The opinion of the court was delivered by: Wiley Y. Daniel U. S. District Judge
THIS MATTER is before the Court on several pretrial motions filed by Defendant including several motions to suppress and a motion to sever counts for trial. The Government filed a consolidated response, and hearings were held on January 19, 2006, and February 2, 2006.
Detective Ricardo Hernandez of the Mountain View Police Department testified that on January 8, 2005, at 3:07 a.m., he pulled over a Mercedes sedan going 65 mph in a posted 35 mph zone. As Detective Hernandez got out of his patrol car and approached the vehicle, he observed the driver put the car into reverse and begin to back up in his direction. As the vehicle passed, Detective Hernandez struck the driver's side rear window with his flashlight, losing the flashlight in the process. Detective Hernandez testified that the area was well lit, and that he was able to see the driver and observe that the driver was the vehicle's only occupant. Detective Hernandez estimated that he came within three feet of the vehicle as it sped off. Detective Hernandez tried to chase the vehicle in his patrol car, but lost sight of it. A short time later, Detective Hernandez learned that Denver police officers had located the Mercedes at 41st Avenue and Winona Court in Denver, Colorado, which was approximately ten blocks from the site of the attempted traffic stop. Detective Hernandez drove directly to the scene and located his flashlight in the vehicle, which had been abandoned after colliding with three parked cars. In plain view in the rear passenger's side of the vehicle, Detective Hernandez and the Denver officers also found a loaded Winchester, Model 1200, 12 gauge shotgun, serial number 301630, with a barrel of 13 and 3/4 inches in length and an overall length of 25 and 3/8 inches, in the back seat and a loaded Ruger, Model 10/22, .22 caliber rifle, serial number 234-24356, in the trunk of the vehicle. They also located a Halloween mask, a digital scale, and baggies. One of the Denver officers also found an ID card in a first-aid pouch. The ID card was shown to Detective Hernandez at the scene and Detective Hernandez identified the photograph on the ID card as the same individual he saw driving the Mercedes.
Witness Yvonne Verdugo, whose home is very near the crash site, testified that at 3:15 a.m. on the morning of January 8, 2005, she awoke to the sound of a car crash outside her bedroom window. As she looked out the window, she observed a Mercedes that had crashed into her Nissan Maxima as well as several other cars. Ms. Verdugo testified that she observed the sole occupant of the Mercedes, whose face was illuminated by the dome light of the vehicle, appear to struggle with the gears. Ms. Verdugo testified that she looked at the driver of the Mercedes for about 30 seconds before leaving her home to confront the driver and get his license plate number.
On March 4, 2005, special agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives met with Ms. Verdugo. One of the agents explained to Ms. Verdugo that he was going to show her a six-photo lineup, but that she was not obligated to identify any of the individuals in the lineup if she did not recognize anyone. After looking at the photographs, Ms. Verdugo picked the photograph of the Defendant and stated that he was the person driving the Mercedes on the morning of January 8, 2005. She explained that, because the driver was wearing a hat, she could not be certain as to the hair. She then circled the photograph she selected, signed her name to the lineup, and wrote underneath the photograph, "IF HAIR WAS THE SAME." Ms. Verdugo testified that the agents did not attempt to influence her choice nor did they tell her she had made a good or bad choice, nor did they tell her what to write.
On the evening of March 12, 2005, officers from the Westminister Police Department Special Crime Attack Team were working undercover in the City of Thornton. One of the Westminster officers testified that the officers observed a red Ford pickup with Colorado license plate at a residence in Thornton and began following the vehicle. The officers had information that the individual who usually drove the pickup had an active arrest warrant. The officers observed the driver of the pickup fail to signal while making a left turn, and decided to stop the pickup due to the violation of the traffic laws. After the officers stopped the pickup, and as they exit their vehicle, the driver of the pickup, later identified as the Defendant, immediately exited the pickup and began walking towards the officers. One of the officers instructed Defendant to stop. Defendant eventually stopped after the officer instructed him to do so several times. Defendant could not produce a driver's license, had no proof of insurance, and was verbally abusive to the officers. Defendant told the officers that his name was Robert Gonzales, born on August 30, 1976, and that he did not have his driver's license with him. After determining that there was no driver's license listing under the name and date of birth Defendant provided, the Westminster officers arrested the Defendant for driving without a license, no proof of insurance, and providing false information. Throughout the stop and investigation, Defendant refused to stand, argued with officers, struggled and turned away, and hindered the officer's ability to place handcuffs on him. One of the Westminster officers searched Defendant incident to arrest and found two rounds of Chinese-made 7.62 x 39 mm ammunition in Defendant's pants pocket. When Thornton police officers arrived at the scene they were briefed about the arrest. Defendant was then transported by the Thornton police to the Thornton - Westminster border and turned over to the Westminster police for booking.
On March 14, 2005, Defendant was interviewed by case agents in custody at the Adams County Jail. One of the agents testified that the interrogation took place in a large, open room at 4:45 p.m. Defendant was not handcuffed. Defendant was informed of his Miranda rights and provided a written form detailing those rights. Defendant indicated that he understood his rights and wished to waive them in order to talk to the agents. He then signed the written form. After the form was completed, Defendant was interviewed and made statements to the agents. The agent testified that Defendant never asked to stop the interview and never asked for an attorney, and that no threats or promises were made to Defendant.
Defendant was subsequently charged with two counts under 18 U.S.C. §§ 922(g)(1), possession of a firearm and ammunition by a prohibited person, and one count alleging violations of 26 U.S.C. §§ 5841, 5871(d) and 5871, possession of an unregistered short shotgun. Counts I and II of the Indictment charge that on or about January 8, 2005, Defendant unlawfully and knowingly possessed an unregistered short shotgun and, having been previously convicted in 1997 in the District Court of Denver County Colorado, did unlawfully and knowingly possess other firearms including a Winchester Model 1200, 12 gauge shotgun, and a Ruger, Model 10/22, /22 caliber rifle. Count III of the Indictment charges that on or about March 12, 2005, Defendant, having been previously convicted in 1997 in the District Court of Denver County, Colorado, did unlawfully and knowingly possess two rounds of Chinese made 7.62 x 39 mm ammunition.
A. Motion to Suppress Identification
Defendant moves to suppress the eye-witness testimonies of Officer Hernandez and Ms. Verdugo. Defendant contends that Officer Hernandez's identification of him based on the ID card found in the abandoned Mercedes amounts to a "one-on-one show up," and that the discovery tendered by the Government does not indicate that any "extraordinary circumstances" necessitated the suggestive "show-up" procedure. Defendant also contends that Ms. Verdugo's identification of Defendant was the result of an impermissibly suggestive photo lineup procedure. In his Motion, Defendant requests that the Court examine the totality of the circumstances surrounding the "oneon-one show up" and the photo lineup to determine whether the eye witness identification procedures violate Defendant's due process rights such that the evidence of the identifications should be excluded from trial.
As to Officer Hernandez's identification, the Government contends that there was no "one-on-one show-up." According to the Government, a "show-up" occurs when the police present a single individual to a witness for identification purposes. In this case, the ID card viewed by Officer Hernandez was not presented to him under suggestive circumstances. Rather, the ID card was evidence in the Mercedes that Officer Hernandez examined as he would any ...