Magistrate Judge Hugh Scott
Two undisclosed witnesses identified Rodriguez after viewing a bound photo array (photo book) depicting individuals whom the government had investigated during the history of the present case. Interviewees were shown the photo book—after interviews lasting as long as 10 hours—and asked if they recognized anyone therein. Law enforcement agents never told any interviewee who anyone in the book was or why he or she appeared therein. The court recommended denial of Rodriguez’s motion to suppress the identifications, finding them not suggestive. The interviewees controlled the conversation by discussing only their knowledge of events that might have been of interest to the agents. When presenting the photo book the agents asked the interviewees only to identify anyone recognized therefrom and how they recognized them. There was no distinct perpetrator toward whom the agents might have wanted to push the interviewee. Although the interviewees might have guessed that everyone in the photo book was a person of interest, the interviewees either had relationships with the people depicted in the photo book or not. Nothing that the agents said or did would have created personal knowledge where none existed.
