According to the FBI Agent, at that time Dennis was not a suspect in the death of Peters' friend; Dennis was simply a subject in the "overall investigation."

In advance of this meeting, the FBI Agent compiled a 38-image photo array to show Peters. The photos depicted mugshots of individuals suspected to be involved with the Williamsport drug trade as well as individuals associated with the phone number Peters used to contact his dealer. The mugshot photo array contained images of 25 men and 13 women, depicting individuals of various ethnicities, ages, and with different physical characteristics. Dennis was among the individuals depicted in this photo array.

The FBI Agent also obtained a surveillance photo depicting Dennis after he had engaged in a controlled heroin transaction organized by Pennsylvania State Police. This was the only surveillance photo the FBI Agent brought to his meeting with Peters.

Peters was first shown the mugshot photo array. The FBI Agent instructed Peters to flip through the mugshots sequentially, and after viewing each photograph one at a time, to write down on the photograph how he knew that person. After reaching the seventh photograph, Peters stopped and wrote down, "guy with Dealer at Weis."4 He continued to flip through the array, and when he reached the sixteenth photograph, he wrote down, "Dealler" [sic].5

After Peters made these two identifications using the mugshots, the FBI Agent showed Peters the surveillance image of Dennis. Peters confirmed that the surveillance photograph depicted his dealer, and wrote the word, "Dealer," on the photograph.6 Dennis was the only individual depicted twice—both in a mugshot, and in the surveillance image.

Dennis was ultimately indicted on two counts: conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846 (Count I) and distribution of a controlled substance resulting in death and serious bodily injury in violation of 21 U.S.C. § 841(a)(1) (Count II).7 Dennis pleaded not guilty to both counts,8 and has been detained pending trial.9

Dennis filed the instant motion to suppress Peters' pretrial identification of him, alleging that the procedures surrounding the pretrial identification were impermissibly suggestive. He also seeks to preclude any future in-court identification as fruit of the poisonous tree.10 This Court convened an evidentiary hearing on November 19, 2018 and the matter is now ripe for disposition.

II. DISCUSSION

Eyewitness identifications obtained in violation of the Due Process Clause may be suppressed.11 To determine whether a pretrial identification procedure violated due process, the Court looks to whether the procedure was (1) unnecessarily suggestive and, if so, (2) whether the totality of the circumstances nevertheless render the identification reliable.12

A. The Photo Array Was Unnecessarily Suggestive.

To evaluate the suggestiveness of the identification procedure, a court considers factors including the "size of the array, its manner of presentation, and its contents" and whether the "suspect's picture is so different from the rest that it suggests culpability.13 The court also considers whether there was "some good reason for the failure to resort to less suggestive procedures."14 Defendants bear the burden to demonstrate that the identification procedure was unnecessarily suggestive.15

In the case at bar, the identification procedure used by the FBI Agent contains several suggestive attributes. First, the photo array is problematic on its face because a photo array should not be assembled in a way where an individual is distinguished to a degree that suggests culpability.16 Here, the Government made no effort to include other individuals in the array that approximated Dennis' physical appearance. After the overdose, Peters told investigators that his dealer was a "black male." At a minimum, then, when the FBI Agent sought information from Peters related to the overdose, Dennis' image should have been shown only with other individuals resembling that description. Instead, the photo array contains images of females and males of different races.

Some individuals depicted in the array, however, do approximate Dennis' appearance. Dennis concedes that up to nine photographs may have been sufficiently similar. But those similar images were interspersed among others that did not resemblance Dennis, raising further questions as to whether the order in which the photos were shown could have had some suggestive impact.

Second, the manner of the presentation of the photographs is problematic because Dennis was the only individual shown to Peters twice, and again, the only individual depicted in a surveillance image at all.17 The FBI Agent and Peters both testified that Peters identified Dennis' mugshot before viewing the surveillance photo. But to the extent that Peters had any lingering doubt as to whether Dennis was his dealer as depicted in the mugshot, the second surveillance photograph would have resolved that doubt and confirmed to Peters that he had identified the correct individual. Thus, examining all of the circumstances surrounding the identification procedure, Dennis stands out among the other subjects to a degree that suggests culpability.18

The Government offers no persuasive justification for its failure to resort to less suggestive procedures. The Government argues that it was under no obligation to create a photo array comporting with traditional identification procedures because at the time that the array was compiled, Dennis was not a prime suspect.19 While Dennis may not have been the prime or sole suspect at the time the array was administered, facts adduced at the suppression hearing undermine the notion that Dennis' was not already in the Government's crosshairs. The FBI Agent knew Dennis fit the general description of a potential suspect because Peters described his dealer as a "black male." Additionally, the FBI Agent knew Dennis had previously dealt heroin and was the subject of ongoing investigations by other law enforcement agencies. Further, of the photographs the FBI Agent compiled in advance of his meeting with Peters, Dennis was the only individual the FBI Agent chose to show to Peters twice—once in a mugshot, and once in the surveillance photo. In fact, the FBI Agent brought no other surveillance photos with him to the meeting with Peters. As the Government concedes, Dennis wasn't a "nobody;" he was a "somebody."

