The opinion of the court was delivered by: Deborah M. Smith United States Magistrate Judge
FINAL REPORT AND RECOMMENDATION*fn1 REGARDING SUPPRESS UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE
Defendant Jeramy Freriks (hereafter Freriks) is charged with four counts of forgery of securities in violation of 18 U.S.C. § 513(a), one count of unlawful possession of five or more documents or authentication features in violation of 18 U.S.C. § 1028(a)(3), (b)(1)(A), and (b)(1)(B), one count of aggravated identify theft in violation of 18 U.S.C. § 1028A(a)(1), and one count of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). His co-defendant in this case, Rodney Lee Drake, is charged with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and one count of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).
Freriks filed this motion at Docket 24 requesting that the Court preclude the admission of in-court and out-of-court identification evidence. He argues that law enforcement's identification procedures in this case failed to comply with due process requirements because the procedure was unduly suggestive, giving rise to a substantial likelihood of misidentification, and the resulting eyewitness identification was not reliable.
The Government opposes the motion. It asserts that the procedure law enforcement used to obtain an eye-witness identification of Freriks was not unduly suggestive and, even if this Court were to consider the procedure suggestive, the witnesses' identification of Freriks was nonetheless reliable.
An evidentiary hearing was held on February 8, 2011. At the hearing, Postal Inspector Matt Hoffman testified regarding the eye-witness identification procedure used in this case and the facts surrounding the witnesses' identification of Freriks. The transcript for the evidentiary hearing is located at Docket 34.
A. Incident on January 15, 2008
On January 15, 2008 a housekeeper at America's Best Suites, located on Spenard Road in Anchorage, Alaska, found a nine millimeter semi-automatic handgun underneath a pillow in room number 105. (Tr. at 8, 10). The room had been registered the prior night to Rodney Drake. (Tr. at 9). The person working at the front desk, Gengly Cortez, observed two men as they were checking out of room 105. (Tr. at 60). At the time the housekeeper found the gun, the two men had already checked out of the room and therefore when Mrs. Cortez observed the men check out, she was unaware of the gun or of any other unusual circumstance. (Tr. at 9, 63).
The housekeeper, Esther Rastopsoff, brought the gun to the front desk. Ms. Rastopsoff and Ms. Cortez called the police about the gun. They were frightened and concerned that the men might come back for it. (Tr. at 10). An Anchorage Police Department (APD) officer responded to the call at about 1:00 p.m. The officer took possession of the firearm, and left the hotel. (Tr. at 9, 61). Shortly thereafter, one of the men from room 105, the younger of the two, came back to the front desk of the hotel to inquire about the gun. (Tr. at 10, 21, 64). Both Ms. Rastopsoff and Ms. Cortez were at the front desk and observed the man. (Tr. at 22, 64, 66). He asked if he could go back into the room because he had left his gun or something in there and did not want the police to come. (Tr. at 65-66). Ms. Cortez reported that she told the man that the housekeeper had already cleaned the room and declined to give him a key to get back in, so the man left. (Tr. at 64-65).
Shortly after the APD officer had left the hotel and about the time the young man returned, the APD officer checked the name Rodney Drake and discovered that he had outstanding felony warrants. (Tr. at 61). The officer talked to the women at the hotel again and asked that they contact the APD if anyone came back for the gun. The women told the officer that someone had just come back for it and that he was just then leaving the hotel parking lot in a red SUV turning eastbound on Spenard Road. (Tr. at 11).
The APD began looking for the red SUV. An officer spotted the vehicle and at that point the vehicle began to elude him. (Tr. at 11-12). The officer was not able to stay with the red SUV, but it was eventually spotted again around International and Spenard Roads. The vehicle stopped at the Millennium Hotel in Anchorage and the occupants attempted to flee on foot. (Tr. at 12). Officers apprehended the two men who ran from the vehicle. They first caught the passenger, Rodney Drake. (Tr. at 12). The driver, Freriks, was caught in the basement of a nearby home that he had broken into as he fled from the police. (Tr. at 13).
Pursuant to the arrest of Freriks and Drake, the APD officers obtained evidence that is the basis for the charges in this case. Specifically, on Freriks, the officers found counterfeit Alaska driver's licenses bearing Freriks's picture but having different names on each one. (Tr. at 13). They also found a number of personal checks in the names of other people, some of which were linked to the licenses found. (Tr. at 13). After obtaining a search warrant for the red SUV, the officers found a backpack that contained stolen mail and additional counterfeit identification cards. (Tr. at 13-14). They also found a brown bag that contained the personal effects of Mr. Drake and a ...