Opinion
Case No. 2:99-CR-668K
March 10, 2000.
ORDER
This matter is before the Court on Defendant's Motion to Suppress Identification Evidence. This matter came on for an evidentiary hearing on Wednesday, March 8, 2000. The United States was represented by Barbara Bearnson. Defendant was present and was represented by Herschel Bullen. Both parties submitted briefs prior to the evidentiary hearing. The Court has carefully considered all pleadings, memoranda, and other materials submitted by the parties, in addition to the arguments advanced and evidence submitted by the parties at the evidentiary hearing. The Court has further considered the law and facts relevant to the Defendant's motion. Now being fully advised, the Court enters the following Order.
Pre-indictment identification procedures must meet due process standards. United States v. Thurston, 771 F.2d 449, 452 (10th Cir. 1985). A pre-indictment identification that is "so unnecessarily suggestive and conducive to irreparable mistaken identification" violates the due process right of an accused. Id. When the constitutionality of a photo array is challenged, the due process clause requires a two-pronged inquiry. United States v. Sanchez, 24 F.3d 1259, 1261 (10th Cir. 1994). First, the trial court must determine whether the photo array was impermissibly suggestive. Id. at 1261-62. If the array was not impermissibly suggestive, the inquiry goes no further. Id. at 1262.
The first step of the inquiry requires courts to evaluate a number of criteria to determine whether the process was unduly suggestive, including the details of the photographs, such as whether the defendant's photo stands out from the others; the number of photographs presented; and the manner in which the array was presented to the witness, such as whether the officer informed the witness that the perpetrator was included in the array. Id. at 1262; United States v. Wiseman, 172 F.3d 1196, 1208-09 (10th Cir. 1999).
In this case, Detective DuVal, in keeping with standard procedure, contacted the Salt Lake County Intelligence Unit to obtain a computer-generated photo array that included the current booking photo of Defendant. The computer selected photographs of individuals with similar features. Once the photographs were selected, the computer then randomly placed the order of the six photographs in the photo array. Detective DuVal admonished the witness, using a standard form for conducting identification procedures, that the group of photographs may or may not contain a picture of the person who committed the crime. He also advised the witness that the photographs may not depict the true complexion of a person, and not to pay attention to markings, numbers, and styles of the photographs.
The Court has examined the photo array for similarities and differences in each of the photographs, bearing in mind the overall size of the array and the manner of presentation, and has concluded that the photo array shown to the victim was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" that it violates due process. Because the photo array was not unduly suggestive, the Court need not address the second prong of the due process analysis.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Suppress Identification Evidence is DENIED.