United States District Court, N.D. California
ORDER DENYING MOTIONS TO SUPPRESS
PHYLLIS J. HAMILTON, District Judge.
On April 2, 2014, this matter came before the court on the motions of defendant Charles Edward Moss, Jr. to suppress evidence and to suppress witness identification. Having carefully considered the relevant legal authority, the arguments of counsel, the motion papers and the record, the court DENIES the motion to suppress evidence resulting from the bicycle stop and DENIES the motion to suppress the witness identification for the reasons stated on the record and as set forth below.
I. Motion to Suppress Evidence Resulting from Bicycle Stop
For the reasons fully stated at the hearing, the court finds that the bicycle stop was supported by reasonable suspicion, rising to the level of probable cause, that defendant had committed a crime, namely selling narcotics in a controlled buy that was under surveillance. See United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006). The officers also had reasonable suspicion that defendant had committed a traffic violation, as a separate ground for conducting the traffic stop. The court determines that it is not necessary to hold an evidentiary hearing to determine whether defendant actually stopped behind the limit line next to the stop sign at the intersection where he was observed by the officers. The motion to suppress evidence from the traffic stop is DENIED.
II. Motion to Suppress Witness Identification
Defendant contends that showing the confidential source ("CS") a single photo for pretrial identification was unduly suggestive so as to violate the right to due process, and tainted any in-court identification by the CS.
A. Legal Standard
"Suggestive pretrial identification procedures may be so impermissibly suggestive as to taint subsequent in-court identifications and thereby deny a defendant due process of law." United States v. Love, 746 F.2d 477, 478 (9th Cir. 1984). To determine whether a challenged identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of mistaken identification, we must examine the totality of the surrounding circumstances." United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985). "[D]ue process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary." Perry v. New Hampshire, 132 S.Ct. 716, 724 (2012) (citations omitted). "Even when the police use such a procedure, suppression of the resulting identification is not the inevitable consequence." Id. The Due Process Clause requires courts to assess, "on a case-by-case basis, whether improper police conduct created a substantial likelihood of misidentification.'" Id. (quoting Neil v. Biggers, 409 U.S. 188, 201 (1972)). "[R]eliability [of the eyewitness identification] is the linchpin' of that evaluation." Id. at 724-25 (quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)).
To determine "whether under the totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive[, ] the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
Defendant has demonstrated that the single photo show-up, rather than an array of other various people, was both suggestive and unnecessary. The government contends that showing a single photo to the CS was not suggestive because FBI Agent Hughes did not reveal any identifying information and did not mention the September 12, 2013 controlled buy. However, the CS was shown Moss's DMV license picture only four days after the controlled buy, by an FBI Agent who was recording the transaction, suggesting, under these circumstances, that the person in the photo was related to the investigation into the controlled buy. Furthermore, the government has not shown that any exigent circumstances made a single photo show-up necessary or imperative, particularly where law enforcement agents had sufficient time to produce an array with photos of other individuals for a photo line-up.
Under Perry, even when law enforcement uses a suggestive and unnecessary procedure, "suppression of the resulting identification is not the inevitable consequence." 132 S.Ct. at 724. As the Supreme Court recognized in Perry, the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a "substantial likelihood of misidentification" under a totality of the circumstances approach, rejecting the per se exclusionary rule applied in United States v. Fowler, 439 F.2d 133, 134 (9th Cir. 1971) (use of a single photograph for witness identification was impermissibly suggestive and unnecessary and "only a per se exclusionary rule as to such testimony can be an effective sanction") (citation omitted). See Perry, 132 S.Ct. at 724-25. The court must determine whether the identification testimony (whether concerning the out-of-court identification or a subsequent in-court identification) is nonetheless sufficiently reliable to be admitted into evidence. United States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991) (citing Bagley, 772 F.2d at 492). Applying the Biggers factors here to determine whether the identification was reliable even though the single photo show-up was suggestive, the court finds that the suggestive procedure did not create substantial likelihood of misidentification:
1. Opportunity of witness to view. As the CS's video footage shows, the CS approached a group of about 8 men in broad daylight, and interacted with one man for a few seconds. The CS spoke to, and stood within arms length from, the person who sold him crack, though not always facing him.
2. The degree of attention. The CS did not focus for more than a few seconds on the person selling him crack, but did exchange a few words, and stepped away from the other ...