ORDER

AIDA M. DELGADO-COLÓN, Chief District Judge.

The Court, at prior conferences and at the pre-trial conference indicated that the Magistrate Judge Report and Recommendation at ECF No. 255 was adopted. Consistent therewith, and for completeness of the record, the attached Opinion and Order is filed.

SO ORDERED.

OPINION AND ORDER

Currently before the Court is U.S. Magistrate Judge Silvia Carreño-Coll's Report and Recommendation ("R&R") recommending that the Court deny defendant Nelson José Ramos-Barbosa's ("Ramos-Barbosa") motions to suppress statements and identification evidence (ECF Nos. 163, 164). ECF No. 255. On April 18, 2014, Ramos-Barbosa filed objections to the R&R. ECF No. 283.

I. Procedural History

On December 26, 2012, defendants Elvin Rivera-Erazo, Jorge Luis González-Ramos, Alex Matías-Maestres, Nelson Ramos-Ramos, Nelson José Ramos-Barbosa, and Angel Correa-Rivera were charged in a nine-count second superceding indictment with, inter alia, firearms and drug conspiracy offenses. ECF No. 102.

On June 2, 2013, Ramos-Barbosa filed the instant motions to suppress, seeking suppression of certain unidentified statements to the police (ECF No. 163), and the identifications by certain police officers conducting undercover surveillance of a drug transaction in the parking lot of Plaza Guaynabo, Guaynabo ("Plaza Guaynabo") (ECF No. 164). The government opposed the motions (ECF No. 178), and the Court referred them to Magistrate Judge Carreño for entry of a Report and Recommendation (ECF No. 176).

After holding an evidentiary hearing on the motions to suppress (ECF No. 248), the Magistrate Judge recommended that the Court deny the motions (ECF No. 255). With respect to the motion to suppress statements, the Magistrate Judge found that there was no evidence that Ramos-Barbosa's interrogation was anything other consensual, and thus, suppression of his statements during that interrogation would be improper. Id. at 13-14. With respect to the motion to suppress the identifications, the Magistrate Judge found that two of the three identifications were permissible because they were not arranged by the police, and, as to the third identification, although it was police-arranged and arguably suggestive, sufficient indicia of reliability existed to render it admissible. Id. at 5-10.

Ramos-Barbosa subsequently filed objections to the R&R. ECF No. 283. Therein, he principally objects to the Magistrate Judge's finding that sufficient indicia of reliability existed for the identifications. Id. at 3-6. Specifically, he objects to the Magistrate Judge's finding that the police officers had an opportunity to view him, asserting that, due to the alignment and window tint of the officers' vehicle, a Mitsubishi Lancer, and the vehicle that he was allegedly driving, a Toyota 4Runner, it was "impossible" for the officers to see him. Id. at 4-6. Ramos-Barbosa also argues that the identifications were police arranged. Id. at 2-3.1

II. Review of a Magistrate Judge's Report and Recommendation

The District Court may refer pending criminal motions to a magistrate judge for entry of a report and recommendation. 28 U.S.C. §636(b)(1)(A); Fed.R.Crim.P. 59(b)(1); D.P.R.Crim.R. 159. The court is free to accept, reject, or modify, in whole or in part, the findings or recommendations by the magistrate judge. 28 U.S.C. §636(b)(1). A party is entitled to a de novo review of "those portions of the report . . . to which specific objection is made." Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States v. Raddatz, 447 U.S. 667 (1980)). Absent a proper objection, though, the Court need only satisfy itself that there is no plain error in the magistrate judge's findings in order to adopt the same. López-Mulero v. Vélez-Colón, 490 F.Supp.2d 214, 217-218 (D.P.R. 2007); see also Fed.R.Civ.P. 72, Adv. Comm. Notes, subdivision (b) (1983). Thus, "a party's failure to assert a specific objection to a report and recommendation irretrievably waives any right to review by the district court and the court of appeals." Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998).

