United States v. Dortch

• Decision Date: 23 October 2018
• Docket Number: No. 18 CR 133,18 CR 133
• Citation: 342 F.Supp.3d 810
• Parties: UNITED STATES of America, Plaintiff, v. Jason DORTCH and Davontae Jones, Defendants.
• Court: U.S. District Court — Northern District of Illinois

342 F.Supp.3d 810

UNITED STATES of America, Plaintiff,

v.Jason DORTCH and Davontae Jones, Defendants.

No. 18 CR 133

United States District Court, N.D. Illinois, Eastern Division.

Signed October 23, 2018

Jeannice Williams Appenteng, Northern District of Illinois, AUSA, United States Attorney's Office, Chicago, IL, Pretrial Services, for Plaintiff.

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

The defendants in this case have moved to suppress evidence of out-of-court identifications of the defendants made by victims of the carjacking that is charged in this case.¹ They have failed, however, to demonstrate that there is a substantial likelihood of misidentification. The motion to suppress is therefore denied.

BACKGROUND

The following facts are based on statements from the victims, officers involved in the initial police response and in the apprehension and arrests of the defendants, a video from a neighbor's surveillance camera, and audio recordings of police radio transmissions responding to the crime. Neither defendant has proffered any testimony or other evidence disputing these facts.

Driving home on the evening of November 13, 2017, the two victims (A & B)arrived at about 10:30 p.m. on the 800 block of North Racine Avenue in Chicago in Victim A's white Jeep Cherokee vehicle. They parked the car on the street and got out of the car. At that point, another white Jeep pulled alongside Victim A's car and two individuals quickly got out of that car, one (Offender 1) from the rear passenger seat on the non-driver's side, and the other (Offender 2) from the front passenger's seat. Another individual remained in the driver's seat of the offenders' vehicle.² Offender 1 grabbed Victim A (who had just exited from the driver's seat of his car) from behind, demanded his money and keys, and pushed Victim A toward the rear of Victim A's car. Offender 2 went around the front of Victim A's vehicle to the passenger side of the car and, after briefly accosting Victim B, approached Victim A pointing a handgun with an extended magazine and hit Victim A in the head with the gun. While that happened, Victim B was unattended and approached the two offenders as they were accosting Victim A (rather than backing away). After Victim A surrendered his keys and $40 cash, Offender 1 got into the driver's seat of Victim A's car. After backing Victim A onto the sidewalk, Offender 2 then turned his attention to Victim B and demanded money, but Victim B said he didn't have any. While this occurred, Victim A was looking directly at Offender 2 and even took several steps in his direction. After pausing for a moment, Offender 2 then went around the front of Victim A's car to the driver's side. Offender 1 got out of the car and ran to the Offender's vehicle, which he entered via the front passenger's door; Offender 2 got into the driver's seat of Victim A's car. Both cars then fled.

The video recording from a nearby surveillance camera reflects that the street was well lighted. The entire encounter from offenders' exit from their vehicle until time they drove off was approximately 34 seconds (22:30:02 – 36). At the scene, the victims described the two offenders as:

• a black male, 23 – 25 years old; 6'0" tall, 170 pounds, with short black hair (the individual referred to above as Offender 1); and

• a black male, 23-25 years old; 5'7" tall, 170 pounds, with dreadlocks (the individual referred to above as Offender 2).

Less than half an hour after the incident, at about 11:00 p.m., a Chicago police officer spotted the victims' vehicle less than a mile away from the scene of the carjacking. The Jeep failed to pull over in response to the police car's signal and a chase ensued. Ultimately the Jeep crashed on west-bound I-290 in Oak Park. When the Jeep came to a stop, two individuals fled from the car. The individual who exited from the driver's seat of the Jeep headed south onto the east-bound side of I-290 and was apprehended on the expressway embankment. Police identified this individual as Davontae Jones. Jones is a black male and is 5'7" tall. At the time of his arrest, he was 18 years old, weighed approximately 150 pounds, and wore his hair in dreadlocks.

The second individual exited the Jeep from the front passenger side. Police observed him holding his side as he fled and letting go of something while in the median of the expressway; a search of that area located a handgun with an extended magazine. This individual was apprehended hiding in a backyard of a home near the south side of the expressway. Police identified him as Jason Dortch. Dortch is a black male and is 6'2" tall. At the time of his arrest, he was 19 years old, weighed approximately 170 pounds and had short black hair.

