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 also moves for a hearing on his motions.

Discussion

“‘A criminal defendant has no absolute or presumptive right

to insist that the district court take testimony on every

motion.’” United States v. Lewis, 40 F.3d 1325, 1332 (1st Cir.

1994) (quoting United States v. Panitz, 907 F.2d 1267, 1273 (1st

Cir. 1990)). An evidentiary hearing is required only if the

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defendant first alleges “facts that, if proven, would entitle him

to relief.” Id. “The burden is on the defendant to allege

facts, ‘sufficiently definite, specific, detailed, and

nonconjectural, to enable the court to conclude that a

substantial claim is presented.’” United States v. Calderon, 77

F.3d 6, 9 (1st Cir. 1996) (quoting Lewis, 40 F.3d at 1332).

“[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

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

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

(1st Cir. 1990).

 In support of both of his motions to suppress, Reid

alleges, supported by his affidavit, that he is accused of

robbing the Hess Convenience Store on the night of February 13,

2005. He states that about an hour after the alleged robbery, he

was arrested several blocks away from the store by two Concord

police officers and put in the back seat of a marked police

cruiser. He was then “taken back to the Hess Convenience Store

for the purpose of conducting a one-person show-up.” 

At the store, “the two officers opened the backdoor of the

cruiser, jumped in the backseat with the Defendant, and placed

him in a headlock.” Renee King, the only employee on duty in the

store at the time of the alleged robbery, was brought forward and

identified Reid “as the perpetrator.” David Broadbent who was a

customer at the store was also brought forward and identified

Reid “as the perpetrator.” Based on those allegations, Reid

asserts that the identification process was impermissibly

suggestive so that King’s and Broadbent’s identifications of him,

both at the scene and in court, should be suppressed. 

The government provides statements of facts in each of its

objections that are not supported by affidavits, references to

the record, or any other evidentiary basis. Cf., e.g., United

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States v. Gomez Pizarro, 364 F. Supp. 2d 56, 65 (D.P.R. 2005). 

In addition, the government makes only a brief appeal that the

identification procedure used was not impermissibly suggestive

and cites no analogous cases in support of its argument. Despite

the government’s anemic response, at least two cases appear to

support a conclusion that the show-up in Reid’s case was not

unduly suggestive.

In United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996),

the court affirmed the district court’s denial of a motion to

suppress a show-up identification, concluding that it was not

unduly suggestive. In Watson, the defendant pistol whipped a

teenager, causing the gun to fire and then to jam, which gave the

teenager an opportunity to escape. Hearing the shots, a Boston

police officer drove to the site and put a call out on his radio. 

The defendant fled on foot after his Porsche stalled in a puddle. 

Two more officers arrived, chased the defendant, and caught him. 

The officers then brought the defendant over to the victim for

identification, and the victim identified the defendant as his

assailant. The appeals court concluded that the show-up

identification was not unnecessarily suggestive because “[s]howups that take place immediately after the offense has been

committed may be necessary in order to avoid the mistaken

apprehension of the wrong person.” Id.; see also Lebron-Cepeda,

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324 F.3d at 59 (identification not impermissibly suggestive

although defendant identified after witness saw him sitting

handcuffed in police cruiser because identification was

contemporaneous with events). 

The show-up identification in this case might arguably fall

into the category of a necessarily immediate identification of a

suspect. On the other hand, because Reid alleges that he was

identified by King and Broadbent while being held in a headlock

by police officers, that circumstance, taken as true, might

provide a basis for further factual development of his claim. 

Reid did not address the reliability prong of the analysis,

however, leaving that part of his claim without factual support.

In response, the government argues that the identifications

were reliable but failed to provide a properly supported factual

basis for its opposition. Therefore, as a result of the

government’s failure to provide a properly supported opposition,

a hearing is necessary to provide a sufficient factual basis upon

which the court can decide the issues Reid raises in his motions.

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Conclusion

For the foregoing reasons, the defendant’s motion for a

hearing on his suppression motions (document no. 104) is granted.

The hearing will be held on February 8, 2006, at 10 a.m.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

February 3, 2006

cc: Gordon Reid, pro se

Michael J. Iacopino, Esquire

Helen W. Fitzgibbon, Esquire

U.S. Probation

U.S. Marshal

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