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Ninth Circuit:
Photographic Lineup Was Not Unduly Suggestive
Panel Says Prosecutor Who Approved Procedure Was Entitled to Immunity in False Arrest Case
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a judge properly granted a motion for summary judgment in favor of a prosecutor who, the defendant claimed, approved an unreasonably suggestive photo lineup.
A three-judge panel—comprised of Judge Morgan Christen and Senior Judges Sidney R. Thomas and M. Margaret McKeown—affirmed a summary judgment awarded to defendant Melissa Dooher who was an Alameda County assistant district attorney at the time of the events complained of by plaintiff Kevin Collins. (Dooher is now senior director of forensics and litigation support for a public safety technology company.)
Collins was arrested and imprisoned based on the belief that he had non-fatally shot a woman on Dec. 7, 2017. Nearly two years later, charges were dismissed and he was freed.
Suing in U.S. District Court for the Northern District of California, Collins argued that Dooher violated his rights under the Fourth and Fourteenth Amendments to the U.S. Constitution, in part by sanctioning photographic lineup that was weighted against him. Judge Edward M. Chen dismissed the action with prejudice based on prosecutorial immunity.
Clearly Established Right
In yesterday’s memorandum opinion, the judges noted that in order to determine whether Dooher’s actions were protected, they must determine whether she violated a constitutionally protected right and whether that right was clearly established at the time of the violation. They found that Collins had not proven that the right allegedly violated was clearly established, explaining:
“Collins’ cases standing for broad general propositions about suggestive lineups…do not clearly establish a rights violation in Collins’ circumstances.”
The shooting victim, Radajsha Briggs, did not identify Collins as the shooter in a photographic lineup on Dec. 11, 2017, but did identify him in such a lineup eight days later.
Collins argued that the lineup was unreasonably suggestive because his photograph was the only one repeated in both lineups, the photographs were edited to crop the backgrounds out of the images, and his was the only face positioned at an angle. The Ninth Circuit rejected these arguments, and said: “Cropping all photos in the same manner does not make any one photo stand out—it achieves the opposite effect. And insubstantial differences in facial position do not imply that witnesses should identify a particular person as the perpetrator.”
Traffic Stop
Collins argued that Dooher violated his clearly established rights to be free from an unconstitutionally prolonged traffic stop and seizure of his image when she agreed with then-Oakland police officer Joel Hight that an “wall-off traffic stop” be conducted.
The panel explained:
“A wall-off stop is a traffic stop supported by reasonable suspicion of a traffic violation, during which the person detained is not informed that he is a suspect in a different investigation.”
They wrote:
“Viewing the evidence in the light most favorable to Collins, we assume that DDA Dooher authorized the use of a wall-off stop to obtain an updated photo of Collins and discussed capturing the photo using an officer’s body camera. Collins has not provided any explanation for why capturing an image with a body camera would require unlawful prolongation. Even if the stop as conducted was unlawfully prolonged, there is no evidence that DDA Dooher authorized it.”
They further noted that photographing a suspect in a public place does not require a warrant, and that fact is not changed by the fact the photograph was taken during a traffic stop.
Finding no violation of a clearly established right, they said “Dooher was entitled to qualified immunity on the Fourth Amendment claim.”
Collins also sued Hight, asserting that he had misrepresented facts in his in his probable cause affidavit and preliminary hearing testimony, thus deceiving the court. Chen had also dismissed the action against him, and the Ninth Circuit judges affirmed, saying:
“The district court properly concluded that correction of these alleged misrepresentations would have shifted the weight of the evidence against Collins, but it would not have erased probable cause. During the second photo lineup, Briggs identified Collins as the person who shot her. Identifications supplied by victims are generally sufficient to provide probable cause on their own, unless the identification procedure was impermissibly suggestive and the witness did not exhibit sufficient indicia of reliability….Even without Briggs’ identification, probable cause would have been established from the facts that Collins was renting a vehicle that matched the vehicle used in the shooting, and that Collins’ physical appearance matched Briggs’ description of the suspect….In sum. Officer Hight’s alleged misrepresentations may have improperly bolstered the evidence against Collins, but they were not material to the finding of probable cause.”
The case is Collins v. County of Alameda, 22-16871.
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