United States of America v. Kyrrah Cornell Radaker-Carter

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0228p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KYRRAH CORNELL RADAKER-CARTER,
Defendant-Appellant.
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No. 24-1744
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:22-cr-20309-1—Stephen Joseph Murphy III, District Judge.
Argued: July 30, 2025
Decided and Filed: August 19, 2025
Before: MOORE, GRIFFIN, and RITZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Celeste Kinney, OFFICE OF THE FEDERAL COMMUNITY DEFENDER
OFFICE, Detroit, Michigan, for Appellant. Henry Edward Moon, III, UNITED STATES
ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Celeste Kinney,
Keshava Kirkland, Todd Shanker, OFFICE OF THE FEDERAL COMMUNITY DEFENDER
OFFICE, Detroit, Michigan, for Appellant. Jeanine Brunson, UNITED STATES
ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
RITZ, Circuit Judge. Kyrrah Radaker-Carter appeals the denial of his motion to suppress
pretrial identification evidence. We affirm.
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I.
A.
On April 23, 2022, E.J. went to a store in Detroit to buy orange juice. As she left, two
men carjacked her in the parking lot.
E.J. had noticed the men earlier, while shopping. Although the men were wearing masks,
E.J. saw that one was “[l]ight-skinned” and the other was “dark-skinned.” RE 32, Suppression
Hr’g Tr., PageID 190, 193, 198. The lighter-skinned man stood behind E.J. in the checkout line
and E.J. heard him talking to another customer.
The darker-skinned man followed E.J. as she left the store. When E.J. got to her car, the
man pointed a gun at her and demanded her fanny pack and car keys. Then, the lighter-skinned
man came out of the store, also pointing a gun at E.J. E.J. was scared the men would shoot her,
so she gave them her keys and fanny pack. The men got in E.J.’s rental car and drove away.
As E.J. waited for the police, she was approached by the customer she saw speaking with
the lighter-skinned carjacker in the checkout line. The customer said she knew the man from
school. E.J. and the customer exchanged phone numbers, and the customer later told E.J. that
she would call her “in about twenty minutes with that name.” Bodycam Footage at 03:08.
When police officers showed up at the store, E.J. told them that the lighter-skinned man
was “mixed [race] or maybe . . . Mexican.” Id. at 04:46. Then, a few hours later, officers
interviewed E.J. at her house. There, she described the man as “possibly mixed or Hispanic” and
in his “late 20s or early 30s,” but because she was “focused on the gun,” E.J. could not remember
everything. RE 57, Gov’t Ex. 4, Incident Rep., PageID 441 (citation modified).
After she met with police, E.J. started texting the customer. The customer told E.J. that
the light-skinned carjacker was named “Karaa”; he was from Inkster, Michigan; and he was
about 30 or 31 years old.
The investigating officer was also texting the customer, having gotten her number from
E.J. During their exchange, the customer sent the officer three photos of Kyrrah Radaker-Carter
and screenshots from his Facebook profile containing his personal information.

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B.
The police scheduled a photo lineup with E.J. The lineup included pictures of six men,
including Radaker-Carter. The pictures were arranged in a grid with two rows of three photos
each, with Radaker-Carter’s photo in the center of the top row. The officer who assembled the
lineup ordered the photos randomly.
In picking the photos, the officer looked for others of “similar sex, race, hairstyle, things
[like] that to include as fillers.” RE 32, Suppression Hr’g Tr., PageID 161. The officer testified
that he usually pulls lineup pictures from the Detroit Police Department’s mugshot database
because it has an effective search function. That’s where he got the five filler photos. But
because Radaker-Carter was not in that database, the officer had to get his photo from elsewhere.
As a result, Radaker-Carter’s photo had a darker background and different lighting than the
others.
Before the lineup, E.J. asked the store customer—Radaker-Carter’s schoolmate—for a
picture of the man that the customer thought was the light-skinned carjacker. E.J. said she
“want[ed] to make sure [she] g[o]t it right” at the lineup. RE 57, Gov’t Ex. 8, Text Msg.
Screenshots, PageID 450. The customer sent E.J. a picture of Radaker-Carter from his Facebook
page. But the customer said that the police “asked [her] not to show” E.J. the photo, so she told
E.J., “don’t tell them you saw a picture.” Id. at PageID 451. When E.J. got the customer’s text,
she responded, “[t]hat’s him, I remember [] his features.” Id.
The police conducted the photo lineup the day after the customer sent E.J. the photo,
which was three days after the carjacking. E.J. “[i]nstantly” identified Radaker-Carter as the
light-skinned carjacker. RE 32, Suppression Hr’g Tr., PageID 212; accord id. at 173. A day
later, the police arrested Radaker-Carter while he was driving E.J.’s rental car. He was charged
with carjacking, 18 U.S.C. § 2119, and brandishing a firearm in relation to a crime of violence,
id. § 924(c).

