United States District Court, D. Oregon
OPINION AND ORDER
ANN AIKEN, District Judge.
Defendant is charged with damaging religious property in violation of 18 U.S.C. § 247(c) and using fire to commit a felony in violation of 18 U.S.C. § 844(h) (1). The charges arise from an arson committed on November 28, 2010 at the Salman Alfarisi Islamic Center, a mosque located in Corvallis, Oregon. Defendant moves to suppress the results of DNA testing conducted on two objects: a soda bottle cap and a flashlight. Defendant argues that the DNA testing methodology was unreliable and that the government cannot establish that the DNA samples were taken from items found at the arson scene.
On January 6, 2015, the court heard oral argument and testimony from several witnesses and the parties subsequently submitted supplemental briefing. Defendant's motion is granted with respect to the bottle cap and denied with respect to the flashlight.
During the early morning hours of November 28, 2010, a member of the Corvallis Police Department noticed smoke and flames emitting from the mosque. The Corvallis Fire Department responded and an investigation revealed that the fire was intentionally set. According to the government, the arson occurred shortly after reports of a potential bombing at the Portland Christmas Tree-Lighting Ceremony.
The fire was contained to the office area of the mosque. Gasoline had been poured along the sill of a broken window and on the carpet near the window. Outside, Corvallis Police Sergeant Jef Van Arsdall discovered a two-liter soda bottle about four to five feet from the broken window. The top of the bottle was melted, as if exposed to heat, and it contained a liquid that smelled like gasoline. Sgt. Van Arsdall also discovered a blue Mag-Lite flashlight lying in the walkway leading to the entrance of the mosque. Gov't Ex. 1 at 1, 3.
Sgt. Van Arsdall reported that he also observed a brick and "a white bottle cap just to the south of the brick" near the broken window. Gov't Ex. 1 at 1, 3. Sgt. Van Arsdall reported that he collected the "observed evidence" and "placed each piece of evidence into its own bag." Gov't Ex. 1 at 3. However, no police report or evidence log indicates that a bottle cap was collected, logged into evidence, or placed in an evidence bag. Sgt. Van Arsdall then gave the evidence items to Corvallis Police Officer Greg Blount to be catalogued as evidence. Ofc. Blount documented the evidence and listed 18 items, including the flashlight and the brick; however, the evidence list does not reference a bottle cap. Def. Ex. A at 4; Gov't Ex. 1 at 1-2.
Shortly thereafter, Corvallis Police Detective Tyson Poole transported the soda bottle to the police station "in an attempt to process and fingerprint it." Gov't Ex. 1 at 11; see also Def. Ex. A at 4. Det. Poole removed the label from the soda bottle and placed it in a new evidence envelope and labeled it JTP1. He also "placed the bag the bottle was originally placed in" into another" evidence envelope and labeled it JTP2. Gov't Ex. 1 at 11. He then placed the soda bottle itself into a third evidence envelope and labeled it JTP3. Det. Poole photographed each of these items and described JTP2 as a "bag w/burned residue originally holding JTP3." Def. Exs. B, C. Det. Poole's report does not reference a bottle cap or reflect that he observed or photographed a bottle cap. Det. Poole sealed the evidence envelopes, and they were transported to the Portland FBI office and relabeled; according to the government, JTP2 was relabeled as 1B:3.
Meanwhile, law enforcement officers canvassed the neighborhood surrounding the mosque for witnesses. At 11:00 a.m., approximately seven hours after the fire, defendant was interviewed by FBI Special Agent Melanie Wissel and Corvallis Police Detective Bryan Rehnberg. Defendant stated that he had learned about the fire from news reports but denied knowing anything else about it. When SA Wissel asked if he had further information, defendant volunteered that his blue Mag-Lite flashlight had been stolen from his porch, and he expressed anger about the theft. At that point, it was not public knowledge that a similar flashlight had been found at the arson scene.
Detectives Rehnberg and Poole returned to defendant's home around 5:00 p.m. on November 28 and showed him a picture of the flashlight found at the mosque. Defendant admitted that it looked like his flashlight.
Two search warrants were obtained and executed at defendant's home during the early morning and evening hours of November 29. Law enforcement authorities seized cans of motor oil and a partially full gasoline can, along with batteries similar to those found in the flashlight and defendant's laptop computer. Numerous soda bottles were also found at defendant's home, though the government maintains that no soda bottle or bottle cap were seized from defendant's residence. The next day, officers returned with a third search warrant and obtained swabs of defendant's DNA.
On November 29, 2010, evidence from the arson scene was shipped to FBI laboratories in Quantico, Virginia. The envelope labeled JTP2/1B:3 was received by the Explosives Unit on November 30, 2010 and apparently entered into evidence as Exhibit Q3. Def. Ex. K at 1; Gov't Ex. 6. Q3 was transferred within the unit on December 7, 2010 and again on February 23, 2011. Def. Ex. K at 1, 3. At this point in the chronology of documents, no police report, evidence log, or chain-of-custody report references a bottle cap collected from the arson scene.
On January 5, 2011, Corvallis Police Officer Bretton Roach issued a report and discussed the absence of the bottle cap:
In the course of this investigation, I learned that a bottle cap had been located at the scene. The bottle cap was located by Sgt. Van Arsdall during his initial response. It was located in conjunction with the two-liter bottle of Fanta and a brick. Sgt. Van Arsdall later indicated that he did seize all of those items as potential evidence. The items were initially placed in Sgt. Van Arsdall's vehicle. When Ofc. Blount arrived on scene, he was designated as the primary officer for the incident. Sgt. Van Arsdall gave the seized items to Ofc. Blount to be entered into Evidence.
In reviewing the list of seized property related to this case, I cannot find any documentation of the bottle cap being entered into the Corvallis PO Evidence. On 01-04-11, I confirmed with [Special Agent) Soule that the FBI was not in possession of the bottle cap.
Based on the fact that the bottle cap is not in the Corvallis PO Evidence storage, and it is not stored by the FBI, it appears that the bottle cap was initially seized, but was never entered into Evidence. I am unable to account for the location of the bottle cap at this time. If the cap is located in the ...