TABLE OF AUTHORITIES

Cases Pages

Banner v. State,502 So.2d 952 (Fla. 4th DCA 1987)

...4

Fitzpatrick v. State,900 So.2d 495 (Fla. 2005).

...3

Grant v. State,390 So.2d 341 (Fla. 1980).

..8

Henry v. State,519 So.2d 84(Fla. 4th DCA 1988)..

.5

Johnson v. State,438 So.2d 774 (Fla. 1983).

.5

Macias v. State,673 So.2d 176 (Fla.4th DCA 1996)

..9

McDuffie v. State,970 So.2d 312 (Fla. 2007)

.4

Neil v. Biggers,409 U.S. 188 (1972).

...8

State v. Dorsey,5 So.3d 702 (Fla.2d DCA 2009)

..5

State v. Gomez,937 So.2d 828 (Fla.4th DCA 2006)

...13

Washington v. State,653 So.2d 362 (Fla.1994)

......13

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 QUESTIONS PRESENTED

When in the lineup, the defendant is the only one in the lineup that is shorter than

six feet. He was also the only individual in the lineup who seemed to be limping.

Besides, he was the only person in the lineup wearing jeans and a white t-shirt.Whats

more, the police officer told the victim that the assailant in the incident is the same

man who attacked the victim.Whether the pretrial identification procedure employed

by the police was unnecessarily suggestive?

Under the totality of circumstance, whether the identification is unreliable and

therefore gives rise to sustantial likelyhood of irreparable misidentification and should

be supressed?

STATEMENT OF THE CASE AND FACTS

This appeal arises out of a judgment ruling by the trial court holding that the
defendants motion to suppress is granted and the identification will not be admitted
into evidence because the pretrial identification procedure employed by the police
was both unnecessarily suggestive and unreliable. (R.31)
Sorrentino is a taxi driver for Florida Shore Taxicab Service in Hillcrest. (R.18)
After a busy night and made a lot of fares on November 1, 2012, Sorrentino come off
work to relax. (R.18) So, he headed to a Dunkin Donuts on Roger Street. (R.18)
Then at about 10:00 p.m. when he bent down to unlock his car in the parking lot, he
felt a gun in his back.The man with the gun order Sorrentino to give him the keys and
all the money. (R.18) Although the assailant was right in front of the victims face, it
was dark in the scene and the victim was nervous and shaking at that time. (R.19, 22,
23) Sorrentino is focused on the gun the whole time. (R.24) A few seconds later, the
assailant pushed Sorrentino to the ground and drived off. (R.23)
Shortly after the crime occurred, the police processed the crime scene and spoke

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to others at at the Dunkin Donuts, but no one saw anything until Sorrentino called for
help. (R.5) Then the police interviewed the victim at the hospital who was hurt very
badly and was in a lot of pain.He was just waiting in the emergency room to see a
doctor. (R.3) He told the police that his assailant was a short, Hispanic, bald male,
clean-shaven, in roughly his late twenties, wearing blue jeans and a white t-shirt.
(R.3)
On December 28 at the Dunkin Donuts on Roger Street, Pivarnick, a taxi driver,
also a friend of Sorrentino, was hit on the head before she could get a good look at her
assailant during the carjacking because she refused to turn over any money to the
attacker.Then the assailant got in the car and took off. (R.6) The police soon learned
this carjacking and quickly responded to it. They successfully he stopped the taxi on a
dead end street. The man got out of the car and immediately plunged into the open
back door of a grocery store. (R.6) However, the police lost sight of the man they
were chasing for a few seconds when he went into the grocery store. (R.17) Then the
police found Ortiz-Magro who was also wearing a dark coat in the coffee aisle. The
police caught up with him, got him on the ground, and cuffed him. (R.6) They frisked
Ortiz-Magro but find no weapons on him.
After Ortiz-Magro was arrested, the police called up Sorrentino asking him come
to the station for identification. (R.7) Sorrentino heard that his friend Pivarnick had
been carjacked at the same Dunkin Donuts where he was carjacked and he was
upset.The police also told that they thought Pivarnicks assailant was his too.
(R.25) .There was only five people in the lineup matching the general discription, and
Ortiz-Magro was the only one in that lineup that is shorter than six feet. (R.7, 9)
Ortiz-Magro was also the only individual in the lineup who seemed to be limping.
Besides, he was the only person in the lineup wearing jeans and a white t-shirt. The
police suggest having a voice lineup since Sorrentino said that the words, Hand me
the keys, boy, had been ringing in his head since the accident.Nevertheless, none of
the person in the lineup sounded exactly like the voice Sorrentino remember,even
Ortiz-Magro. (R.27) In the lineup, the Sorrentino pointed out that the bald one, Ortiz-

