                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4437


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KENNETH EUGENE PORTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:06-cr-00195-BO-1)


Argued:   May 14, 2009                    Decided:   July 21, 2009


Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
C. Arlen BEAM, Senior Circuit Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Leza Lee Driscoll, Raleigh, North Carolina, for
Appellant.   Anne Margaret Hayes, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.       ON BRIEF:
George E. B. Holding, United States Attorney, Banumathi
Rangarajan, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Kenneth Porter appeals from the district court's denial of

his      motion     to         suppress      two      witnesses'      out-of-court

identifications of Porter as the perpetrator of a liquor store

robbery in Raleigh, North Carolina.                   Porter further challenges

the      district        court's       subsequent       admission       of        these

identifications at trial.              Because, under the totality of the

circumstances,      the     identification         procedure   utilized      by    the

officers      was        not       impermissibly        suggestive       and       the

identifications were reliable, we affirm.



                                           I.

      A.     The Robbery

      On    May   24,    2006,    an   armed    and   masked   robber    entered     a

liquor store in Raleigh, fired a shot at a wall, and ordered the

customers present to lie down on the floor at the front of the

store.      The robber also ordered two employees to empty their

cash drawers.       At one point, the intruder addressed a customer

located near the back of the store and, thinking the customer

was the manager, pointed the gun at the customer and demanded

the combination to the safe.               The robber repeated this demand as

he ordered the customer to come to the front of the store and

then to get on the floor.              When the customer told the thief he

did   not    work   at    the     store,    the    robber   stepped     toward     the

                                            2
customer,       pointed    the    gun       at    him,     and      fired    a   shot.       That

particular customer is one of the identifying witnesses.

       During the robbery, the robber wore a loose-fitting mask,

with   hand-made        holes    fashioned           for    the     robber's     eyes.       The

customer who was shot at was able to see the robber's freckles

and light-skinned complexion through those holes.                                 Eventually,

an employee opened the safe and the man took two bags found

therein containing over $2,500, and left.                                 The entire robbery

was captured on the store's surveillance camera.

       A   call    to   911     from    a    driver        of   a    vehicle     who   saw   the

individual leave the liquor store, get into a car, and drive

away provided the emergency operator with a description of the

car.       Later    this   driver,      who       followed          the    get-away    vehicle,

conveyed the license plate number and the route the automobile

was traveling to the emergency operator.                            Although that witness

eventually lost sight of the car, a patrol officer picked up the

pursuit and activated the emergency blue lights and siren.                                   The

driver eventually stopped.

       There were three people in the vehicle, including Kenneth

Porter.     All three occupants were arrested within twenty minutes

of the robbery.            One of the people arrested, a woman, told

police that only Porter went into the liquor store.                                    During a

search     of     Porter's      person,      an      officer        found    several     items:



                                                 3
hollow point bullets, latex gloves, a short-sleeve cutoff shirt,

and scissors.

     Just prior to the robbery, the second identifying witness

saw a man in the parking lot outside the liquor store.                  The man

was standing in front of the witness’s parked car and had the

hood of his jacket pulled over his head, pacing.                 As she walked

past the man to enter the store, she noticed he had a very fair

complexion.     As the woman left the store, a masked man entered

carrying a gun.       The woman then ran to her car and called 911.

She heard a gunshot before she even reached her vehicle, and

then watched the robber leave the store.                  The man was wearing

blue jeans, a black jacket with red on it, a homemade mask, and

a hood.    The woman knew it was the same person she had just seen

before entering the liquor store.

     Raleigh    officers       arrived    at    the    store   less   than    five

minutes    after     the    individual    left    and    immediately    obtained

descriptions of him.          These descriptions were broadcast to other

police    officers    and    it   was   these    descriptions    that   led   the

arresting officers to believe that the robber was Porter.                    After

his arrest, police transported Porter back to the vicinity of

the liquor store.          The on-scene officers had taken the witnesses

to a hotel across from the store.                     The officers placed the

witnesses in a room, and asked them to peer out the window at

the suspect and then indicate on a sheet of paper whether they

                                         4
identified the suspect as the robber by writing "yes" or "no."

They were told not to speak to each other.                            Outside, officers

had Porter handcuffed and shined a light on him so the witnesses

could see his face and body.               Porter stood about ten to fifteen

feet from the window.            Both the woman outside the liquor store

and the customer who was shot at during the robbery positively

identified Porter.

       Thereafter, the officers took Porter to the police station.

During a search of the vehicle, the officers discovered a brown

paper bag containing smaller bags of money underneath the back

passenger seat behind the driver's side of the car.                               In the

pouch behind the driver's seat, officers found surgical gloves

and a hand-made mask.            They also discovered a burgundy and black

parka and, from underneath the back passenger seat, officers

recovered    a    loaded      .38     caliber        Smith     and     Wesson   revolver

containing three spent cartridges.

