Description: Chicago, Illinois criminal defense lawyer represented Defendant charged with carjacking.

In July 2020, two individuals were sitting in a 2007 Infiniti that was parked in the parking garage of Old Orchard mall in Skokie, Illinois. Two offenders (“Offender One” and “Offender Two”) ordered the two individuals (“Victim One” and “Victim Two”) out of the car and fled from the scene in the stolen Infiniti. Victim One and Victim Two shortly thereafter notified law enforcement of the robbery, giving a description of the offenders. After a car chase with law enforcement, Offenders One and Two crashed the stolen car and escaped on foot. Defendant Omarion Franklin (Franklin) was arrested as one of two suspects in the armed robbery. Later that evening, Victims One and Two identified Franklin from a photo array of six other black men as Offender One. Franklin moves the Court to suppress the photo array identification as unnecessarily suggestive and likely to cause irreparable misidentification. F...

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On July 12, 2020, at approximately 6:30 p.m., Victim One and Victim Two were seated in a 2007 Infiniti G35x in the parking garage of Old Orchard mall in Skokie, Illinois, when they were approached by Offender One and Offender Two. R.[1]44, Resp. at 1. Offender One opened the driver side door of the car and pointed a handgun at Victim One who was sitting in the driver's seat. Id. Franklin is alleged to be Offender One. R. 43, Motion to Suppress (Motion) at 1. Offender One then ordered Victim One to get out of the car and to give Offender One his valuables. Resp. at 1. (“Victim Two heard Offender One instruct Victim One to give him his phone and keys. According to Victim One, after Offender One opened the driver's side door, Offender One told Victim One to get out the car and ‘give me everything.'”) (Internal citations omitted). Offender Two then opened the passenger side door where Victim Two was seated, and aimed a handgun at Victim Two. Id. Offender Two demanded that Victim Two get out of the car and give him his keys. Id. at 1-2. Victim Two complied. Id. at 2. Offender Two was later identified as Adrian Ballard. Id. After Offender One pulled Victim One out of the car, Offenders One and Two left the parking garage driving the Infiniti. Id. The Skokie Police were called, and officers were dispatched to the scene at approximately 6:37 p.m. Id.

When they arrived at the scene, Skokie Police interviewed Victims One and Two about the robbery. Id. “Victim Two described Offender One [Franklin] as a skinny black man, approximately 6'0” - 6'2”, wearing a red and black baseball hat, a light colored surgical-type mask and yellow hoody with a ‘Timberland' logo on the front.” Id. at 2-3. Victim One agreed with Victim Two's description of Offender One. Id. at 3. “Victims One and Two described Offender Two [Ballard] as a black male, approximately 5'10” - 5'11,” wearing a dark baseball hat, a light colored surgical-type mask and a black hoodie.” Id.

At approximately 6:42 p.m., the officers radioed out the description of the Offenders and the stolen Infiniti to other patrol officers. Id. at 4. Approximately one minute later, an officer observed the stolen Infiniti proceeding southbound on the Edens Expressway near the Touhy exit, which is approximately five miles from the scene of the carjacking at Old Orchard mall. Id. The officers began to pursue the Infiniti. Id. The Infiniti eventually crashed on a sidewalk at approximately 4155 West Byron Street in Chicago, Illinois. Id. The pursuing officers saw “a black man wearing a red hat and tan top run from the driver's seat of the stolen Infiniti” Id. Police officers searched the surrounding area looking for Offender One and Offender Two. Id. at 5. Offender Two was observed by one officer hopping a fence in the backyard at 3853 North Keeler and then running westbound across the 3800 block of North Keeler. Id. Later another officer found Offender Two, Adrian Ballard, hiding in nearby foliage. Id. Ballard was taken into custody. Id.

Two witnesses identified a black man, of approximately 6'0” to 6'2”, wearing a tan shirt and red baseball hat, matching the description of Offender One, running across the yard of 3833 North Keeler. Id. A disposable mask was recovered from the side of the yard that day, and a “gold Timberland hoodie, with an Infiniti key fob
inside, and a red baseball hat with black lettering” were recovered from the backyard of 3807 North Tripp Avenue the next day by an evidence technician. Id. at 5-6. The evidence technician also swabbed for DNA samples from the recovered Infiniti on the day of the carjacking. Id. at 7.

