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UNITED STATES v. ACKRIDGE

December 27, 1973

UNITED STATES of America
v.
Reginald ACKRIDGE et al.


Bechtle, District Judge.


The opinion of the court was delivered by: BECHTLE

Five of the above six defendants *fn1" were tried before a jury and convicted on an indictment charging all six defendants with the unlawful and willful taking, by force and violence, of $150 in United States Government money from the person of William Gilmore, in violation of 18 U.S.C. ยง 2112. *fn2" All five defendants have filed motions for judgment of acquittal pursuant to Fed. R. Crim. P. 29 and, in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33. A detailed examination of the entire record, including the briefs and memoranda submitted by the Government and defense counsel, has convinced the Court that the various grounds raised by the defendants in support of their respective motions do not constitute a sufficient basis for the granting of the relief requested. Accordingly, the defendants' motions for a new trial and for judgment of acquittal will be denied.

At trial, the Government adduced the following facts: On November 28, 1972, William Gilmore, a Philadelphia Police Officer assigned to the Drug Enforcement Administration ("DEA") task force in Philadelphia was sent into the area of 1738 North Marshall Street, Philadelphia, for the purpose of purchasing heroin from a suspected purveyor of narcotics in that particular area of the city. Officer Gilmore was accompanied in this assignment by one Eugene Alexander, a paid Government informant. Both persons were dressed in plain clothes so as not to disclose the identity of Officer Gilmore. Before leaving DEA headquarters, Officer Gilmore was given $150 official Government advanced funds by Chief Investigator Edward Cassidy. These funds were to be used for the purpose of making a heroin purchase on the 1700 block of North Marshall Street. In addition to Officer Gilmore and the Government informant, six surveillance agents in three teams, comprised of two officers on each team, entered the area and assumed prearranged surveillance positions from which they could observe the intended narcotics purchase.

 While Officer Gilmore and the informant were standing in the area of 1738 North Marshall Street, they were accosted by the defendants, two of whom (Donald and Reginald Ackridge) were brandishing handguns. Threats and insults were shouted at the officer and informant by the six defendants. Donald Ackridge struck Eugene Alexander across the face with a gun and stated, "This is a hold-up. Get against the wall." After Officer Gilmore stated to the defendants that he had the money and not the informant, Demetrius Greenhawe reached in and took the $150 from Gilmore's right coat pocket and handed it to Donald Ackridge. Defendant Greenhawe then frisked Officer Gilmore for additional money and kicked him in the posterior. Throughout the commission of the robbery, shouts of "Shoot them," and "Shoot the lock off the door" (meaning the door of the house located at 1738 North Marshall Street) were hurled by all of the defendants.

 Officer Gilmore and the informant were subsequently told that they had five seconds to leave the area or be shot. The officer and informant promptly ran down Marshall Street. Officer Gilmore ran toward Sergeant Barron, a member of the Philadelphia Police Department assigned to DEA and a member of the surveillance team heretofore described. Sergeant Barron was informed of the robbery that had just occurred and he, in turn, notified the remaining members of the surveillance squad via the police radio. The surveillance teams closed in and apprehended the six defendants, all of whom were in the immediate area and attempting to flee from the pursuing officers.

 Demetrius Greenhawe and Donald Ackridge were apprehended by Sergeant Barron in front of the house located at 1730 North Marshall Street. Officer Gilmore identified Greenhawe and Ackridge as two of the six people that perpetrated the robbery. Donald Ackridge was searched, and on his person was found $150, later identified as the Government money advanced to Officer Gilmore at DEA headquarters. Sergeant Barron retrieved from the curb a handgun that he observed Donald Ackridge discard as the police officers approached.

 The other four defendants were apprehended and brought back to the scene. Officer Gilmore identified each as having taken part in the robbery. Sergeant Bruno, another member of the Philadelphia Police Department assigned to DEA, apprehended Zachary Scott approximately one block from the scene of the robbery. A search of this defendant uncovered a.22 caliber pistol loaded with eight (8) bullets.

 The six defendants were then placed in official Government vehicles and transported to DEA headquarters at 308 Walnut Street in Philadelphia. At the request of the Assistant United States Attorney, Officer Gilmore again positively identified the defendants as the six individuals who accosted and robbed him of $150 in official Government money.

 Discussion

 Defendants contend that the trial court erred in admitting testimony of the two out-of-court identifications and in permitting Government witnesses to make identifications of the defendants in the courtroom. The asserted basis of defendants' contention is that the identifications that occurred at the scene of the robbery and at DEA headquarters were so unduly suggestive and inherently unfair as to violate fundamental due process. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).

 The prompt, on-the-scene identification of the defendants by Officer Gilmore was conducted in accordance with the accepted and lawful practice of returning suspects apprehended immediately after the commission of the crime to the scene of such criminal activity for the purpose of identification by the victim or witnesses. Considerations of reliability inherent in an immediate identification and the possibility of a rapid release of a mistaken suspect justified the actions of the police officers in conducting the identification on North Marshall Street. United States v. Gaines, 450 F.2d 186, 197 (3rd Cir. 1971); United States v. Barnes, 336 F. Supp. 537, 538 (E.D. Pa. 1972).

 As previously outlined in this opinion, the defendants were apprehended either right at the scene of the robbery or within a block away. Greenhawe and Donald Ackridge were stopped by Sergeant Barron at 1730 North Marshall Street, only two or three houses from the actual robbery. These two defendants were identified immediately by the victim of the robbery, Officer Gilmore. The remaining four defendants were apprehended and returned to the scene to be identified individually by Officer Gilmore. All six were positively identified as the perpetrators of the crime. The prompt, immediate identification of the defendants was neither unduly suggestive nor conducive to irreparable mistaken identification so as to be violative of the standards set forth in Stovall v. Denno, supra.

 Similarly, the Court is convinced that the show-up which took place upon the arrival of the defendants at DEA headquarters was both necessary and constitutionally valid. See, Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). This identification was made a short time after the incident by Officer Gilmore and the informant, Eugene Alexander, at the request of the Assistant United States Attorney. The purpose of the second identification was to insure that the right persons had been apprehended. Further, the second identification was necessitated to a significant degree by the defendants themselves, who kept insisting that they were simply walking down the street at the time of their arrest and completely innocent of any wrongdoing.

 Having concluded that the identifications that occurred at the scene and at DEA headquarters were in accordance with existing law, the trial court did not err in admitting the testimony of the two out-of-court identifications and in permitting Government witnesses to identify the defendants in the courtroom.


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