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Magro, was the assailant, because he was short and bald, most like the one who
carjacked him in his memomry.
STANDARD OF REVIEW

In reviewing trial court's ruling on a motion to suppress evidence, a de novo

standard of review applies.See Fitzpatrick v. State, 900 So.2d 495 (Fla.,2005.)

ARGUMENT

I. A TWO-PRONGED TEST IS APPLIED TO DETERMINE WHETHER TO

SUPPRESS AN OUT-OF-COURT IDENTIFICATION.

In the two-pronged test which is first enunciated by the court in the Neil case,

suggestiveness is only the first prong in deciding the admissibility of eyewitness

identification evidence. If the court rules that the procedure was not unduly

suggestive, the identification evidence is admitted. If the procedure was found to be

suggestive, then the court is to consider the question of whether the identification was

reliable nevertheless based on five criteria.Neil v Biggers, 409 U.S. 188, 401 (1972) ;

Manson v. Brathwaite, 432 U.S. 98, 122 (1977).The Biggers factors adopted by the

Court in Manson include: (1) the eyewitnesss opportunity to view at the time of the

crime itself; (2) the eyewitnesss degree of attention; (3) the accuracy of the

description that the eyewitness gave of the criminal; (4) the eyewitnesss level of

certainty at the time of the identification procedure; and (5) the length of time

between the crime and the identification procedure. Neil v Biggers, 409 U.S. 188, 401

(1972); Manson v. Brathwaite, 432 U.S. 98, 122 (1977). That Manson test is the

current due process test that courts must follow.

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 In this case, the defendant is the only one in the lineup that is shorter than six feet,

seemed to be limping and wearing jeans and a white t-shirt. The victim was also told

by the police officer that the assailant in the incident is the same man who attacked

him.Therefore,the out-of-court identification procedure was unnecessarily

suggestive.Furthermore, it was dark then in the scene and the the victim was nerous

and the whole incident takes only 20 seconds. The victim hurt very badly and was in a

lot of pain when he was interviewed by the police.Taking those factors into

consideration, suggestive procedure was found to be unreliable and thus gives rise to

sustantial likelyhood of irreparable misidentification. From what has been discussed

above, we can safely come to the conclusion that the trail court was correct to apply

this two-prong test and hold that the lineup in this case is both unnecessarily

suggestive and unreliable.

II. THE EVIDENCE SHOWS THE PRETRIAL IDENTIFICATION

PROCEDURE EMPLOYED BY THE POLICE WAS UNNECESSARILY

SUGGESTIVE.

The fact that an accused is the only person in the lineup with certain

characteristics may invalidate the lineup, but will not necessarily do so. In Reed v.

State, 944 So. 2d 503, 504 (Fla. 5th DCA 2006), it was not unnecessarily suggestive,

even though the defendant claimed that while all of the persons shown in the lineup

were wearing glasses, his glasses were larger and thicker. In Banner v. State, 502

So.2d 952, 954 (Fla. 4th DCA 1987), it was not unnecessarily suggestive, even though

the defendant was the shortest but not otherwise unusually distinguishable. In Green

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v.State, 641 So.2d 391, 394 (Fla.1994) it was not unnecessarily suggestive, even

though the witness was told that one of them was a suspect and the photograph of the

defendant was darker than the others, there was no evidence that the police directed

the witness's attention to any particular photograph.

However, if the accused is the only person in the lineup with a certain

characteristic that the witness had mentioned to the police, and the differences are

obvious, these factors would suggestively direct the witness attention to a particular

suspect. In Fitzpatrick, the court analyzed it was unnecessarily suggestive if the police

showed the witness a photo array of five bearded men and a clean-shaven defendant,

after the witness indicated that the man he saw was clean-shaven or a case where the

police directed Howard's attention to one picture. Fitzpatrick, 900 So.2d at 518. In

Henry v. State, 519 So.2d 84, 85(Fla. 4th DCA 1988), the court held that it was unduly

suggestive that among six photos there were two in which the subject had a

namepatch on the left pocket area of his clothing, after a witness had previously

described the suspect as wearing an outfit with a name patch over the left pocket area.

