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On September 15, 2011, the Helena Police Department received a report from a 14-year-old female that she had been receiving threatening and harassing text messages from a cell phone number. During the course of the investigation, the girl indicated she had been contacted by an unknown subject via Facebook asking to exchange "bikini" pictures. The subject provided the same cell phone number daring her to send pictures because the subject told the girl she was "hot." The girl told officers that a couple of text messages she received from the subject contained photographs of two different young girls, naked and exposing their genitalia in a lewd and lascivious manner. The girl said the subject was demanding photographs in the same fashion to be sent via picture messaging.

Law enforcement took over the girl's accounts and found the messages. On the girl's phone, detectives found the two text messages sent to the girl including photographs of juvenile females; both images sent by the subject are child pornography.

Detectives continued communication with the subject pretending to be the girl. The subject threatened to share the photos the girl sent initially by posting them on the Internet, demanded more photos, and sent more child pornography photos. Detectives sent corrupt files through interstate commerce to the subject. The subject indicated he was having difficulty viewing those images and demanded the girl use a friend's cell phone to take more photographs.

On October 10, CASTINE emailed the girl, saying "hey, now [name withheld] can see your pix. I will so you better send. I can show his friends too. send today." The message had four attachments which were four photographs apparently taken from the girl's Facebook page which had the girl and a young male giving the impression they were a couple.

While looking through the over 350,000 pictures of images that could possibly be child pornography in this case after the forensic examination, detectives found a picture of another Helena girl in CASTINE's Hotmail account. The girl was briefly interviewed and detailed the same scam that CASTINE used on the first victim. She was forensically interviewed in Helena, and repeated the same pattern of contact by CASTINE, harassment for naked photos of herself at age 15 in the same September-October 2011 time frame. The girl finally sent CASTINE a picture of herself naked and standing sideways.

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Ideally, the profile photo also should say something about your life: "Good photos show what you're passionate about," Spira said, "and show your potential date what life could be like if they were dating you."

"In FY 2019, 43% of women Veterans Health Agency users had diagnosed mental health issues," she said. That compares to "26% of male VHA users who had a confirmed mental health diagnosis," she added, underscoring the need for DOD and VA prioritization of women's mental health needs.

Some were a full page long, some a half page, some were just a few lines. Each yellow lined paper informing you who that person was, lying in that single bed, sitting in that rocking chair, or listening to the radio as she or he reclined; the family and friends framed photos neatly arranged in each glass case.

In a three-minute video, interlaced with archive footage of Elizabeth II, Camilla praised the Queen for "carving her own role" as a "solitary woman" in a male-dominated world of international politics.

Deborah Wilson, a Niagara County Deputy Sheriff, was on special assignment as an undercover narcotics agent with the Drug Enforcement Administration [hereinafter DEA] on October 3, 1974. At about 12:15 a. m., she was driving on Genesee Street in Buffalo, New York with Raymond Badgett, an informant, when an individual "flagged" her over to the side of the road. (Transcript of Suppression Hearing [hereinafter Tr.] at 4). The black male who had stopped them, later identified as Robert Barnes, got out of his car and approached Deputy Wilson's car on the passenger side. This individual, alleged to be Barnes, told Deputy Wilson that he "had some good stuff" and asked if they wanted to purchase any. He then directed them to meet him in another part of the city. (Tr. at 5, 6).

Arrangements were made with the seller for another meeting later that same morning. At approximately 3:30 a. m., the agent and her companion, Badgett, arrived at the bar and ordered drinks. Shortly thereafter, the agent observed the seller and a female companion being stopped by the Buffalo police. (Tr. at 24). The seller and his companion, later identified as defendant Folmar, entered the bar and joined the agent and Mr. Badgett. The conversation lasted between ten and thirteen minutes. (Tr. at 25). At the seller's direction, his female companion, later identified as Marilyn Folmar, went to the ladies' room with Deputy Wilson and sold her some narcotics. The women returned to the table and the seller and his female companion then left the bar.

Later in that same day, Deputy Wilson returned to DEA headquarters and was shown two pictures, one "mug shot" of each *1178 of the defendants, front and profile views. She identified these photos as being those of the sellers of drugs with whom she had dealt earlier in that day.