III. Ramos-Barbosa's Objections to the R&R

A. Motion to Suppress Statements

Ramos-Barbosa does not object to the Magistrate Judge's recommendation to deny the motion to suppress statements. See generally ECF No. 283. As a result, the Court need only review the Magistrate Judge's findings for plain error. See López-Mulero, 490 F. Supp. 2d at 217-218. Having reviewed the transcript of the evidentiary hearing (ECF No. 304), and the pertinent aspects of the R&R (ECF No. 255 at 13-14), the Court is unable to discern any error, plain or otherwise, with respect to the Magistrate Judge's finding that the interrogation and Ramos-Barbosa's waiver of his Miranda2 rights was consensual. Accordingly, the Court ADOPTS-IN-FULL Magistrate Judge Carreño's recommendation to deny the motion to suppress statements (ECF No. 163).

B. Motion to Suppress Identification Evidence

Whether to suppress an identification is assessed under a two-step process. First, a court must consider whether the procedure resulting in the identification was unnecessarily suggestive. United States v. Espinal-Almeida, 699 F.3d 588, 602 (1st Cir. 2012). If the procedure was unnecessarily suggestive, the next step is to ask whether, despite the suggestiveness, the identification was reliable. Reliability is assessed under the totality of the circumstances and is witness specific. Id. Factors to be considered include: "`(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the defendant; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.'" Id. (internal quotation and alteration omitted). This inquiry is only required, however, when the identification was "procured under unnecessarily suggestive circumstances arranged by law enforcement." Perry v. New Hampshire, 565 U.S. ___, 132 S.Ct. 716, 730 (2012) (emphasis added).

Here, Ramos-Barbosa challenged the identifications of three police officers: Special Agent Duncan Campbell, Special Agent Anthony Vélez, and Task Force Officer Antonio Pizarro. Magistrate Judge Carreño recommended denying the motion with respect to Special Agents Campbell and Vélez because their identifications were not police arranged, or, alternatively, on the grounds that they were not obtained by an unnecessarily suggestive procedure and were reliable. ECF No. 255 at 5-6, 11-12. As to Officer Pizarro, the Magistrate Judge found that, although the identification was police arranged and potentially reached as a result of a suggestive procedure, it was reliable, and thus, not suppressible. Id. at 7-11.

1. Identifications by Special Agents Campbell and Vélez

In his objections, Ramos-Barbosa states that the challenged identifications were police arranged, citing the affidavit attached to the criminal complaint (ECF No. 1-1), which stated that two special agents identified Ramos-Barbosa after using a photograph obtained from the Puerto Rico Department of Motor Vehicles. See ECF No. 283 at 2. Ramos-Barbosa goes on to summarize the Magistrate Judge's findings that the identifications were not police arranged, but fails to explain how those findings are incorrect. Id. at 3. As such, Ramos-Barbosa has failed to raise a proper objection to the Magistrate Judge's findings, and thus, they are subject to plain error review. See López-Mulero, 490 F. Supp. 2d at 217-218.

At the suppression hearing, Special Agent Campbell testified that, on August 20, 2012, he was involved in an operation to detain a suspect allegedly involved in the transaction at Plaza Guaynabo. ECF No. 304 at 48:1-13. At some advanced point in this operation, he heard that a suspect had been detained. Id. at 50:21-24. Special Agent Campbell walked over to the location of the suspect, and saw that the suspect was the same person who had driven the Toyota 4Runner on July 27, 2012—the day of the incident at Plaza Guaynabo. Id. at 51:1-13.

Based upon Special Agent Campbell's testimony, the Court can discern no plain error in the Magistrate Judge's finding that this identification was not police arranged. Special Agent Campbell testified that after learning of the suspect's arrest, on his own volition, he approached the suspect and, upon seeing him, identified him as the driver of the Toyota 4Runner. Given that Special Agent Campbell testified that his role in the operation was, inter alia, to make initial entry into houses and clear them, id. at 71:23-72:16, rather than to identify any individuals detained, his identification of Ramos-Barbosa was not arranged by the police. Moreover, the First Circuit has yet to opine on the type of identifications that are police arranged, thus, it can hardly be said that the Magistrate Judge plainly erred in finding that Special Agent Campbell's identification was not police arranged. See Henderson v. United States, 568 U.S. ___, 133 S.Ct. 1121, 1130-31 (2013) (holding, in the context of a Fed.R.Crim.P. 52(b) motion, that an unsettled legal question may constitute plain error only if the error is plain at the time of appellate consideration).

