” Willis v. State, 242 So.3d 1195, 1198 (Fla. 1st DCA 2018).
We employ a two-part test for determining the admissibility of an out-of-court identification: "(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification." Willis v. State , 242 So. 3d 1195, 1197–98 (Fla. 1st DCA 2018) (quoting Grant , 390 So. 2d at 343 ); see alsoWalton v. State , 208 So. 3d 60, 66–67 (Fla. 2016) (explaining the factors to consider when evaluating the likelihood of misidentification). Our analysis begins and ends at the first step, which focuses on police action.
Accordingly, "Florida courts apply a two-step test to determine the admissibility of an out-of-court identification: ‘(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification.’ " Willis v. State, 242 So. 3d 1195, 1197 (Fla. 2018) (citation omitted); see Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 970, 19 L. Ed. 2d 1247 (1968) (examining the claim that the "identification procedure was so unduly prejudicial as fatally to taint [the defendant's] conviction" under the totality of surrounding circumstances) (citations omitted). In this jurisprudential arena, the words "impermissibly," "unnecessarily," and "unduly" have been used interchangeably.
Regarding the photographic line-up, the test for admissibility of an out-of-court identification is: "(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification." Willis v. State , 242 So.3d 1195, 1197 (Fla. 1st DCA 2018) ; see alsoPierre v. State , 990 So.2d 565, 570 (Fla. 3d DCA 2008) (holding that a detective "correctly told the victim and the victim's mother to focus on faces, not hairstyles, because hairstyles may change").We conclude that instructing Ms. President not to focus on hairstyle or facial hair before showing her the photo lineup did not render the procedure unduly suggestive.