UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs Case No: 14-20610

Honorable Victoria A. Roberts

OTIS LEE MORGAN, JR.,

Defendant.

___________________________________/

ORDER ADOPTING REPORTS AND RECOMMENDATIONS

AND DENYING MOTIONS

I. INTRODUCTION

Morgan filed motions to “Suppress Illegally Seized Evidence” (Doc. #21) based

on an allegedly invalid search warrant, and to “Suppress Identification Testimony” (Doc.

#20) of four eyewitnesses as being impermissibly suggestive. Magistrate Judge Grand

held an evidentiary hearing on Morgan’s motion to suppress identification testimony. He

recommended that both motions be denied. Defendant filed timely objections under 28

U.S.C. §636(b)(1).

The Court ADOPTS the reports and recommendations and DENIES Defendant’s

motions.

II. BACKGROUND

In August and September of 2014, a man robbed three Family Dollar stores with

a Tech-9 gun. Witnesses described him as an African American man around 6'2"

1

2:14-cr-20610-VAR-DRG Doc # 43 Filed 04/14/15 Pg 1 of 9 Pg ID 424
weighing around three hundred pounds, with dreadlocks and facial hair. He stole money

from the registers and various household goods. After store footage was played on the

news, authorities got a tip that Otis Lee Morgan was the robber. A photo array was

presented to four witnesses; all of them picked out Morgan as the robber, with varying

degrees of certainty. 

Authorities obtained a search warrant for Morgan’s house for the gun,

ammunition, stolen merchandise and distinctive clothing worn during two of the

robberies. The affidavit in support of the warrant read in relevant part:

“Based on my training and experience, individuals who are prohibited from

possessing firearms and rob commercial institutions commonly store the

instrumentalities of their crimes (i.e. firearms and other stolen goods) at a secure

location such as their residence or their vehicles. In other words, felons who are

not permitted to possession [sic] firearms commonly use their residence or

vehicle to hide or store prohibited firearms or other stolen property.” 

At the house, authorities found items stolen from the Family Dollar stores, clothing, and

ammunition for a Tech-9 gun. Agents then searched Morgan and discovered two

packets of heroin. 

III. Standard of Review

Any timely objection to the report and recommendation of a Magistrate Judge is

reviewed de novo. 28 U.S.C. 636(b). The court can “adopt, reject, modify, in whole or in

part, the findings or recommendations made by the magistrate judge.” Id. 

IV. Motion on Eye Witness Identification

In his objections, Morgan claims: (1) the array was unduly suggestive; (2) the

photo of Morgan was “strikingly dissimilar” to others in the array; (3) Magistrate Judge

Grand gave insufficient weight to the fact that only one other person in the lineup had

2

2:14-cr-20610-VAR-DRG Doc # 43 Filed 04/14/15 Pg 2 of 9 Pg ID 425
braids; (4) a difference in skin tone created a likelihood of misidentification; (5) Morgan’s

braided hair was noticeable; (6) the photo of Morgan depicts him biting his lip nervously;

and (7) the position of Morgan’s photo at the bottom center of the six photos in the array

was unduly suggestive. 

A two step test is used by Courts to decide whether to suppress out of court

eyewitness identifications: (1) was the identification procedure unduly suggestive (See

U.S. v. Sullivan, 431 F.3d 976 (6th Cir. 2005)) and (2) was the identification reliable

under the totality of the circumstances Id. A defendant bears the burden of proof in

establishing that there was undue suggestiveness. U.S. v. Hill, 967 F.2d 226, 230 (6th

Cir. 1992). A court does not need to address the issue of reliability if the defendant has

failed to prove undue suggestiveness. U.S. v. Watson, 540 F. App’x 512, 515 (6th Cir.

2013). After his analysis, Magistrate Judge Grand concluded that even if there was

undue suggestiveness (he found none), the identifications were reliable.

Morgan objects to the factual determinations of the Magistrate Judge, but makes

no challenge to his legal analysis. In his supplemental brief filed after Magistrate Judge

Grand’s hearing, Morgan generally discusses the reliability of the witnesses’

identifications. However, the law is that absent a showing of irreparable

misidentification, reliability goes to the weight of the evidence, not it’s admissibility.

Manson v. Brathwaite, 432 U.S. 98, 116 (1977). 

