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United States v. Conroy

United States District Court, D. South Dakota, Western Division

October 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CORBIN CONROY, Defendant.

          REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OF PHOTO IDENTIFICATION

          DANETA WOLLMANN, UNITED STATES MAGISTRATE JUDGE

         Pending is Defendant's Motion to Suppress Evidence of Photo Identification (Doc. 17). A hearing was held on Tuesday, August 13, 2019. Defendant was personally present and represented by his attorney of record, Thomas E. Harmon V. The Government was represented by the Assistant United States Attorney Benjamin Patterson. Two witnesses testified at the hearing, and four exhibits were received into evidence. Supplemental briefing concluded on October 17, 2019. Based on a careful consideration of all the evidence, and counsel's written and oral arguments, the Court respectfully makes the following:

         RECOMMENDATION

         It is respectfully recommended that Defendant's Motion to Suppress Evidence of Photo Identification (Doc. 17) be denied.

         JURISDICTION

         Defendant is charged in an Indictment with Interference with Commerce by Robbery in violation of 18 U.S.C. §§ 1951 and 2; Use and Brandishing of a Firearm During the Commission of a Crime of Violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2; and Conspiracy to Violate 18 U.S.C. § 924(o). (Doc. 1). The pending Motion was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Chief Judge Jeffrey L. Viken's Standing Order dated April 1, 2018.

         FACTUAL BACKGROUND

         The Government alleges that on or about March 17, 2019, Jokers Casino was robbed at gunpoint by Defendants Corbin Conroy and Wesley Dillon. (Doc 1). Mr. Dillon was subsequently arrested and questioned regarding the identity of the man who allegedly asked Mr. Dillon to drive him away from the robbery at Jokers Casino. (Ex. 3). Three separate interviews were conducted by Agent Cook and Detective Harris with Mr. Dillon on March 22, 2018. Id. In the interview, Mr. Dillon, originally unsure of the name of the man who asked him to drive away from the casino, described the individual as a Native American man without facial hair who was “maybe [in his] 40s [or] 50s.” Id., Disc 1 at 12:09:42-12:10:11. Mr. Dillon further described the man as having a “big nose” and a tattoo on his hand. Id., Disc 1 at 12:24:03-12:24:17.

         Mr. Dillon also stated the man who asked him to drive went by the name “Thunder.” Id., Disc 1 at 12:23:01-12:23:14. Law enforcement then showed Mr. Dillon a sequential photographic line up comprised of six photos, one after another, and asked if any he knew of any of the individuals and if any of them were involved. Id., Disc 1 at 12:51:47-12:51:57. Mr. Dillon initially responded that none of the individuals were present at the casino. Id., Disc 1 at 12:52:47-12:53:12. Upon a second showing of the sequential photographic series, Mr. Dillon stated the individual in the second photo looked familiar but he “knows a lot of people” and ultimately stated the individual in the photo was not involved. Id., Disc 1 at 12:53:18-12:54:09. Mr. Dillon also told law enforcement that he was “pretty sure” he heard someone call “Thunder” by the name of Corby. Id., Disc 1 at 12:57:55-12:58:05. During the interview, Mr. Dillon again confirmed that the man “has to be 40 [to] 50” years old. Id., Disc 1 at 12:59:04-12:59:10. Law enforcement then showed Mr. Dillon a still frame photo from security footage at the casino and asked Mr. Dillon if he believed the man in the photo was between 40 and 50 years of age, to which he agreed. Id., Disc 1 at 12:59:22-12:59:30; (Doc. 49 at p. 43).

         Mr. Dillon was shown a six pack photographic line up and was asked if he recognized any of the individuals as being with him at the casino on the evening in question. (Ex: 3, Disc 2 13:09:41-13:10:06). Mr. Dillon pointed to photo number four, which he positively identified an individual with the first name of Tristan. Id. Law enforcement then showed Mr. Dillon a different one page six pack photographic line up and asked if Corby was in any of the photos. Id., Disc 2 at 15:09:59-15:10:13; (Ex. 2). Initially, Mr. Dillon shook his head “no” but then identified photos number two, three, and four in the six pack photographic line up who he believed to look similar to Corby. (Ex. 3, Disc 2 at 15:10:13-15:10:35. Mr. Dillon stated he had only met Corby two or three times. Id., Disc 2 at 15:10:35-15:10:40. Agent Cook then told Mr. Dillon that he had a hard time believing Mr. Dillon could recognize the man who was in the house when he was arrested but he was not sure if it was the same man he went to the casino with. Id., Disc 2 at 15:15:25-15:15:45.

         Mr. Dillon stated, “it's literally either him or somebody else” and attributed his uncertainty to being under the influence of drugs on the evening in question. Id., Disc 2 at 15:15:50-15:15:54. Mr. Dillon then stated he knew Corby because he was introduced to him and Mr. Dillon then, without prompting, tapped on photo number four on the one page document comprising the six pack photographic line up. Id., Disc 2 at 15:16:32-15:16:46. Agent Cook confirmed, “It's that guy right there? Number four?” Id. Mr. Dillon responded in the affirmative was asked to initial next to the photograph where he positively identified the Defendant, Corbin Conroy. Id., Disc 2 at 15:16:43-15:16:56; (Ex. 2). Law enforcement again inquired about the individual Mr. Dillon identified in photograph number four, “He was responsible, he was with you the night of the robbery, and he went inside, and he had a gun, that's accurate?” to which Mr. Dillon confirmed. (Ex 3, Disc 2 at 15:17:15-15:17:24).

         DISCUSSION

         I. Six Pack Photo Line Up Identification

         a. Six Pack Photo Line Up was not ...


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