When A Perpetrator Description Can Be So Detailed And So Good It Damages The Photo Lineup (Photos Enclosed)

Podcast: Play in new window | Download (4.8MB)

Subscribe: RSS

People v. Clifton, 2019 IL App (1st) 151967 (April). Episode 632 (Duration 8:20)

Unduly suggestive ID, you make the call photos provided here. ** This opinion has photos.

APPLE PODCASTS GOOGLE PODCASTS

SPOTIFY ANDROID RSS

DIRECT DOWNLOAD

Charges & Sentence

Defendant was found guilty of armed robbery and sentenced to 35 years in prison (20 years for the underlying offense and 15 years for the mandatory firearm add-on). 

The Crime

2 men walked up to a group of 4 people (1 man & 3 women) and rob them.

One man said “you know what this is, it’s a robbery” and then pointed a gun at them. The man pointed the gun as close as one inch from one of the victim’s face.

The man took two phones from the victim’s pants pocket. The other man took items from the women. The men then got into a Jeep and drove away.

The Description

The victim described the armed offender as having long dreads, a blue hoodie, all white low top Nikes, and a black Jeep.

A second victim described the man with the gun as having “dreads” and wearing a blue or black hoodie and white shoes.

One of other lady’s said that the man with the gun wore white gym shoes, jogging pants, and a dark black or blue hoodie. Also, the man “had a scar or a tattoo” on his face.

Issue

Defendant argues that the trial court erred in denying his motion to suppress identification. He contends that the procedures used by the Chicago Police Department were unduly suggestive because he was the only participant in the lineup wearing a dark sweatshirt, white shoes, had dreadlocks and a tattoo on his face.

Defendant’s Burden

First, the defendant bears the burden to show the pretrial lineup as “impermissibly suggestive.”

If the defendant successfully makes the showing, the burden shifts to the State to present clear and convincing evidence that the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime. Defendant says that the lineup was unduly suggestive because only he appeared in the lineup with dreadlocks, a dark hoodie, and white shoes, the description given by the victims of the offender with the gun.

Once he or she does that, the State must prove

The State’s Cases

The State argues that lineup participants need not be “physically identical” for a lineup to be fair.

In support, the State cites People v. Simpson, 172 Ill. 2d 117 (1996), Peterson, 311 Ill. App. 3d 38, People v. Johnson, 222 Ill. App. 3d 1 (1991), and People v. Coleman, 203 Ill. App. 3d 83 (1990).

People v. Simpson

In Simpson, the complaining witness described the suspect as having curly hair.

The supreme court found the lineup to be proper because the defendant’s hairstyle was not “so distinctive as to render the lineup suggestive.” Id. at 140.

People v. Peterson

In Peterson, the suspect was described as having pink rollers in his hair and the defendant, though he had long hair, had it covered by a baseball cap. Id. at  49. The defendant was also the only participant to appear in the lineup in an “unremarkable gray sweatshirt” after the suspect had been described as wearing one. Id. at 47, 49.

We found the sweatshirt, given the totality of the circumstances, was not sufficient to render the lineup suggestive. Id. at 49-50.

People v. Johnson

In Johnson, the defendant was arrested in red pants and placed in the lineup while wearing those pants. Id. at 7-8. Every other person in the lineup wore causal or informal clothing. This court found the lineup was not suggestive because everyone in the lineup was “basically similar in appearance” and the police were not obligated to provide the defendant clothing other than what he was arrested in. Id. at 8.

People v. Coleman

Finally, in Coleman, the defendant was the only person in the lineup wearing a dark shirt where the complaining witness had told the police that the suspect was wearing a dark shirt at the time of the offense. Id. at 91. This court found that the mere fact that the defendant was wearing a black shirt while the suspect had been described as wearing a dark shirt did not render the lineup suggestive. Id. at 91-92.

The critical theme running through these cases is that one distinct feature, standing alone, is not sufficient to render a lineup suggestive where the participants in the lineup otherwise have substantially similar appearances.

One Item Of Similarity Is One Thing…But 5?

At first blush, the weight of authority in Illinois appears to reject this argument—a substantial body of case law upholds a lineup when a suspect wears clothing described to police by the victims. People v. Peterson, 311 Ill. App. 3d 38, 49-50 (1999) (collecting seven cases holding similarly).

But, this identification is unique relative to this body of case law.

We are not presented with a situation where a defendant, described only as wearing one particular item or having one particular physical feature, appears in a lineup with the piece of clothing or physical attribute. Instead, both the lineup photograph presented at the suppression hearing and the hearing testimony itself confirms that defendant was described, and later presented, as the only participant in the lineup with

• three particular articles of clothing
• a unique hairstyle and
• a facial feature matching the description of the offender.

On these facts, we find the lineup was unduly suggestive.

This Case

Clifton is the only person present in the lineup that has the precise combination of several features described by the witnesses.

The witnesses consistently described the assailant as having dreadlocks, a dark (black or blue) hoodie, and white gym shoes. One said the pants were “jogging pants.” There are multiple men in the lineup photo that have dreadlocks, but of them only Clifton has dreadlocks and hoodie.

There are multiple men that have “jogging” pants or sweatpants, but Clifton is the only one of them also wearing white shoes. There is one other man in a dark colored hoodie, but of the two, only Clifton has dreadlocks and white shoes. Indeed, no other lineup fillers had white shoes.

This Case Is More Like People v. Maloney

In People v. Maloney, 201 Ill. App. 3d 599 (1990), the defendant appeared in a lineup with four other men. Id. at 606. Three men wore

• pressed white shirts
• pressed grey slacks
• socks and shoes and
• wristwatches.

