United States v. Little

• Decision Date: 10 November 2022
• Docket Number: 22 Cr. 260 (PAE)
• Parties: UNITED STATES OF AMERICA, v. RYAN LITTLE, Defendant.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA,
v.
RYAN LITTLE, Defendant.

No. 22 Cr. 260 (PAE)

United States District Court, S.D. New York

November 10, 2022

OPINION & ORDER

Paul A. Engelmayer, United States District Judge.

This decision resolves a motion by defendant Ryan Little to suppress (1) two out-of-court identifications of him by civilians immediately following the April 20, 2022 Hobbs Act robbery that forms one charge against him, and (2) any in-court identifications of Little by these civilians. See Dkts. 17-18 (“Motion”). Little contends that the identifications resulted from unduly suggestive procedures and that their admission would violate his Fifth Amendment due process rights. For the reasons that follow, the Court denies the motion.

I. Overview and Procedural History

On May 4, 2022, the Grand Jury returned a three-count Indictment. Dkt. 5. It charged Little with: (1) Hobbs Act robbery, in violation of 18 U.S.C. § 1951; (2) using a firearm in relation to a crime of violence (the robbery), in violation of 18 U.S.C. § 924(c)(1)(A)(i)-(ii); and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Id.

The charges arose from events between approximately 10:30 p.m. and 11 p.m. on April 20, 2022, when a masked man robbed the cashier (Delfino Rosas Zurita or “Rosas”) of Jimbo's Hamburger Palace (“Jimbo's”), an upper Manhattan restaurant, at gunpoint. Restaurant workers pursued the robber toward Saint Nicholas Park (“the Park”). During the pursuit, a man-whom the Government contends was the robber-attempted to steal a car from an Uber Eats delivery

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driver (Sharif Hamisu), also at gunpoint. After Hamisu escaped the car with the keys, disabling the vehicle, the man fled into the Park. Police later apprehended and arrested Little in the Park. Soon after the arrest, first Rosas and soon thereafter Hamisu approached the scene and identified Little as the perpetrator of the restaurant robbery and the attempted car theft, respectively.

On August 19, 2022, after Rule 16 discovery, Little moved to suppress the identifications by Rosas and Hamisu, Dkt. 17, and filed a memorandum of law, Dkt. 18 (“Def. Br.”), and exhibits, in support. He argued that the identifications resulted from unduly suggestive identification procedures and lack indicia of reliability. Def. Br. at 3-5. On August 29, 2022, the Government filed a memorandum of law in opposition. Dkt. 20 (“Gov't Opp. Br.”).

On October 12, 2022, the Court held a suppression hearing, at which it heard testimony from four witnesses, received documentary and photographic evidence, and heard argument, The Court invited briefing, including on whether the identifications had resulted from police-arranged identification procedures. On October 26, 2022, the parties submitted post-hearing briefs. Dkts. 29 (“Gov't Br.”), 30 (“Def. Ltr. Br.”).

II. Factual Findings

A. Evidence Considered

The Court finds the following facts based on the evidence adduced at the suppression hearing. See Hearing Transcript (“Tr.”). The evidence consisted of the testimony of (1) police officer Timothy Jacquez, a three-year New York City Police Department (“NYPD”) veteran, who responded to the robbery of the restaurant, Tr. 1112; (2) police officer Jorge Ponce, an 18-year NYPD veteran, who arrived on the scene of Little's arrest, Tr. 38-39; (3) Rosas, the cashier at Jimbo's at the time of the April 20, 2022 robbery, Tr. 90-91; and (4) Hamisu, the Uber Eats driver whose car the suspect attempted to take at gunpoint that same evening, Tr. 52-54. Unless

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otherwise indicated, the Court credits the testimony cited herein. The Court also received a map of the area surrounding Jimbo's and the Park, GX101; surveillance video footage capturing aspects of the events at issue, GX205,206A, 206B, 207A, 207B^[1]; video footage from law enforcement body-worn cameras, GX201 A, 201B, 202A, 203A, 204A; and a stipulation as to certain exhibits, GX301. See generally Tr. 19-21 (introducing evidence).

B. Facts Established^[2]

1. Rosas

a. The Robbery

On April 20, 2022, at approximately 10:30 p.m., Jimbo's was robbed. Tr. 91-94; GX205 00:14-1:46^[3]Jimbo's is located on Amsterdam Avenue, between West 126^th and 125^th Streets. Tr. 13. At the time of the robbery, Rosas was working the register. Tr. 100.

