ORDER
KENT J. DAWSON, District Judge.
Before the Court for consideration is the Findings and Recommendations (#25) of Magistrate Judge George W. Foley, Jr. entered April 23, 2009, recommending that Defendant’s Motion to Suppress Evidence Obtained in Violation of the Fifth and Fourth Amendments (# 16) be granted in part and denied in part, and that Defendant’s Motion to Suppress Identification Evidence (# 17) be denied. Objections (# 29) to the Magistrate Judge’s Findings and Recommendations were filed by Defendant DEANDRE NAKITA BROWN pursuant to Local Rule IB 3-2 of the Local Rules of Practice of the United States District Court of the District of Nevada. The Government filed a response in opposition (# 30) to the objections.
The Court has conducted a
de novo
review of the record in this case in accordance with 28 U.S.C. § 636(b)(1) and LR IB 3-2. The Court determines that the Findings and Recommendations (#25) of the United States Magistrate Judge entered April 23, 2009, should be ADOPTED and AFFIRMED.
IT IS THEREFORE ORDERED that the Magistrate Judge’s Findings and Recommendations (# 25) entered April 23, 2009, are ADOPTED and AFFIRMED, and Defendant’s Motion to Suppress in Violation of the Fifth and Fourth Amendments (# 16) is GRANTED in part and DENIED in part, and that Defendant’s Motion to Suppress Identification Evidence (# 17) is DENIED.
FINDINGS & RECOMMENDATIONS
Motion to Suppress — # 16
Motion to Suppress — # 17
GEORGE POLEY, JR., United States Magistrate Judge.
This matter is before the Court on Defendant’s Motion to Suppress Evidence
Obtained in Violation of the Fifth and Fourth Amendments (# 16), filed on March 20, 2009; Defendant’s Motion to Suppress Identification Evidence (# 17), filed on March 20, 2009, and the Government’s Combined Opposition to Defendant’s Motions to Suppress Evidence and Identification (# 20), filed on April 2, 2009. The Court conducted an evidentiary hearing regarding these motions on April 10, 2009.
Defendant Deandre Brown is charged in an indictment filed on February 3, 2009 with interference with commerce by robbery in violation of 18 U.S.C. § 1951, possession of a firearm during a violent crime in violation of 18 U.S.C. § 924(c), and felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). The foregoing charges arise out of the alleged robbery of a casino change person in an Albertson’s supermarket on the evening of December 24, 2008. Pursuant to the Fourth Amendment, Defendant moves to suppress all evidence obtained as a result of his seizure and arrest on the grounds that the police did not have probable cause or reasonable suspicion to stop and detain him. Defendant moves to suppress statements made by him on the grounds that they were obtained in violation of his
Miranda
rights. Defendant also moves to suppress his identification by the alleged victim on the grounds that the circumstances of the identification were impermissibly suggestive and unreliable and should not be admitted in evidence.
FACTUAL BACKGROUND
Janet Castle testified that on December 24, 2008 at approximately 9:30 p.m. she was working as a change person in the video gaming/slot machine area in the Albertson’s supermarket located at 1650 N. Buffalo Drive in Las Vegas, Nevada. At that time, a black male adult approached Ms. Castle, pointed a gun at her and demanded the money in her cash drawers. Ms. Castle testified that the robber demanded that she turn over the large bills. She told the robber that the drawer which contained the large bills was time locked and could not be opened for another 20 minutes. She testified that the robber threatened to kill her if she did not comply with his instructions. Ms. Castle testified that she opened the two top cash drawers and the robber removed the cash from those drawers. This included a “bait pack” of currency which contained an electronic transmitting device. The robber then fled out of the supermarket. Ms. Castle did not observe in which direction the robber fled or whether he entered an automobile. She then called 911 and reported the robbery. Police officers arrived at the store within 3-5 minutes.
