Officers approached the defendant reasonably believing he was somebody else, and he ran. When they finally caught him and rolled him over, they realized they had the wrong person. Nevertheless, the stop was objectively reasonable despite mistaken identity. United States v. Burns, 2018 U.S. Dist. LEXIS 187356 (D. Minn. Sep. 4, 2018):
The mistaken identity—of believing Burns was Williams—was objectively reasonable. Smart, 393 F.3d at 770; see, e.g., United States v. Phillips, 679 F.3d 995 (8th Cir. 2012) (affirming denial of motion to suppress where defendant was mistaken for another suspect where the two shared physical characteristics). As the testimony shows, Burns and Williams share similar characteristics. Both are around six feet tall, both weigh around 200 pounds, both have a medium build, both are in their early twenties, both have long dreadlocked braids, both have goatee style facial hair, and both have a dark complexion. While Burns argues that he is of a darker complexion than Williams, (compare Def. Ex. 1 with Def. Ex. 2), the background coloring of the images themselves shows that Burns’ photo itself has darker composition. Indeed, the booking photos of Burns and Williams, with equal lighting and composition, show the two men have a quite similar complexion. (Compare Gov’t Ex. 3 with Gov’t Ex. 5). The winter clothing worn by Burns would have obfuscated physical characteristics that could have differentiated between Burns and Williams. Additionally, as was testified to, the long dreadlocked hair blocked law enforcement from fully viewing Burns’ face. Finally, both men were associated with the white Audi, with the same license plates—Williams from the scene near the shooting the night before, and Burns who had just exited the vehicle.
Moreover, while neither party referenced within their briefing or at the hearing the racial makeup of the law enforcement officers involved, this Court finds it instructive to reference in its analysis. Officer Haynes, who made the initial misidentification of Burns as Williams and testified that the two look alike, is himself African-American. Officer Sims, who made initial contact with Burns thinking it was Williams and described both Burns and Williams as having dark complexion, is also African-American. Officer O’Halloran, who first realized when he got up close it was not Williams who they arrested but was Burns, is Caucasian. The fact that the two African-American police officers mistook Burns for Williams buttresses the reasonability and good faith of law enforcement’s mistake, and ameliorates this Court’s concern that solely the commonality of race would be used, in and of itself, to support reasonable and articulable suspicion. Cf. United States v. Stevens, 935 F.2d 1380, 1392 (3d Cir. 1991) (“Scholarly literature attacking the trustworthiness of cross-racial identification is now legion.”); Wilson v. Firkus, 457 F. Supp. 2d 865, 890 n.7 (N.D. Ill. 2006) (“[R]esearch has shown that an eyewitness is more likely to accurately identify someone of his or her own race than someone of a different race.”); Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984) (examining statistical evidence on the inaccuracy of cross-racial identification).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)