Morgan objects to five specific factual findings made by Magistrate Judge Grand,

which the Court addresses individually. The final findings that Morgan objects to are

conclusions based on the specific factual issues. 

i. Braids:

3

2:14-cr-20610-VAR-DRG Doc # 43 Filed 04/14/15 Pg 3 of 9 Pg ID 426
Morgan objects to the determination that even though only one other person in

the photo array had braids, it was not unduly suggestive. Morgan also objects to

Magistrate Judge Grand’s determination that Morgan’s braids in his photo are barely

able to be seen:

“The Magistrate Judge did not give sufficient weight to the significance of a key

identifier, which was the suspect’s hairstyle. Only one other photograph depicted

an individual with braided hair. Maelin Damm testified that this factor led her to

believe that it was either the person in position number one, whose hair was

braided, or Mr. Morgan whose hair was braided. This factor alone may have

precluded the witnesses from even considering the other four photos.

....

We object to the Magistrate Judge’s determination that Mr. Morgan’s braided 

hair is barely noticeable. (R&R pg, 5) We respectfully disagree and ask the

Court to make an independent determination whether the Magistrate’s finding is

supported by the evidence. This physical feature was the most significant

important identifier provided all of the witnesses. It is clearly evident from the

photos that only two men had braided hair.” [mistakes in original] 

The Court finds that neither of these contentions creates undue suggestiveness. 

The Magistrate Judge correctly determined that regardless of the visibility of the

Defendant’s hairstyle, the fact that only two men in the array had the same hairstyle did

not create undue suggestiveness. (Dobson v. Walker, 150 F.App’x 49, 50-51 (2d Cir.

2005) holding that there was no undue suggestiveness when only two men had

dreadlocks and that was a key identifier). 

During the hearing, three of the witnesses testified that they did not select

Morgan because of his braids. And, contrary to Morgan’s assertions, at no point did

Maelin Damm testify that she selected Morgan because of his braids; although she

does state at different times that all she remembers about the robber was that he “ was

a big guy with a big coat and dreadlocks” (Tr. 72), and that she thought that the robber

could be the man in position one as well (Tr. 80). At no point does she state that this

4

2:14-cr-20610-VAR-DRG Doc # 43 Filed 04/14/15 Pg 4 of 9 Pg ID 427
was due to the fact that those were the only two individuals with braids. 

However, all of the witnesses were able to see that Morgan had braids. See Tr.

28, 59, 111-112. Morgan does not address the fact that his hairstyle in the array (long

braids) is different than the description given by the witnesses, who all describe him with

dreadlocks (Tr. 14, 27, 49, 72, 108). This difference would seem to reduce the risk that

not having more men with braids in the photo array would be unduly suggestive. The

Court agrees with the Magistrate Judge’s findings concerning braids. 

ii. Skin Tone

 Morgan stated: 

“[w]e object to the Magistrate Judge’s determination that skin tone did not create

‘a very substantial likelihood of irreparable misidentification’... we disagree and

ask this Court to make its own determination whether this determination is

supported by the evidence.” (Dkt. 38 p. 3) [citation omitted].

Magistrate Judge Grand stated that although “Morgan’s complexion is recognizably

darker than some of the other depicted individuals, it is quite similar to the men in the

first, third and fourth photos.” The Magistrate cited U.S. v. Washington, 714 F.3d 962,

967 (6th Cir. 2013) which establishes without “a drastic difference between [the]

defendant’s skin tone and the remaining photos” there was no undue suggestiveness;

Morgan’s skin tone is similar to the skin tone of the men in the first, third and fourth

photos, and not markedly different from the men in the second and sixth positions. On

de novo review the Court agrees with Magistrate Judge Grand that there is no undue

suggestiveness.

iii. The Defendant’s Lip Biting

Magistrate Judge Grand concluded “Morgan [was] staring blankly at the camera

5

2:14-cr-20610-VAR-DRG Doc # 43 Filed 04/14/15 Pg 5 of 9 Pg ID 428
with a slight overbite” (Dkt. 36 p. 5). Morgan objects to this conclusion stating: 

“This interpretation of what is portrayed in the photograph is inconsistent with the

message being communicated by the photograph itself. That message is one of

fear, nervousness, apprehension and culpability.” (Dkt. 38 p. 3)

All of the witnesses said while it was clear Morgan was biting his lip, it did not impact

their identification (Tr. 28, 59-60, 112). Magistrate Judge Grand cited U.S. v. Reamey,

132 F. App’x at 616-617 (6th Cir. 2005) which held that a defendant’s grimace in the

photo lineup did not create undue suggestiveness. Morgan’s lip biting in the array is

noticeable, but not to the extent that a grimace would be. 

