UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4437
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH EUGENE PORTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:06-cr-00195-BO-1)
Argued: May 14, 2009 Decided: July 21, 2009
Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
C. Arlen BEAM, Senior Circuit Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Leza Lee Driscoll, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
George E. B. Holding, United States Attorney, Banumathi
Rangarajan, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Porter appeals from the district court's denial of
his motion to suppress two witnesses' out-of-court
identifications of Porter as the perpetrator of a liquor store
robbery in Raleigh, North Carolina. Porter further challenges
the district court's subsequent admission of these
identifications at trial. Because, under the totality of the
circumstances, the identification procedure utilized by the
officers was not impermissibly suggestive and the
identifications were reliable, we affirm.
I.
A. The Robbery
On May 24, 2006, an armed and masked robber entered a
liquor store in Raleigh, fired a shot at a wall, and ordered the
customers present to lie down on the floor at the front of the
store. The robber also ordered two employees to empty their
cash drawers. At one point, the intruder addressed a customer
located near the back of the store and, thinking the customer
was the manager, pointed the gun at the customer and demanded
the combination to the safe. The robber repeated this demand as
he ordered the customer to come to the front of the store and
then to get on the floor. When the customer told the thief he
did not work at the store, the robber stepped toward the
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customer, pointed the gun at him, and fired a shot. That
particular customer is one of the identifying witnesses.
During the robbery, the robber wore a loose-fitting mask,
with hand-made holes fashioned for the robber's eyes. The
customer who was shot at was able to see the robber's freckles
and light-skinned complexion through those holes. Eventually,
an employee opened the safe and the man took two bags found
therein containing over $2,500, and left. The entire robbery
was captured on the store's surveillance camera.
A call to 911 from a driver of a vehicle who saw the
individual leave the liquor store, get into a car, and drive
away provided the emergency operator with a description of the
car. Later this driver, who followed the get-away vehicle,
conveyed the license plate number and the route the automobile
was traveling to the emergency operator. Although that witness
eventually lost sight of the car, a patrol officer picked up the
pursuit and activated the emergency blue lights and siren. The
driver eventually stopped.
There were three people in the vehicle, including Kenneth
Porter. All three occupants were arrested within twenty minutes
of the robbery. One of the people arrested, a woman, told
police that only Porter went into the liquor store. During a
search of Porter's person, an officer found several items:
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hollow point bullets, latex gloves, a short-sleeve cutoff shirt,
and scissors.
Just prior to the robbery, the second identifying witness
saw a man in the parking lot outside the liquor store. The man
was standing in front of the witness’s parked car and had the
hood of his jacket pulled over his head, pacing. As she walked
past the man to enter the store, she noticed he had a very fair
complexion. As the woman left the store, a masked man entered
carrying a gun. The woman then ran to her car and called 911.
She heard a gunshot before she even reached her vehicle, and
then watched the robber leave the store. The man was wearing
blue jeans, a black jacket with red on it, a homemade mask, and
a hood. The woman knew it was the same person she had just seen
before entering the liquor store.
Raleigh officers arrived at the store less than five
minutes after the individual left and immediately obtained
descriptions of him. These descriptions were broadcast to other
police officers and it was these descriptions that led the
arresting officers to believe that the robber was Porter. After
his arrest, police transported Porter back to the vicinity of
the liquor store. The on-scene officers had taken the witnesses
to a hotel across from the store. The officers placed the
witnesses in a room, and asked them to peer out the window at
the suspect and then indicate on a sheet of paper whether they
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identified the suspect as the robber by writing "yes" or "no."
They were told not to speak to each other. Outside, officers
had Porter handcuffed and shined a light on him so the witnesses
could see his face and body. Porter stood about ten to fifteen
feet from the window. Both the woman outside the liquor store
and the customer who was shot at during the robbery positively
identified Porter.
Thereafter, the officers took Porter to the police station.
During a search of the vehicle, the officers discovered a brown
paper bag containing smaller bags of money underneath the back
passenger seat behind the driver's side of the car. In the
pouch behind the driver's seat, officers found surgical gloves
and a hand-made mask. They also discovered a burgundy and black
parka and, from underneath the back passenger seat, officers
recovered a loaded .38 caliber Smith and Wesson revolver
containing three spent cartridges.