The robber entered Jimbo's and told Rosas that he was picking up an order. Tr. 93. He was wearing a bright blue sweatshirt, with the hood pulled over his head, a face mask, a black baseball cap, and blue jeans. GX205 00:14-1:46; Tr. 35. He exited before entering the restaurant a second time-this time, holding a gun under a newspaper. Tr. 93; see, e.g, GX2051:3 6-46. The robber whispered to Rosas to hand over all the cash and, Rosas testified, raised the

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gun toward Rosas's face. Tr. 93. Rosas handed over the cash. Tr. 93. The robber then fled on foot. See Tr. 93. Rosas jumped over the counter and ran after the robber. Tr. 93-94, 10001. Four other restaurant employees also pursued the robber-two on bikes, and two on foot. Tr. 112.

b. The Chase

Rosas chased the robber north along Amsterdam Avenue, toward the Park, and then to the right, along West 128^th Street. Tr. 101. He stopped to speak to an officer in a police vehicle on West 128^th Street and reported the direction in which the robber had run, and that the robber was “removing his clothes” as he fled; Rosas did not report that the robber had been wearing a blue sweatshirt. Tr. 101-02. Rosas saw the robber turn left onto Convent Avenue and then right onto West 129^th Street, but then lost sight of the robber. Tr. 103, 105. Rosas continued down West 129^th Street, until it intersected with Saint Nicholas Terrace, but did not see the robber again during this period. Tr. 105. Two streets border the Park-'Saint Nicholas Terrace on the west, and Saint Nicholas Avenue on the east. See GX101 (aerial map). The Park slopes downward from west to east, forming a “substantially steep hill.” Tr. 31.

Upon arriving at Saint Nicholas Terrace, Rosas encountered other restaurant employees who had briefly met up with police officers earlier; the employees told Rosas that the suspect had run into the Park. Tr. 105-06. The officers were no longer present. Tr. 112. Rosas instructed the other restaurant employees to “go around” the Park, from their current location on the Park's western side-that is, Saint Nicholas Terrace-to the eastern side-that is, Saint Nicholas Avenue. Tr. 113. Rosas himself entered the Park from its western side on Saint Nicholas Terrace, crossed the Park on foot, and emerged on its eastern side on Saint Nicholas Avenue. Tr. 113. There, Rosas encountered police officers. See Tr. 113.

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Rosas got into a police vehicle at Saint Nicholas Avenue and 130^th Street and drove back into the Park with the officers-this time, crossing the Park from east to west. Tr. 113. Rosas understood the officers to be looking for the robber. Tr. 114 15 (“Q: [Y]ou knew the officers were looking for the perpetrator, correct? A: Yeah, I had already told them that he had gone into the park.”). Rosas described the robber's pants and shoes to the officers and told them the robber had been “running” and “removing his clothing” after the robbery and had entered the Park. Tr. 114. Rosas did not tell the officers that the robber had been wearing a blue sweater. Tr. 114. While in the car, Rosas could hear officers talking to each other over their radios. Tr. 114.

Rosas exited the police car at 129^th Street and Saint Nicholas Terrace on the western side of the Park. Tr. 115. Rosas reentered the Park, with the police officers. Tr. 115. As they crossed the Park, Rosas heard yelling from Saint Nicholas Avenue and the officers' radio traffic on their handheld radios. Tr. 116. He also saw lights shining through the trees from Saint Nicholas Avenue below-from the unfolding arrest. Tr. 119. Rosas tried to run down to Saint Nicholas Avenue and follow the officers to the source of the commotion, Tr. 118, but the officers refused to allow him over a railing or wall that separates the Park from the street, Tr. 117 (describing railing); Tr. 120-21 (describing wall); See Tr. 120-21 (“Q: So the officers told you not to go over that fence? A: Yes.”). Rosas waited until the officers had gone ahead and then, without informing them, jumped over the railing and onto Saint Nicholas Avenue. Tr. 117 (“Q: You told the officers that you were going to go around down to the Avenue, right? A: No, I didn't tell them anything.”); Tr 118 (testifying that he got to Saint Nicholas Avenue by jumping over the barricade, ‘just like the police officers had done, but once they were already down there”).

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After jumping over the railing or wall, which he estimated was approximately five feet tall, Rosas rejoined the other restaurant employees. See Tr. 121. They told Rosas that the police had waited for additional officers because they had believed that the suspect was armed, but that they had since caught a suspect, taken money from him, brought him out of the Park, and found a gun. See Tr. 121-22. The other employees also told Rosas that they had seen the suspect as he was removing clothing from his backpack. See Tr. 122.

Rosas ran up to the arrest scene. Tr. 121. The body camera footage shows Rosas running to the scene and positively identifying Little before speaking to any officer.^[4] See GX201A 22:53:19-40. Rosas testified that he recognized Little as the robber based on his pants and shoes. Tr. 124 (“Yes, just [his pants and shoes], because I did not see his face or his-how he was wearing his hair because it was covered up.”).

2. Hamisu

a. The Hold Up at Gunpoint

Shortly after 10:30 p.m. on April 20, 2022, Hamisu's car was parked at West 128^th Street, between Convent Avenue and Saint Nicholas Terrace. Tr. 53, 57. He was working that evening delivering Uber Eats orders and had just made a delivery. Tr. 54; GX207A (surveillance...