The victims were taken by police to the crash site, arriving at 11:43 p.m. Before being shown the individuals who had been apprehended, the victims were asked whether they believed that they would be able to recognize the individuals who carjacked their vehicle; both said yes. At the crash site, the defendants were not standing next to each other, but both were near the carjacked Jeep, handcuffed, and flanked by police. Each victim viewed the defendants from a distance of 20-25 feet. Victim A positively identified defendant Jones as the individual who had pointed a gun at him and hit him in the head with the gun but was unable to identify defendant Dortch as one of the carjackers. Victim B positively identified both defendants as the two carjackers.

DISCUSSION

The defendants seek an evidentiary hearing on their motion, but evidentiary hearings on motions to suppress are not granted as a matter of course. United States v. Villegas , 388 F.3d 317, 324 (7th Cir. 2004). The burden is on the defendant to show the need for an evidentiary hearing. United States v. Aguilar , 400 Fed. App'x 85, 88 (7th Cir. 2010) ; United States v. Rodriguez , 69 F.3d 136, 141 (7th Cir. 1995). "Evidentiary hearings are warranted only when the allegations and moving papers are sufficiently definite, specific, non-conjectural and detailed enough to conclude that a substantial claim is presented and that there are disputed issues of material fact which will affect the outcome of the motion. Furthermore, a district court is obliged to hold a hearing only if the difference in facts is material, that is, only if the disputed fact makes a difference in the outcome." Villegas, 388 F.3d at 324 (cleaned up); see also , e.g., United States v. Randle , 966 F.2d 1209, 1212 (7th Cir. 1992).

Generally, to establish the existence of a material fact dispute, a defendant seeking to suppress evidence must proffer testimony, whether his own or from other witnesses, or other evidence that contradicts the government's account. United States v. McGaughy, 485 F.3d 965, 969 (7th Cir. 2007) (affirming denial of evidentiary hearing where defendant failed to identify any specific, material factual dispute requiring resolution through an evidentiary hearing); United States v. Martin , 422 F.3d 597, 603 (7th Cir. 2005) (same; "an evidentiary hearing is only required when the defendant specifically has alleged a definite disputed factual issue"). That there is a video recording of the carjacking makes the defendants' task to establish the existence of material fact disputes all the more difficult. Cf. Scott v. Harris, 550 U.S. 372, 378-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (where videotape of incident existed, non-movant's version of the incident should have been rejected in favor of the contradictory footage of the videotape).

Here, neither defendant has proffered, in any form, testimony (their own or from others) or other evidence that creates a fact dispute material to the outcome of the defendants' motion. Instead, they say the need a hearing so that they can cross-examine the victims about the circumstances of their encounter with the carjackers, which they characterize as "fact intensive issues." That they may be, but an evidentiary hearing is not warranted just because the reliability of an identification often presents a "fact intensive" issue; the purpose of an evidentiary hearing in the context of a suppression hearing is to resolve identified factual disputes that bear on the suppression issue.

The defendants have not identified any such fact dispute, however; they have offered nothing but conjecture that an examination of the victims might reveal information that suggests that their identifications were unreliable. Conjecture, however, does not warrant an evidentiary hearing; "the defendant must present definite, specific, detailed, and nonconjectural facts that justify relief." United States v. Edgeworth , 889 F.3d 350, 354 (7th Cir. 2018) (cleaned up) (evidentiary hearing not required when defendant offered only conclusory assertions that "lack[ed] any factual support or explanation"); see also, e.g. , United States v. Holliman , 558 Fed. App'x 679, 680-81 (7th Cir. 2014) (no evidentiary hearing required where defendant failed to contradict government's evidence that he abandoned handgun before yielding to officers' show of authority).

If a defendant's desire to question witnesses about the circumstances of an identification warranted an evidentiary hearing, a hearing would be required in every case involving an out-of-court identification. What defendant would not like the opportunity to depose witnesses to the crime? But evidentiary hearings are not vehicles to permit defendants to conduct discovery of the testimony of potential witnesses against them. A defendant is not entitled to an evidentiary hearing to determine if there is a fact dispute; rather, a defendant must show that a material fact dispute exists to obtain an evidentiary hearing. Martin , 422 F.3d at 603 (rejecting argument that cross-examination of arresting officer would have enabled defendant "to identify facts necessary for the district court to rule on the suppression motion"). This requirement follows, of...