Count One of the superseding indictment charged Porter with
interfering with commerce by robbery in violation of 18 U.S.C. §
1951. Count Two charged Porter with using and carrying a
firearm, which was discharged, during and in relation to a crime
of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).
Count Three charged Porter, having been previously convicted of
a crime punishable by a term of imprisonment exceeding one year,
with possession of a firearm in violation of 18 U.S.C. §
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922(g)(1) and 924. Porter unsuccessfully moved to suppress the
out-of-court identifications and any subsequent use of the
identifications in court.
B. Suppression Hearing
At the suppression hearing, Porter offered no evidence but
challenged the two out-of-court identifications obtained during
the show-up identification at the hotel, arguing that the show-
up was impermissibly suggestive and unreliable, which likewise
tainted the subsequent in-court identifications.
1. Witness #1–Charles Renfrow
The identifying witness, Charles Renfrow, was in the liquor
store during the robbery (and was shot at by Porter), and
testified that he went to the liquor store around 7:30 p.m. on
May 24, 2006, to buy alcohol. While Renfrow was in the back of
the store, he heard a gunshot. As he turned around, the
intruder pointed the gun at him, asked him if he was the
manager, and ordered him to the front of the store. The gunman
forced Renfrow to the floor and demanded the safe combination.
When Renfrow said he did not know the combination, the robber
fired the gun at him. At that time, the masked man stood within
one foot of Renfrow.
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Ironically, Renfrow held an associate's degree in criminal
justice, testified that he continuously watched the robber, and
focused on remembering that the robber "was wearing black tennis
shoes, untied; blue jeans; a grayish colored tight shirt; a
grayish colored mask; a pinkish at the bottom range suit–coat,
with a dark color at the top, pinkish at the bottom." Renfrow
also noticed the freckles under the robber's eyes because the
man continuously adjusted the mask. Renfrow testified that the
thief appeared to weigh 180 pounds and to be about six feet
tall. At the show-up at the hotel, Renfrow positively
identified Porter as the robber based upon his clothing, his
height, his weight, his skin tone, and the shape of his chin.
And, Porter wore "the same black tennis shoes, same blue jeans,
same tight gray shirt." Porter's shoes were still untied during
the show-up.
2. Witness #2–Brenda Freeman
The second witness, Brenda Freeman, who had been outside
the store prior to the robbery and saw the robber pacing in the
parking lot, testified that she went to the liquor store on May
24, 2006, around 7:30 p.m. When she pulled into the parking
lot, she noticed a man outside the store, standing a few feet
from her car on the sidewalk. He caught her attention because
he had his hood up over his head and it was not yet cold
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outside. The man’s face was not covered at the time. She
remembered his face and his fair complexion. On her way out of
the liquor store, a person wearing a mask entered and Freeman
noticed that the masked person had a gun. She ran to her car
and called 911. She heard a gunshot and shortly thereafter saw
the robber leave the store, all of which she reported to the 911
operator. Freeman noticed that the robber was wearing blue
jeans and a dark jacket with some red on it. At the show-up,
Freeman instantly recognized the suspect as the person she saw
before she went into the liquor store. She testified that "he
was the face of the person [she] saw outside the store."
3. District Court’s Ruling on the Suppression Motion
The court summarized that, given the witnesses’ testimony
along with the fact that there was another witness who followed
the automobile that left the scene of the crime, and the fact
that Porter had no chance to change clothes and was wearing the
very clothes at arrest that the witnesses testified about from
the robbery, it was almost like an "evidentiary chain,"
"ironclad, lay down identification." "[T]here isn't even an
iota of unreliability about this. It's – it's almost like a
movie camera following the robber until his arrest and return."
The district court thus concluded that the show-up was not
impermissibly suggestive and the identifications were reliable
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under the totality of the circumstances, and denied Porter's
motion to suppress.
After a jury trial, a jury found Porter guilty on all
counts. The district court sentenced Porter to concurrent 235-
month terms of imprisonment on Counts One and Three, and a
consecutive 120-month term of imprisonment on Count Two. The
total sentence of imprisonment was 355 months.
II.
We review a district court's legal conclusions made in the
course of a denial of a motion to suppress evidence de novo and
its factual findings for clear error. United States v.