       Count One of the superseding indictment charged Porter with

interfering with commerce by robbery in violation of 18 U.S.C. §

1951.     Count    Two      charged    Porter        with     using    and   carrying    a

firearm, which was discharged, during and in relation to a crime

of   violence     in   violation      of    18       U.S.C.    §     924(c)(1)(A)(iii).

Count Three charged Porter, having been previously convicted of

a crime punishable by a term of imprisonment exceeding one year,

with    possession     of    a    firearm       in    violation       of   18   U.S.C.   §

                                            5
922(g)(1) and 924.        Porter unsuccessfully moved to suppress the

out-of-court     identifications         and    any      subsequent       use   of    the

identifications in court.



      B.   Suppression Hearing

      At the suppression hearing, Porter offered no evidence but

challenged the two out-of-court identifications obtained during

the show-up identification at the hotel, arguing that the show-

up was impermissibly suggestive and unreliable, which likewise

tainted the subsequent in-court identifications.



           1.        Witness #1–Charles Renfrow

      The identifying witness, Charles Renfrow, was in the liquor

store   during   the     robbery    (and      was    shot     at    by    Porter),    and

testified that he went to the liquor store around 7:30 p.m. on

May 24, 2006, to buy alcohol.             While Renfrow was in the back of

the   store,    he    heard   a   gunshot.          As   he   turned      around,     the

intruder   pointed      the   gun   at    him,      asked     him    if    he   was   the

manager, and ordered him to the front of the store.                         The gunman

forced Renfrow to the floor and demanded the safe combination.

When Renfrow said he did not know the combination, the robber

fired the gun at him.         At that time, the masked man stood within

one foot of Renfrow.



                                          6
        Ironically, Renfrow held an associate's degree in criminal

justice, testified that he continuously watched the robber, and

focused on remembering that the robber "was wearing black tennis

shoes,     untied;    blue    jeans;    a    grayish   colored    tight      shirt;   a

grayish colored mask; a pinkish at the bottom range suit–coat,

with a dark color at the top, pinkish at the bottom."                         Renfrow

also noticed the freckles under the robber's eyes because the

man continuously adjusted the mask.                 Renfrow testified that the

thief appeared to weigh 180 pounds and to be about six feet

tall.       At    the    show-up       at    the    hotel,     Renfrow      positively

identified Porter as the robber based upon his clothing, his

height, his weight, his skin tone, and the shape of his chin.

And, Porter wore "the same black tennis shoes, same blue jeans,

same tight gray shirt."          Porter's shoes were still untied during

the show-up.



             2.      Witness #2–Brenda Freeman

        The second witness, Brenda Freeman, who had been outside

the store prior to the robbery and saw the robber pacing in the

parking lot, testified that she went to the liquor store on May

24, 2006, around 7:30 p.m.                  When she pulled into the parking

lot, she noticed a man outside the store, standing a few feet

from her car on the sidewalk.                 He caught her attention because

he   had   his    hood   up   over     his   head   and   it    was   not    yet   cold

                                             7
outside.     The man’s face was not covered at the time.                            She

remembered his face and his fair complexion.                       On her way out of

the liquor store, a person wearing a mask entered and Freeman

noticed that the masked person had a gun.                      She ran to her car

and called 911.          She heard a gunshot and shortly thereafter saw

the robber leave the store, all of which she reported to the 911

operator.        Freeman    noticed   that      the    robber      was   wearing    blue

jeans and a dark jacket with some red on it.                        At the show-up,

Freeman instantly recognized the suspect as the person she saw

before she went into the liquor store.                      She testified that "he

was the face of the person [she] saw outside the store."



            3.     District Court’s Ruling on the Suppression Motion

      The court summarized that, given the witnesses’ testimony

along with the fact that there was another witness who followed

the automobile that left the scene of the crime, and the fact

that Porter had no chance to change clothes and was wearing the

very clothes at arrest that the witnesses testified about from

the   robbery,      it     was   almost       like    an     "evidentiary     chain,"

"ironclad, lay down identification."                    "[T]here isn't even an

iota of unreliability about this.                    It's – it's almost like a

movie camera following the robber until his arrest and return."

The   district     court    thus   concluded         that    the    show-up   was   not

impermissibly suggestive and the identifications were reliable

                                          8
under the totality of the circumstances, and denied Porter's

motion to suppress.

      After   a    jury      trial,    a    jury    found     Porter      guilty    on    all

counts.     The district court sentenced Porter to concurrent 235-

month    terms    of   imprisonment         on     Counts   One   and      Three,    and    a

consecutive 120-month term of imprisonment on Count Two.                                  The

total sentence of imprisonment was 355 months.



                                            II.

