Case 3:16-cr-00051-BR

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BILLY J. WILLIAMS, OSB #901366

United States Attorney
District of Oregon
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys
ethan.knight@usdoj.gov
geoffrey.barrow@usdoj.gov
craig.gabriel@usdoj.gov
1000 SW Third Ave., Suite 600
Portland, OR 97204-2902
Telephone: (503) 727-1000
Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
UNITED STATES OF AMERICA
v.
SHAWNA COX,

3:16-CR-00051-BR-7
GOVERNMENTS RESPONSE TO
DEFENDANTS MOTION TO SUPPRESS
EYEWITNESS IDENTIFICATION (#975)

Defendant.
The United States of America, by Billy J. Williams, United States Attorney for the
District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel,
Assistant United States Attorneys, hereby responds to defendant Shawna Coxs Motion to
Suppress Eyewitness Identification (ECF No. 975) and the supporting Memorandum (ECF No.
976).
I.

Facts
On January 9, 2016, as the occupation of the Malheur National Wildlife Refuge

continued, the FBI received a lead that a local rancher, JO had recently visited the Refuge

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because he wanted to take a look at the facility. FBI Special Agent Clayton Smith arranged a
meeting with JO at the Hilander Restaurant, located on Broadway Avenue in Burns, Oregon.
Smith picked up JO in front of the restaurant and parked his vehicle on the street, where they
spoke discreetly in Smiths vehicle. It was nighttime, and there were numerous militia
members in the area.

Smiths purpose for meeting with JO was simply to find out what JO had

seen inside the Refuge.

While being interviewed, JO mentioned two or three crazy guys at the Refuge whom
he believed had a heightened proclivity for violence and seemed, in his estimation, more willing
to violently confront law enforcement.

In order to identify those people, Smith showed JO a

photospread containing photos, names, and dates of birth of 44 people believed to be actively
participating in the occupation.

Smith had a photospread with him for his own personal use in

the course of the investigation and not expressly for witness identification purposes. Smith
used a flashlight to shine a light on the photospread, so JO could see it clearly inside the dark
vehicle.

Smith did not anticipate that JO would be able to make an identification, nor did he

bring the photospread to the interview for that purpose.

While being shown the photospread for the purpose of identifying the crazy guys, JO
also spoke of five women cooking in the kitchen and all of them were wearing holstered
handguns. JO further believed that they were not used to wearing them because they were
walking around in an uncomfortable manner.

Looking at the first page of the photospread,

which contained 30 photographs, JO initially identified one of the women in the kitchen as MH,
before also identifying DP as one of the women.

When JO was shown the second sheet of the

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photospread, which contained fourteen photographs, he changed his mind as to DP, instead
identifying defendant as one of the women he had seen with a firearm.
similar ages and have similar hair color.

DP and defendant are

Smith circled the photos on the sheet at JOs direction.

JO failed to identify the crazy guys.

II.

Governments Position
It is the governments position that the eyewitness identification evidence challenged by

defendant should not be suppressed. The procedure used to facilitate JOs identification of
defendant was not unnecessarily suggestive under the circumstances.

However, if this Court

determines that the identification was suggestive, JOs identification was sufficiently reliable to
weigh in favor of admissibility.1

Further, to the extent that the identification evidence may be

unreliable or suggestive, suppression is not the proper remedy. Instead, a determination of the
identifications credibility is more properly reserved for the jurys judgment.

Defendants

Motion should be denied.

III.

Analysis
If pretrial identification procedures do not result in a likely misidentification, there is no

constitutional violation. It is the likelihood of misidentification which violates defendants

right to due process. Neil v. Biggers, 409 U.S. 188, 198 (1972). [A] photographic
identification procedure [cannot be] so unnecessarily suggestive as to give rise to a very

Defendant Cox has informed the government that she intends to call JO as a witness at the
suppression hearing. The government respectfully requests that the Court defer ruling on the
reliability of the identification until after Agent Smith has testified. JOs testimony is not
relevant to the question of whether the identification procedure used in this case was
unnecessarily suggestive.
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substantial likelihood of irreparable misidentification. Perry v. New Hampshire, 132 S. Ct.

716, 724 (2012) (quoting Simmons v. United States, 390 U.S. 377, 384-85 (1968)) (internal
alterations omitted). Thus, reliability is the linchpin in determining admissibility of
identification . . . . Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
An identification procedure is suggestive when it emphasizes the focus upon a single
individual thereby increasing the likelihood of misidentification. United States v.
Montgomery, 150 F.3d 983, 992 (9th Cir. 1998) (quoting United States v. Bagley, 772 F.2d 482,
493 (9th Cir. 1985)) (internal brackets omitted). For an identification to be excluded it must be
unnecessarily suggestive based on the totality of the circumstances around it. Stovall v.
Denno, 388 U.S. 293, 302 (1967). Thus, where a suggestive procedure is necessary or
imperative it will nevertheless be allowed. Id. Suggestive [photospreads] are disapproved
because they increase the likelihood of misidentification, and unnecessarily suggestive ones are
condemned for the further reason that the increased chance of a misidentification are gratuitous.
Biggers, 409 U.S. at 198. Finally, the suggestiveness of a procedure, if any, will be weighed
against the reliability of the witness to determine whether there is substantial likelihood of
irreparable misidentification. Perry, 132 S. Ct. at 724. Suggestive identifications that are
nevertheless reliable are not subject to exclusion.
A.