Special Agent Vélez testified as follows. Approximately a week after the Plaza Guaynabo incident, while he was working in his office, he was in the area of Task Force Officer Pizarro's cubicle. ECF No. 304 at 101:10-102:18. Inside Officer Pizarro's cubicle was a photograph representing a person being investigated as a possible suspect. Id. at 102:13-15. Upon seeing the photograph, Special Agent Vélez recognized it as the person who had driven the Toyota 4Runner. Id. at 102:16-18.

The Court can again discern no plain error in the Magistrate Judge's finding that this identification was not arranged by the police. Special Agent Vélez testified that he was not part of the team investigating the identity of the driver of the Toyota 4Runner, id. at 103:1-3, rather, he only viewed the photograph because he happened to be working in his office and was in the area of Officer Pizarro's cubicle. He further testified that Officer Vélez did not show him the photograph. Id. at 111:5-21. In light of this testimony, it cannot be said that Special Agent Vélez's identification was arranged by the police.3

Nevertheless, given the unsettled nature of the question of what constitutes a police-arranged identification, out of an abundance of caution, the Court will address the Magistrate Judge's alternative bases for finding Special Agents Campbell and Vélez's identifications admissible. First, the Magistrate Judge found that the identifications were not impermissibly suggestive because they were spontaneous. ECF No. 255 at 6. Ramos-Barbosa does not address this finding in his objections, therefore, he has failed to raise a proper objection to it. Upon review of the agents' testimony, the Court fails to discern any error, plain or otherwise, in the Magistrate Judge's finding. See United States v. López-López, 282 F.3d 1, 11 (1st Cir. 2002) (declining to overturn a district court's finding that an identification procedure was not impermissibly suggestive because the police-officer witnesses spontaneously, and without being prompted, identified the defendant). Therefore, on this basis, Ramos-Barbosa's motion to suppress Special Agents Campbell and Vélez's identifications could be denied.

This leaves the reliability of those identifications. Ramos-Barbosa challenges each of the identifications, including Officer Pizarro's, on the same ground: the police officers, each of whom were sat in the Mitsubishi Lancer while observing the Toyota 4Runner from a very close distance,4 could not have seen the driver of the 4Runner because they did not have a line of sight to the driver. ECF No. 283 at 4-6. Ramos-Barbosa's argument, though, is directly contradicted by the officers' testimony at the suppression hearing.

Special Agent Campbell testified as follows. He paid extra attention to the Toyota 4Runner because it had been identified as a potential vehicle of interest. ECF No. 304 at 14:8-9, 19:25-20:12, 20:21-23. He was concerned for his own and other officers' safety because the 4Runner was parked next to him. Id. at 20:24-21:1. The occupants of the 4Runner stayed in the vehicle, which confirmed to him that it was suspicious. Id. at 21:23-25. He looked into the 4Runner, and saw the driver "turned around," facing the back of the car, and leaning into the middle of the vehicle. Id. at 21:9-17. This viewing angle allowed him to see a "side profile" of the driver's face. Id. at 21:19-21. He noticed that the driver's attention was focused on the same corner of the parking lot where the drug transaction was taking place. Id. at 21:25-22:12. Special Agent Campbell was surprised by the driver's appearance because the driver appeared to be "like a young clean-cut college student than somebody who might be involved in a—in a drug transaction." Id. at 22:20-24. He looked at the person in the driver's seat, and the driver was wearing wire-framed, thin glasses, had a very tight clean haircut, was thin and college-aged, and had a "typical complexion for Puerto Rico." Id. at 22:20-23:16.

On cross-examination, Special Agent Campbell testified that the windows of the Mitsubishi Lancer had very dark tints, the windows of the 4Runner were dark-tinted, the 4Runner was a higher vehicle than the Lancer, and he could not see the passenger of the 4Runner. Id. at 57:9-10, 62:14-15, 62:24-25, 70:21-23. Special Agent Campbell was questioned about his ability to see the driver of the 4Runner through two sets of tinted windows, and he testified that he could "[a]bsolutely" see the driver. Id. at 70:24-71:3. He confirmed that, when he looked directly to his right, he could see the side of the driver's face. Id. at 76:13-14. He also testified that the driver was turned around because the driver was paying attention to the drug transaction going on behind the 4Runner. Id. at 76:18-77:9.

