United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United Slates District Judge.
matter comes before the Court on a Motion to Suppress Photo
Array Identification Evidence submitted by Adrian D. Briggs
("Defendant"). Having thoroughly reviewed the
parties' filings in this case, the Court finds this
matter is ripe for judicial determination. For the reasons
set forth below, Defendant's motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
Thursday, August 11, 2016, at approximately 4:30 a.m., Nathan
Goodwin ("Victim") was sitting in his car in the
parking lot of the Crestwood Suites hotel in Newport News,
Virginia. According to Victim, a man ("the
perpetrator") knocked on Victim's window and asked
to use Victim's cell phone because he was stranded in the
area. Victim exited the vehicle and gave the perpetrator his
cell phone. Victim got back into his vehicle and allowed the
perpetrator to make several calls. The perpetrator used the
cell phone intermittently during the next 15-20 minutes.
Between phone calls, the perpetrator made small talk with
Victim, requested and received $4 for bus fare from Victim,
and sat in the backseat of Victim's car at one point.
as the perpetrator was standing outside the car, Victim
noticed a handgun in the perpetrator's waistband. Alarmed
by this, Victim told the perpetrator that he needed to leave
to pick up his son. The perpetrator drew the handgun, told
Victim to exit the car and leave his wallet inside, and then
fled the area in Victim's car. Victim then ran inside the
hotel and called the police.
Victim spoke to police, he described the perpetrator as a
Black male with "darker skin, " clean shaven, no
tattoos or scars on the face, with a short "edged
up" haircut, wearing a white long-sleeved shirt. Victim
said, "I'm 6' 1 so he was a few inches shorter
than me ... 5'8 or 5'9." Victim also described
the perpetrator as a "skinnier guy" in his late
teens to early twenties. Victim's full statement is
included as Exhibit 1 to Defendant's Reply in Support of
the Motion to Suppress. See ECF No. 20, Ex. 1. Law
enforcement personnel told Victim that, if and when they
found his vehicle, they would ask Victim to identify the
items in the car that did not belong to him because those
items would likely be linked to the perpetrator.
that day, Victim's credit card was used at ¶
7-Eleven in Hampton, Virginia. There is video footage of a
person getting out of the stolen vehicle and returning to the
vehicle after the credit card was used. The next day, Friday,
August 12, 2016, law enforcement officers found the vehicle
in Hampton. They identified several items in the vehicle that
did not belong to Victim. One of these items was a cigar
wrapper. In October 2016, Detective Davis ("Det.
Davis") of the Newport News Police Department received
an email from the State Crime Lab informing her that the
fingerprints on the cigar wrapper belonged to "Adrian
Briggs". At some point thereafter, Det. Davis contacted
Victim and asked him if he knew anything about the cigar
wrapper in the vehicle or if he knew anyone named Adrian
Briggs. Victim replied in the negative to both questions.
November 3, 2016, Det. Davis asked Ms. Coner, a Crime Analyst
with the Newport News Police Department, to set up a photo
array for a suspect named Adrian Briggs. Ms. Coner did not
know any other information about Defendant or about the
description Victim had given of the perpetrator. Ms. Coner
conducted a search in the photo database using
Defendant's name and received three search results. Ms.
Coner testified that, under standard photo array procedure,
she would include the most recent photo of a suspect in the
array. However, in this case, the most recent photo of
Defendant depicted him with an injured lip. Therefore, Ms.
Coner testified that she used the next-most recent photo of
acquire the five "filler" photos necessary to
complete the photo array, Ms. Coner then conducted a search
in the photo database for all photos matching Defendant's
race, sex, age (within 2 years) and weight (within 20
pounds). This search returned approximately 1, 000 possible
filler photos. Of these, Ms. Coner selected five for
inclusion in the photo array. Ms. Coner testified that her
goal in selecting these photos was to ensure that
Defendant's photo was not unnecessarily or suggestively
distinguishable from the filler photos. Of the six men in the
photos, only two are wearing a white crew-neck shirt:
Defendant and another man, whose crew-neck shirt is under a
white collared shirt. All six photos are attached as Exhibit
1 to the Government's Response in Opposition to the
Motion. See ECF No. 16, Ex. 1.
December 1, 2016. Det. Davis took the six photos provided by
Ms. Coner, placed each photo into a separate folder, shuffled
the order of the folders, and then gave the folders to
Detective Erickson ("Det. Erickson") of the Newport
News Police Department. Det. Erickson did not know which of
the photos belonged to Defendant. Later that day, Det.
Erickson presented the photo array to Victim. Det. Davis was
present in the room. Before giving the folders to Victim,
Det. Erickson gave Victim the following nine admonishments:
1) The suspect may or may not be in the line-up;
2) The police will continue to investigate the incident
regardless of whether identification is made;
3) The line-up administrator does not know who the suspect
4) Individual photos will be viewed one at a time; 5) Photos
are in random order;
6) Take as much time as needed in making a decision about
7) All photos will be shown, even if identification is made
prior to ...