In State v. Dorsey, the trial court found that the photo-pack was impermissibly

suggestive because, out of the six African-American males depicted in the photo-

pack, the Defendant was the only one having distinct facial hair about the mouth, a

fact that witness had mentioned to police in his description of his attacker. Therefore,

it is unnecessarily suggestive if the accused is the only person in the lineup with a

certain characteristic that the witness had explicitly mentioned to the police. Id. at

706. In our case, based on the video and testimony from the officer and witness, the

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evidence shows that the out of court identification procedure was unnecessarily

suggestive.

A. Mr. Ortiz-Magro was the only one in the lineup who was wearing blue jeans

and a white T-shirt, a fact that the witness had mentioned to the police in his

description of his assailant.

From the video, the court can see that Mr. Ortiz-Magro was the only person in the

lineup wearing jeans and a white t-shirt (R. at11), a fact that Mr. Sorrentino had

mentioned to the police in his description of his assailant. According to the officers

testimony, Mr. Ortiz-Magro was wearing a dark leather jacket when he was arrested

by the officer. However, another officer asked Mr. Ortiz-Magro to take off his jacket

before the lineup occurred. From the video, the court can see that all of the other

lineup participants were wearing dark jackets and were not asked to take off their

jackets, only Mr. Ortiz-Magro was asked to do so.

B. Mr. Ortiz-Magro was the only one in the lineup who was bald, a fact that the

witness had mentioned to police in his description of his assailant.

From the video, the court can see that Mr. Ortiz-Magro was the only person in the

lineup who was bald, a fact that Mr. Sorrentino had mentioned to police in his

description of his assailant. Being bald was a distinguishable feature that attracted

Mr. Sorrentinos attention, as he identified Mr. Ortiz-Magro as his assailant right

away after he noticed Mr. Ortiz-Magro was short and bald. He was short and bald.

That was him-my assailant. (R. at 28) Because Mr. Sorrentino does not live in a

Hispanic neighborhood nor has regular interaction with the Hispanic community (R.

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at 25), he is unfamiliar with Hispanic. The appearance of any of other individuals in

the lineup failed to attract his attention, and they all looked Hispanic to him (R. at 28).

C. Mr. Ortiz-Magro was the only one in the lineup who was shorter than six

feet, a fact that the witness had mentioned to police in his description of his

assailant as a person who was shorter than 5 feet 10 inches.

From the video, the court can see that Mr. Ortiz-Magro was the only person in the

lineup who was shorter than six feet (R. at 10), a fact that Mr. Sorrentino had

mentioned to police in his description of his assailant as a person who was shorter

than 5 feet 10 inches (R. at 25). That the attacker was not a very tall man was also the

only information Ms. Pivarnick gave to the police (R. at 8). Being short was also a

distinguishable feature that attracted Mr. Sorrentinos attention right away. This case

is different from Banner, the lineup was not unnecessarily suggestive, even though the

defendant was the shortest but not distinguishable. Id. at 953. Because, in Banner not

only one person in the lineup was short, so the shortest was not distinguishable

from the courts view. However, in Mr. Ortiz-Magros case, all of the suspects were

tall men, except Mr. Ortiz-Magro.

D. The witness was disclosed by the Officer that the victim in the recent

carjacking was his friend and he was suggested by the Officer he would be brave

for making a positive identification.

As Mr. Sorrentino awaited to make the identification, he was told by the officer

that the victim in the recent carjacking was his friend and the police suspected that the

assailant in his friends incident was the same man who had carjacked Mr.

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Sorrentinos taxi (R. at 26). As the friend of Ms. Pivarnick, Mr. Sorrentino was

deeply self-critical, believing himself to be a coward, but the officer told him that he

would be brave for making a positive identification (R. at 27). According to

STANDARDS FOR FLORIDA STATE AND LOCAL LAW ENFORCEMENT

AGENCIES IN DEALING WITH PHOTOGRAPHIC OR LIVE LINEUPS IN

EYEWITNESS IDENTIFICATIONC (2011), with the purpose of collecting reliable

eyewitness identification evidence and avoiding erroneous eyewitness identification

evidence, when conducting the lineup, investigators should avoid any conduct that

might directly or indirectly influence the witness decision, and avoid comments or

actions that suggest the witness did or did not identify the suspect. In Mr. Ortiz-

Magros case, the witness decision was influenced by the officer, and he was

encouraged to make a positive identification (R. at 27).