Applying the factors identified by the First Circuit Court of Appeals to be considered in a reliability analysis, Special Agent Campbell's identification is reliable. Ramos-Barbosa focuses his challenge to each of the identifications on the ground that none of the officers could have witnessed the driver of the 4Runner because that vehicle was higher than the Mitsubishi Lancer, the vehicles were parked in opposite directions, and the windows of each car were darkly tinted. ECF No. 283 at 4-6. However, Special Agent Campbell testified that he was "[a]bsolutely" able to see the driver, and the two vehicles were next to each other. As a result, he had a good opportunity to view Ramos-Barbosa. Special Agent Campbell further testified that he was paying attention to the 4Runner because it had been identified as a suspect vehicle and due to its proximity to his vehicle, and he paid attention to the driver because he needed to remember the driver's appearance in case he had to detain him. ECF No. 304 at 22:25-23:4. As such, Special Agent Campbell had a high degree of attention in viewing Ramos-Barbosa. As to the third factor, although Special Agent Campbell's prior identification is somewhat generic, he testified that he was surprised by the driver's young appearance, and that the driver was thin, wore wire-framed and thin glasses, and was of Puerto Rican complexion. Although Ramos-Barbosa argues that this description could fit "close to 1,000,000 Puerto Ricans," there is no suggestion that Special Agent Campbell's identification was inaccurate. Therefore, this factor, at best for Ramos-Barbosa, is neutral. Finally, both the fourth and fifth factors favor the reliability of the identification, because Special Agent Campbell was certain that the suspect detained on August 20, 2012 was Ramos-Barbosa, and this identification took place a little over three weeks after the events at Plaza Guaynabo. In this light, Special Agent Campbell's identification is reliable.

Special Agent Vélez testified as follows. He paid attention to the Toyota 4Runner because it had been identified over police radio and it parked next to his vehicle. ECF No. 304 at 92:20-25. He was able to observe the driver and passenger of the 4Runner, and the driver was monitoring the drugs transaction. Id. at 93:6-94:1. He noticed that the occupants of the 4Runner did not leave the vehicle, even though they were parked in a commercial parking lot, and they were "looking around looking for people detecting." Id. at 95:18-25. He was sitting in the back seat of the Mitsubishi Lancer, and had a direct line of vision into the 4Runner, and he could clearly see its driver. Id. at 97:21-23, 98:23-99:10, 100:16-22. There were no obstructions preventing him from seeing the driver of the 4Runner, and he could see the driver's entire face. Id. at 100:23-101:9. Special Agent Vélez identified Ramos-Barbosa in court as the driver of the 4Runner. Id. at 99:11-20.

As to the first factor, Special Agent Vélez's testimony establishes that he had a good opportunity to observe the 4Runner's driver because he had a direct line of sight, he clearly saw the driver, and there were no obstructions in his way. Next, Special Agent Vélez paid attention to the driver because the 4Runner was identified over police radio, and its occupants were behaving suspiciously as they did not exit the vehicle. The third factor does not favor the reliability of the identification because no evidence was presented as to Special Agent Vélez's prior description of the driver. However, the final two factors favor admitting the identification. Notably, Special Agent Vélez was certain that the person he observed in the photograph at Officer Pizarro's cubicle was Ramos-Barbosa, and this confrontation took place approximately a week after the crime. Further support for the admission of the identification, as well as Special Agent Campbell's, is the fact that it was spontaneous. See Allen v. Moore, 453 F.2d 970, 974 (1st Cir. 1971) (explaining that "chance meetings" resulting in spontaneous identifications emphasize a witness' reliability). Therefore, weighing the totality of the circumstances surrounding Special Agent Vélez's identification, it is reliable. See United States v. Watson, 76 F.3d 4, 7 n.1 (1st Cir. 1996) (upholding a district court's finding that an identification was reliable where there was no prior description of the suspect, but the witness had ample opportunity to focus on the suspect and identified him within minutes of the crime).

2. Identification by Task Force Officer Pizarro

The Magistrate Judge found that Officer Pizarro's identification was police arranged and, arguably, impermissibly suggestive. ECF No. 255 at 7. As a result, the Court need only address the Magistrate Judge's finding that the identification was reliable.

