United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE.
the Court is defendant Joshua Wofford's Motion to
Suppress In-Court Identifications (Doc. 23). Mr. Wofford also
submitted a thumb drive of videos (Doc. 24), which the Court
has reviewed. The United States filed a response (Doc. 27),
and Mr. Wofford filed a reply (Doc. 29). The Court conducted
an evidentiary hearing on the motion and admitted
Plaintiff's Exhibits (PX) 1 and 2 (a copy and the
original of a photo lineup) and Defendant's Exhibits (DX)
1, 3, 4, 5, 6, 8, 9, and 10. The videos on the thumb-drive
(Doc. 24) were identified and admitted during the hearing as
DX 5 and 6. The Court also heard testimony of the following:
JLG, who is 14 years old and will be referred to by initials;
Heidi Argumedo; Jose Cruz-Gonzalez; Tulsa Police Department
(TPD) Officer Cleon Burrell, Daniel Harris, TPD Officer Jeff
Gatwood, TPD Officer Garrett Higgins, and Scott D. Gronlund,
Ph.D. During the course of the hearing, the United States
presented an oral motion to exclude Dr. Gronlund's
testimony (Doc. 36), to which the defendant has now filed a
written response (Doc. 37), and that motion will also be
addressed in this order.
motion to suppress is recognized and governed by Rule 12.
See Fed. R. Crim. P. 12(b)(3)(C). Pursuant to Rule
12(d), “[w]hen factual issues are involved in deciding
a motion, the court must state its essential findings on the
record.” The purpose of a suppression hearing is to
“determine preliminarily the admissibility of certain
evidence allegedly obtained in violation of defendant's
rights under the [Constitution].” United States v.
Merritt, 695 F.2d 1263, 1269 (10th Cir. 1982). When
making a preliminary determination of the admissibility of
evidence, “the court is not bound by evidence rules,
except those on privilege.” Fed.R.Evid. 104(a); see
also Merritt, 695 F.2d. at 1269-70.
4, 2017, at approximately 10:39 p.m., a Toyota Sequoia pulled
into a parking slot in front of a QuikTrip on North Harvard
in Tulsa, Oklahoma. Daisy Ellis was driving the Sequoia, and
her husband, Daniel Harris, was sitting in the front
passenger seat. As they entered the parking lot, Ellis and
Harris noticed a man standing with his leg propped up against
the wall to the side of the QuikTrip. Ms. Ellis entered the
store, while Daniel Harris remained in the front passenger
seat of the vehicle.
10:41 p.m., Jose Cruz-Gonzalez drove his 1999 Chevy truck
into the QuikTrip parking lot and parked immediately to the
right of the passenger side of the Toyota Sequoia where Mr.
Harris was sitting. Mr. Cruz-Gonzalez entered the QuikTrip,
while his wife (Heidi Argumedo) and three children, including
JLG, remained in the truck. Soon thereafter, a man walked
from where he had been leaning against the outside wall of
the QuikTrip, down the sidewalk in front of the store's
entryway, passing in front of the Chevy truck, and around to
the driver side of the truck. The man stood in between the
vehicle occupied by Daniel Harris and the vehicle occupied by
Mr. Cruz-Gonzalez's family. Noticing the man he had
previously seen on the side of the building approach the
driver side of the family's truck, Mr. Harris spoke to
him, and the man indicated that he was taking the truck and
that he had a gun.
then opened the door of the pickup truck, pointed a gun at
Ms. Argumedo, and said “get out of the car right
now.” At some point, the man pointed the gun at Mr.
Harris. Ms. Argumedo and her children exited the truck and
entered the QuikTrip, and she asked the clerk to call police.
Mr. Harris also entered the store to make sure that all of
Ms. Argumedo's children had exited the truck. As the
carjacker drove away in the family's stolen truck, Mr.
Harris and Mr. Cruz-Gonzalez saw the carjacker put his arm
out of the truck and they heard a gunshot. Mr. Harris
provided a description of the weapon, which has apparently
not been found, and he described the man as a white man with
a scar on the right side of his face, wearing black jeans,
black shoes, and a white shirt. Ms. Argumedo testified that
the carjacker had a scar on his face around the cheek area
close to his eye.