Because Dennis was least a "somebody," the Government states—and I agree—that Peters should have been shown photo arrays: one array depicting Dennis and other individuals approximating his appearance (to investigate the overdose), and a second array depicting individuals of other interest to the government (to investigate heroin trafficking in Williamsport).20 Such an array would have better protected Dennis from an unnecessarily suggestive identification procedure and permitted the FBI Agent to develop his investigation into other individuals who may have been involved with Williamsport heroin trafficking more generally. The record contains no evidence of exigent circumstances or other explanation as to why the photo identification procedure did not conform to such a procedure. Consequently, the Government has offered no persuasive justification for its failure to resort to less suggestive procedures.

Finally, I find instructive United States v. Stevens, a case in which the United States Court of Appeals for the Third Circuit considered numerous circumstances analogous to the matter at hand. There, police assembled a "wanted board" containing eight images of various individuals and displayed it on the wall of the police station.21 A victim arrived at the police station after she was sexually assaulted.22 Police advised that she needed to go to the hospital, but before she left, asked her to look at the wanted board to see if she recognized anyone.23 She immediately recognized and identified her assailant.24

The assailant sought to suppress the victim's identification, arguing that the wanted board was unnecessarily suggestive.25 The court agreed that that the board contained suggestive attributes because the assailant was the only individual depicted twice; the assailant's images were photographs where most of the others depicted were composite sketches; the assailant's photographs were larger than the others; and he was the only individual portrayed in color.26 In fact, the court concluded that had the "police employed the wanted board as a conventional photographic array, it would have been unnecessarily suggestive."27 What saved the police and the wanted board, however, was the fact that the police had arranged the board without any particular crime in mind.28 As the court explained, the wanted board was "a collection of random sketches and photographs that had been assembled in order to facilitate chance identifications."29 When the officer offhandedly suggested to the victim that she view the wanted board before leaving, he did not expect her to identify her assailant.30

Attributes the court found problematic in Stevens are present here because Dennis' likeness was not approximated by other photographs used, Dennis' image was depicted twice, and the surveillance image stuck out among an ocean of mugshots. Critically, what saved the wanted board in Stevens dooms the photo array used here. Unlike in Stevens where the wanted board was assembled to facilitate fortuitous identifications without a particular crime or suspect in mind,31 the identification session here was used in part to specifically investigate the overdose, and Dennis was known to police as a person who could have been involved with that overdose.

In sum, examining all of the circumstances surrounding the presentation of the array, I conclude that it was unnecessarily suggestive.

B. Peters' Identification of Dennis Was Sufficiently Reliable

An unnecessarily suggestive identification procedure does not, however, automatically merit suppression.32 A pretrial identification need only be suppressed if the suggestive procedure created a substantial risk of misidentification. The "lynchpin" of this inquiry is reliability, as even unnecessarily suggestive procedures may be upheld so long as the resulting identification is sufficiently reliable.33 To determine whether an identification was reliable, the Court examines the totality of the circumstances and considers five factors: "(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and confrontation."34

In the case at bar, the circumstances in their totality suggest that Peters' identification of Dennis was reliable.

First, Peters had adequate opportunity to observe Dennis during the heroin purchase that lead to the overdose.35 Peters was able to observe Dennis in daylight when he entered the car, when they drove to the heroin pick-up location, when Dennis exited the vehicle and entered a residence, and when Dennis returned to the vehicle with heroin.

Second, there is no evidence in the record to suggest that Peters' attention or ability to perceive Dennis' appearance was impaired.36 Peters testified that he was excited to purchase heroin and was not scared when he met Peters. He also testified that he had not taken any drugs prior to the transaction with Dennis.

Third, Peters' prior description of Dennis as a black male, though general, was accurate. The reliability of Peters' identification could have been strengthened had Peters provided police with a more detailed description.37 Nevertheless, I find that his generic description is a failure of articulation rather than indicia of unreliability. There is no evidence in the record that Peters made any prior descriptions that were incorrect.38

Fourth, Peters testified that during his interview with the FBI Agent, he was 100% certain in identifying Dennis both in the mugshot and the surveillance photo.39 The FBI Agent testified that Dennis immediately stopped flipping through the images upon viewing Dennis' mugshot, and proceeded to identify him as the dealer.40 Even assuming that the surveillance image corruptively strengthened Peter's conviction after he made the mugshot identification, the magnitude of such an effect is dampened by the fact that Peters was previously familiar with Dennis' appearance. Peters had purchased heroin from Dennis in-person on approximately five prior occasions, and each time Peters had an opportunity to view Dennis' face.41 Although some of these meetings provided Peters with only a quick glance at Dennis' face, the fact that they had met on multiple prior occasions increases the likelihood that Peters knew what Dennis looked like.42

Fifth, only three weeks had elapsed from the time Peters purchased heroin from Dennis to the time that he identified him before the FBI Agent, and there is no evidence in the record that the passage of time impaired Peters' recollection.43

Accordingly, under the totality of the circumstances, the reliability of Peters' identification outweighs the suggestiveness of the pretrial identification procedures.44 For the same reasons that I find Peters' pretrial identification admissible, I also conclude that Peters has an independent basis to make an in-court identification.45 A jury will decide whether Peters is reliable and credible.46

III. CONCLUSION

For the foregoing reasons, Dennis' Motion to Suppress will be denied. An appropriate Order follows.