United States v. Rodney Merle Fowler

Rodney Merle Fowler appeals his conviction on two counts charging him with smuggling and transporting 132 pounds of marijuana from Mexico. 19 U.S.C. §§ 1459 , .1461; 21 U.S.C. § 176a. We reverse because the pre-trial photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.

Fowler admits that the marijuana in question was concealed in the automobile he drove across the border. His defense was that the automobile belonged to one Ellis whom Fowler had earlier accompanied on a trip from Los Angeles to Mexicali. When Ellis informed Fowler that he would be unable to return as planned he told Fowler to drive Ellis’ car back to Los Angeles. It was on the return trip that the marijuana was discovered and Fowler was arrested.

Customs officers investigating the matter found that the car had been purchased in Los Angeles two days before in the name of Harold Ellis. The address given, however, was essentially fictitious and was that of a drug store where Ellis was unknown. The identity of the person who had purchased the car was thus of some importance.

After having arrested Fowler and placed him in…