United States District Court, D. Oregon
For Brian Scott Harper, Defendant: Craig E. Weinerman, LEAD ATTORNEY, Office of the Federal Public Defender, Eugene, OR.
For State of Oregon Department of Motor Vehicles, Interested Party: Samuel A. Kubernick, LEAD ATTORNEY, Department of Justice, Salem, OR.
For USA, Plaintiff: Frank R. Papagni, Jr., United States Attorney's Office, Eugene, OR.
OPINION AND ORDER
Ann Aiken, United States District Judge.
Defendant is charged with felon in possession of a firearm under the Armed Career Criminal Act. 18 U.S.C. § § 922(g)(1), 924(e). Defendant now moves to suppress the out of court identification of him by four law enforcement officers, arguing that the identification procedures were unduly suggestive and inherently unreliable.
On April 16, 2014, the court heard oral argument and testimony from seven witnesses. The motion is granted, in part.
On July 24, 2010 at approximately 12:35 a.m., Benton County Sheriff Deputies Aaron Gevatosky and Brian Lundy were in a patrol car traveling west on Highway 20 near Philomath, Oregon, when they noticed an oncoming motorcycle. As the motorcycle passed by the patrol car, Gevatosky looked in his rear view mirror and saw that the motorcycle did not have an operating tail light. Driving a motorcycle without a tail light is a traffic violation. See Or. Rev. Stat. § 816.320(1)(b).
As Gevatosky slowed, both deputies could hear the motorcycle accelerating. Gevatosky turned the patrol car around and activated the emergency overhead lights, siren, and video recording device. Gevatosky and Lundy soon caught up with the motorcyclist and estimated the motorcycle's speed at 110 miles per hour. Despite the activation of the overhead lights and siren, the motorcyclist did not stop.
The motorcyclist was headed eastbound toward Philomath. The patrol supervisor, Deputy James Hardison, advised Gevatosky that if the motorcycle entered Philomath at those speeds, he was to " shut down" the pursuit. Gov't Ex. 7, Ex. 8 (audio recording).
Philomath Police Officers Matt Moser and James Thurman were parked in separate patrol cars on Highway 20 at Garrett Lane. As the motorcyclist approached that location, Gevatosky and Lundy saw him throw a large white cloth containing a black item toward the center of the roadway.
Thurman heard Gevatosky announce over the police radio that the motorcyclist had thrown something from the motorcycle, possibly a gun. Moser joined the pursuit of the motorcycle, while Thurman looked and found a 12-gauge, sawed-off, single-barreled shotgun lying on Highway 20. After learning about the gun, Hardison told Gevatosky to continue the pursuit but to use his best judgment as to speed and traffic. Gov't Ex. 8 (audio recording at 6:43-7:00).
Benton County Sheriff Deputy Christopher Duffitt and Reserve Deputy Brian Horn were in a patrol car parked on the north side of Highway 20, facing westbound near milepost 47. Duffitt directed the patrol car's headlights at the approaching motorcyclist and pointed his patrol car's spotlight at the motorcyclist as he passed. The motorcycle drove by Duffitt and Horn at approximately eighty miles per hour. Transcript of Proceedings (Tr.) at 22, 56 (April 16, 2014). Duffitt and Horn estimated that they viewed the motorcyclist for two to five seconds. Tr. 58-59, 61, 84. Duffitt and Horn then joined the pursuit.
Hardison's patrol car was parked at the intersection of Main and 21st Streets in Philomath, with Brent Iverson's patrol car parked behind him. The patrol cars' headlights were on and pointed perpendicular to Highway 20.
As the motorcyclist passed by Hardison and Iverson, he reportedly slowed to approximately fifty miles per hour and waved at the deputies. Tr. 23, 25, 109-10. Hardison reportedly saw the motorcyclist's face for approximately five seconds. Tr. 114. On an audio recording at about this time, Hardison is heard describing the motorcyclist as a " heavy set male, probably forty-five years old, thick ...