The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court upon the motions to suppress the pretrial identifications of Defendants William Brown and Rasheen Mines (collectively, the "Defendants"). Defendants argue that the photo arrays used in the pretrial identification process were unnecessarily suggestive and violative of Defendants' due process rights. For the reasons expressed below, the Court finds that the photo arrays used in the pretrial identification process were not unnecessarily suggestive and therefore, Defendants' motions to suppress will be denied.
On December 27, 2005, Detective James Dougherty of the Gloucester Township Police Department*fn1 was informed that a home invasion occurred in Erial, New Jersey on December 26. Detective Dougherty was charged with the task of showing photo arrays to the victims of the home invasion for identification purposes. Detective Dougherty testified that he had no special training in presenting photo arrays other than on-the-job training, but had conducted more than ten photograph identifications.
Detective Dougherty was not involved in the preparation of the photo arrays used in the pretrial identification procedure. Instead, Investigator William Townsend was charged with generating the photo arrays. Investigator Townsend, who has been an investigator at the Camden County Prosecutor's Office for seven years with the major crimes unit, testified that, on December 26, 2005, he was told about a home invasion and asked to assess the crime scene and interview witnesses. Investigator Townsend learned that, on the night of December 26, 2005, three individuals suspected of committing the home invasion were arrested and taken into custody in Philadelphia after a police pursuit.
After learning the names of the individuals in custody, Investigator Townsend attempted to secure photographs of the three individuals. First, Investigator Townsend checked the Camden County system to see if Camden County had pictures of the individuals. It did not. After being unable to obtain an electronic version of the suspects' photographs from the Philadelphia Police Department, Investigator Townsend and Detective Stollsteimer (Townsend's partner) took photographs of Defendants Brown and Mines using a digital camera and emailed them to Officer Mogck of the identification unit of the Camden County Sheriff's Department. Investigator Townsend then requested that Officer Mogck formulate a photo array to be used for identification purposes.*fn2
The photo arrays were delivered by Investigator Townsend to the Gloucester Township Police Department on December 27. Detective Dougherty testified that he had no role in putting the photo arrays together and did not know if a suspect was contained in any of the photos in the photo array. In the Gloucester Township Police station, Detective Dougherty showed 11 photo arrays to five victims of the home invasion (Brian McMorrow, Daniel Agront, Evelise Agront, Sarita Agront, and Israel Colon.)
Detective Dougherty followed the same careful procedure in showing each witness a photo array. First, he read the instructions from the Photo Display Instruction sheet to the witness and gave the witness the opportunity to read the Photo Display Instruction sheet to him or herself. (See Gov't Ex. 2.) According to the instructions, the witness was told that the photo of the person suspected of the crime may or may not be in the photo array. The date and time of the identification and the witness's name was then recorded on the Photo Display Instruction sheet and signed by the witness. Detective Dougherty then signed the instruction sheet as having witnessed the witness' signature. Detective Dougherty then showed the witnesses each photo in the array in a sequential fashion. At no time did any victim-witness view all photos in the array side-by-side.
After Detective Dougherty showed all eight photographs in the photo array, he read the Photo Display Results Form to each witness and recorded the date, time and place of the photo display, the name of the witness and anyone present during the display, the number of photos shown to the witness and in what sequence the photos were displayed. Most importantly, Dougherty recorded the photograph number selected by the witness on the Photo Display Results Form.*fn3 (Gov't Ex. 2.) Detective Dougherty followed this same procedure when he displayed all eleven photo arrays.
During these procedures, which Dougherty conducted and documented for each witness separately, no witness identified the photo of defendant William Johnson. Serita Agront identified Brown (Ex. G-9, Photo 4) and Mines (Ex. G-7, Photo 8), Israel Colon identified Brown (Ex. G-10, Photo 7) and Mines (Ex. G-12, Photo 8), Brian McMorrow identified Mines (Ex. G-2, Photo 8), and Daniel Agront identified Mines (Ex. G-3, Photo 6.) Witness Evelise Agront made no identification (Exs. G-4, G-5, G-6.)
According to the Government, at the time the police questioned the victims and showed them the photo arrays, each of the four victims that positively identified either Defendants Brown and Mines were asked whether he or she had viewed any television news reports or internet reports about the crime. (Gov't Br. at 16.) All reported that they had not viewed such news reports. (Id.)
However, around midnight on December 26 and into the early morning hours of December 27, 2005, Detective Ron Middletown, Detective J. Stollsteimer, Patrolman Pat Cunane, and Investigator Townsend, all of the Gloucester Township Police Department, took statements from the victims. One victim, Israel Colon, described the individuals who committed the crime as "three black males," one being approximately a 5 foot, 7-inch, 150 pound, light skinned black male of approximately twenty years of age. The man was wearing a "dark colored mask" and the victim could only see his eyes and eyebrows. According to Colon, the second subject was approximately 6 feet tall, weighed over 200 pounds, was in his mid-twenties and wore a "Muslim type of beard [that was] kind of long" and a "black skully." The third subject also had a beard, was over six feet ("maybe 6-2, 6-3") and had a medium complexion. A second victim, Evelise Agront, stated that one subject was wearing a mask but that she could see his eyes and "his dark skin." The subject was approximately 5-9, weighing 180 lbs. She described a second subject as having a "chunky" face and was light skinned. Finally, Daniel Agront stated to the police that all three subjects were "African American" and that two were "in their high twenties" and "one...looked real young." One subject was a tall black male in his late twenties who was "muscular." Another subject was described as having a "chubby face" with a "full beard."
In their motion papers and at a hearing on August 10, 2005, Defendants Brown and Mines argued that the pretrial identification procedure from which they were identified by the victims of the robbery was unnecessarily and impermissibly suggestive in two ways. First, Defendants argue that the background and angle of the Defendants' photographs are different from any of the other seven photographs contained in the photo array. (Def. Brown's Br. at 12.) According to Defendant Brown, Brown's photograph is different from the other seven contained in the array in that (1) there is something hanging on the wall in the background of Brown's picture (while the other photographs in the array contain a plain white background) and (2) Brown appears farther away from the camera than the individuals in the other photographs, with his shoulders exposed and head tilted to one side. (Id.) Second, the Defendants argue that the initial identification procedure was unnecessarily suggestive because there is the possibility that the victims saw pictures of the ...