from the Iowa District Court for Polk County, Richard G.
Blane II, Judge.
defendant appeals his conviction challenging the district
court's denial of his motion to suppress.
C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J.
S.J., takes no part.
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.
Background Facts and Proceedings.
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.
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.
Scope and Standard of Review.
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
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 ...