UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 05-cr-057-JD

Gordon Reid

O R D E R

Gordon Reid is charged with one count of interference with

commerce by means of robbery in violation of 18 U.S.C. § 1951(a),

a Hobbs Act offense, after he allegedly robbed a Hess Gas Station

and Convenience Store in Concord, New Hampshire. He moves to

suppress the pretrial identifications and anticipated in-court

identifications of him by two witnesses, asserting that the

pretrial identifications were impermissibly suggestive, which

also would give rise to a substantial likelihood of

misidentification in court. The government objects to both

motions. Reid’s motion for a hearing was granted, and a hearing

on the motions was held on February 8, 2006.

Discussion

“[A] court is to withhold identification evidence from the

jury only in extraordinary circumstances.” United States v.

Lebron-Cepeda, 324 F.3d 52, 58 (1st Cir. 2003). When a defendant

challenges the admissibility of identification evidence, the

court uses a two-part analysis to determine whether the evidence

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must be suppressed. United States v. Lopez-Lopez, 282 F.3d 1, 10

(1st Cir. 2002). First, the defendant must show that the

identification procedure was impermissibly suggestive. United

States v. Gray, 958 F.2d 9, 14 (1st Cir. 1992); see also United

States v. Sullivan, 431 F.3d 976, 985 (6th Cir. 2005). If he

satisfies that burden, the court then considers whether in light

of the totality of the circumstances the identifications were

nevertheless reliable. Lopez-Lopez, 282 F.3d at 10-11. The same

test applies to in-court identifications, that is, “in-court

identification testimony is admissible unless its basis, the

pretrial identification, has proven so impermissibly suggestive

as to give rise to a very substantial likelihood of

misidentification.” United States v. Maguire, 918 F.2d 254, 264

(1st Cir. 1990).

The following is a summary of the hearing testimony about

the circumstances pertinent to the identifications of Reid as the

person who robbed the Hess Gas Station and Convenience Store

during the evening of February 13, 2005. That night Renee King

was working alone as the clerk of the store. It was her fourth

day of work at the station and the first time she had worked

alone. David Broadbent and his teenage son were returning from

the son’s hockey game in Massachusetts and stopped at the Hess

station to fill up the car. Broadbent customarily buys gas for

his cars and his business vehicles at the Hess station so that he

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is there several times each week.

A customer entered the convenience store and walked back to

the coolers. He brought a six-pack of Budweiser beer to the

counter. Broadbent came into the store to prepay for gasoline. 

The other customer waved Broadbent ahead to pay for his gas. 

Their eyes met during that interaction, and Broadbent remembered

the customer as a black male, wearing a black leather jacket, and

a black knit cap. He also noticed that the customer had bulgy

eyes. Broadbent put his $40.00 on the counter to prepay for gas

and went out to pump the gas.

Once Broadbent was outside, the customer told King to give

him the money in the cash register. She had difficulty opening

the register because the gas transaction was entered into the

register and because she was not adept at operating it. The

customer told her to hurry up, opened his jacket showing what

appeared to be a gun, warned her to keep her hands where he could

see them, and told her to hurry or it would be her life. 

Broadbent then came back and told King from the door that the

pump was not working. She apologized, and he went back to try

again. Broadbent could see King talking with the customer while

he waited for the pump to operate. Eventually King got the cash

drawer open and gave the customer the cash. He told her to go

into the bathroom and close the door, which she did. The

customer left, taking the money and the beer. 

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1The witnesses’ testimony varies somewhat as to whether

Broadbent reentered the store twice or three times before the

robbery and as to the type of hat King described.

4

Broadbent saw the customer leave and came back into the

store because the pump was still not operating. He saw that the

cash drawer was open but King was not there. He called out,

“Hello,” and King came out of the bathroom. She said that the

store had been robbed, and she was upset. King pushed the alarm

to the Concord Police Department and then talked with an officer

on the telephone. The police arrived while she was still on the

telephone. She described the customer who robbed the store as a

black man, somewhat taller than she was, with a black leather

jacket, and wearing a black hat.1

After the clerk at the nearby Holiday Inn reported that a

suspicious person had tried to rent a room there without

identification, Concord police officers searched the area behind

the Holiday Inn, along Storrs Street. They soon found Gordon

Reid in the area of the Ralph Pill facility. Officer Fallon

drove Reid back to the Hess Station for a “show-up”

identification, to see if the witnesses would recognize him as

the customer who robbed the store. Officer Fanjoy, who stayed at

the Hess Station with King and the Broadbents, told them that a

police officer was bringing someone to the station for

identification. King and Broadbent gave statements to the

police.

