Photo Array Impersmissibly Suggestive, but ID Still Reliable

US v. Saunders: Saunders and two other men robbed a liquor store in Baltimore. After they fled the store, the van in which they made their getaway was stopped by police. Saunders got out of the van and fled. As he exited the van, a gun dropped to the ground by the vehicle. During the ensuing chase, Saunders was seen throwing away what appeared to be other weapon. Once Saunders was apprehended, police recovered three pistols - two from the scene near the van and one from along Saunders's route of flight. Officers brought the store clerk to the police station, where he was shown photo arrays containing pictures of the suspects. He identified Saunders, but not the other suspect then in custody. The photo array in which Saunders picture was displayed contained six pictures - the five not of Saunders were all shot against a light background with overhead lighting, whereas Saunders's picture was not. As a result, his photograph was darker than the others in the array.

Burton was charged with being a felon in possession of a firearm for possession of all three pistols recovered on the night of the robbery. Prior to trial, he moved to suppress the clerk's identifications, both from the photo array and in court, because the array was so suggestive that it violated his right to due process. The district court denied that motion and the jury convicted him. After receiving a four-level enhancement for possessing the firearm(s) in connection with another felony offense (the robbery), Saunders was sentenced to 120 months in prison.

Saunders unsuccessfully raised several arguments on appeal. First, the court agreed with the argument that the photo array was impermissibly suggestive, both because Saunders's picture looked so different from the other pics in the array and the police failed to follow their own internal policies regarding arrays (to tell the witness that the suspect may or may not be in the array, etc.). However, the district court did not err in failing to suppress the identification because, after applying five factors to determine the reliability of an out-of-court identification, the court held that the identification in this case was reliable. Second, the court rejected Saunders's argument that the failure of the district court to provide a special verdict form on which the jury could indicate which (if any) of the three pistols Saunders possessed was error, noting that the jury instructions overall were sufficient. Finally, the court rejected Saunders's sufficiency arguments regarding his conviction and the four-level sentencing enhancement.