Morgan claims that he conveys nervousness by biting his lip, but there are many

interpretations of that action. The rest of his face does not convey nervousness, fear or

anxiety, and therefore, this factor is not unduly suggestive.

iv. Defendant’s Placement in the Bottom Center Position

Morgan objects that the:

 “position of Mr. Morgan’s photograph in the center of the line-up in conjunction

with the above mentioned factors rendered the overall line-up procedure unduly

suggestive” (Dkt. 38 p. 4)

However, the witnesses claimed that this had no bearing on their identifications (Tr. 28,

60 112). The position of Mr. Morgan’s photo in a specific location cannot be considered

unduly suggestive. See: Searcy v. Berghuis, 549 F. App’x 357 (6th Cir. 2013). The

Court agrees with the Magistrate Judge’s finding in this regard.

v. Conclusion

The Magistrate Judge correctly found no undue suggestiveness in the photo

array. The Court ADOPTS the report and recommendation and DENIES the motion. 

V. Motion to Suppress the Fruits of the Search Warrant

6

2:14-cr-20610-VAR-DRG Doc # 43 Filed 04/14/15 Pg 6 of 9 Pg ID 429
i. Standard of Review

Magistrate Judge Grand correctly reviewed the probable cause determination of

a magistrate issuing a search warrant with great deference; this determination should

not be reversed unless “arbitrarily exercised.” U.S. v. Miller, 314 F.3d 265 (6th Cir.

2002). When reviewing whether there was probable cause for a warrant, a court should

take a “totality of the circumstances” approach in its evaluation. U.S. v. Williams, supra

at 686. A court may afford “considerable weight” to the experience of law enforcement

in evaluating the affidavit in support of the warrant Id.

Probable cause will not be found where there is no nexus between the things

sought and the place to be searched. U.S. v. Williams, supra. However, a nexus can

be inferred, depending on the type of crime, the amount of time a suspect has had to

dispose of evidence and inferences concerning normal hiding spots. U.S. v. Savoca,

761 F.2d 292, 298 (6th Cir. 1985).

ii. Analysis

Morgan moves to suppress the results of the search conducted on his home

pursuant to a warrant; the only objection Morgan made to the issuing magistrate’s

determination is that there was an insufficient nexus between the items to be seized and

Morgan’s home. This is an unavailing argument.

Morgan relies on Judge Moore’s dissent in U.S. v. Williams, 544 F.3d 683, 690

(6th Cir. 2008) for the proposition that there should be some “plus factor” to create an

inference of a nexus between the location to be searched and probable cause of a

crime. The affidavit does not explicitly state a nexus between the items to be seized and

Morgan’s house. It does attest that Morgan: (1) matched the description of the suspect;

7

2:14-cr-20610-VAR-DRG Doc # 43 Filed 04/14/15 Pg 7 of 9 Pg ID 430
(2) four eyewitnesses identified Morgan; and (3) the agent could identify Morgan from

video footage of one of the robberies. 

 Based on the affidavit, the issuing magistrate could infer a nexus between the

house and the items to be seized. In Williams supra, the court held that the proceeds of

a robbery would logically be kept at the suspect’s house, and a nexus could be inferred

from that. Here, there is even more reason to believe that some of the items sought

would be kept at Morgan’s house. Household goods were stolen from the Family Dollar

stores, and these were among the items sought in the warrant. These items could

logically be found in a suspect’s house. The magistrate who issued the warrant was

justified in inferring a nexus between the suspected criminal activity and the location to

be searched. Clear probable cause was established.

iii. Conclusion

The Magistrate Judge correctly found that there was an implied nexus between

Morgan’s home and the goods sought. The Court ADOPTS the report and

recommendation and DENIES the motion.

VI. CONCLUSION

For these reasons, the Court ADOPTS the reports and recommendations and

DENIES Defendant’s motions.

8

2:14-cr-20610-VAR-DRG Doc # 43 Filed 04/14/15 Pg 8 of 9 Pg ID 431
IT IS ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: April 14, 2015

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

April 14, 2015.

S/Carol A. Pinegar 

Deputy Clerk

9

2:14-cr-20610-VAR-DRG Doc # 43 Filed 04/14/15 Pg 9 of 9 Pg ID 432