The Police Pursuit and Search
after the carjacking was reported, TPD Officer Garrett
Higgins saw the stolen truck, and he began to pursue the
vehicle. At one point during the pursuit, the suspect drove
to a deadend street and had to slow the stolen vehicle to
turn around. As the suspect turned and passed Officer
Higgins's police vehicle, the driver sides of two
vehicles were “door-to-door, ” within five to six
feet of one another, and Officer Higgins testified that he
“got a good look” at the suspect as they passed.
Higgins had seen the suspect before, because he had
previously been involved as a backing officer on that
suspect's arrest on another occasion. The pursuit
continued with the suspect driving the wrong direction, into
oncoming traffic, on Harvard, at times above the speed limit.
suspect ultimately drove into a ditch at 3800 N. Harvard and
fled on foot. The truck was quickly found, and police
commenced a search of the area. Officers set up a perimeter,
and K-9 officers arrived and located the defendant in a
wooded area near 3800 N. Harvard, approximately two hours
after they commenced the search. Officer Higgins came to the
location and identified Mr. Wofford as the man he had seen
driving the stolen truck during the earlier police pursuit.
Higgins found a white t-shirt about 10 to 15 yards from where
the stolen truck was recovered.
The Show-Up Identifications
Mr. Wofford was located and detained by the K-9 officers,
other TPD officers drove Mr. Cruz-Gonzalez, Ms. Argumedo, and
their children to the search area. JLG testified that they
waited in the police cars for a long time and then police
informed them that they “had caught the
guy.” After Mr. Wofford was discovered by the
K-9 unit, a show-up identification procedure was conducted.
The family members were driven in police cars to the nearby
location where Mr. Wofford was being held by police. Mr.
Wofford was then then taken out of another police car, with
officers holding onto Wofford by his arms, several yards in
front of the police cars in which the family members were
seated. Police vehicle headlights and a spotlight were shined
on Wofford, and an officer asked JLG “if it was him or
not.” JLG responded, “yes, that's him.”
JLG then translated for his father, and his father answer yes
to the question of whether the man in the lights “was
to Officer Burrell, Ms. Argumedo did not identify Mr. Wofford
as the assailant during the show-up. Ms. Argumedo testified
at the hearing that she initially did not identify Wofford
because he was wearing different clothes than the carjacker
had been wearing, but that she looked at him more and then
reported that it was him, but that he was wearing different
clothes. She further testified that her identification of Mr.
Wofford was solidified after she spoke to her husband and son
about the man wearing a bandana. She acknowledged that it is
possible that she thought Wofford was the carjacker only
later, as opposed to positively identifying him to Officer
Burrell during the show-up.
The Photo Array Identification
Robbery Detective Jeff Gatwood was the detective assigned to
lead the investigation into the carjacking. Following Mr.
Wofford's arrest, Detective Gatwood compiled a photo
lineup. (PX 1). To do so, he located the most recent photo of
Mr. Wofford that was available to the TPD, with the exception
of the mugshot taken following Mr. Wofford's arrest on
June 4. Gatwood explained that he thought using the
photograph taken following the June 4 arrest would have been
problematic because Mr. Wofford had bloody marks on his face
in that photo. To select other photos for the lineup, he
utilized the TRACIS data system's Q-Mug program. He
entered into the system Mr. Wofford's age, race, height,
weight, hair and eye color and he requested 50 or 60 photos,
in order to select photographs of men with similar
characteristics. From those results, Detective Gatwood
selected photographs of five other men to use along with Mr.
Wofford's in the photo array.
photo array includes six photos of white men with very short
hair, and they all appear to be of a similar age to Mr.
Wofford. (PX 1, 2). Mr. Wofford's photo was placed in the
number 2 position, at the top middle of six photographs
arranged with three photographs on each of two rows. In Mr.
Wofford's array photo, the top of what appears to be an
orange shirt is visible. After compiling the array, Detective
Gatwood showed it to two other detectives and asked them to
determine if any of the six men in the photo array stood out
more than any others, and each of the detectives selected
photos other than Wofford's as appearing more prominent
to those detectives' eyes.
6, 2017, Detective Gatwood drove to Mr. Harris's home and
asked him to look at the photo array. Gatwood asked Mr.
Harris to look at each photo carefully, to take his time, and
to not feel like he was being pressured. At 12:33 p.m. on
June 6, 2017, Mr. Harris identified the photo of Mr. Wofford
as a photo of the man he saw commit the ...