United States District Court, D. South Dakota, Western Division
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE OF PHOTO IDENTIFICATION
WOLLMANN, UNITED STATES MAGISTRATE JUDGE
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:
respectfully recommended that Defendant's Motion to
Suppress Evidence of Photo Identification (Doc. 17) be
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.
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.
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.
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.
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
Six Pack Photo Line Up Identification
Six Pack Photo Line Up was not ...