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2The testimony varied somewhat about Reid’s demeanor during

the identification process.

3The testimony varied somewhat about where the witnesses

were standing during the identifications.

5

Officer Fanjoy located his cruiser so that he could shine

his spotlight where Officer Fallon would park the cruiser with

Reid. Reid was riding in the back seat of Officer Fallon’s

cruiser. When they arrived, he tried to turn away from the

window and the light, but the officers pushed him back up and

turned his head toward the window.2 Officer Fanjoy walked with

King to within twenty feet of the cruiser where Reid was

sitting.3 The area was well-lighted with overhead lights and

also with the light from Officer Fanjoy’s cruiser. As soon as

Reid’s head was turned to the window, King identified him as the

customer who robbed the store. Broadbent and his son were

standing behind Officer Fanjoy and King. When Reid’s head was

turned toward the window, Broadbent identified Reid as the

customer he had seen in the store.

A. Impermissibly Suggestive

The “show-up” identification procedure, in which a suspect

is shown to a witness alone rather than as part of a line up, is

disfavored as being impermissibly suggestive. United States v.

de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993). In some

circumstances, however, the show-up procedure has been found not

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to be unreasonably suggestive. See United States v. Watson, 76

F.3d 4, 6 (1st Cir. 1996) (“Show-ups that take place immediately

after the offense has been committed may be necessary in order to

avoid the mistaken apprehension of the wrong person.”) LebronCepeda, 324 F.3d at 59 (identification not impermissibly

suggestive because identification was contemporaneous with events

even though defendant identified after witness saw him sitting

handcuffed in police cruiser). Nevertheless, in this case the

government makes no developed argument that the show-up procedure

used here was not impermissibly suggestive. Therefore, the court

will move to the second prong of the test. See United States v.

Henderson, 320 F.3d 92, 100 (1st Cir. 2003)

B. Reliability

“‘[R]eliability is the linchpin in determining the

admissibility of identification testimony.’” Id. (quoting Manson

v. Brathwaite, 432 U.S. 98, 114 (1977)). Reliability is

determined based on the totality of the circumstances of the

identification process. Lopez-Lopez, 282 F.3d 10-11. Five

factors are used to evaluate reliability: “(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 defendant; (4) the level of

certainty demonstrated by the witness at the confrontation; (5)

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the length of time between the crime and the confrontation.” 

Henderson, 320 F.3d at 100 (citing Neil v. Biggers, 409 U.S. 188,

199-200 (1972)).

Both King and Broadbent had an opportunity to view the

customer in the store. King, despite her nervousness, interacted

with the customer over several minutes. Broadbent interacted

with the customer when he prepaid for his gas and saw him when he

came back in to inquire about the pump. Both had paid sufficient

attention to the customer to form a reliable memory. Although

some of the details of the witnesses’ descriptions may vary

slightly, in large part the descriptions were consonant,

supporting their accuracy. King was completely certain about her

identification. Although Broadbent’s identification of Reid may

have been somewhat less certain, any uncertainty can be addressed

through cross examination. Less than an hour elapsed between the

time of the robbery and the witnesses’ identification of Reid. 

Based on the totality of the circumstances and focusing on

the five factors for evaluating reliability, the identifications

of Reid as the man who robbed the Hess station made by King and

Broadbent are sufficiently reliable to be admissible. That is so

whether or not the show-up procedure was impermissibly

suggestive. Based on the circumstances, there is not a

substantial likelihood of “irreparable misidentification” in the

identifications made by either witness. de Jesus-Rios, 990 F.2d

at 677.

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Conclusion

For the foregoing reasons, the defendants’ motions to

suppress identifications (documents no. 88 and 89) are denied.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

February 9, 2006

cc: Gordon Reid, pro se

Michael J. Iacopino, Esquire

Helen W. Fitzgibbon, Esquire

Clyde R. W. Garrigan, Esquire

U.S. Probation

U.S. Marshal

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