Saunders, 501 F.3d 384, 389 (4th Cir. 2007), cert. denied, 128
S. Ct. 1107 (2008). We review for abuse of discretion the
court’s rulings on the admissibility of evidence. United States
v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995).
We review de novo the court’s legal conclusion as to
whether the identifications violated the Due Process Clause.
Saunders, 501 F.3d at 389. Due process principles prohibit the
admission at trial of an out-of-court identification obtained
through procedures "so impermissibly suggestive as to give rise
to a very substantial likelihood of irreparable
misidentification." Simmons v. United States, 390 U.S. 377, 384
(1968). "The Due Process Clause is not implicated, however, if
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the 'identification was sufficiently reliable to preclude the
substantial likelihood of misidentification.'" Saunders, 501
F.3d at 389 (quoting United States v. Johnson, 114 F.3d 435, 442
(4th Cir. 1997)) (concluding that even though a single-photo
display was impermissibly suggestive, the identification was
still reliable and did not violate due process). In order to
determine whether a challenged identification procedure should
be suppressed, the court engages in a two-step analysis. First,
the defendant "must prove that the identification procedure was
impermissibly suggestive." Holdren v. Legursky, 16 F.3d 57, 61
(4th Cir. 1994). “A procedure is unnecessarily suggestive if a
positive identification is likely to result from factors other
than the witness’s own recollection of the crime.” Satcher v.
Pruett, 126 F.3d 561, 566 (4th Cir. 1997). If it was not, the
inquiry ends. If the procedure was impermissibly suggestive,
"the court then must determine whether the identification was
nevertheless reliable under the totality of the circumstances."
Holdren, 16 F.3d at 61.
A. Impermissibly Suggestive
On appeal, Porter argues that the show-up was impermissibly
suggestive in violation of his due process rights for several
reasons: (1) Porter was the only suspect presented at the show-
up, (2) the procedure utilized by the police for the show-up at
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the hotel was inherently suggestive, and (3) the police offered
no reason for failing to resort to less suggestive procedures.
He further argues that the descriptions provided by the
witnesses were unreliable.
To begin with, the exclusion of identification evidence is
a “drastic sanction” which is “limited to identification
testimony which is manifestly suspect.” Harker v. Maryland, 800
F.2d 437, 443 (4th Cir. 1986). And, notwithstanding the
conclusion reached by our colleagues in United States v.
Brownlee, 454 F.3d 131, 138 (3d Cir. 2006), a case relied upon
by Porter; in this circuit, prompt, on-the-scene show-ups are
not per se suggestive and may in fact "promote fairness, by
enhancing reliability of the identifications, and permit
expeditious release of innocent subjects." Willis v. Garrison,
624 F.2d 491, 494 (4th Cir. 1980) (quotation omitted).
That is not to say that show-up identifications are per se
constitutional, either. Certainly, "[g]reater accuracy can be
assured when a suspect is exhibited to a witness in the company
of others having similar facial and physical characteristics
under circumstances where the mind of the beholder is not
affected by intended or unintended, blatant or subtle,
suggestions of the suspect's probable guilt." Smith v. Coiner,
473 F.2d 877, 880-81 (4th Cir. 1973). But, when one-man
confrontations occur promptly after the commission of a crime,
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the police have obtained a good description of the offender, and
the show-up is completed under circumstances where it is
important to continue the search for the real culprit promptly
if he has not been apprehended, they are likely not suggestive.
Id. at 881; see also Stanley v. Cox, 486 F.2d 48, 51 n.7 (4th
Cir. 1973) (citing precedent for the proposition that a one-man,
show-up identification is not impermissibly suggestive when it
occurs near the time of the alleged criminal act).
The instant show-up identification was not suggestive. The
show-up took place within a short time after the crime and after
the police obtained a good description and the general location
of Porter, leading to his arrest. There is no evidence that the
witnesses influenced each other during the show-up and it is
worth noting that only two of the several witnesses positively
identified Porter—a factor weighing against a finding of
suggestive conduct by the officers. And, although Porter was in
handcuffs, this characteristic did not predominate in the
identifications and did not play a conclusive role in the
positive identifications, if at all.
