1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 Case No. 14-cr-20676 

v. 

 HON. MARK A. GOLDSMITH 

JERRY WAYMEN-TIMOTHY BIGHAM, 

 

 Defendant. 

____________________________________/ 

OPINION AND ORDER 

(1) DENYING DEFENDANT’S MOTIONS FOR RECONSIDERATION (Dkt. 42), TO 

TRANSFER (Dkt. 43), AND TO SUPPRESS IDENTIFICATION EVIDENCE (Dkt. 44); 

AND (2) DENYING DEFENDANT’S MOTION IN LIMINE TO PROHIBIT THE USE OF 

“FELON” AND TO SUPPRESS PRIOR CRIMINAL RECORD (Dkt. 48) 

Defendant Jerry Waymen-Timothy Bigham has recently filed four motions: (i) to 

reconsider the denial of Defendant’s previous suppression motion (Dkt. 42); (ii) to transfer 

Defendant to Milan Detention Facility (Dkt. 43); (iii) to suppress out-of-court and in-court 

identifications (Dkt. 44); and (iv) to prohibit the use of “felon” in the felon-in-possession charge, 

as well as to suppress Defendant’s prior record in the event Defendant elects to testify (Dkt. 48). 

The Government filed a response to these motions (Dkt. 50); Defendant did not file a reply. For 

the reasons discussed fully below, the Court denies all four motions. 

I. ANALYSIS1

A. Motion for Reconsideration 

Defendant previously filed a motion to suppress (Dkt. 20), seeking to exclude all 

evidence obtained as the result of a search warrant executed at the residential address 1073 

Levona Street in Ypsilanti, Michigan. The Court denied the motion, finding that, under the 

 

1

 The Court addressed the factual background of this case in an opinion and order denying 

Defendant’s motion to suppress evidence. See 7/9/2015 Op. & Order at 1-4 (Dkt. 24). 

Therefore, the Court will not repeat the background set forth in its earlier decision. 

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totality of the circumstances, Officer Thomson’s affidavit was amply supported by probable 

cause. See 7/9/2015 Op. & Order at 7 (Dkt. 24). Defendant has now filed a motion for 

reconsideration (Dkt. 42). 

Pursuant to Local Rule 7.1(h), the Court “will not grant motions for rehearing or 

reconsideration that merely present the same issues ruled upon by the court, either expressly or 

by reasonable implication.” E.D. Mich. LR 7.1(h)(3). Rather, a party seeking reconsideration 

must demonstrate (i) a “palpable defect” by which the court and the parties have been “misled,” 

and (ii) that “correcting the defect will result in a different disposition of the case.” Id. A 

“palpable defect” is an error that is “obvious, clear, unmistakable, manifest or plain.” United 

States v. Cican, 156 F. Supp. 2d 661, 668 (E.D. Mich. 2001). 

According to Defendant, “[t]he affidavit in support of the search warrant contained 

numerous errors and false statements.” Def. Mot. for Reconsideration at 2. As in his initial 

motion, Defendant challenges the affidavit in a line-by-line, piecemeal fashion. For instance, 

Defendant contends that (i) the narcotics complaint Officer Thomson was investigating did not 

exist and was not produced when Defendant was arrested, id. at 2-3; (ii) there were errors 

concerning his prior controlled substance convictions, id. at 4; and (iii) Officer Thomson did not 

run “the license plate or VIN number” of a black Lexus that appeared similar to the vehicle 

stopped by Officer Peterson, id. 

However, the Court has previously noted that this “hyper-technical” approach of 

engaging in a “line-by-line” scrutiny fails to “appreciate that affidavits are reviewed in a 

common-sense manner to determine whether the totality of the circumstances supports a finding 

of probable cause.” 7/9/2015 Op. & Order at 7. Moreover, Defendant does not explain how any 

of the alleged defects actually amounts to a “palpable” defect, such that the Court and the parties 

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were misled, nor does he offer any argument that correcting these purported defects would result 

in a different disposition of the case.2

Furthermore, Defendant’s motion for reconsideration fails to overcome the Court’s 

holding that the magistrate was justified in finding probable cause based solely on the results of 

the trash pull, which contained marijuana residue. See 7/9/2015 Op. & Order at 5 (citing United 

States v. Lawrence, 308 F.3d 623, 627 (6th Cir. 2002); United States v. Patton, 411 F. App’x 

806, 809 (6th Cir. 2011)). On this point, Defendant argues that the officers knew or should have 

known that, at the time of the trash pull, Defendant legally possessed a Michigan medical 

marijuana card, which would “not establish probable cause to believe that a crime was being 

committed.” Def. Mot. for Reconsideration at 4. In support of his argument, Defendant cites a 

footnote from a 2012 Michigan Court of Appeals case. Id. at 5 (citing People v. Brown, 825 

N.W.2d 91, 95 n.5 (Mich. Ct. App. 2012)). This argument fails for three reasons. 