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C.
Radaker-Carter moved to suppress E.J.’s identification. He argued that introducing the
identification at trial would violate his due process right to a fair trial. See Neil v. Biggers, 409
U.S. 188, 198 (1972).
After a hearing, the district court denied Radaker-Carter’s motion. The court ruled that
even if E.J.’s identification was affected because she saw a photo of Radaker-Carter before the
lineup, due process does not require exclusion of an out-of-court identification where “the
suggestive circumstances were not arranged by law enforcement officers.” RE 36, Order,
PageID 275 (quoting Perry v. New Hampshire, 565 U.S. 228, 232 (2012)). The court also
concluded that the photo array was not unduly suggestive.
Radaker-Carter pled guilty to both counts. The district court sentenced him to 122
months’ imprisonment, and Radaker-Carter appealed.
II.
Radaker-Carter argues that the district court should have suppressed the evidence that
E.J. identified him as one of the carjackers. But E.J.’s identification was not the product of
police-arranged suggestive circumstances, so we reject his argument.
A.
We must first decide the applicable standard of review. Our case law on this point is less
than clear. We have at times reviewed challenges to the admissibility of pretrial identification
evidence using a mixed standard, reviewing the district court’s factual findings for clear error
and its legal conclusions de novo. See United States v. Crozier, 259 F.3d 503, 510 (6th Cir.
2001); United States v. Marks, 209 F.3d 577, 585 (6th Cir. 2000). At other times, we have
applied clear-error review to the entirety of such claims. See United States v. Beverly, 369 F.3d
516, 538 (6th Cir. 2004); accord United States v. Washington, 714 F.3d 962, 966 (6th Cir. 2013).
For two reasons, the former approach is correct.
First, the mixed-standard cases predate the clear-error cases. “When a later decision from
this court conflicts with its prior decisions, the earlier cases control.” Sowards v. Loudon

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County, 203 F.3d 426, 431 n.1 (6th Cir. 2000). Marks and Crozier were decided in 2000 and
2001, respectively. In those pretrial identification cases, we “review[ed] [the] district
court’s . . . legal conclusions de novo.” Crozier, 259 F.3d at 510; accord Marks, 209 F.3d at
585. By contrast, Beverly, which reviewed the whole “denial of a motion to suppress
identification evidence for clear error,” was decided later, in 2004. 369 F.3d at 538. Per our
practice of inter-panel accord, the earlier mixed-standard cases govern. See 6 Cir. R. 32.1(b);
Helphenstine v. Lewis County, 60 F.4th 305, 317 (6th Cir. 2023).
To be sure, Beverly cited a 1982 pretrial identification case—United States v. Hamilton,
684 F.2d 380 (6th Cir. 1982)—to support its use of clear error. See Beverly, 369 F.3d at 538.
But Hamilton did not establish a blanket clear-error-review rule. Rather, the Hamilton panel
briefly commented that the court’s “findings [were] not clearly erroneous.” 684 F.2d at 383.
That statement is ambiguous; it is not clear the panel was referring to the district court’s legal
conclusions. Indeed, it makes more sense to read Hamilton as discussing the court’s factual
“findings.” Id. That reading would be consistent with our holding two years prior that “[t]he
clearly erroneous standard of review” governs the “factual finding[s] underlying [the district
court’s] legal conclusion[s].” United States v. Coleman, 628 F.2d 961, 963 (6th Cir. 1980).
There is also no indication that Hamilton marked a departure from earlier pretrial
identification cases, which appeared to use de novo review when analyzing legal issues. E.g.,
United States v. Scott, 518 F.2d 261, 264-66 (6th Cir. 1975); United States v. Clark, 499 F.2d
889, 892 (6th Cir. 1974). As was typical at the time, those cases did not explicitly identify the
relevant standard of review. See Amanda Peters, The Meaning, Measure, and Misuse of
Standards of Review, 13 Lewis & Clark L. Rev. 233, 238 (2009) (“[I]t was not until the late
1980s and early 1990s that appellate courts routinely began to include a discussion on the
applicable standard of review in most opinions.”). However, the analysis in Clark and Scott
looks non-deferential. Clark, for example, “examine[d] carefully the composition of the
challenged photographic array” and agreed that the array was “suggestive” but ultimately
concluded that its admission was constitutional. 499 F.2d at 892; see also Scott, 518 F.2d at 265-
66 (independently “view[ing] the pictures in question” to decide the due process claim).