      We review a district court's legal conclusions made in the

course of a denial of a motion to suppress evidence de novo and

its     factual   findings       for       clear     error.       United      States       v.

Saunders, 501 F.3d 384, 389 (4th Cir. 2007), cert. denied, 128

S. Ct. 1107 (2008).              We review for abuse of discretion the

court’s rulings on the admissibility of evidence.                          United States

v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995).

      We    review     de    novo     the    court’s    legal     conclusion         as    to

whether     the   identifications           violated    the    Due     Process      Clause.

Saunders, 501 F.3d at 389.                 Due process principles prohibit the

admission at trial of an out-of-court identification obtained

through procedures "so impermissibly suggestive as to give rise

to      a     very          substantial          likelihood          of      irreparable

misidentification."           Simmons v. United States, 390 U.S. 377, 384

(1968).     "The Due Process Clause is not implicated, however, if

                                             9
the 'identification was sufficiently reliable to preclude the

substantial     likelihood   of   misidentification.'"    Saunders,    501

F.3d at 389 (quoting United States v. Johnson, 114 F.3d 435, 442

(4th Cir. 1997)) (concluding that even though a single-photo

display   was   impermissibly     suggestive,   the   identification   was

still reliable and did not violate due process).             In order to

determine whether a challenged identification procedure should

be suppressed, the court engages in a two-step analysis.          First,

the defendant "must prove that the identification procedure was

impermissibly suggestive."        Holdren v. Legursky, 16 F.3d 57, 61

(4th Cir. 1994).     “A procedure is unnecessarily suggestive if a

positive identification is likely to result from factors other

than the witness’s own recollection of the crime.”            Satcher v.

Pruett, 126 F.3d 561, 566 (4th Cir. 1997).            If it was not, the

inquiry ends.      If the procedure was impermissibly suggestive,

"the court then must determine whether the identification was

nevertheless reliable under the totality of the circumstances."

Holdren, 16 F.3d at 61.



     A.       Impermissibly Suggestive

     On appeal, Porter argues that the show-up was impermissibly

suggestive in violation of his due process rights for several

reasons: (1) Porter was the only suspect presented at the show-

up, (2) the procedure utilized by the police for the show-up at

                                     10
the hotel was inherently suggestive, and (3) the police offered

no reason for failing to resort to less suggestive procedures.

He     further      argues     that       the     descriptions            provided       by   the

witnesses were unreliable.

        To begin with, the exclusion of identification evidence is

a     “drastic      sanction”       which        is    “limited           to   identification

testimony which is manifestly suspect.” Harker v. Maryland, 800

F.2d    437,     443    (4th     Cir.      1986).            And,      notwithstanding        the

conclusion       reached       by   our     colleagues            in      United    States     v.

Brownlee, 454 F.3d 131, 138 (3d Cir. 2006), a case relied upon

by Porter; in this circuit, prompt, on-the-scene show-ups are

not per se suggestive and may in fact "promote fairness, by

enhancing        reliability        of     the        identifications,             and    permit

expeditious release of innocent subjects."                             Willis v. Garrison,

624 F.2d 491, 494 (4th Cir. 1980) (quotation omitted).

        That is not to say that show-up identifications are per se

constitutional, either.               Certainly, "[g]reater accuracy can be

assured when a suspect is exhibited to a witness in the company

of    others     having    similar        facial       and    physical         characteristics

under    circumstances         where       the       mind    of     the    beholder      is   not

affected       by      intended      or     unintended,             blatant        or    subtle,

suggestions of the suspect's probable guilt."                              Smith v. Coiner,

473    F.2d    877,     880-81      (4th    Cir.       1973).           But,     when    one-man

confrontations occur promptly after the commission of a crime,

                                                11
the police have obtained a good description of the offender, and

the   show-up     is    completed     under      circumstances           where    it    is

important to continue the search for the real culprit promptly

if he has not been apprehended, they are likely not suggestive.

Id. at 881; see also Stanley v. Cox, 486 F.2d 48, 51 n.7 (4th

Cir. 1973) (citing precedent for the proposition that a one-man,

show-up identification is not impermissibly suggestive when it

occurs near the time of the alleged criminal act).

      The instant show-up identification was not suggestive.                           The

show-up took place within a short time after the crime and after

the police obtained a good description and the general location

of Porter, leading to his arrest.               There is no evidence that the

witnesses influenced each other during the show-up and it is

worth noting that only two of the several witnesses positively

identified      Porter—a     factor      weighing        against     a    finding       of

suggestive conduct by the officers.                 And, although Porter was in

handcuffs,      this    characteristic        did       not   predominate        in    the

identifications        and   did   not   play       a   conclusive       role    in    the

positive identifications, if at all.

