Police photoshopped his mug shot for a lineup. He's not the only one

Tyrone Allen's facial tattoos were removed in a photograph shown to four bank tellers in a robbery case. Photo / US District Court in Oregon

When witness descriptions made no mention of a suspect's facial tattoos, the police airbrushed them away for an identification lineup. The practice goes beyond one case.

When the police arrested a suspect in a series of bank holdups in Portland, Oregon, they took his mug shot and prepared to show it to witnesses in a photo array alongside images of five similar-looking men.

But there was a problem: The suspect had at least a half-dozen facial tattoos, but according to surveillance video and bank tellers, the robber had none.

This was nothing a little Photoshop could not fix.

The police used editing software to remove the tattoos from the picture of the suspect, Tyrone Allen, and presented his revised face to four tellers, at least two of whom identified him as the bank robber. Prosecutors in Portland said Allen may have applied makeup before the robberies and that investigators simply mimicked the possible disguise.

Allen's lawyer is asking a judge to throw the identifications out, The Oregonian reported this month, publicising a practice that has drawn outrage from activists who say the police unfairly changed Allen's appearance to match witness accounts.

Court records and interviews with police departments across the country show this was not an isolated episode of officers airbrushing aside a discrepancy. Some of the nation's largest police departments regularly use Adobe Photoshop and other editing tools in cases where suspects have a distinguishing tattoo, scar, bruise or other mark.

Criminal justice experts say there can be good reasons for touching up photos. For instance, adding a suspect's birthmark to pictures of the other people in the array — known as fillers — can make lineups fairer by ensuring that the perpetrator does not stand out. Modifying the features of the suspect, however, is less common and has concerned lawyers who say investigators are encouraging positive identifications and changing the appearance of the person they are asking witnesses to identify.

"Law enforcement took these photos of a defendant who did not match the description of eyewitnesses, and then altered the photo to more closely match the witness description," said Mat dos Santos, legal director of the American Civil Liberties Union of Oregon. "If you can't do a good photo lineup, the answer is not to change the photos; the answer is a photo lineup just shouldn't be done."

Margaret Bull Kovera, a professor at John Jay College of Criminal Justice who studies witness identification and evidence, said although it could be nearly impossible to find five filler photos that look similar to a suspect with an obvious scar or face tattoo, changing a suspect's mug shot was unacceptable. And she said she worried that police could alter photos in other ways, like making a suspect look thinner if they believed that the person gained weight after committing a crime.

"That's not OK," Kovera said. "You can't alter the face of the suspect."

Among the police departments that do sometimes touch up a suspect's photo is the country's largest, the New York Police Department, often as a last resort.

"All efforts are made to alter the filler photos, not the subject's photo," said Sgt. Mary Frances O'Donnell, a spokeswoman for the department. When confronted with a suspect whose scars or tattoos would stand out from the filler images, the department's photo unit adds the same feature to the five filler photos "to ensure photo arrays are fair and impartial," she said, adding that investigators document all changes.

Officials at other police departments, including in Los Angeles, Chicago and Philadelphia, said they keep their hands away from Photoshop.

"Adding or removing tattoos is not something we do," said Detective Donny Moses, a spokesman for the Baltimore Police Department.

"We don't tamper with them at all," he said of photos for arrays. "We would get killed in the courts as well as the media. That's something we don't mess with."

In some cases, doing nothing about distinguishing marks may hurt suspects the most. A state appeals court in New Jersey last year tossed out an identification in which a witness had selected a man as the perpetrator because he was the only person with face tattoos in a photo array.

In a study published in 2016, researchers in the United States and England asked witnesses to watch someone with a distinctive feature commit a crime. When researchers then produced a photo array in which only one person had the distinctive feature, witnesses were more likely to identify that person as the perpetrator — even when it was not the same person from the video.

"In essence, the unfair lineup made people more likely to confuse the guilty perpetrator with an innocent suspect," said Melissa Colloff, a psychology lecturer at the University of Birmingham in England and an author of the study.

Experts generally agree that finding filler photos with similar identifiable markings is the ideal solution, although a 2004 survey of 220 police departments, including many of the nation's largest, found that nearly a third did not do anything about unique marks.

According to a training manual issued by the Justice Department in 2003, when a suspect has a unique feature that a witness did not mention seeing — as in the Portland case — police should add it to the filler photos but "should not alter the suspect's photo."

In these circumstances, the Miami-Dade Police Department takes a novel approach. Detectives use Photoshop to add the suspect's tattoo or scar to two of the five filler photographs, creating an array in which half of the photos have the feature and half do not.

In a memorandum to federal law enforcement agencies and prosecutors in 2017, Sally Q. Yates, then the deputy attorney general, said police could cover a suspect's unique mark with a black box and place a similar box on the filler photos, the modern equivalent of what has long been done with Band-Aids for in-person police lineups. Yates said all changes should be documented.

Marc Garth Green, deputy chief of the Seattle Police Department, said the department's photography lab followed that advice: adding suspects' identifying marks to filler photos but never changing the appearance of a defendant.

"We want a true, fair and accurate representation of the person we believe it to be," Garth Green said. "Then the victim can make their decision."

In the Portland case, investigators came to believe that Allen may have used makeup to cover his tattoos after an anonymous informant told police that his unnamed roommate had said Allen was the robber, Paul Maloney, an assistant US attorney in Oregon, wrote in a court filing.

"Investigators compared defendant's photo to the surveillance image and saw enough similarities in the immutable facial features to include defendant in the photo array, knowing that tattoos are easily concealed with makeup," Maloney wrote.

Sgt. Brad Yakots, a spokesman for the Portland Police Bureau, said investigators then used "digital makeup" to "help prevent misidentifying the suspect."

"I basically painted over the tattoos," a forensic technician at the bureau testified in court, according to The Oregonian.

Allen's lawyer argued that the identifications should be suppressed.

"Presumably, investigators believed that showing the tellers Mr. Allen's real face would decrease the likelihood of a positive identification, so they simply chose to make Mr. Allen look different than he actually does," the lawyer, Mark Ahlemeyer, wrote in his motion.

The judge has not decided whether to allow the photo array identification as evidence, and the ruling could set a precedent for the use of Photoshop on mug shots.

Prosecutors in Oregon pointed to a California ruling in 2015, in which a judge allowed the introduction of a photo array in which police had used editing software to add hooded sweatshirts to six photos.

One of the bank tellers who identified Allen as the robber in the photo array told police she was "100%" sure it was him, prosecutors said.

"The face is really clear," she said. "I'll never forget that face."

Written by: Nicholas Bogel-Burroughs

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