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Moreover, as Marks and Crozier show, we did not initially treat Hamilton as requiring
clear-error review of a trial court’s legal conclusions. Crozier, in fact, directly cited Hamilton
for a different proposition, demonstrating that the panel was aware of Hamilton’s analysis and
still did not read the case to create a blanket clear-error rule. Crozier, 259 F.3d at 512. So
Hamilton did not disturb our established non-deferential review of legal conclusions in pretrial
identification cases.
Second, applying the clear-error standard to the issue presented here would arguably
conflict with Supreme Court precedent. The Court has said that “[a]bsent a treaty or statutory
prescription,” “questions of law are reviewed de novo.” Monasky v. Taglieri, 589 U.S. 68, 83
(2020); see also Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014)
(“Traditionally, decisions on ‘questions of law’ are ‘reviewable de novo’.” (quoting Pierce v.
Underwood, 487 U.S. 552, 558 (1988))). And cases like this one present a legal question:
whether the admission of identification evidence would violate a defendant’s right to due
process. See Perry, 565 U.S. at 237. True, that inquiry often “involves plunging into a factual
record.” U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC,
583 U.S. 387, 396 n.4 (2018). Even so, the Court has emphasized that “[i]n the constitutional
realm, . . . the role of appellate courts ‘in marking out the limits of [a] standard through the
process of case-by-case adjudication’ favors de novo review” of even “mixed question[s].” Id.
(quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 503 (1984)) (second
alteration in original).
This circuit’s “history of appellate practice” also “indicat[es] the appropriate standard.”
Monasky, 589 U.S. at 84 (quoting Pierce, 487 U.S. at 558); see also McLane Co. v. EEOC, 581
U.S. 72, 79-80 (2017) (deciding the standard of review for appeals from a motion to quash an
EEOC subpoena by looking to other administrative subpoena cases). When assessing
suppression claims in criminal cases premised on constitutional arguments, we generally “review
findings of fact under the clear-error standard and review conclusions of law de novo.” United
States v. Whitley, 34 F.4th 522, 528 (6th Cir. 2022) (motion to suppress evidence from an
allegedly unconstitutional search); see also United States v. Jacobs, 63 F.4th 1055, 1058 (6th
Cir. 2023) (motion to suppress an allegedly involuntary confession).

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In sum, the mixed standard is consonant with our older pretrial identification cases and
recent Supreme Court precedent. When reviewing a district court’s decision on a motion to
suppress pretrial identification evidence, we will depart from its factual findings only if they are
clearly erroneous. But we apply de novo review to the court’s conclusions concerning whether
the circumstances giving rise to the identification were unnecessarily suggestive and whether the
identification was otherwise reliable.
B.
Reviewing the district court’s due process analysis de novo, we agree that E.J.’s
identification was constitutionally admissible. A defendant’s due process right to a fair trial
prevents the introduction of out-of-court identification evidence when that evidence is “so
extremely unfair that its admission violates fundamental conceptions of justice.” Perry, 565 U.S.
at 237 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). We evaluate claims that a
pretrial identification should be excluded in two steps. Salter v. City of Detroit, 133 F.4th 527,
538 (6th Cir. 2025). First, we ask whether “law enforcement officers use[d] an identification
procedure that is both suggestive and unnecessary.” Perry, 565 U.S. at 238-39. “If so, we then
consider whether the evidence was nevertheless reliable.” Haliym v. Mitchell, 492 F.3d 680, 704
(6th Cir. 2007).
Exclusion is a strong remedy reserved only for cases “[w]here the ‘indicators of [a
witness’] ability to make an accurate identification’ are ‘outweighed by the corrupting effect’ of
law enforcement suggestion.” Perry, 565 U.S. at 239 (quoting Manson v. Brathwaite, 432 U.S.
98, 116 (1977)) (second alteration in original). Trial rights instead are the primary safeguards by
which “[t]he Constitution . . . protects a defendant against a conviction based on evidence of
questionable reliability.” Id. at 237. Absent exclusion of identification evidence, defendants
maintain the right “to confront the eyewitness” and “to the effective assistance of an attorney,
who can expose the flaws in the eyewitness’ testimony during cross-examination.” Id. at 245-46.
Defendants can also use “[e]yewitness-specific jury instructions” to their advantage. Id. at 246.
These protections help “caution juries against placing undue weight” on potentially “fallib[le]”
eyewitness identifications. Id. at 245.