The fourth man wore a

•  pressed pullover shirt
• pressed jeans
• socks and shoes
• and a wristwatch.

The defendant, however, wore a

• brown or extremely dirty shirt
• wrinkled blue slacks
• shoes with no socks and
• no wristwatch.

The defendant, overall, appeared unkempt compared to the well dressed and well-groomed men who accompanied him at the lineup.  Along with the stark contrast in dress, a “difference in physical size” existed among the lineup participants.

If 100 People Viewed The Lineup

Clifton argues in his brief,

“If one hundred people were asked to view the lineup and choose which participant was not like the others, there is no question that all one hundred would choose Clifton.”

In most cases, we might be inclined to disagree with such a broad statement, but on the facts only a minor modification makes it accurate:

We find similar spotlighting here.

While defendant’s clothes may fit in with the general style worn by the other participants, only defendant’s appearance matches precisely the descriptions given by the witnesses as to several articles of clothing and at least two aspects of his physical appearance.

It’s Not A Game Of “Who Doesn’t Belong Here”

Here, Defendant stands out because he matches previous descriptions in several unique ways.

The question is not who among the participants is least like the others; the question is who among the participants is most like the previous descriptions. And the answer is Clifton. Again, even though other participants in Clifton’s lineup had dreadlocks or braided hair, none of the others had hoodies or white shoes and it appears only one of them may have been wearing “jogging pants” or sweatpants.

It is the fact that Clifton is the only person matching every aspect of the previous description that renders his lineup unduly suggestive.

Lookalikes Not Required But…

While the law does not require that lineups and photographic arrays include near identical or look alikes of the witnesses’ descriptions, if the defendant is the only one in the lineup required to wear the clothing that the suspect reportedly wore the lineup may be unduly suggestive.

Defendant emphasized the multiple similarities between his prior description and his appearance in the lineup arguing that they made the lineup strongly suggestive.

We agree.

Police Have Always Taken Arrestees As They Find Them

We find this case surpasses the limits of police taking suspects as they find them.

There was little that officers could have done about the tattoo on his face. Our review of the photos suggests that Clifton’s tattoo may not even have been visible from the distance at which the witnesses were viewing the lineup. Indeed, the tattoo appears faintly visible in Clifton’s close-up booking photo.

Clifton’s counsel also agreed that his tattoo is not a major factor in the analysis. Given the suggestiveness present in the remainder of Clifton’s appearance, we agree. The suggestiveness of Clifton’s lineups was substantial; the necessary fixes were relatively easy.

It’s Not That Complicated Or Hard To Fix

Clifton’s tattoo aside, the officers need not have gone to extraordinary measures to prevent suggesting him as the offender.

They certainly need not have, as the dissent suggests, taken a “shopping trip to Target.”

Tucking in the hood, taking all of the participants’ shoes off, and providing hats to everyone would have sufficed. Indeed, it appears that police stations in Chicago follow these types of procedures as a matter of routine practice. See People v. Brown, 2017 IL App (1st) 143719-U, ¶ 6 (“police gave all lineup participants hats to disguise their hairstyles” where offender was described as having braided hair); People v. Smith, 2016 IL App (1st) 133811-U, ¶ 6 (“due to defendant’s braided hair and the large tattoos on his face, in order to make the lineup fair and not suggestive, all of the participants had bandages on their faces and wore baseball hats”).

We do not cite these decisions for their precedential value, because of course they have none (see Ill. S. Ct. R. 23(e) (eff. July 1, 2011)), only as examples to dispel the practical concern the dissent has that it would be onerous for police to remedy the obvious differences in Clifton’s appearance.

See The Chicago Police Department Directive On Lineups

While not dispositive, we also find it illuminating the Chicago Police Department expressly instructs its officers that “[s]uspects in a lineup should not appear to be substantially different from fillers based on the eyewitness’s previous description of the perpetrator or based on other factors that would draw attention to the suspect. For example, fillers should be the same race, sex, approximate height, weight, age, and physical appearance and be similarly clothed.” Chicago Police Department, Special Order S06-02 § 2(F)(3) (eff. Jan. 1, 2016) (http://directives.chicagopolice.org/directives/data) [https://perma.cc/3AU9-EUKU].

Holding

After reviewing the lineup photographs and the testimony regarding the lineup procedures, we find the lineup was unduly suggestive. We reiterate that under Illinois law, the mere fact that a suspect appears in the lineup with one article of clothing or distinctive feature that matched his or her description does not render a lineup suggestive. Our conclusion is limited to its facts—the sheer number of defendant’s features matching the witnesses’ descriptions compels our result.

Critically, a finding that the lineups are suggestive shifts the burden to the State, but because the trial court did not find the lineup suggestive in the first instance, the State had no opportunity to attempt to satisfy its burden.

Remedy

Turning to remedy, as we have said the parties now agree that a remand is appropriate to allow the trial court to evaluate the independence of the witnesses’ identifications in the first instance. 

We agree.

Therefore, we vacate the trial court’s judgment and remand for a hearing on the independent reliability of the identifications.

See The Dissent

The dissent says looks like defendant was unfortuanate enough to get arrested while wearing the clothes he comitted the robbery in. That’s not casue for a retrial. 

Even if one were to assume that the lineup procedures were unduly suggestive, the testimony at the suppression hearing and at trial sufficiently showed that the in-court identifications of defendant had an origin independent from the lineup identifications. 

The witnesses here identified defendant shortly after the offense occurred. They had the opportunity to view their assailant, paid a great deal of attention to his appearance, provided an incredibly accurate description of the offender, and demonstrated the identification with absolute certainty. Any further proceedings would be futile.