Ms. Castle testified that she informed the 911 operator and the police that the robber was a young black male adult. She estimated his height at 5 feet 6 inches to 5 feet 8 inches and his weight to be 170 lbs. She described his face as thin. Ms. Castle testified that the robber had a “thin palate.” She stated that she used to be a photographer, so she knows about facial shapes. Ms. Castle also testified that she informed the 911 operator or the police that the robber was wearing a maroon color “hoodie,” i.e., a hooded sweatshirt, a dark or red shirt underneath and black jeans. She testified that the robber had the sweatshirt hood pulled tightly around his face, so that only the front of his face was visible.
Ms. Castle testified that shortly after the police arrived she was driven by a female police officer to a location near the Albertson’s store where two black males were displayed to her. Ms. Castle told the officer that neither of these men was the robber. She was then taken back to the store. About 30-45 minutes later, Ms. Castle was taken by the same police officer
to the parking lot of the Texas Station Casino which is located a few miles from the Albertson’s store. At that location, the police officers displayed three black males to her. Ms. Castle remained seated in the patrol vehicle during this viewing. The individuals were standing side-by-side about 20 feet from her. The police officer who was with Ms. Castle placed a spotlight on each of the individuals so that she could clearly see them. The officer told her to take her time. Ms. Castle testified that one of the men was too tall to be the robber. Of the remaining two individuals, Ms. Castle identified the Defendant Deandre Brown as the robber. Ms. Castle acknowledged that she was not 100 percent sure that Defendant was the robber, but she was 90-95 percent certain. She testified that she would have liked to have seen the Defendant’s mouth close up to be completely certain in her identification. She was not afforded that opportunity.
Contrary to the description of the suspect that Ms. Castle initially gave the police, the Defendant was wearing a green colored hooded sweatshirt, not a maroon one. His jeans were also blue instead of black. Ms. Castle testified that at the time she identified the Defendant, she informed the officer that the color of the sweatshirt was different. The officer told her not to worry about that because suspects may change their clothing. Ms. Castle testified that she viewed the surveillance video of the robbery two days before the evidentiary hearing and she was surprised to see that the color of the hoodie worn by the robber was, in fact, dark green and not maroon.
Metro robbery detective Lance Spiotto testified that he was notified of the robbery by page. He testified that his unmarked police vehicle was equipped with a electronic receiving device for the transmitter in the bait pack. The electronic unit in his vehicle has a display screen with an arrow which points the vehicle in the direction of the transmitting device. The screen also displays signal strength bars which increase as the receiving unit gets closer to the transmitter. Detective Spiotto was reluctant to testify about how this tracking equipment works because he had been told that it is confidential information. After being instructed by the Court that he was required to respond to questions about how the equipment functioned, Detective Spiotto testified that he believes the signal from the transmitting device is picked up directly by the receiving unit in his vehicle. He is also aware that the signal is transmitted to radio towers located at various places in the Las Vegas Valley. A tower will be “hot” or “cold” depending on whether the transmitter is near or far from the tower. He did not have a clear understanding, however, whether the signal received on the device in his vehicle is transmitted through the tower(s) or is received directly from the transmitter.
Detective Spiotto testified that he drove in the direction of the arrow which led him to the Texas Station Casino. The signal grew stronger as he arrived at the Texas Station. He observed a tan Chevrolet Monte Carlo automobile stopped in the parking lot near the west front of the casino and the entrance to the parking garage located on the north end of the casino. A black male was standing by the passenger window of the vehicle and appeared to be talking to persons inside the vehicle, although Detective Spiotto could not see inside the vehicle. The arrow on the receiving device pointed toward that vehicle. Detective Spiotto testified that he drove his vehicle around the Monte Carlo automobile and as he did so, the arrow on the receiving device continued to point toward the vehicle, indicating that the transmitting device was located in or near the vehicle.
Detective Spiotto testified that he requested back-up support at the Texas Station and kept the Monte Carlo vehicle under surveillance until a marked patrol vehicle operated by Officer Moon arrived. Detective Spiotto and Officer Moon stopped their vehicles behind the Monte Carlo and activated their emergency lights. They ordered the individual standing beside the vehicle to walk toward them and he did so. Detective Spiotto also testified that he and Officer Moon instructed any persons inside the vehicle to exit the vehicle and come back toward the officers. A black male exited the passenger side of the vehicle and came back to the officers. Another individual, who was subsequently identified as Defendant Deandre Brown, exited the driver’s door of the vehicle with his hands raised. As soon as he cleared the vehicle door, however, Defendant took off running into the parking garage. Detective Spiotto chased after the Defendant into the garage. As he did so, he was passed by two marked patrol vehicles with their lights and sirens activated. Detective Spiotto ceased chasing Defendant and returned to where Officer Moon and the two other suspects were located. Detective Spiotto testified that the two other suspects were subsequently interviewed and released.