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1.
Because due process’s restraint on the admissibility of pretrial identification evidence
“turn[s] on the presence of state action,” such claims are cognizable only if government officials
played some role in creating the suggestive circumstances giving rise to an identification. Id. at
232-33. We have accordingly declined to exclude identifications even when the identifying
witness by chance saw the defendant’s photo in the newspaper, United States v. Peterson, 411 F.
App’x 857, 865 (6th Cir. 2011), or was shown the defendant’s social media profile by a
coworker, United States v. Carson, 796 F. App’x 238, 248 (6th Cir. 2019), before participating in
the lineup.
E.J.’s texts with the store customer, therefore, do not create constitutional concerns. The
customer was not a state agent, and no evidence suggests that she was working with the
investigating officers to influence E.J.’s selection from the lineup. In fact, the customer
apparently disobeyed the police’s wishes by sharing the photo of Radaker-Carter with E.J.
2.
By contrast, the photo lineup was police-arranged, so our normal due process framework
applies. Under that standard, E.J.’s identification was admissible because the photo array did not
“give rise to a very substantial likelihood of irreparable misidentification.” Sexton v.
Beaudreaux, 585 U.S. 961, 965 (2018) (per curiam) (quoting Biggers, 409 U.S. at 197).
The photo array did not “improperly single out” Radaker-Carter. United States v.
Sullivan, 431 F.3d 976, 985 (6th Cir. 2005). Rather, like Radaker-Carter, “[t]he individuals
pictured were all African-American males of similar build, color, complexion and hairstyle,” and
the photos were “placed in random order.” United States v. Reamey, 132 F. App’x 613, 615 (6th
Cir. 2005). Plus, the officer who assembled the lineup gave a “reasonable explanation” for any
differences between the photos. See United States v. McComb, 249 F. App’x 429, 440 (6th Cir.
2007). He testified that Radaker-Carter’s photo was not in the Detroit Police Department
mugshot database. And the officer did not pull the other photos from the same database as
Radaker-Carter’s because Detroit’s system was searchable “generically . . . as opposed to
searching by name.” RE 32, Suppression Hr’g Tr., PageID 159.

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Still, Radaker-Carter argues that the cumulative effect of four of the lineup’s features
made the array suggestive. He points to the number of photos, their positioning, their
backgrounds, and their shading.
None of these differences alone render E.J.’s identification inadmissible. For instance, a
six-photo lineup is not per se suggestive. United States v. Stamper, 91 F. App’x 445, 460 (6th
Cir. 2004); see also Wingate v. United States, 969 F.3d 251, 261 (6th Cir. 2020) (concluding that
a six-photo lineup “does not look impermissibly suggestive”). And we have implied the same
for a photograph’s placement in a lineup—especially in the absence of evidence that the
placement influenced the witness’s identification. Searcy v. Berghuis, 549 F. App’x 357, 365
(6th Cir. 2013).
The differently colored background in Radaker-Carter’s photo also does not affect our
conclusion. Generally, “[a] darker hue or different colored background does not ‘in [itself]
create an impermissible suggestion that the defendant is the offender.’” McComb, 249 F. App’x
at 440 (second alteration in original) (quoting United States v. Burdeau, 168 F.3d 352, 358 (9th
Cir. 1999)). And here, Radaker-Carter’s picture was not the only one with a darker background.
Only three of the six photos had pure white backgrounds. The remaining pictures, including
Radaker-Carter’s, were set against darker grey backgrounds. To be sure, the background of
Radaker-Carter’s photo was the darkest. However, E.J. “gave no indication that . . . the color of
the background drew her attention to the picture.” Id.
Finally, we do not think the lineup was suggestive because Radaker-Carter’s complexion
appeared lighter than that of some of the other men. True, “a glare from the camera flash” makes
the relative color of the men’s skin appear slightly different. Washington, 714 F.3d at 967. But
comparatively, “there is not a drastic difference between the defendant’s skin tone and the
remaining photos.” Id.
Accordingly, none of the lineup’s features on their own raise due process concerns. And
because the photos’ differences were themselves “minor,” their cumulative effect was weak. See
Reamey, 132 F. App’x at 616-17. Reamey is instructive. There, we confronted a six-person
photo lineup where the suspect “was much older than the other individuals,” “was the only

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individual . . . grimacing,” and was wearing “clothing [that] was noticeably different from the
clothing of the other individuals pictured.” Id. at 616. Despite those differences, we determined
that the lineup was not overly suggestive. Id. We reasoned that, because all six photos depicted
men of the same race with similar builds, complexions, and hairstyles, it was unlikely that the
differences in age, clothing, and facial expression led the witness there to pick the defendant’s
photo. Id. at 616-17.
So too here. As explained, the lineup photos all showed men with similar physical
features who appeared to be approximately the same age. Additionally, the record does not
suggest that E.J. identified Radaker-Carter because of any of the photos’ differences. To the
contrary, E.J. testified that she recognized Radaker-Carter’s nose. Given that E.J.’s “attention”
was not “directed to a suspect” because of the array’s composition, the district court correctly
ruled that admitting her identification was constitutional. Haliym, 492 F.3d at 704 (quoting
Howard v. Bouchard, 405 F.3d 459, 469-70 (6th Cir. 2005)).
III.
Our analysis ends there. Radaker-Carter “failed to meet his burden to show that the
photo array was unduly suggestive,” so it is “unnecessary” to decide “whether the identification
was nonetheless reliable.” Washington, 714 F.3d at 968.
For the foregoing reasons, we affirm.

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