UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

WALTER SMITH,

Defendant.

 /

Case No. 14-20401

Honorable John Corbett O’Meara

OPINION AND ORDER DENYING

DEFENDANT’S JANUARY 14, 2015 MOTION TO SUPPRESS IDENTIFICATION

This matter came before the court on defendant Walter Smith’s January 14, 2015 motion to

suppress identification. The government filed a response January 21, 2015. No reply was filed, and

no oral argument was heard.

BACKGROUND FACTS

The Indictment alleges that at approximately 1:30 p.m. on June 30, 2014, defendant Walter

Smith and another man walked into a Radio Shack in Royal Oak Township, Michigan, and forced

an employee into the storeroom, where she was tied up while they looted the store of cell phones. 

The employee described her assailants to law enforcement officers as being African American

males. She further advised that one of the men wore a white t-shirt and appeared to have a dark

complexion, facial hair, and a short Afro haircut. Less than six hours after the armed robbery, she

was shown a photo array of six African American males to determine whether she could identify the

suspects who attacked her. She identified defendant Walter Smith as one of the perpetrators. 

Defendant is charged with, among other things, Interference with Commerce by Threat or Violence.

5:14-cr-20401-JCO-RSW Doc # 28 Filed 02/19/15 Pg 1 of 3 Pg ID 86
In his motion to suppress the photo identification, defendant Smith contends that the photo

array was improper because he was the only person wearing a white t-shirt. He also complains that

he is the only person with his hair cut in a short Afro.

LAW AND ANALYSIS

The United States Court of Appeals for the Sixth Circuit "has prescribed a two-step analysis

for determining the admissibility of identification testimony." United States v. Sullivan, 431 F.3d

976, 985 (6th Cir. 2005). "First, the defendant must show that the identification procedure was

unduly suggestive. If the defendant meets this burden, then the court must evaluate the reliability

of the identification in the totality of the circumstances." Id.

In this case the photo array consists of defendant Smith and five other African American

males. All six have some facial hair and appear to be around the same age. They all have similar

expressions, hair styles, and skin tone. Although defendant Smith is the only one in only a white

t-shirt, others appear to have white shirts under darker shirts.

Even if defendant Smith were the only person in the photo array with a white t-shirt, the photo

spread "did not improperly single out the defendant" in such a way as to render it "unduly

suggestive." Because defendant Smith fails to meet his burden in the first step of the two-step

analysis prescribed in Sullivan, the court need not consider evaluating the reliability of the

identification in the totality of the circumstances.

Although defendant Smith's motion does not properly seek dismissal of the Indictment by

motion, his request for dismissal based on the allegedly improper photo array will also be denied.

2

5:14-cr-20401-JCO-RSW Doc # 28 Filed 02/19/15 Pg 2 of 3 Pg ID 87
ORDER

It is hereby ORDERED that defendant Walter Smith's January 14, 2015 motion to suppress

identification is DENIED.

Date: February 19, 2015 s/John Corbett O'Meara

United States District Judge

I hereby certify that on February 19, 2015 a copy of this opinion and order was served upon

counsel of record using the ECF system.

s/William Barkholz

Case Manager

3

5:14-cr-20401-JCO-RSW Doc # 28 Filed 02/19/15 Pg 3 of 3 Pg ID 88