Pretrial identification; In-court identification; People v Posey; Search warrant

In this interlocutory appeal, the court reversed and remanded because “the photographic identification procedure employed by law enforcement was unduly suggestive, tainting both the pretrial and in-court identifications, and because the search warrants lacked the particularity required by the Fourth Amendment.” Defendant was charged with AWIM, AWIGBH, felonious assault, and felony-firearm. He challenged “two circuit court orders: one denying his motion to suppress identification evidence and the other denying his motion to suppress evidence obtained through search warrants for certain cell phone records.” The court concluded that considering “the totality of the circumstances—including complainant’s limited ability to see the shooter, the generic nature of the characteristic on which the identification was based, the lack of comparable photographs in the array, and complainant’s repeated expressions of doubt— . . . the lineup procedure was unduly suggestive and gave rise to a substantial likelihood of misidentification.” Thus, the trial court erred in denying his motion to suppress the pretrial identification. Defendant also contended “that the circuit court erred by denying his motion to suppress complainant’s in-court identification testimony because the impermissibly suggestive lineup tainted it and there is no independent basis for the in-court identification.” The court held that taken “together, the factors outlined in Posey do not support a finding that complainant had an independent basis for identifying defendant in court.” It appeared “highly probable, as defendant purports, that complainant ‘filled the gaps in his memory based on a tainted and unduly suggestive photo array,’ and the subsequent in-court identification was vitiated by the impermissibly suggestive lineup procedure.” The court found that given “the suggestiveness of the pretrial procedure and the absence of meaningful indicia of reliability, the circuit court erred by denying defendant’s motion to suppress the in-court identification.” Finally, defendant claimed “that the circuit court erred by denying his motion to suppress cell phone evidence seized pursuant to a search warrant because the search warrant was invalid.” The court agreed: “the warrants lacked the particularity required by the Fourth Amendment and were not supported by a sufficient nexus between the evidence sought and the alleged offense.”