      Porter’s primary thrust at oral argument was based upon the

officers’ decision to exclude Theodore Porter, the driver of the

vehicle, from the show-up.               Porter argues that by failing to

also present Theodore at the show-up, the officers created an

inherently suggestive show-up when they could have utilized less

                                         12
suggestive       means.     Basically,      Porter   claims   it    was   just    as

likely    that    Theodore    Porter   was     the   perpetrator    as    Theodore

likewise fit the general description provided to the officers

(Porter argues that Theodore, too, wore blue jeans, sneakers,

and a t-shirt) and the evidence was strewn throughout the car.

We disagree.

     One of the arresting officers testified that “[b]ased on

the information [they] had from detectives on the scene, it was

readily    apparent       [that   Kenneth     Porter]   was   the   suspect      who

committed the actual robbery.”                This determination was based

upon the physical description and clothing worn by the robber.

A second officer that searched Theodore Porter’s person did not

recall discovering anything unusual on him.               A search of Kenneth

Porter revealed items likely to have been used in preparation of

the robbery.       Too, Cammesoa Williams, the third passenger in the

car, told the officers and later testified that Kenneth Porter

was the only man to get out of the car and enter the liquor

store.     She described Kenneth as having freckles, “[a] lot of

freckles,” on his face, and testified that Theodore Porter had

none.     Our own review of the record reveals that one of the

officers testified that Theodore Porter was wearing white tennis

shoes, a fact directly at odds with the uniformly consistent

description of the perpetrator’s black, untied tennis shoes.                      We

find no clear error given these facts.                  Additionally, contrary

                                         13
to Porter’s suggestion, the government bears no burden to prove

that a less suggestive means could have been utilized.



        B.       Reliability of Identifications

        The reliability of eyewitness identifications is assessed

under the totality of the circumstances.                   Satcher, 126 F.3d at

566.         Here, even were we to find the show-up identification

impermissibly suggestive, the identifications were nonetheless

reliable.        "[R]eliability is the linchpin in determining the

admissibility        of    identification        testimony."          Manson           v.

Brathwaite, 432 U.S. 98, 114 (1977).                 The Supreme Court has set

forth five factors to be considered in determining whether a

prompt identification is reliable, such that it may be admitted

without violating due process: (1) the witness's opportunity to

view the accused at the time of the crime; (2) the witness's

degree of attention; (3) the accuracy of the witness's prior

description of the accused; (4) the level of certainty by the

witness at the confrontation; and (5) the length of time between

the crime and confrontation.              Neil v. Biggers, 409 U.S. 188,

199-200        (1972).     All     five      factors      tip   in   favor        of    a

determination       that   the    identifications      were     reliable     in    this

case.

       Both     identifying      witnesses     had   an    opportunity      to     view

Porter–one inside the liquor store and one outside.                        And, even

                                          14
though one witness saw the man she believed to be Porter in the

parking lot prior to the robbery without a mask on, she was able

to connect that man and the masked man she later saw walking

into the liquor store with a gun because of the similarity of

clothing and physical build.                 As to the second factor, Renfrow

testified that he purposely focused on the robber so that he

might    later    be    able    to    positively       identify    the    man    to   the

police.      He     explained        quite        specifically    what    Porter      was

wearing,    right      down    to    the    untied    black   tennis     shoes   Porter

still had on at the time of his arrest.                       As to accuracy, both

witnesses    were       detailed       in    their     description       of     Porter's

clothing.        Renfrow testified that Porter wore the same black

tennis shoes, same blue jeans, and the same tight gray shirt he

saw the robber wearing.               Freeman recognized Porter as the man

she saw outside the liquor store and the physical description

she gave police closely matched Porter's actual appearance and

the clothing he was wearing when arrested.                        While there might

have been slight inconsistencies, in all, the descriptions were

"flawless    in    several      important         particulars"—namely     the    untied

black tennis shoes, the gray shirt, the description of the coat

found in the vehicle, Porter's freckles and Porter's height and

build.     Saunders, 501 F.3d at 392.                 The last two factors—level

of certainty in the identification and time between the crime

and the identification—also support a conclusion of reliability.

                                             15
Neither    witness      hesitated     when      identifying       Porter      and   the

identifications        took   place    very     soon      after    the     crime    and

Porter’s arrest, which occurred only about twenty minutes after

the robbery.

     We therefore affirm the district court’s denial of Porter’s

motion to suppress.



     C.    In-Court Identifications

     Because     the    show-up   identifications          did    not    violate    due

process principles, the subsequent in-court admission of these

identifications was also not constitutionally infirm.                         An out-

of-court identification only taints an in-court identification

if   the    show-up      itself       is    unconstitutionally           suggestive.

Johnson, 114 F.3d at 441.           Accordingly, the identifications were

properly admitted at trial.



                                       III.

     For   the    reasons     stated       herein,   we    affirm       the   district

court.

                                                                              AFFIRMED




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