416 F.Supp.3d 1108
D. Or.2019Background
- Between April 3–7, 2017, a single individual committed or attempted four bank/credit-union robberies in Portland; surveillance suggested the same robber in each incident.
- Witness descriptions consistently noted a Black male ~5'8"–6'1", wearing hoodies/caps and glasses; witnesses did not report prominent facial tattoos, though one witness mentioned faint/covered tattoos and informants suggested the suspect may have used makeup.
- Investigators included Defendant Tyrone Lamont Allen’s recent booking photo in a photo array, but had a technician digitally remove/cover Allen’s facial/neck tattoos by matching surrounding skin tone (i.e., "digital makeup").
- The lineup was administered double-blind, photos shown one at a time with standard admonitions; three of four tellers identified Allen’s altered photo as the robber with high confidence.
- Allen moved to suppress the photo-identification evidence, arguing the alteration was unnecessarily suggestive; the Government defended the alteration as neutral and justified to mirror the robber’s appearance.
- The court denied the motion, finding the editing was not unnecessarily suggestive under the Biggers framework and declining to invoke its supervisory power.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Allen) | Held |
|---|---|---|---|
| Whether editing Allen’s booking photo to remove tattoos rendered the photo lineup unnecessarily suggestive such that due process requires suppression | Editing was a neutral, "digital makeup" adjustment justified by informant/witness reports that the robber had covered tattoos; the lineup was double-blind and reliability goes to the jury | Removing tattoos made Allen look more like the robber and was done to cause identification when video/tellers did not report facial tattoos | Court: Not unnecessarily suggestive; Biggers factors favor submitting reliability to the jury; denial of suppression |
| Whether the court should suppress evidence under its supervisory power despite no constitutional violation | No constitutional violation; supervisory suppression unnecessary | Court should exercise supervisory power to deter improper investigative tactics | Court declined to exercise supervisory power and denied suppression |
Key Cases Cited
- Neil v. Biggers, 409 U.S. 188 (1972) (establishes two-step due-process analysis for suggestive identifications)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (due process protects against identifications so unreliable they violate fundamental justice)
- Simmons v. United States, 390 U.S. 377 (1968) (identification suppressed where procedure created substantial likelihood of misidentification)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (reliability is linchpin when identification procedure is suggestive)
- United States v. Ross, 372 F.3d 1097 (9th Cir. 2004) (discusses scope of district court supervisory powers)
- United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008) (permissible uses of supervisory power to protect judicial integrity)