Porter’s primary thrust at oral argument was based upon the
officers’ decision to exclude Theodore Porter, the driver of the
vehicle, from the show-up. Porter argues that by failing to
also present Theodore at the show-up, the officers created an
inherently suggestive show-up when they could have utilized less
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suggestive means. Basically, Porter claims it was just as
likely that Theodore Porter was the perpetrator as Theodore
likewise fit the general description provided to the officers
(Porter argues that Theodore, too, wore blue jeans, sneakers,
and a t-shirt) and the evidence was strewn throughout the car.
We disagree.
One of the arresting officers testified that “[b]ased on
the information [they] had from detectives on the scene, it was
readily apparent [that Kenneth Porter] was the suspect who
committed the actual robbery.” This determination was based
upon the physical description and clothing worn by the robber.
A second officer that searched Theodore Porter’s person did not
recall discovering anything unusual on him. A search of Kenneth
Porter revealed items likely to have been used in preparation of
the robbery. Too, Cammesoa Williams, the third passenger in the
car, told the officers and later testified that Kenneth Porter
was the only man to get out of the car and enter the liquor
store. She described Kenneth as having freckles, “[a] lot of
freckles,” on his face, and testified that Theodore Porter had
none. Our own review of the record reveals that one of the
officers testified that Theodore Porter was wearing white tennis
shoes, a fact directly at odds with the uniformly consistent
description of the perpetrator’s black, untied tennis shoes. We
find no clear error given these facts. Additionally, contrary
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to Porter’s suggestion, the government bears no burden to prove
that a less suggestive means could have been utilized.
B. Reliability of Identifications
The reliability of eyewitness identifications is assessed
under the totality of the circumstances. Satcher, 126 F.3d at
566. Here, even were we to find the show-up identification
impermissibly suggestive, the identifications were nonetheless
reliable. "[R]eliability is the linchpin in determining the
admissibility of identification testimony." Manson v.
Brathwaite, 432 U.S. 98, 114 (1977). The Supreme Court has set
forth five factors to be considered in determining whether a
prompt identification is reliable, such that it may be admitted
without violating due process: (1) the witness's opportunity to
view the accused at the time of the crime; (2) the witness's
degree of attention; (3) the accuracy of the witness's prior
description of the accused; (4) the level of certainty by the
witness at the confrontation; and (5) the length of time between
the crime and confrontation. Neil v. Biggers, 409 U.S. 188,
199-200 (1972). All five factors tip in favor of a
determination that the identifications were reliable in this
case.
Both identifying witnesses had an opportunity to view
Porter–one inside the liquor store and one outside. And, even
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though one witness saw the man she believed to be Porter in the
parking lot prior to the robbery without a mask on, she was able
to connect that man and the masked man she later saw walking
into the liquor store with a gun because of the similarity of
clothing and physical build. As to the second factor, Renfrow
testified that he purposely focused on the robber so that he
might later be able to positively identify the man to the
police. He explained quite specifically what Porter was
wearing, right down to the untied black tennis shoes Porter
still had on at the time of his arrest. As to accuracy, both
witnesses were detailed in their description of Porter's
clothing. Renfrow testified that Porter wore the same black
tennis shoes, same blue jeans, and the same tight gray shirt he
saw the robber wearing. Freeman recognized Porter as the man
she saw outside the liquor store and the physical description
she gave police closely matched Porter's actual appearance and
the clothing he was wearing when arrested. While there might
have been slight inconsistencies, in all, the descriptions were
"flawless in several important particulars"—namely the untied
black tennis shoes, the gray shirt, the description of the coat
found in the vehicle, Porter's freckles and Porter's height and
build. Saunders, 501 F.3d at 392. The last two factors—level
of certainty in the identification and time between the crime
and the identification—also support a conclusion of reliability.
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Neither witness hesitated when identifying Porter and the
identifications took place very soon after the crime and
Porter’s arrest, which occurred only about twenty minutes after
the robbery.
We therefore affirm the district court’s denial of Porter’s
motion to suppress.
C. In-Court Identifications
Because the show-up identifications did not violate due
process principles, the subsequent in-court admission of these
identifications was also not constitutionally infirm. An out-
of-court identification only taints an in-court identification
if the show-up itself is unconstitutionally suggestive.
Johnson, 114 F.3d at 441. Accordingly, the identifications were
properly admitted at trial.
III.
For the reasons stated herein, we affirm the district
court.
AFFIRMED
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