Officer Andre Bates testified that his patrol vehicle was also equipped with an electronic receiving device. He testified that he responded to the robbery call and headed toward the Albertson’s store. As he neared the area, the receiving device in his patrol car activated to the signal from the transmitter and he began following the directions toward the location of the transmitter. Officer Bates testified that in addition to the signal bars, the device in his patrol vehicle emits a sound which becomes louder as it gets closer to the transmitter. The signal led him to the intersection of Decatur and Lake Mead. At that time, other officers with tracking devices were broadcasting their locations and the readings from their devices over the police radio. Officer Bates testified that a detective, whom he later learned was Detective Spiotto, reported that he had a strong signal on his device at the Texas Station. Officer Bates therefore proceeded to that location and upon arriving observed the Chevy Monte Carlo vehicle and police vehicles. He also saw an individual running into the parking garage and that the detective was giving chase. Officer Bates testified that Detective Spiotto was advising officers over the radio what was occurring. Officer Bates drove past Detective Spiotto in pursuit of the fleeing suspect. He testified that the arrow on the receiving device in his vehicle pointed toward the rear of the garage where the suspect was fleeing.
Officer Donald Cox also arrived at the Texas Station in response to dispatch information. His patrol vehicle was not equipped with a receiving device. He followed Officer Bates’ vehicle in pursuit of the fleeing suspect, Defendant Brown. Officers Bates and Cox testified that the Defendant entered a stairwell at the rear of the parking garage and proceeded up to the second floor. The officers exited their vehicles and continued the pursuit on foot. They momentarily lost sight of the suspect in the stairway. Officers Cox and Bates both testified that after Defendant entered the stairwell and was momentarily out of their sight, they heard a sound of metal striking the ground and sliding on the pavement. It is the Court’s understanding that a firearm was subsequently found in the garage. On cross-examination both officers acknowledged that there was no reference in the written police reports to the officers having heard the sound of metal hitting the ground.
Once they reached the second floor, Officers Bates and Cox again observed the Defendant and continued to chase him.
Officer Cox caught and tackled the Defendant and placed him in handcuffs. Officer Cox then radioed that the suspect had been captured. Other officers and detectives then drove up to the second level of the garage. Defendant was placed by a marked patrol car. One of the detectives, Patrick Flynn, approached Defendant with a handheld tracking device. The device emitted an increasingly louder and constant noise as the detective approached Defendant. Officer Cox testified that Defendant appeared to panic as the noise grew louder and stated he did not have any narcotics — -that there was no dope in his pockets. Officer Bates also testified that Defendant spontaneously stated that “this is not dope money” before any questions or statements were made by the officers. According to Officer Cox, the detective asked Defendant if he could check his pockets. Defendant said yes. The detective then pulled wads of money out of Defendant’s pockets and put it on the hood of the car. Officer Cox testified that the detective asked Defendant where he got the money. The Defendant responded that he obtained it from gambling. Officer Bates testified that the detective also asked Defendant his name. Officers Bates and Cox testified that Defendant was not advised of his
Miranda
rights prior to making his statements or responding to the detective’s questions. Defendant was then placed in a police vehicle. The detectives searched through the money and found the transmitter.
On cross examination, Officer Bates testified that the description of the suspect that was initially broadcast stated that he was wearing a maroon sweatshirt and black pants. On redirect examination, he also testified, after reviewing the dispatch log, that an updated description was broadcast which described the suspect as wearing a black or dark green sweatshirt, a red shirt underneath and possibly a white T-shirt under that. Apparently, a later description was broadcast regarding some type of markings on the rear of the suspect’s pants. Officer Bates did not recall Defendant having such markings on his pants. Officer Bates testified, however, that he pursued the Defendant based on Detective Spiotto’s radio communication and his observation that the suspect was fleeing from the officers, and not because Defendant specifically matched the broadcast descriptions of the robbery suspect.