Deputy Wilson was told before she identified Barnes' photo, by a member of her surveillance team who had been in the vicinity of Deputy Wilson throughout the sales of drugs, that the person with whom she had dealt was Robert Barnes. (Tr. at 30-31). She also testified that the informant who was with her during the sales had believed the seller's name was Barnes. Id. In addition, Deputy Wilson testified that there was a name on the back of the photo she identified as defendant Barnes. (Tr. at 29-30). In addition, the use of a single photo which the Government admits is suggestive, as it must, was also impermissibly suggestive. United States ex rel. Rivera v. McKendrick, 448 F.2d 30 (2d Cir. 1971) (use of single photo "highly suggestive"); Simmons, supra, 390 U.S. at 383 [88 S. Ct. 967]. The display of one photo, when the agents had literally thousands to select from and could have easily presented an array of photos, approaches the inexcusable. This court rules that the display of a single photograph of each of the defendants to Deputy Wilson was unnecessarily and impermissibly suggestive and, therefore, evidence of that identification must be excluded from trial. Brathwaite, supra, at 371. The motions to suppress that testimony are granted.

*1180 The next question is whether the particular circumstances in this case gave rise to a very substantial likelihood of irreparable misidentification. While Deputy Wilson did see the male distributor of drugs three times on the day in question, the opportunities for observation were less than optimum. At the first meeting on Genesee Street, Deputy Wilson testified that the scene was illuminated by street lamps (Tr. at 10, 19), the conversation lasted one to two minutes (Tr. at 19), that she was seated in the driver's seat and spoke to the seller of drugs who was standing on the passenger side. (Tr. at 18). The second meeting (the first sale of drugs) took approximately three minutes (Tr. at 22); the seller got into the back seat of Deputy Wilson's car; the lighting was "fairly poor" (Tr. at 9); and Deputy Wilson testified she could "not clearly" observe the seller's face. (Tr. at 9-10). While the seller got out of his car and walked over to the Deputy's car, Ms. Wilson did not watch him. (Tr. at 36). The third meeting (the second sale of drugs) lasted thirteen minutes (Tr. at 25); the lighting was described as not bright, rather indirect (Tr. at 27); and Deputy Wilson testified that she went to the ladies' room with the female seller of drugs for "a couple minutes." (Tr. at 26).

Of crucial significance are the facts that Deputy Wilson believed that the informant who accompanied her knew the seller of drugs as Barnes (Tr. at 30); that she thought one of her surveillance team members had selected the photo (Tr. at 42); that the surveillance team told her the seller was Robert Barnes before she saw the photo, and that Deputy Wilson thought that the members of the surveillance team knew defendant Folmar's name because they were given that name by some Buffalo police officers who stopped the two sellers of drugs shortly before the second sale. (Deputy Wilson was not certain on this last point). (Tr. at 43). All these facts contribute to the conclusion that Deputy Wilson believed before the photo identification that there was significant other evidence linking the people whose photos she was about to be shown to the criminal sale of drugs earlier in the day. She had strong reason to believe that progress of the investigation was quite advanced and that the pictures she would be shown were of the two people who were strong suspects in the crimes. See Simmons, supra, at 383, 385 [88 S. Ct. 967]. While the time between the criminal acts and the photographic identification was short and she did pay some attention to the details of each meeting, this court concludes that under the "totality of the circumstances" the photographic identifications were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.[1]Simmons v. United States, supra; Brathwaite v. Manson, supra. The Government has not met its burden of proving the precautionary conditions of Simmons have been met. Brathwaite v. Manson, supra, at 372. To allow the witness to make in-court identification of either defendant would be improper in the circumstances of the case. The prosecution has not shown by clear and convincing evidence that the future in-court identification would be based on a source independent of the photographic display. United States v. Wade, supra, 388 U.S. at 241-243 [87 S. Ct. 1926]; Stovall v. Denno, supra, 388 U.S. at 301-302 [87 S. Ct. 1967]; Gilbert v. California, supra, 388 U.S. at 272 [87 S. Ct. 1951]; Brathwaite v. Manson, supra, at 372; United States v. Gambrill, 146 *1181 U.S.App.D.C. 72, 449 F.2d 1148, 1153 (1971). Stated in another fashion, the Government has not proven that the witness had such definite images of the defendants in her mind that her in-court identification would be based on those images rather than the photographic display. United States ex rel. Phipps v. Follette, 428 F.2d 912, 915 (2d Cir.), cert. denied, 400 U.S. 908 [91 S. Ct. 151, 27 L. Ed. 2d 146] (1970); United States ex rel. Gonzalez v. Zelker, 477 F.2d 797, 801 (2d Cir. 1973). The motions to suppress the in-court identifications are granted as to both the defendants. 041b061a72


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