First, Defendant does not explain why this new legal theory was not raised in his first 

motion to suppress evidence. See Khoshiko v. Deutsche Bank Trust Co. Ams., No. 12-CV14717, 2013 WL 5657704, at *1 (E.D. Mich. Oct. 17, 2013) (“Motions for reconsideration do 

not allow the losing party to raise new legal theories that should have been raised earlier.”). 

Second, the court in Brown held that, “if the police . . . have clear and uncontroverted evidence 

that a person is in full compliance with the [Michigan Medical Marijuana Act], this evidence 

must be included as part of the affidavit because such a situation would not justify the issuance 

of a warrant.” 825 N.W.2d at 95 n.5. However, the Sixth Circuit considered Brown’s footnote 

“dictum,” United States v. Duval, 742 F.3d 246, 252 (6th Cir. 2014), and Defendant fails to offer 

any cogent argument why this Court should depart from the Sixth Circuit’s approach. Third, 

there was no “clear and uncontroverted evidence” that the police knew that Defendant was “in 

 

2

 In fact, several issues Defendant raises in his motion for reconsideration, like contesting 

whether utility bills for the searched address were in Defendant’s name, see Def. Mot. for 

Reconsideration at 3, were already addressed by the Court. See 7/9/2015 Op. & Order at 3, 6. 

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full compliance” with Michigan’s medical marijuana law when they applied for a warrant. In 

fact, what one officer knew, based on an earlier stop of Defendant, was that Defendant had had 

in his possession — several months earlier — a medical marijuana card that was expired. 

Therefore, Defendant has failed to carry his burden for reconsideration and his motion is 

denied. 

B. Motion to Transfer 

Defendant also requests a transfer from the St. Clair County Jail to the Milan Detention 

Facility. Def. Mot. to Transfer at 1 (cm/ecf page) (Dkt. 43). According to Defendant, he has a 

“history of depression and related psychological problems,” but, unlike his previous experience 

at Milan, he has not received any psychological services at St. Clair “because there is no staff 

psychologist or similar medical officer at the jail.” Id. at 1-2 (cm/ecf pages). Defendant further 

claims that “he has noticed a disparity in treatment between caucasian inmates and African 

American inmates.” Id. at 2 (cm/ecf page).3

Defendant has provided no authority empowering a district court to direct the U.S. 

Marshals Service to house a criminal defendant at any specific location. See Moyers v. Shudan, 

No. 3:07-cv-393, 2009 WL 1813969, at *2 (E.D. Tenn. June 24, 2009) (denying the plaintiff’s 

motion “to order the U.S. Marshals Service to house him in a detention center other than the 

Blount County Detention Center while plaintiff is in East Tennessee for the trial of this action,” 

and noting that the “housing of federal prisoners pending court proceedings is within the 

discretion of the U.S. Marshals Service and this Court will not interfere with that discretion, 

absent extraordinary circumstances”); see also United States v. Espinoza-Arevalo, No. 14-

00332-02-CR-W-BP, 2015 WL 9598299, at *3 (W.D. Mo. Dec. 30, 2015) (recognizing that the 

United States Marshal Service has “broad authority to determine where to house it prisoners”). 

 

3

 The Government offers “no position on where the United States Marshals service should house 

Bigham and believes that his motion should be denied so that the Marshals Service can 

appropriately exercise its discretion in making that decision.” Gov’t Resp. at 13. 

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Nor does Defendant’s motion explain what specific disparate treatment he witnessed or how he 

has been treated differently on account of his race, or the severity of his medical condition or the 

circumstances surrounding the his perceived lack of psychological services. Absent any factual 

substantiation to suggest that extraordinary circumstances exist in this case, Defendant’s vague 

and conclusory allegations of racial discrimination and lack of medical care do not warrant a 

transfer, even assuming the Court had the authority to do so. 