Detective Patrick Flynn testified that he initially responded to Albertson’s store in response to the robbery report. Detective Flynn testified that he reviewed the surveillance video of the robbery. He testified that the suspect in the video was wearing a dark brown or green hooded sweatshirt and blue jeans. While at Albertson’s, Detective Flynn was informed of the events at Texas Station. Detective Flynn proceeded to Texas Station where the officers had two suspects in custody in the parking lot and another suspect was in custody on the second floor of the parking garage. Detective Flynn testified that he walked the path that the suspect had traveled while fleeing from the officers to look for any evidence. Detective Flynn also testified that he was in possession of a handheld tracking device. As he proceeded into the garage, the signal from the transmitter became louder on his device. Detective Flynn made his way to the second floor where he observed the Defendant in custody of other officers. Detective Flynn approached Defendant and the officers. As he did so, the handheld device gave off a very strong audible signal. De- • tective Flynn testified that he approached the Defendant who was in custody and began to perform a search of him incident to arrest. He removed large amounts of money from Defendant’s front pockets. Detective Flynn went through the money and located the transmitter. Detective Flynn testified that he did not ask Defen
dant any questions, including where he obtained the money that was found in his pockets. Detective Flynn testified that Defendant was not
Mirandized
in his presence.
DISCUSSION
1.
Whether the Officers Had, Probable Cause to Arrest Defendant:
Under the Fourth Amendment, a warrantless arrest requires probable cause.
United States v. Lopez,
482 F.3d 1067, 1072 (9th Cir.2007), citing
Michigan v. Summers,
452 U.S. 692, 700, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested.
Lopez, supra,
citing
Beck v. Ohio,
379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The Ninth Circuit has alternatively defined probable cause as “when ‘under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime.’ ” Lopez, citing
United States v. Smith,
790 F.2d 789, 792 (9th Cir.1986). While conclusive evidence of guilt is not necessary to establish probable cause, “[m]ere suspicion, common rumor, or even strong reason to suspect are not enough.”
Id.,
citing
McKenzie v. Lamb,
738 F.2d 1005, 1008 (9th Cir.1984) (citing
Henry v. United States,
361 U.S. 98, 101, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)).
Defendant contends that the police did not have probable cause or reasonable suspicion to stop and detain him because there were no objective factors indicating that he was engaged in criminal activity. Defendant suggests that the officers stopped and detained him solely because he was a young African-American male adult and matched that general racial characteristic of the robber. Based on the hearing testimony, the Court finds no basis for this assertion.
Ms. Castle told the police that the robber was a young black male adult and provided a physical description of his height and weight and the clothing he was wearing. Ms. Castle’s description of the robber, including that he was wearing a maroon sweatshirt, was broadcast to officers. Police officers responded to the Albertson’s store and viewed the surveillance video which confirmed that a robbery had occurred. The police also determined from the video that the color of the sweatshirt worn by the robber was black or dark green and they also broadcast that corrected description. The decision to stop and detain Defendant, however, was not based on his matching the physical descriptions of the robber. The officers testified that Defendant was stopped, detained and arrested because the signal from the transmitter in the bait pack led the officers to the Texas Station and the vehicle Defendant was occupying and because Defendant fled when he was instructed by the officers to exit the vehicle and walk back toward them. Once Defendant was captured, Detective Flynn determined that the transmitter signal was emanating
from
Defendant’s body and the transmitter was discovered in the money removed from his pockets.
Defendant suggests that the police officers were not being truthful in testifying that the transmitter signal led them to the Defendant. Detective Spiotto did not state where he was located when the receiving unit in his vehicle began to receive signals from the transmitter. He testified, however, that he followed the directional arrows on the device to the Texas Station which is located approximately five miles
east of the Albertson’s store.