Approximately an hour and a half later at the police station, Victim Two reiterated his description of Offender One. Id. at 3. Victim Two added that Offender One was “lankier” or “taller” than Offender Two; and that Offender Two “had a medium build body and a rounder face.” Id. Victim Two explained to officers that Victim Two had gotten a “pretty good look” at the offenders and could tell the offenders by their eyes and body shapes. Id. Both Victim One and Victim Two stated that they could identify Offenders One and Two in a photographic lineup and agreed to do so. Id. at 3-4. The detective created two photo arrays based on Victim One and Victim Two's description of Offender One. Id. Each photo array included a photograph of Franklin and five other black men. Id. at 10. The detective used the same six photos, rotating the positioning of the photographs in each array. Id. “The presentation of the photographic arrays to each victim was video recorded.” Id. Victim One, after two minutes, was unable to identify any individual in the photo array as Offender One. Id. at 11. Victim Two, after 30 seconds, identified a photo of Franklin as Offender One, and wrote a statement in support of his identification. Id. at 12-13.

Chicago Police arrested Franklin at his residence in Chicago, Illinois later that evening. Id. at 13. “Pursuant to a search warrant authorized by a Cook County Judge, law enforcement collected buccal swab samples from Franklin for the purpose of conducting a DNA comparison.” Id. The Northeastern Illinois Regional Crime lab determined that the DNA recovered from the steering wheel and gear shift of the stolen Infiniti, the face mask recovered from 3833 North Keeler, and the red hat recovered from 3807 North Tripp matched or likely originated from Franklin's DNA. Id. at 13-14. Franklin was charged with aggravated taking of a motor vehicle under U.S.C. § 2119 and 2. Motion at 1. Franklin's fully briefed Motion is before the Court.[2]...

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“The Constitution does not require that police lineups, photo arrays, and witness interviews meet a particular standard of quality.” Alexander v. City of South Bend, 433 F.3d 550, 555 (7th Cir. 2006). The Constitution, however, does “guarantee the right to a fair trial-in this context, via the due process clause of the Fourteenth Amendment-and that right is violated if unduly suggestive identification techniques are allowed to taint the trial.” Id. Put simply, “due process forbids law enforcement from using an identification procedure that is both suggestive and unnecessary.” United States v. Jones, 872 F.3d 483, 490 (7th Cir. 2017) (cleaned up[3]). To ascertain whether a specific identification procedure offends due process, a court must consider whether the defendant has established that the procedure was both suggestive and unnecessary and, if so, a court then evaluates the ‘totality of the circumstances' to “determine whether other indicia of reliability outweigh the corrupting effect of law enforcement suggestion, ” id. at 490-91, thus “rendering the evidence admissible and leaving it to the jury ultimately to determine its worth.” United States v. Gonzalez, 863 F.3d 576, 586 (7th Cir. 2017). “In considering whether an identification made in suggestive circumstances is still reliable, courts consider: the opportunity of the witness to view the offender at the time of the crime; the witness' degree of attention; the accuracy of the prior description of the offender; the level of certainty exhibited at the confrontation; and the length of time between the crime and the confrontation.” Id.

Suppression is proper “only when there is a very substantial likelihood of irreparable misidentification” Jones, 872 F.3d at 490 (cleaned up). Irreparable means that “the procedures of trial would not suffice to allow jurors to separate reliable from mistaken identifications.” United States v. Johnson, 745 F.3d 227, 229 (7th Cir. 2014). Otherwise, the “Constitution . . . protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.” Perry v. New Hampshire, 565 U.S. 228, 237 (2012). Therefore, “juries are assigned the task of determining the reliability of the evidence presented at trial.” Id. Whether an identification in a photo array is reliable is a mixed question of law and fact; however, “whether the composition of the photo array was impermissibly suggestive is a question of law.” United States v. Johnson, 986 F.2d 1425 (7th Cir. 1993).

Outcome: Motion suppressed denied.

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