United States District Court, E.D. Virginia, Alexandria Division
T. S. Ellis, III United States District Judge
An indictment has issued charging defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At issue on defendant's pre-trial motion is whether controlling precedent requires exclusion of the testimony of a firearms seller who, when shown a single photograph of defendant one to three hours after a firearms sale, was able to identify defendant as the person who purchased and took possession of three firearms from him. Defendant claims that showing the seller a single photograph of defendant constitutes an unduly suggestive identification that must be excluded. The government contends that exigent circumstances required the use of the single photograph, and in any event, that the totality of the circumstances confirms the reliability of the identification.
The matter has been fully briefed, argued orally, and resolved by a bench ruling denying the motion on the basis of findings of fact and conclusions of law. United States v. Weiss, 1:15-cr-354 (Feb. 26, 2016) (Order) (Doc. 48). This Memorandum Opinion records and elucidates the reasons for denying defendant's motion to exclude.
On February 26, 2016, the following witnesses testified during a hearing on defendant's motion to exclude the testimony of an unduly suggestive identification of defendant:
(i) Stephen L. Smith, Jr., a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF");
(ii) Jerry Crawford, the firearms seller who identified defendant as the purchaser of three firearms from him;
(iii) Brian Guay, an ATF special agent; and
(iv) Shannon Davis, defendant's brother.
The testimony of all four witnesses was cogent and credible. The pertinent facts, derived from the testimony of these four witnesses and the exhibits admitted during the February 26, 2016 hearing, may be succinctly summarized.
• On April 25, 2015, several ATF special agents conducted surveillance operations at The Nation's Gun Show at the Dulles Expo Center in Chantilly, Virginia, within the Eastern District of Virginia.
• At The Nation's Gun Show, federal firearms license holders sell firearms and other weapons. Private individuals, who are not federal firearms license holders, also advertise the sale of their personal firearms.
• ATF special agent Smith and his partner were assigned that day to a group responsible for patrolling the parking lot to look for unlawful firearms purchases.
• Shortly after 4:00 p.m., ATF special agent Smith observed an African-American male with long dreadlocks, speaking on a cellular phone and standing on a sidewalk outside the Dulles Expo Center. This individual was wearing a red sweater with a yellow strip and a knit cap. ATF special agent Smith observed the individual from approximately ten feet away from the individual.
• During this observation, ATF special agent Smith was seated in the front passenger's seat of an unmarked law enforcement vehicle, while his partner drove that vehicle slowly through the parking lot.
• Thereafter, at approximately 4:30 p.m., ATF special agent Smith observed the same African American male speaking with a Caucasian male, later identified as Jerry Crawford, at the rear of a red Volkswagen Passat. The vehicle's trunk was open.
• ATF special agent Smith took several photos of the interaction between the African American male and Crawford.
• ATF special agent Smith observed Crawford showing what appeared to be a firearm to the African American male (hereinafter the "Buyer"). Although ATF special agent Smith was not close enough to observe the faces of Crawford and the Buyer, ATF special agent Smith was able to identify the Buyer as the same individual he had observed at approximately 4:00 p.m. because (i) the Buyer was wearing the same distinctive red sweater with a yellow stripe and the same knit cap, and (ii) the Buyer had the same distinctive long dreadlocks.
• At this point, ATF special agent Smith used his radio to alert other ATF special agents stationed around the The Nation's Gun Show that ATF special agent Smith and his partner were observing what appeared to be a suspicious firearms transaction in the parking lot.
• ATF special agent Smith and his partner remained stationary in their vehicle and continued to observe the interaction.
• ATF special agent Smith next observed what appeared to be a transaction for a firearm. Specifically, ATF special agent Smith observed: (i) the Buyer hand to Crawford what appeared to be currency, and (ii) Crawford hand to the Buyer what appeared to be a pistol case.
• After Crawford and the Buyer spoke for a few more minutes, and after the Buyer appeared to handle something in the trunk, ATF special agent Smith observed: (i) the Buyer hand to Crawford what appeared to be additional currency, and (ii) Crawford hand to the Buyer what appeared to be a second pistol case.
• ATF special agent Smith then observed: (i) the Buyer hand to Crawford what appeared to be currency, (ii) Crawford hand to the Buyer what appeared to be a rifle case, and shortly thereafter, (iii) the Buyer walk across the parking lot, carrying what appeared to be two pistol cases and a rifle case.
• In total, the interaction between Crawford and the Buyer lasted approximately fifteen minutes. ATF special Agent Smith observed the interaction for approximately ten minutes.
• Although ATF special agent Smith was unable to maintain eyes on the Buyer as the Buyer walked across the parking lot, other ATF special agents were able to maintain a visual on the buyer during his entire walk across the parking lot. Specifically, another ATF special agent, who was located in a sixth floor hotel room, was able to follow, ...