Upon arriving at the Texas Station, the arrow on Detective Spiotto’s tracking device pointed at the tan Chevrolet Monte Carlo automobile and continued to point at that vehicle as he circled around it, indicating that the transmitting device was in or very near that vehicle. Officer Bates testified that when the tracking device in his patrol car activated, he followed the directional display on the device which led him to the vicinity of Decatur and Lake Mead Boulevard. That intersection is less than a mile west of the Texas Station Casino. Upon hearing Detective Spiotto’s radio report that he had a strong signal at the Texas Station, Officer Bates proceeded to that location where he observed the suspect fleeing from Detective Spiotto into the garage.
Through cross examination, Defendant’s counsel established that the transmitter signal may contact various towers that are strategically located about the valley. Whether a particular tower becomes “hot” depends on the proximity of the transmitter to that tower. According to Defendant’s counsel’s cross-examination questions, dispatch records indicated that a tower near the Texas Station may have been “cold” at or near the time the officers responded to that location, whereas a tower located several miles away at the Meadows Mall was reported as “hot.” The dispatch logs or reports were not introduced into evidence. It was not clear from Detective Spiotto and Officer Bates’ testimony whether the receiving units in their vehicles receive signals directly from the transmitter or only through the towers. Neither officer appears to have the technical knowledge to accurately answer this question. Their descriptions of how the receiving units functioned tend to indicate, however, that the units in their vehicles received the signal directly from the transmitter because the signal became increasingly stronger the closer they came to the transmitter. This is also consistent with the testimony of Detective Flynn in regard to the handheld receiving device that he had. Based on the testimony and information provided during the hearing, the Court finds that Detective Spiotto’s and Officer Bates’ testimony that their receiving units picked up the signal from the transmitter is credible. The Court further accepts that it was the signal from the transmitter that led Detective Spiotto to the Texas Station and from there to identify the Monte Carlo automobile as the location of the transmitter.
The fact that the transmitter from the bait pack was located in the Monte Carlo automobile provided Detective Spiotto, at minimum, with reasonable suspicion to believe that the robbery money was in or near the vehicle and that the individual standing by the vehicle or a person inside the vehicle was the robber. Detective Spiotto and Officer Moon therefore had lawful grounds to stop and detain the occupants of the vehicle as robbery suspects. Reason to believe that Defendant Brown was the robber was, of course, greatly strengthened when he fled into the parking garage.
See Illinois v. Wardlow,
528 U.S. 119, 124-125, 120 S.Ct. 673, 676-77, 145 L.Ed.2d 570 (2000) (holding that unprovoked flight from police officers provides reasonable suspicion that the person is engaged in criminal activity). In contrast to
Wardlow,
Defendant did not mere
ly flee when he saw officers approaching him. He fled after being instructed by Detective Spiotto and Officer Moon to exit the vehicle and to walk back toward them. He continued to flee after Officer Bates and Cox, both of whom were in uniform, pursued him and instructed him to stop. This information, combined with the evidence that the bait pack transmitter was in the vicinity, provided probable cause to believe that Defendant was the robber. Any doubt that Defendant was probably the robber, was removed when Detective Flynn approached Defendant with his handheld tracking device and the signal from the transmitter became very strong.
Although Officer Cox testified that the detective asked for and received permission from Defendant to search his pocket, Detective Flynn testified that he did not ask for or obtain Defendant’s consent to search his person.
Detective Flynn testified, instead, that Defendant was in custody and he proceeded to search his person incident to arrest for obstructing the officers’ investigation by fleeing from them. Nevada Revised Statute (NRS) § 197.190 makes it a misdemeanor to willfully hinder, delay, or obstruct any public officer in the discharge of his official powers or duties. Based upon the totality of the circumstances, including the fact that Defendant fled from the officers and Detective Flynn’s tracking device indicated that the bait money transmitter was on Defendant’s person, the Court also finds that the officers had probable cause to arrest Defendant for the robbery. The Court therefore concludes, on either basis, that the search of Defendant’s person was a lawful search incident to arrest.
See United States v. Robinson,
414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973);
Knowles
V. Iowa,
525 U.S. 113, 116-17, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998).
2.
