United States v. Cooksey, 3:19-cr-00014-SLG-MMS

Defendant Michael Joseph Cooksey moved to suppress an identification by witness William Shane; the government opposed. The matter was referred to Magistrate Judge Deborah M. Smith, who recommended granting the motion.
The contested identification arose after Shane encountered Cooksey at Shane’s home; Cooksey spent roughly an hour at the house. Shane testified he is nearsighted, saw Cooksey at close range when opening the door, and had not sold firearms to others.
Magistrate Judge Smith concluded BBPD identification procedures created a substantial likelihood of misidentification and recommended suppression of the out-of-court ID (and precluding future in-court ID).
The government objected to certain factual recitations and to suppression of any future in-court identification, arguing the magistrate misweighed the Biggers factors.
The district court reviewed objections, adopted the magistrate judge’s Final Report and Recommendation, granted the motion to suppress the out-of-court identification, but left open the possibility of in-court identification if the government makes an out-of-jury showing of reliability under Biggers.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the out-of-court identification by William Shane should be suppressed as unnecessarily suggestive and likely to produce misidentification	The government did not intend to use the out-of-court ID at trial; it argued the magistrate improperly weighed Biggers factors and undervalued other factors bearing on reliability	Cooksey argued BBPD procedures and circumstances created a substantial likelihood of misidentification; suppression of the out-of-court ID was required	Court adopted magistrate’s R&R and granted suppression of the out-of-court identification (finding totality of circumstances showed substantial likelihood of misidentification)
Whether future in-court identification by Shane should be barred without further showing	Government objected to blanket preclusion and requested permission to attempt an in-court ID at trial	Cooksey sought to preclude any in-court ID as tainted by the prior suggestive procedures	Court granted suppression of in-court ID without prejudice: government may seek to establish reliability and lack of taint outside the jury pursuant to Biggers factors

Neil v. Biggers, 409 U.S. 188 (1972) (sets five-factor test for reliability of identifications under the totality of the circumstances)
United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (district court need not de novo review unobjected-to portions of a magistrate judge’s findings)
Thomas v. Arn, 474 U.S. 140 (1985) (Congress did not intend mandatory de novo review by district courts of magistrate findings absent objections)