People v. Borghesi, 66 P.3d 93, 103 (Colo. 2003). In Bernal v. People, 44 P.3d 184, 191 (Colo. 2002), the Colorado Supreme Court set out a two-part test to determine whether a photographic lineup violates a defendant's due process protections. First, the court must determine whether the defendant has proved that the photographic array was impermissibly suggestive; and second, after the defendant has met this burden, the state must show that the identification was nevertheless reliable under the totality of the circumstances.
¶ 44 "The ultimate question as to the constitutionality of pretrial identification procedures is a mixed question of law and fact." Bernal v. People , 44 P.3d 184, 190 (Colo. 2002). Thus, "[w]hen reviewing a trial court's denial of a motion to suppress, we generally defer to the trial court's factual findings, but review its legal conclusions de novo."
¶ 2 At trial, McCants challenged the reliability of a police officer's out-of-court identification of him based on what he contends was an impermissibly suggestive photo array. Relying on People v. Howard , 215 P.3d 1134 (Colo. App. 2008), the trial court concluded that a police officer's identification is per se reliable and, therefore, exempt from a reliability analysis as otherwise required by Neil v. Biggers , 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Bernal v. People , 44 P.3d 184, 191 (Colo. 2002). ¶ 3 We reject the proposition that a different analytical framework applies when the reliability of a police officer's identification of a suspect from an allegedly suggestive photo array is challenged, and, to the extent this conclusion conflicts with Howard , we decline to follow it.
People v. Mack, 638 P.2d 257, 265 (Colo. 1981). In Bernal v. People, 44 P.3d 184, 190-91 (Colo. 2002), we outlined a two-part test to determine the admissibility of out-of-court photographic identifications. First, a court must consider whether the defendant has demonstrated that the array was impermissibly suggestive.
¶ 13 The supreme court has outlined a two-part test for determining the admissibility of out-of-court photographic identifications. Bernal v. People, 44 P.3d 184, 190–91 (Colo.2002). ¶ 14 First, the defendant has the burden of demonstrating that the array was impermissibly suggestive.
¶ 6 The constitutionality of pretrial identification procedures presents a mixed question of law and fact. Bernal v. People , 44 P.3d 184, 190 (Colo. 2002). Because defendant objected, we review for harmless error and will reverse if there is a reasonable possibility that any erroneous admission of the identification contributed to the conviction.
¶ 54 To determine whether a statement bears particularized guarantees of trustworthiness, courts assess the totality of the circumstances surrounding the statement. See Bernal v. People , 44 P.3d 184, 197 (Colo. 2002). Factors relevant to a statement's trustworthiness include where, when, and how the statement was made; to whom the statement was made; what prompted the statement; what the statement contained; and what may have motivated the declarant to make the statement.
First, a defendant must show that the procedure was impermissibly suggestive. Bernal v. People, 44 P.3d 184, 191 (Colo. 2002). An identification is impermissibly suggestive if, based on the totality of the circumstances, there is a substantial likelihood of misidentification.
If the defendant meets that burden, the evidence is inadmissible unless the prosecution demonstrates that the identification was reliable despite the improper suggestiveness. Bernal v. People, 44 P.3d 184, 191 (Colo. 2002). Because the resolution of defendant's due process challenge involves a mixed question of fact and law, we give deference to the trial court's findings of historical fact, but may give different weight to those facts and reach a different legal conclusion from the trial court.
¶ 72 The constitutionality of pretrial identification procedures is a mixed question of law and fact. Bernal v. People , 44 P.3d 184, 190 (Colo. 2002) ; People v. Martinez , 2015 COA 37, ¶ 9, 378 P.3d 761. We defer to the trial court's factual findings, but "we may give different weight to those facts and may reach a different conclusion in light of the legal standard."