Based on the above evidence, it would be difficult for this court to reach the

conclusion that the trial courts ruling that the out-of-court identification procedure

employed by the police was unnecessarily suggestive was clearly erroneous.

III. THE EVIDENCE DEMONSTRATES THAT THE IDENTIFICATION WAS

UNRELIABLE UNDER THE TOTALITY OF THE CIRCUMSTANCES,

GIVING RISE TO A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE.

According to the two-part test adopted in Grant, when police use a suggestive

identification procedure, to the court should then turn to the second prong and

consider whether under all circumstances the suggestive procedure gives rise to

substantial likelihood of irreparable misidentification. In Neil v. Biggers,409 U.S. 188

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(1972), the United States Supreme Court articulated the factors making up the

totality of the circumstances that a trial court should consider in assessing the

reliability of an identification obtained by suggestive procedures. In Florida, the

courts also use the Biggers factors to evaluate the substantial likelihood of irreparable

misidentification. But the factors set forth in Biggers are not all-inclusive, and other

factors may be considered. Macias v. State, 673 So.2d 176 (Fla. 4th DCA.1996).

Thus, the factors to be considered in evaluating the likelihood of misidentification

because of the suggestiveness of confrontation procedures, include, but are not limited

to, the opportunity of the witness to view the criminal at the time of the incident, the

witness' degree of attention, the accuracy of the witness' prior description of the

criminal, the level of the certainty demonstrated by the witness at the confrontation

and the length of time between the crime and the confrontation. See Biggers, 409

U.S.at 199.

A. The opportunity of the witness to view the assailant at the time of crime was

only a few seconds.

In Gomez, one victim testified that she three times saw the person who pointed

the rifle at them, for a few seconds each time. Despite the darkness, she got a good

look at him as he conversed with her, and there was a street light a few yards away.

However, the court held that there was a substantial likelihood of irreparable

misidentification. Id. at 833. There is a very similar situation in this case. The

opportunity of Mr. Sorrentino to view the assailant at the time of carjacking was only

a few seconds (R. at24). The carjacking happened in the parking lot of the Dunkins

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Donuts at 10:00 p.m., and it was very dark because Mr. Sorrentino parked around the

side of the building where there were no windows (R. at 23). Despite Mr. Sorrentinos

testimony that he stared at the carjacker the whole time (R. at 20), he also confessed

that he was focused on trying to get the money out of his pocket and that he focused

on the gun which was pointed at his chest the whole time (R. at 23-24). Therefore, Mr.

Sorrentinos opportunity to view his assailant at the time of the carjacking was

insufficient.

B. The witness focused on the gun the whole time, and failed to pay very close

attention to some details.

Before the accident, Mr. Sorrentino had worked four hours and was getting pretty

tired (R. at 19). He also confessed he was so nervous and terrified when encountered

the carjacker that he even could not recall what happened to the coffee he had bought

just before the accident.Therefore, Mr. Sorrentinos degree of attention was

questionable.

C. A general description of the assailant was given by the witness, but he failed

to notice whether his assailant had a limp.

Mr. Sorrentino just gave a general description of the assailant. He did mention

some features of the assailant, such as race, height and style of hair. However, he did

not give any specific features, such as facial feature. Meanwhile, there is a

discrepancy between the witness description and Mr. Ortiz-Magro that Mr. Ortiz-

Magro has a limp.

In a study by examining 19 tests of the weapon focus effect, Nancy Mehrkens

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Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law and Human

Behavior (1994), Steblay found that there was a significant overall difference between

weapon-present and weapon-absent conditions, with weapon presence leading to

reduced identification accuracy. Taking the discrepancy of the limp and the negative

impact of the weapon into consideration, Mr. Sorrentinos accuracy was questionable.

D. The witness was very sure he identified his assailant, however he failed to

recognize the suspect from the voice which he had the most confidence in.

Mr. Sorrentino testified that he was very sure he identified his assailant. However,

before the identification, he also expressly said he was not sure to make identification,

but he could clearly remember the mans voice, which he had heard twice (R. at 27).

In Gomez, one victims identification was suppressed because he indicated that his

attention was really more on the riffle than the person holding the riffle and he did

misidentify the riffle. Id. at 831. In this case, Mr. Sorrentino did not recognize Mr.