Suppression of Defendant’s Statements Under Miranda:
Officers Cox and Bates testified that as the detective approached the Defendant with the handheld tracking device, the Defendant stated that he did not have any narcotics, that there was no dope in his pockets and that the money in his pockets was not “dope money.” Defendant was in custody when he made these statements and he had not yet been informed of his
Miranda
rights. According to Officers Cox and Bates, however, Defendant made these statements before any questions were put to him by the police officers.
The
Miranda
rule prohibits admitting statements given by a suspect during custodial interrogation without prior warning. Custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody.”
Illinois v. Perkins,
496 U.S. 292, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990), quoting
Miranda v. Arizona,
384 U.S. 436, 444, 86 S.Ct 1602, 1612, 16 L.Ed.2d 694 (1966). Interrogation refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
Rhode Island v. Innis,
446 U.S. 291, 301 n. 5, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980);
United States v. Orso,
266 F.3d 1030, 1033 n. 1 (9th Cir.2001). The Court finds that Defendant’s spontaneous statements are not subject to suppression under
Miranda
because Defendant was not
subjected to custodial interrogation as defined
in Innis
prior to making those statements.
Officer Cox also testified that the detective asked Defendant where he got the money and Defendant responded that he got the money gambling. Detective Flynn testified, however, that he did not ask Defendant Brown any questions. Officer Cox’s testimony regarding Defendant’s alleged statement in response to the detective’s question where he got the money is subject to suppression under
Miranda
because it was made in response to express police questioning before Defendant was advised of his
Miranda
rights. Even though Defendant’s answer to the question is arguably not incriminating, it is still subject to suppression.
United States v. Orso,
266 F.3d at 1033 n. 1.
3.
Suppression of Ms. Castle’s Identification of Defendant as the Robber:
Shortly after the robbery occurred, Ms. Castle was taken to a nearby location where she was asked to observe two black male individuals who had been detained by the police. Ms. Castle observed these two individuals from inside the police car and informed the officer that neither individual was the robber. She was then returned to the store. After Defendant and the other two subjects were taken into custody at the Texas Station, Ms. Castle was taken to that location. The three subjects, all of whom were young black male adults, were placed side by side. Ms. Castle again observed them from inside the police car. She stated that the three individuals were approximately 20 feet from her. Ms. Castle testified that she immediately ruled out one of the individuals standing on the end because he was too tall to be the robber. She then identified the Defendant, who was standing in the middle, as the robber. Ms. Castle acknowledged that at the time she identified the Defendant, she was not 100 percent certain in her identification. She testified, however, that she was 90 to 95 percent certain. She also testified that she indicated to the police officer at the time that the Defendant’s clothing was different from that of the robber. The officer told her, however, not to be concerned about that because suspects may change their clothing. It appears, in fact, that Defendant may not have been in different clothing, but that Ms. Castle was simply mistaken in her belief that his sweatshirt was maroon in color. Although Ms. Castle was later informed that the bait money and transmitter were found on the Defendant, she was not informed of this prior to identifying the Defendant.
The Court may exclude identification evidence on due process grounds where it is impermissibly suggestive and unreliable.
Manson v. Brathwaite,
432 U.S. 98, 113-14, 97 S.Ct. 2243, 2252-53, 53 L.Ed.2d 140 (1977).
See also United States v. Montgomery,
150 F.3d 983, 992 (9th Cir.1998), citing
Neil v. Biggers,
409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The admissibility of identification evidence is governed by a two-step analysis. The first step is to determine whether the identification procedure was impermissibly suggestive. If the court finds that a challenged procedure is not impermissibly suggestive, the inquiry into the due process claim ends. If the court finds the procedure impermissibly suggestive, automatic exclusion of the evidence is not required. The court, instead, considers whether under the totality of the circumstances the identification is sufficiently reliable that it may be admitted even though it was made pursuant to an unnecessarily suggestive procedure.
United States v. Bagley,
772 F.2d 482, 492 (9th Cir.1985), citing
Manson v. Brathwaite, supra,
and
Neil v. Biggers,
409 U.S. 188, 198-99, 93
S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972). In determining whether the identification is sufficiently reliable, the court should consider the following factors: (1) the opportunity of the victim to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.