Therefore, the Court denies Defendant’s motion to transfer. 

C. Motion to Suppress Identification Evidence 

Defendant’s third motion seeks to suppress Officer’s Peterson’s prior out-of-court 

identification, as well as any future in-court identifications of Defendant. There appears to be no 

real dispute surrounding the facts of Officer Peterson’s previous identification of Defendant. On 

August 2, 2014, Officer Peterson initiated a traffic stop of a black Lexus automobile driven by an 

African American male. When she approached the vehicle, Officer Peterson noticed that the 

driver was sweating profusely and displaying body tremors. When Officer Peterson ordered the 

driver out of the vehicle, he did not comply; rather, he drove away and fled the scene. Officer 

Peterson pursued the driver until safety concerns triggered termination of her pursuit, but not 

before she obtained the license plate number of the vehicle. 

Subsequent investigation of the plate number led other officers to discover both the 

Defendant’s name and that the vehicle was registered to Defendant’s mother, Odell Hamilton. 

Having learned Defendant’s name from Officer Thomson, Officer Peterson then ran the name 

through the Michigan Law Enforcement Information Network (“LEIN”) and recognized 

Defendant as the driver of the Lexus.4

 

4

 Defendant’s motion contends that “Ypsilanti police officers pulled the official photograph of 

Mr. Bigham from his driver’s license or state identification. This single photograph of Jerry 

Bigham was shown to Officer Peterson who identified that photo as the person that she stopped 

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Defendant argues that Officer Peterson’s identification of Defendant as the driver of the 

Lexus was impermissibly suggestive in violation of the Due Process Clause, because she only 

viewed one photograph of Defendant, as opposed to either a photo array composed of multiple 

photographs or a corporal lineup. Def. Mot. to Suppress at 5 (Dkt. 44). According to Defendant, 

Officer Peterson’s identification of Defendant should be suppressed. Id. 

The Government argues in response that any identification should not be suppressed 

because due-process concerns are implicated only upon “improper police misconduct,” Gov’t 

Resp. at 14 (quoting Perry v. New Hampshire, 132 S. Ct. 716, 721 (2012)) (emphasis in 

original), and “there is nothing improper about a law enforcement officer searching a law 

enforcement database in real time and recognizing a suspect as others relay information about a 

developing investigation.” Id. The Government also argues that, under the totality of the 

circumstances, Officer Peterson’s identification remains reliable and should not be suppressed. 

Id. at 17-19. The Court agrees with the Government. 

 

on August 2, 2014, and who fled the scene.” Def. Mot. to Suppress at 4-5 (Dkt. 44). However, 

Defendant provided no citation to any record evidence to support this factual assertion. 

After the hearing on Defendant’s motions, the Court afforded Defendant the opportunity to 

submit such evidence. Thereafter, Defendant provided a portion of a detention hearing 

transcript, in which the Assistant United States Attorney made the following statement: 

Officers determined -- officers, I would proffer, your Honor, as we 

discussed at sidebar that a picture of the Defendant was shown to 

the officer, Officer Peterson of Ypsilanti police. That officer was 

the one who was involved in the traffic stop of the Defendant. 

Upon seeing that picture that had been pulled from a law 

enforcement database, Officer Peterson immediately identified that 

individual, Mr. Bigham, as the individual that she had pulled over. 

10/19/2015 Detention Hr’g Tr. at 8-9 (Dkt. 36). Aside from this one statement, Defendant has 

provided no other evidence to suggest that another officer showed a picture of Defendant to 

Officer Peterson. Nevertheless, the government’s statement during the detention hearing appears 

to be in direct conflict with the statements in Officer Peterson’s report, which describes the other 

officers providing Officer Peterson with Defendant’s name, at which point she ran that name 

through LEIN and immediately identified Defendant based on his LEIN picture. See Ex. B to 

Gov’t Resp. to Def. Mot. for Revocation of Detention Hr’g at 7 (cm/ecf page) (Dkt. 39-3). The 

Court concludes that Officer Peterson’s report is the more reliable version of events. 