Ortiz-Magro or any of the other lineup participants based on their voices (R. at 28).

Mr. Sorrentino confessed that his identification was based more on the fact that Mr.

Ortiz-Magro was short, Hispanic, bald, and similar clothes, rather than the sound of

his voice (R. at 28). Therefore, Mr. Sorrentinos certainty was tainted by the

unnecessarily suggestive procedure.

E. The time lapse, nearly two months, after the carjacking to give the

identification.

Mr. Sorrentinos accident happened on November 1, 2012 and he gave the

description of his assailant to the police one hour later on the same day; however, the

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identification was not made until December 29, 2012, nearly two months later.

Although the court does not give a bright-line rule for the acceptable length of time

between the crime and the confrontation, two months would be a serious negative

factor in most cases.

F. Both the officer and the witness did not mention that the carjacker had a

limp.

Having a limp is a distinguishable feature of a person, but neither the officer

nor the witness mentioned that the carjacker had a limp. According to the testimony of

the officer who arrested Mr. Ortiz-Magro, he did not notice that the suspect whom he

pursued had a limp. It is reasonable to assume that during the pursuit of one person,

there is ample opportunity to observe whether the person pursued has a limp.

Considering the questionable circumstances surrounding the officers arrest Mr. Ortiz-

Magro (R. at 17), there is a possibility that Mr. Ortiz-Magro is not the assailant at all.

The same analysis can also be applied to the witness. According to Mr.

Sorrentinos testimony, before the carjacking he stood behind the same man who

robbed him in the line at Dunkin Donuts to buy a coffee. It is reasonable to assume

that while waiting in the same line to buy a coffee, there is ample opportunity to

observe whether the person in front of him had a limp. Based on the above analysis, it

is reasonable to doubt that Mr. Ortiz-Magro is the assailant at all.

G. The witness does not have a contact with the suspect and is not familiar with

persons of Hispanic background.

Whether the witness previously has had contact with the suspect is helpful to

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determining whether the witness can give an independent identification after a

suggestive procedure. The Florida Supreme Court has held that a witness previous

work experience with a defendant provided independent basis for his identification,

uninfluenced by a suggestive procedure, making his identification testimony

admissible in a murder prosecution. Washington v. State, 653 So.2d 362 (Fla.1994).

Mr. Sorrentino does not live in a Hispanic neighborhood or have regular interaction

with the Hispanic community (R. at 25).He is unfamiliar with persons of Hispanic

background, and he also did not know Mr. Ortiz-Magro before the identification. The

appearance of the young Hispanic males did not attract his attention, they all looked

Hispanic to him, until number fives feature of being short and bald which is so

consistent with his impression of his assailant unduly attracted his attention (R. at 28).

In conclusion, Mr. Sorrentino only had a limited period of time to observe the

suspect at dusk while under a significant threat, his degree of attention was

questionable, his certainty was tainted by the unnecessarily suggestive procedure, the

obvious discrepancy of whether the suspect has a limp calls the witnesss accuracy

into question, and two months is long enough to give rise to substantial likelihood of

irreparable misidentification for a reasonable person. A very similar set of facts can be

found in State v. Gomez, 937 So.2d 828 (Fla. 4th DCA 2006). In that case, However,

after concluding it was unnecessarily suggestive, the court further concluded the

victim only saw the suspect for a brief time at dusk, during which they were, in part,

focused on the rifle. This was compounded by two weeks between the crime and

when the victim saw the picture. Further, there was a discrepancy between victim's

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first description of suspect as a Hispanic male and her detailed testimony at the

hearing, after she had seen the picture. The trial court could conclude that these

considerations outweighed the testimony as to the victim' level of certainty of

identification upon seeing the website picture at least two weeks after the incident.

The suppression of the victims identification was affirmed by the appeals court.

Moreover, Mr. Sorrentino is unfamiliar with Hispanic, he also does not know Mr.

Mr. Ortiz-Magro before the identification. Taking these factors into consideration, it is

reasonable to give the decision that Mr. Sorrentinos identification gives rise to a

substantial likelihood of misidentification.

In Anderson v. State, 946 So.2d 579 (Fla. 4th DCA 2006)

CONCLUSION

For the reasons set forth above, the Court should affirm the judgement of the

circuit court.

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