Bagley,
772 F.2d at 492.
In
Bagley,
the defendant was taken into custody within an hour and a half after a bank robbery. He was transported to the bank for the teller to observe him. The teller saw the defendant seated in a police car, handcuffed and surrounded by law enforcement officials. After getting a full view of the defendant and hearing his voice, the teller identified him as the robber. Nothing in the record indicated that the officers encouraged the teller to identify the defendant. The court noted that in
United States v. Kessler,
692 F.2d 584, 585 (9th Cir.1982), it held that a “one-on-one show-up” identification was a legitimate procedure so long as the witness was not encouraged to make the identification. The court therefore held that it was unnecessary to reach the issue of whether the teller’s identification was reliable.
Bagley,
772 F.2d at 492-93.
The identification procedure in this case was even less suggestive than the one approved in
Bagley
and
Kessler, supra.
Ms. Castle was presented with three black male subjects to observe at the Texas Station. She eliminated one of the subjects because he was too tall. It appears from her testimony that the other two subjects, one of whom was the Defendant, were of similar height and build. There is no evidence that the officer who was in the vehicle with Ms. Castle made any statement to encourage her to identify one of the individuals as the robber. Therefore, the identification procedure was not impermissibly suggestive. Although the Court is not required to reach the issue, Ms. Castle’s identification of Defendant was sufficiently reliable to overcome any suggestiveness in the procedure. Ms. Castle was face-to-face with the robber and clearly had the opportunity observe his face close-up. It is clear that her attention was also focused on the robber and his appearance. She observed the defendant and the two other subjects approximately an hour to an hour and a half after the robbery. Although she was not 100 percent certain that Defendant was the robber, she testified that she was 90-95 percent certain in her identification.
The one weakness in Ms. Castle’s identification of the Defendant was her belief that the robber was wearing a maroon sweatshirt and black jeans, instead of a dark green sweatshirt and blue jeans as was shown in the surveillance video. It appears, however, that Ms. Castle was accurate regarding the robber’s approximate age, weight and build, as well as the fact that he was a black male. The reliability of Ms. Castle’s identification is also strengthened by the fact that she had earlier ruled out two other suspects. Her testimony also indicates that she took care to make sure that she accurately identified the robber. Ms. Castle’s identification of Defendant as the robber is therefore sufficiently reliable to be admissible at trial. Her inaccuracy regarding the color of the robber’s clothing goes to the weight that should be accorded to her identification testimony and not to its admissibility.
CONCLUSION
Based on the foregoing, the Court concludes that the police had probable cause to stop, detain and arrest Defendant Deandre Brown as the person who robbed Ms.
Castle at the Alberton’s supermarket. The officers also had valid grounds to search Defendant incident to arrest. The physical evidence seized from the Defendant, his spontaneous statements to the officers, and his identification by the alleged victim are therefore not subject to suppression under the Fourth Amendment. Defendant’s spontaneous statements to the officers prior to any questioning are also not subject to suppression under
Miranda
because they were not made during custodial interrogation. Officer Cox’s testimony that Defendant stated he obtained the money gambling in response to a question from the detective, however, should be suppressed because Defendant was in custody and had not been informed of his
Miranda
rights. The Court also concludes that the circumstances regarding Ms. Castle’s identification of Defendant were not impermissibly suggestive to require exclusion of her identification testimony. Ms. Castle’s identification was also sufficiently reliable to overcome any suggestiveness in the identification procedure. Accordingly,
RECOMMENDATION
IT IS RECOMMENDED that Defendant’s Motion to Suppress Evidence Obtained in Violation of the Fifth and Fourth Amendments (# 16) be denied with the exception of Officer Cox’s testimony that Defendant stated he obtained the money gambling in response to a question from the detective. That portion of Defendant’s Motion (# 16) should be granted on the ground that Defendant’s alleged statement was obtained in violation of
Miranda.
IT IS FURTHER RECOMMENDED that Defendant’s Motion to Suppress Identification Evidence (# 17) be denied.