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The Due Process Clause protects against impermissibly suggestive photograph 

identification procedures that “give rise to a very substantial likelihood of irreparable 

misidentification.” Neil v. Biggers, 409 U.S. 188, 197 (1972); see also Perry, 132 S. Ct. at 724 

(“[D]ue process concerns arise only when law enforcement officers use an identification 

procedure that is both suggestive and unnecessary”). Whether improper police conduct created a 

“substantial likelihood of misidentification,” thereby warranting the suppression of the 

identification, ultimately turns on a case-by-case assessment. Perry, 132 S. Ct. at 724. A court 

must determine whether the identification procedure was suggestive, and, if so, whether the 

identification is still reliable under the totality of the circumstances. United States v. 

Washington, 714 F.3d 962, 967 (6th Cir. 2013). Under the totality-of-the-circumstance 

approach, courts consider the following five factors: 

[1] the opportunity of the witness to view the criminal at the time 

of the crime, [2] the witness’ degree of attention, [3] the accuracy 

of the witness’ prior description of the criminal, [4] the level of 

certainty demonstrated by the witness at the confrontation, and [5] 

the length of time between the crime and the confrontation. 

Mills v. Cason, 572 F.3d 246, 251 (6th Cir. 2009) (quoting Neil, 409 U.S. at 199). 

In this case, it can hardly be said that a police officer’s use of a criminal database to 

secure a suspect’s photograph during an ongoing investigation constitutes the type of improper 

conduct the Due Process Clause is meant to deter. Perry, 132 S. Ct. at 721 (observing that 

Supreme Court decisions on the admissibility of identifications “aim to deter police from rigging 

identification procedures”). Officer Peterson’s use of LEIN to obtain a photograph of Defendant 

in this context does not amount to the type of “rigging” the Constitution seeks to avoid. And 

because Officer Peterson viewed the photograph alone, there was certainly no coercive pressure 

to make an identification arising from the presence of another officer. See Manson v. 

Brathwaite, 432 U.S. 98, 116 (1977). Defendant may still test the reliability of Officer 

Peterson’s identification “through the rights and opportunities generally designed for that 

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purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, 

protective rules of evidence, and jury instructions on both the fallibility of eyewitness 

identification and the requirement that guilt be proved beyond a reasonable doubt.” Perry, 132 S. 

Ct. at 721. For this reason alone, the Court denies Defendant’s motion to suppress the 

identification. 

Nevertheless, assuming the use of Defendant’s LEIN photograph was improper and 

unduly suggestive, Officer Peterson’s identification is still sufficiently reliable under the fivefactor test and does not warrant suppression. 

 Regarding the first two factors, the encounter between Officer Peterson and Defendant 

occurred during a traffic stop. Officer Peterson engaged in a conversation with Defendant, 

during which Officer Peterson was close enough to observe Defendant sweating profusely and 

displaying body tremors. Although Defendant contends that there was “limited time and 

opportunity to view the driver of the vehicle,” Def. Mot. to Suppress at 9, there is nothing to 

suggest that Officer Peterson’s view of Defendant was obstructed or impaired in any meaningful 

manner, or that the traffic stop lasted only a few seconds. Defendant also argues that Officer 

Peterson’s attention would have been on the driver’s arms and hands, in the event the driver had 

a weapon, and “would not have been focused on the face.” Id. This assertion is pure conjecture 

and unsupported by the facts. Here, it is clear that Officer Peterson was close enough to see 

Defendant’s excessive perspiration, which would suggest that Officer Peterson’s attention during 

this traffic stop was sufficient. These factors weigh in favor of a reliable identification. 

Regarding the third factor, Defendant argues that, “other than ‘black male’ Officer 

Peterson appears to have given no further description.” Id. The Government does not address 

this factor, and the Court finds that any alleged description amounting only to “black male” 

would not weigh in favor of reliability. 

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As for the fourth factor, after Officer Peterson ran Defendant’s name through LEIN, she 

“immediately recognized the male in the picture, which matched the person [she] identified as 

driving the above stated vehicle.” Ypsilanti Police Dep’t Case Report (“Case Report”), Ex. B to 

Gov’t Resp. to Def. Mot. for Revocation of Detention Hr’g at 7 (cm/ecf page) (Dkt. 39-3). 

Although Defendant notes that the presentation of multiple photographs might have lessened her 

certainty, Def. Mot. at 9, this does not diminish the fact that Officer Peterson’s immediate 

recognition of Defendant weighs in favor of reliability. 

Finally, the fifth factor weighs in favor of reliability. Based on Officer Peterson’s report, 

the traffic stop occurred around 7:25pm on August 2, 2014. Case Report at 5 (cm/ecf page). 

