The opinion of the court was delivered by: CURTIN
On November 7, 1974, the defendant Melvin Porter was indicted with Fred Bachelor for a violation of Title 21, United States Code, § 841(a)(1) (dispensing or distributing a controlled substance), which allegedly occurred on August 6, 1974. On November 19, 1975, Fred Bachelor pled guilty and was subsequently sentenced to a four-year term of incarceration. Progress toward a disposition of the charge against Porter has been somewhat slower. Several 1976. Further delay was caused when the former defense counsel requested to withdraw. New counsel was assigned in the summer of 1976 and a trial date was tentatively set for October of 1976.
However, near the new trial date, Miss Deborah Wilson, the Government's primary identification witness, informed the Assistant United States Attorney that because of the lapse of two years since the time of the acts alleged in the indictment, she was unsure whether or not she could still identify the defendant. The court then ordered a lineup which was held on November 29, 1976. At the lineup Miss Wilson identified the defendant as the person from whom she had purchased drugs on August 6, 1974.
A hearing on defendant's motion to suppress identification testimony was then held on December 29, 1976. Defendant has now moved to suppress certain photo-identification evidence as well as the lineup identification evidence. Defendant also seeks a ruling that would prohibit in-court identification of the defendant by Miss Wilson because of the allegedly suggestive nature of out-of-court identification procedures. The court has received briefs from both sides which address the issues presented by this motion to suppress.
Miss Wilson is a deputy sheriff with the Niagara County Sheriff's Department. During 1974 she participated with officers of the Drug Enforcement Administration in extensive investigations of drug sales in the Buffalo and Niagara Falls area. Numerous arrests resulted from these investigative efforts. The pattern of investigation in this case was similar to that followed in other cases. Deputy Wilson would accompany an informant of the Drug Enforcement Administration [D.E.A.]. They would then meet with the person being investigated and, after introduction by the informant, Miss Wilson would purchase drugs from the suspect. The activities of Deputy Wilson, the informant and the suspects were also under surveillance by other agents of the D.E.A. In some cases, such as this one, only one meeting and sale occurred. In others, the agent met with the prospective defendant on two or three occasions. After the transaction was completed, Deputy Wilson was often shown a single photograph, allegedly of the person she had just dealt with, by another agent of the D.E.A. As indicated below, that practice was followed in the case now before me.
In this case, Deputy Wilson has testified that she was introduced to Fred Bachelor by an informant. After a brief discussion, Bachelor left the agent's vehicle and returned about five minutes later with another black male who was introduced to Wilson as "Melvin" (later identified by Wilson as the defendant Melvin Porter). Deputy Wilson was in the passenger's seat and Bachelor and Porter were in the rear seat of the vehicle. After driving a short distance to another location, Bachelor and Porter left the vehicle and returned about an hour later. The illicit drug transaction occurred on their return. The defendants were then driven back to the original meeting place, about five or ten minutes from the site of the transaction.
These activities occurred at noon on August 6, 1974. The defendants were in the deputy sheriff's presence for about fifteen to twenty minutes and, while they were in the car, she engaged them in conversation during this period, turning around in the passenger seat to look at both defendants as they conversed.
About a week after the transaction, Deputy Wilson was shown a photograph of Melvin Porter. At the Wade hearing of December 29, 1976, Deputy Wilson testified that she was not sure whether this was a single photograph or whether it was a spread of photos. Because of Deputy Wilson's uncertainty, I will assume that it was a single photographic display.
Deputy Wilson recalls that, at the time of sale, defendant Melvin Porter was cleanshaven. The single mug shot which Deputy Wilson observed some time after the sale depicts the defendant as having a full beard. Deputy Wilson was shown the same mug shot when she appeared before the grand jury on October 25, 1974. At that time she identified the photo as that of Melvin Porter.
This practice of placing only a single photograph of a suspect before a witness for purposes of identification has been condemned by the Second Circuit in Brathwaite v. Manson, 527 F.2d 363 (2d Cir. 1975), cert. granted, 425 U.S. 957, 96 S. Ct. 1737, 48 L. Ed. 2d 202 (1976), and by this court in United States v. Barnes, 416 F. Supp. 1176 (W.D.N.Y.1976). In United States v. Barnes, which involved a similar identification made by Deputy Wilson, I ordered that such an impermissibly suggestive and unnecessary photographic identification must be suppressed. See also United States ex rel. John v. Casscles, 489 F.2d 20, 24 (2d Cir. 1973), cert. denied, 416 U.S. 959, 94 S. Ct. 1976, 40 L. Ed. 2d 310 (1974). The Government concedes in its brief that these photographic identifications may have been unnecessarily suggestive and that the original photographic identifications utilized in this case should be suppressed for the purposes of trial. I find that the evidence adduced from the single-photo identification must be suppressed because the identification procedures were so unnecessarily suggestive and so conducive to irreparable mistaken identification that the defendant would be denied due process of law if this evidence was admitted at trial. See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); $2Brathwaite v. Manson, supra.
The next issue to be addressed is whether or not evidence of Deputy Wilson's identification of defendant Porter at the court-ordered lineup should be admitted upon trial of this matter. At the lineup conducted on November 29, 1976, Deputy Wilson selected Melvin Porter from a group of five individuals as one of the persons with whom she had dealt on August 6, 1974. Deputy Wilson had previously described the man she encountered on August 6, 1974 as a black male, about 5 feet 10 inch tall, slight build, black hair and brown eyes, and clean-shaven on the day of the alleged transaction. At the Wade hearing, she testified that her most vivid recollection of Porter was that he was thin, clean-shaven at the time of the alleged transaction, and had a full beard when the mug shot was shown to her.
At the December 29, 1976 hearing, the photographs of the lineup, as well as detailed descriptions of the other lineup participants, were received in evidence. The individuals in the lineup ranged in age from 31 to 38 years. The defendant Melvin Porter is 34 years old. Porter was the only participant in the lineup with a beard. At the time of the lineup Porter did not have a full beard as he did at the time the contested mug shot was taken. Rather, Porter was wearing a trim goatee at the lineup. Three other lineup participants had facial hair in the form of mustaches. The other participants were much heavier than Porter, 190 pounds and over, in contrast to his 150 pounds. Two were slightly over 6 feet in height, and the two who were about the same height as Porter were, naturally, heavier in build. All participants were similarly dressed in casual attire and all were black males.
Evidence presented at the Wade hearing indicates that three of the participants were, at the time of the lineup, employed as courtroom deputies in the Erie County Sheriff's Department and worked in the courtrooms of Erie County Hall. The fourth individual was employed by the Buffalo Police Department. Miss Wilson testified that she did not know and had not seen any of these other four prior to the lineup and stated that she had only been in the Erie County Hall, where the courts are located, on two prior occasions. She testified that, during these visits, she was not in the part of the Court building where trials are held, that is, in the areas frequented by the courtroom deputies. There is no reason to suspect that Deputy Wilson has not been truthful in this regard.
I realize that it is not easy to obtain individuals to stand in lineups. Nevertheless, it appears that the procedure followed was a careless one under the circumstances. Because of the nature of the work of the deputy sheriff, the use of individuals who were so close to the operation of the courts was certainly not designed to avoid unnecessary difficulties in this case. However, the lineup appears to have been ...