The Photospread Shown to JO Was Not Unnecessarily Suggestive

Because the linchpin is reliability, a photospread will only be suggestive where its
features are so distinct . . . as to single [the defendant] out. United States v. Portillo, 633 F.2d
1313, 1324 (9th Cir. 1980). Further, the potential for improper influence in pretrial

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confrontations is illustrated by the circumstances . . . . Perry, 132 S. Ct. at 732 (quoting United
States v. Wade, 388 U.S. 218, 233-234 (1967)) (internal brackets omitted). Thus, for a pretrial
identification to be impermissibly suggestive, the circumstances must have influenced the
witness in some way to likely make an irreparable misidentification. See, e.g., United States
v. Johnson, 820 F.2d 1065, 1072-73 (9th Cir. 1987) (holding that because the lineup did not
focus witnesss attention on the defendant, it was properly conducted).
An arrangement of photos containing very dissimilar pictures does not make the
identification suggestive. Id.; see, e.g., United States v. Robertson, 606 F.2d 853, 857 (9th Cir.
1979) (Mere variations in appearance among persons or photographs presented to a witness do
not automatically invalidate a pretrial certification.). Further, even where it contained only one
photo resembling defendant, a photospread is not unduly suggestive because it cannot be said
that [the defendants] picture would inevitably be selected . . . . United States v. Monks, 774
F.2d 945, 956 (9th Cir. 1985); see Foster v. California, 394 U.S. 440, 443 (1969).
There is nothing about the photospread used in this case that would have directed JOs
attention to defendant. JO told the officer he had seen five females at the Refuge who he
described as armed, walking around in an uncomfortable manner, and cooking in the kitchen.
The photospread he used contains pictures of 44 people34 men and 10 women. Of the nine
women, two, DP and DB, look substantially similar to defendant. But there is no requirement
that pictures look similar. People contained in a line-up can look very dissimilar. Robertson,
606 F.2d at 857; see also United States v. Beck, 418 F.3d 1008, 1012 (9th Cir. 2005) (approving
a lineup where only one individual had facial hair); United States v. Carbajal, 956 F.2d 924, 929

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(9th Cir. 1992) (approving the use of a lineup where defendant was only one with wig and
bruises on his face). Further, of the nine women, four, DP, DB, ML, and LM, were born within
only 11 years of defendant and appear to be similar in age. Large variances in age do not make
an identification procedure suggestive. See United States v. Gaines, 200 F. Appx 707, 710 (9th
Cir. 2006) (holding that a lineup with people 19 and 16 years younger than defendant was not
unnecessarily suggestive).
The names and dates of birth are located under each photo in the photospread. But while
a name or other information under a photograph can be suggestive if it draws attention to any
one photo in the array, that information could not have influenced JO into making an irreparable
misidentification. A defendants name, when listed on a photospread, without more, is not
enough to render the identification unduly suggestive. See Cameron v. Brown, No. CV 1500774-RGK (JPRx), 2016 WL 796011, at *5 (C.D. Ca. Feb. 22, 2016) (slip copy) (photo line-up
not suggestive where defendants name appeared at bottom of photo array). It follows that the
appearance of names under all photos in an array is even less suggestive, as that information
could not alone draw attention to one photograph over another. Indeed, JO identified
defendants photo in spite of the 44 names listed in the photospread, not because of them. Cf.
Prado v. McEwen, No. CV 12-1447-JGB (JPR), 2013 WL 2417951, at *17 n.16 (C.D. Cal.
June 3, 2013). Further, there is no indication that JO knew defendants name, so the names
could not have influenced the identification.
Nor was the line-up unnecessarily suggestive because it indicated that those depicted in
the array, including defendant, were prominently the focus of a criminal investigation. While a