According to the time on her report, which included her subsequent identification of Defendant, 

Officer Peterson entered the report at 4:10am on August 3, 2014. Id. The Government contends 

that these dates and times demonstrate that Officer Peterson’s identification occurred “mere 

hours after Bigham fled[.]” Gov’t Resp. at 18. Defendant contends that the identification 

occurred within 24-to-48 hours of the crime. See Def. Mot. to Suppress at 10. Whether it was 

only a few hours or 48 hours, the length of time between the crime and the identification was 

relatively short. Therefore, under the totality of the circumstances, the Court concludes that the 

identification is reliable. 

Accordingly, the Court denies Defendant’s motion to suppress Officer Peterson’s 

identification.5

D. Motion to Prohibit Use of “Felon” and Suppress Prior Criminal Record 

Defendant seeks to prohibit the use of the word “felon” with regard to his felon in 

possession of a firearm charge, 18 U.S.C. § 922(g)(1). Def. Mot. to Prohibit at 19 (Dkt. 48). 

According to Defendant, use of the word “felon” in these proceedings “will necessarily create 

 

5

 Defendant also requests an evidentiary hearing, Def. Mot. to Suppress at 10, which is denied, 

because it would serve no useful purpose. 

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undo [sic] prejudice in the minds of the jurors,” and, therefore, Defendant offers to stipulate 

instead to being “ineligible to possess a firearm.” Id. 

This precise request was recently addressed by another judge in this District. See United 

States v. Nixon, No. 15-cr-20020, Dkt. 54 (E.D. Mich. Oct. 14, 2015) (Drain, J.). In Nixon, the 

court recognized that use of the term “felon” could be unfairly prejudicial to a defendant. Id. at 

11. However, the court went on to hold that the defendant’s suggestion that the jury being told 

simply that he is “ineligible to possess a firearm,” as opposed to receiving the statutory language 

that the defendant had a prior conviction for a crime punishable by imprisonment for a term 

exceeding one year, “would eliminate from the jury’s consideration one of the elements of the 

crime.” Id.; accord United States v. Watson, 787 F. Supp. 2d 667, 677 (E.D. Mich. 2011) 

(recognizing that it might be unfairly prejudicial for the jury to hear that the defendant was 

convicted of a drug crime, thus permitting the defendant to stipulate to having been convicted of 

a crime punishable by more than a year in prison). 

As Defendant has offered no reason why the Nixon approach should not be followed in 

this case, the Court finds that opinion persuasive and adopts the same conclusion. Accordingly, 

Defendant’s limited request to stipulate that he is “ineligible to possess a firearm,” in lieu of 

using the term “felon,” is denied. 

Defendant’s motion also argues that, in the event he chooses to testify at trial, his prior 

criminal record — specifically, one prior drug offense and two prior fleeing and eluding offenses 

— may not be used for impeachment purposes. Def. Mot. to Prohibit at 20. Defendant states 

that his drug conviction is over 20 years old, his fourth-degree fleeing case is 17 years old, and 

his third-degree fleeing case is over 11 years old. Id. According to Defendant, the probative 

value in admitting these convictions does not outweigh the prejudicial effect. Id. at 21. 

In response, the Government states that it will not seek to impeach Defendant with any 

convictions older than 10 years. Gov’t Resp. at 24. However, the Government notes that 

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Defendant has at least two more recent felony convictions — a delivery-manufacturing of 

marijuana conviction from 2010, and a third-degree fleeing and eluding conviction from 2012. 

Id. Having filed no reply, Defendant does not appear to challenge the Government’s intended 

use of these two convictions during trial, if Defendant takes the stand. 

Still, as discussed at the hearing on these motions, a calculation of prejudice versus 

probative value is often best determined during trial. Therefore, Defendant’s motion regarding 

his prior convictions is denied without prejudice. 

II. CONCLUSION

For the reasons stated above, the Court denies Defendant’s motions to reconsider, to 

transfer, to suppress identification evidence, to prohibit the use of the word “felon,” and to 

suppress his prior criminal record (Dkts. 42, 43, 44, 48). 

SO ORDERED. 

Dated: February 25, 2016 s/Mark A. Goldsmith 

 Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and 

any unrepresented parties via the Court's ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on February 25, 2016. 

 s/Karri Sandusky 

 Case Manager 

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