Officer Pizarro testified as follows. His attention was drawn to the Toyota 4Runner because it arrived in a convoy with other vehicles, and no one exited the 4Runner after it parked at Plaza Guaynabo. ECF No. 304 at 127:19-128:25. He began observing the 4Runner, and saw that the driver was slim, well-trimmed, wore glasses, and had a red t-shirt. Id. at 129:1-6. He continued to observe the 4Runner in order to provide protection for himself and the undercover officers involved in the drug transaction. Id. at 129:7-11. During the transaction, an individual walking with one of the undercover officers made a signal toward the Mitsubishi Lancer, which caused the occupants of the 4Runner to start looking toward the Lancer. Id. at 129:13-130:23. At this point, Officer Pizarro believed that the occupants of the 4Runner were connected to the individuals carrying out the drug transaction. Id. at 130:24-131:1. He was able to see the faces of the occupants of the 4Runner and he had a "full" line of vision. Id. at 131:12-20. The occupants were to his right side, he was able to observe them for a long time, and every time the driver spoke to the passenger he was able to see them both. Id. at 131:25-132:8. He saw the driver's face from the front, and he was able to see clearly inside the 4Runner because it was a sunny day and he was between three to five feet from the vehicle. Id. at 132:9-13.

In the days after July 27, 2012,5 Officer Pizarro testified that he was shown four to five photographs, and asked if he could identify any of the individuals represented. Id. at 134:18-135:12. His attention was immediately drawn to one of the photographs, and, because the individual was not wearing glasses, he drew glasses onto the photograph. Id. at 135:15-18. After doing this, he identified the individual as the driver of the 4Runner. Officer Pizarro then identified Ramos-Barbosa in court as the driver of the 4Runner and the individual portrayed in the photograph that he selected. Id. at 138:24-139:7. On cross-examination, Officer Pizarro testified that, although the windows of the 4Runner had dark tints, he could observe its occupants. Id. at 144:21-25.

As with Special Agents Campbell and Vélez's testimony, Officer Pizarro's testimony contradicts Ramos-Barbosa's contention that it was impossible for him to view the 4Runner's driver. Officer Pizarro testified that he was able to see the occupants from the waist up, he observed them for a long time, he saw the front of the driver's face, and he could see clearly into the vehicle. Thus, the first factor favors the reliability of the identification. The second factor also supports the identification because Officer Pizarro testified that he paid attention to the occupants of the 4Runner, as they arrived at Plaza Guaynabo in a convoy, they did not leave the vehicle, and one of the individuals involved in the drug transaction made a signal toward them. Like Special Agent Campbell's prior identification, Officer Pizarro's was similarly loose on unique identifiers, as he testified that the driver was slim, well-trimmed, wore glasses, and had a red t-shirt. However, again, there is no indication that this was an inaccurate description of the driver. Moreover, at trial, Ramos-Barbosa will be able to present to the jury the lack of specificity in Officer Pizarro's prior identification. See Perry, 132 S.Ct. at 728-29 (noting the plethora of safeguards available to a defendant with respect to eyewitness identifications).

The fourth factor is a closer question than with Special Agents Campbell and Vélez, as Officer Pizarro was not initially certain of his post-crime identification. However, after drawing glasses onto the selected photograph, Officer Pizarro testified that he was certain that the individual was Ramos-Barbosa. Under the specific circumstances of this case, where Officer Pizarro testified that the 4Runner's driver was wearing glasses, Officer Pizarro's identification is not unreliable merely because he needed to draw glasses onto the photograph in order to identify the driver, especially given his certainty of the identification after modifying the photograph. Finally, although Officer Pizarro's testimony is not perfectly clear, he testified that the confrontation took place in the days following the crime, which supports the reliability of his identification. See United States v. Rivera-Rivera, 555 F.3d 277, 284-85 (1st Cir. 2009) (collecting cases, and noting that a six-month gap between confrontation and crime was "de minimis" compared to those cases). In this light, weighing all of the circumstances, Officer Pizarro's identification is reliable, and thus, not subject to suppression.

Accordingly, as set forth herein, the Court agrees with Magistrate Judge Carreño's findings that the identifications should not be suppressed, and ADOPTS the R&R in this respect.

IV. Conclusion

For the reasons set forth above, the Court ADOPTS Magistrate Judge Carreño's R&R (ECF No. 255). Accordingly, Ramos-Barbosa's motion to suppress statements (ECF No. 163) and motion to suppress identification evidence (ECF No. 164) are DENIED.

IT IS SO ORDERED.