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line-up that indicates to a witness that defendant is the subject of an investigation may be
suggestive, the circumstances of this case pose different considerations. For a line-up to fail the
first prong of this analysis, it must not be merely suggestive, but unnecessarily so. See Perry,
132 S. Ct. at 719; Montgomery, 150 F.3d at 992 (holding that an identification is admissible
despite its suggestiveness where the use of the procedure was imperative).
Here, Agent Smiths use of this identification procedure was imperative. The interview
was being conducted in the evening with militia members freely roaming the streets of Burns,
some near the vehicle. The identification was done by flashlight in the safety of Smiths vehicle
to ensure that JO was not intimated or otherwise harassed by those occupying the Refuge or their
supporters. Further, the inherent nature of the occupation presented unique safety concerns of
the utmost importance, requiring law enforcement to act swiftly and discreetly to ensure that the
situation did not escalate to violence. Finally, the government had no time to prepare a
traditional photo line-up due to the nature of JOs interview and the chaotic nature of
this investigation as a whole. Thus, given the exigent circumstances of this case, the
identification procedure used was necessary to ensure the safety of all involved.
Finally, [a] primary aim of excluding identification evidence obtained under
unnecessarily suggestive circumstances is to deter law enforcement use of improper procedures
in the first place. Perry, 132 S. Ct. at 719. Agent Smith cannot be faulted for using improper
procedures to influence JO because he had no way to know what JO saw or who he would
identify beforehand. Thus, law enforcement could not have focused JOs attention on a
particular person.

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Ultimately, nothing about the photospread shown to JO would focus his attention on
defendant. She was not positioned prominently within the arrangement, nor did she standout in
any impermissible way. Further, the names and dates of birth under the pictures cannot be
construed as suggestive because every photo in the array had the same information and there is
no indication the witness knew any of that information beforehand. Finally, while the structure
of the photospread and the presence of prominent people in that photospread may indicate that
those pictured are the focus of a criminal investigation, the facts of this case and the pressing
concerns of law enforcement prevented the government from taking the time to create a more
traditional photo array, making such a photospread necessary.
B.

JOs Identification Was Nevertheless Reliable

If a pretrial identification procedure is unnecessarily suggestive, the identification will

nevertheless be admitted if the identification possesses sufficient indicators of reliability. The
factors to be considered are the opportunity of the witness to view the criminal at the time of the
crime, the witness degree of attention, the accuracy of the witness prior description of the
criminal, the level of certainty demonstrated by the witness at the confrontation, and the length
of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200. These factors
should be balanced against the suggestiveness of the identification. Against these factors is to
be weighed the corrupting effect of the suggestive identification itself. Manson, 432 U.S. at
114.
The first factor in assessing reliability is the witnesss ability to view the defendant. The
length of time the witness viewed defendant, the distance witness was from defendant, the

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lighting, and the extent to which the witness interacted with defendant are all considerations.
See Manson, 432 U.S at 114. There is no contention here that JO could not see clearly when he
observed defendant at the Refuge, nor is there any contention that he only saw her in passing,
thus weighing in favor of reliability. The second factor is the degree of attention JO paid to
defendant. Manson, 432 U.S at 115; Biggers, 409 U.S. at 200. Given the tense situation,
coupled with JOs mission to take a look at the facility, it is apparent that he observed defendant
closely. Indeed, he appears to have been very observant when he was at the Refuge, noting the
women in the kitchen looked uncomfortable with firearms. This weighs in favor or reliability.
The third factor is the accuracy of JOs description prior to the identification. Manson, 432 U.S
at 115. JO did not describe the defendant before he made the identification because he was
originally viewing the lineup for the purposes of identifying others.
The fourth factor is the level of certainty the witness exudes. The more doubt the
witness indicates, the less reliable his identification will be. Biggers, 409 U.S. at 199. Here,
JO made a hesitant identification when he was reviewing the first page of the photospread, but
rapidly changed his mind when he saw defendants picture. It is apparent from this that he was
confident in his identification. This factors weighs in favor of reliability. The final factor is the
length of time between the identification and when the witness made the observation. Id.;
Manson, 432 U.S at 115-116. Here, the length of time between JOs observation and his
identification is less than 48 hours, weighing in favor of reliability. Because four out of the five
factors weigh in favor of reliability, any suggestiveness that may have tainted the identification is
overcome and the identification should not be suppressed.

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The Reliability of JOs Identification Is a Credibility Determination Best Left

to the Jury

Whether JOs identification of defendant is credible or not is a determination best left to

the jury.

Unless an identification creates a very substantial likelihood of irreparable

misidentification . . . . such evidence is for the jury to weigh.

Manson, 432 U.S. at 116.

We

are content to rely upon the good sense and judgment of American juries, for evidence with some
element of untrustworthiness is customary grist for the jury mill.

Juries are not so susceptible

that they cannot measure intelligently the weight of identification testimony that has some
questionable feature. Id. Because defendant has not demonstrated that there is a very
substantial likelihood of irreparable misidentification, the jury should be allowed to make their
own determination as to the reliability of JOs identification.
IV.

Conclusion
Because the identification procedures used here were not unnecessarily suggestive and

the witness is nevertheless reliable, defendants Motion should be denied.

Dated this 9th day of August 2016.
Respectfully submitted,
BILLY J. WILLIAMS
United States Attorney

s/ Geoffrey A. Barrow
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys

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