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State v. O'Brien

Court of Appeals of Iowa

September 27, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MICHAEL TIERRE O'BRIEN, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.

         A defendant appeals his conviction challenging the district court's denial of his motion to suppress.

          Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J. [*] Blane, S.J., takes no part.

          SCOTT, SENIOR JUDGE

         Michael O'Brien was convicted of second-degree robbery following a bench trial. On appeal he challenges the district court's denial of his motion to suppress the victim's out-of-court identification, claiming the police used unnecessarily suggestive procedures in obtaining the identification. Because we conclude the district court correctly denied O'Brien's motion to suppress, we affirm his conviction.

         I. Background Facts and Proceedings.

         Christopher Cortez was robbed by three men after giving them a ride in his car following a party he hosted in a motel room. He described the three attackers to police and informed the police his ATM card had been used at a gas station near where the robbery occurred. Four weeks after the incident, police obtained surveillance video from the gas station from the date and time the ATM card was used and showed Cortez a still photograph from the surveillance video containing three individuals. Cortez identified the individuals as the men who attacked him, but he only knew the name of one of the individuals. Officers sought the public's help in identifying the other men in the surveillance video, and the resulting tips led police to believe O'Brien was one of the men pictured. Officers then compiled a six-person photo array, including a picture of O'Brien. Cortez identified O'Brien's picture as one of the attackers.

         After charges were brought, O'Brien filed a motion to suppress Cortez's identification of him. In the motion, O'Brien asserted showing Cortez the still photograph from the gas station surveillance camera was impermissibly suggestive and tainted Cortez's subsequent identification of him in the six-person photo array. The district court conducted a hearing on the motion to suppress and denied the motion. O'Brien then agreed to waive his right to a jury trial and was convicted of second-degree robbery. After sentence was imposed, he appealed his conviction.

         II. Scope and Standard of Review.

         Because unnecessarily suggestive identifications implicate the Due Process Clause, our review of O'Brien's claim is de novo. See State v. Folkerts, 703 N.W.2d 761, 763 (Iowa 2005).

         III. Suggestive Identification Analysis.

When unnecessarily suggestive pretrial out-of-court identification procedures conducive to mistaken identification that are incapable of repair are used, the Due Process Clause requires exclusion of the testimony of the identification. The Supreme Court stated, however, that the totality of the circumstances must be examined to determine if a ...

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