MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This case comes before the court on defendant's motion in limine regarding identification. (Dk. 14). In this motion, defendant asks the court to suppress witness identifications made during a photographic line-up, because they are so unduly suggestive that they violate defendant's right to due process.

Defendant further seeks to preclude any in court identification by those who viewed the photographic line-up, apparently for the same reason. "[T]he ultimate conclusion of the constitutionality of identification procedures is a mixed question of law and fact." Archuleta v. Kerby, 864 F.2d 709, 710 (10th Cir.), cert. denied, 490 U.S. 1084 (1989).

In evaluating the constitutionality of a pretrial identification procedure, we first examine whether the procedure was unnecessarily suggestive. See Grubbs v. Hannigan, 982 F.2d 1483, 1489 (10th Cir. 1993) (citing Archuleta, 864 F.2d at 711). If the court determines that the procedure was unnecessarily suggestive, we then examine "whether under the `totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Stated differently, we evaluate the reliability of the identification under the totality of the circumstances to determine whether the suggestive show-up "created a substantial likelihood of irreparable misidentification." Thody, 978 F.2d at 629. A pretrial identification procedure does not violate due process unless it is "so unnecessarily suggestive that it is `conducive to irreparable mistaken identification.'" Grubbs, 982 F.2d at 1490 (quoting Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). United States v. Bredy, 209 F.3d 1193, 1195 (10th Cir.), cert. denied, 531 U.S. 897 (2000).

The procedure used here was to show a witness photographs of six individuals, all appearing to be of similar age and race to the defendant, and having similar general physical characteristics. See Dk. 15, Exh. 2. Nothing either in the photographs themselves or in the manner in which they were presented to the witness has been shown to be suggestive.

But even had the court found the photographic identification to be suggestive, it would find the identification nonetheless to be sufficiently reliable to outweigh any suggestiveness resulting from the identification procedure.

When evaluating the reliability of an identification, courts must examine five factors, namely: 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. Neil, 409 U.S. at 199-200, 93 S.Ct. 375 Bredy, 209 F.3d at 1195-96. "Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

The government has shown the court that the only person who identified the defendant from a photographic line up was Mr. Knapp. Mr. Knapp had ample opportunity to closely and repeatedly view the defendant while defendant lived at Mr. Knapp's house. The crimes committed by defendant were on December 14, 2001, December 26, 2001, and January 8, 2002. Although the record does not reveal the length of time defendant resided with Mr. Knapp, counsel represents that defendant moved out of that residence in December of 2001, after Mr. Knapp learned of defendant's arrest for attempting to negotiate a counterfeit note at a Walgreens in Topeka, Kansas. The indictment indicates that defendant was arrested for that crime on December 26, 2001. The photographic line-up occurred in late January, 2002.

The court has no hesitation in finding that Mr. Knapp had ample opportunity to view defendant before, after, and near the time of the crime, because defendant was then living in Mr. Knapp's home. It is reasonable to infer that a person in Mr. Knapp's position would pay full attention to the features of a resident living in his home, and would be able to accurately identify such a person during a photographic line-up occurring approximately one month after that person moved out of his residence. Nothing in the record indicates that Mr. Knapp's identification of McGuire was uncertain.

Defendant asserts that the following factors render the procedure so suggestive as to constitute a denial of due process: (1) Mr. Knapp was not asked to give a description of defendant prior to identifying him from the photographic line-up; (2) Mr. Knapp identified defendant as David Mills, instead of as David Hills; and (3) Mr. Knapp was under investigation for criminal activity at the time he viewed the photographic line-up.

Mr. Knapp was not a witness to defendant's commission of a crime, who had seen defendant only once under unique circumstances, but was defendant's landlord, who had seen him repeatedly under normal living conditions. Under these circumstances, there appears to be no necessity of his describing the defendant prior to identifying him from the photographic line-up. Mr. Knapp did identify the defendant as "David Mills," but it is uncontested that this is the name defendant used while living in Mr. Knapp's house. Lastly, even assuming that Mr. Knapp was under investigation for criminal activity at the time he viewed the photographic line-up, defendant fails to show any correlation between that fact and the suggestiveness or reliability of the photograph identification. Nor has defendant shown any coercive pressure on the identifying witness to make an identification of any particular photograph.

Given the totality of the circumstances set forth above, the court finds that the above facts, assumed to be true for purposes of this motion, are not fatal to the reliability of the identification, and do not render the procedure unduly suggestive. See United States v. Davis, 19 Fed. Appx. 775, 778, 2001 WL 1032913 (10th Cir. Sep 10, 2001) (Table) (finding photographic lineup not unduly suggestive where the name of the bank robbed was written across the page and happened to appear above defendant's photograph); United States v. McGuire, 200 F.3d 668, 677(10th Cir. 1999) (finding failure to include defendant's co-perpetrator's picture in photographic line-up did not render line-up suggestive); United States v. Flores, 149 F.3d 1272, 1278 (10th Cir. 1998) (photographic identification was acceptable where photographs were shown to the witness one-by-one, not in a single layout display, and defendant's was the only photograph of a man with a goatee), cert. denied, 525 U.S. 1092 (1999); United States v. Sanchez, 24 F.3d 1259, 1263 (10th Cir.) (finding photographic array containing only six pictures, among which the defendant's photograph was the only one of a person with his eyes closed, was not unnecessarily suggestive), cert. denied, 513 U.S. 1007 (1994).

Additionally, even had the court suppressed all references to the photographic-line up, the court could still allow an in-court identification if the witness's testimony were otherwise reliable, given the totality of the circumstances. See Grubbs v. Hannigan, 982 F.2d 1483, 1490 (10th Cir. 1993). Thus defendant's assumption that the photographic line-up would necessarily taint any in court identification is incorrect. See Romero v. Tansy, 46 F.3d 1024 (10th Cir. 1995).

IT IS THEREFORE ORDERED that defendant's motion in limine regarding identification (Dk. 14) is denied.