United States v. O'Neil

United States v. O’Neil, 62 F.4th 1281 (10th Cir. 2023) Eyewitness ID; Fourth Amendment/inevitable discovery Short version: Even though law enforcement used an unnecessarily suggestive identification procedure, the ID was perfectly fine because it was reliable (opportunity to observe, attention paid, and accuracy of description). Thus, jury could determine worth of ID. Gun was not suppressed because government would have inevitably discovered it pursuant to an inventory search after arrest. Long version: In a UNM parking lot at night, driver gets out to pay, passenger stays in the car. She notices a guy looking into car windows some cars down carrying a gun. Eventually makes it to their car, peers into window, passenger peers back. Driver shows up and the peeper and he make “hard eye contact.” Peeper shows driver the gun and removes magazine. Driver has familiarity with guns says it looks like a 9mm. Driver gets in the car. They drive off, passenger calls 911, and they head to UNM police station where they recount their experience. They describe the guy as white, wearing a hoody, with facial hair, and having a slender build. UNM police swarm the parking lot (it does not give any sort of time frame). An officer notices a guy in a hoody, sitting on a bench, holding a black object that officer believed was a gun (turns out to be a shoe) with a backpack and small dog. (We have no idea what happens with the dog.) Police tell him to put his hands up but he instead walks towards the police. On third demand to put his hands up, he does as officers ask. Officers handcuff him and then it appears they all stand around. Meanwhile another UNM cop retrieved the driver and passenger and drove them back to the parking lot. They identify the guy in the hoody as the person they saw (and its Mr. O’Neil). Another officer continues to look for the gun; he decides to search the backpack despite 1) Mr. O’Neil is handcuffed and surround by cops and 2) Mr. O’Neil is more than 20 feet from the backpack. The ID Everyone (including the Government) admits this show-up identification is unnecessarily suggestive. (It is rather a textbook example of a bad ID process.) But they go through 3 of the 5 Biggers[1] reliability factors (certainty, opportunity, attention, description, and time). The Tenth determine the witnesses had plenty of opportunity to observe because the passenger was watching him look into other cars, and then he looked into their car and then the driver stared at him for around a minute. The Tenth used these same factors (differently phrased) in holding the said witnesses paid good attention. Lastly, the Tenth said the witnesses were fairly accurate in their description. (I mean, I think the description is rather vague: some slender white guy in a hoody with facial hair.) The defense challenged the accuracy of the description because Mr. O’Neil was husky. This is where we learn about the dog – Mr. O’Neil argues the dog is distinctive and witnesses would have noticed the dog and included it in the description. The Tenth Circuit thinks the dog is a minor error. The Court does mention the other two factors (time it was within 20 minutes of the incidenct) and the witnesses were certain of their id. Importatnly, the Court acknowledges, albeit in a footnote, that a witness’s certainty does not correlate to accuracy. Fourth Amendment The district court found that there was no exigency such that searching the backpack was necessary. (Remember, Mr. O’Neil was handcuffed, surrounded by cops, and twenty feet away from the backpack.) So that was nice. But then, the district court found that the cops would have inevitably discovered the gun when they inventoried the backpack. The Government did not introduce written polices concerning inventory so Mr. O’Neil argued that the search was unreasonalbe because it didn’t confrom to any policy. But the Tenth Circuit said that didn’t matter because one of the cops testified that they had a procedure that would have had them opening the bag.