                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 44843

STATE OF IDAHO,                                   ) 2018 Opinion No. 21
                                                  )
        Plaintiff-Respondent,                     ) Filed: May 4, 2018
                                                  )
v.                                                ) Karel A. Lehrman, Clerk
                                                  )
TANYA ANDREA VARGAS,                              )
                                                  )
        Defendant-Appellant.                      )
                                                  )

        Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
        County. Hon. Gerald F. Schroeder, District Judge; Hon. Michael J. Oths,
        Magistrate.

        Decision of the district court, on intermediate appeal from the magistrate,
        affirming magistrate’s denial of motion in limine, affirmed.

        Barnum Howell & Gunn PLLC, Boise, for appellant. Matthew Gunn argued.

        Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
        General, Boise, for respondent. Lori A. Fleming argued.
                  ________________________________________________

HUSKEY, Judge
        Tanya Andrea Vargas appeals from the district court’s decision affirming the magistrate’s
denial of Vargas’s motion in limine, which sought suppression of the officer’s out-of-court and
in-court identification of Vargas. Vargas contends that the magistrate and district court erred in
concluding that an officer’s identification of a suspect does not raise due process concerns--and
therefore does not require the court to employ the two-step reliability test for identifications
made pursuant to suggestive identification procedures--if the identification stems from a
photograph obtained as part of that officer’s investigation.        Vargas further argues that the
magistrate and district court erred in failing to suppress the officer’s in-court identification, as it
was the result of a tainted out-of-court identification. For the following reasons, we affirm the
district court’s decision.



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                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       At approximately 10:50 p.m. on May 8, 2015, an officer noticed that a vehicle had a
nonfunctioning taillight and began to follow the vehicle. After calling the vehicle’s license plate
number into dispatch, the officer attempted to stop the vehicle. The driver slowed but did not
stop. The officer, who pulled to within fifteen feet of the vehicle, was able to observe the
driver’s face in the driver’s side mirror, as the driver kept glancing into the mirror. After the
officer activated her siren, the driver accelerated rapidly. The officer, pursuant to department
policy, did not give chase.
       The license plate number led the officer to the registered owner of the vehicle. The
registered owner told the officer that the owner had provided the vehicle to Vargas. After
obtaining Vargas’s photograph from a copy of her state-issued ID, the officer was able to
identify Vargas as the driver of the vehicle.
       On June 5, 2015, Vargas was charged with one count of eluding a police officer. Vargas
pled not guilty. Before trial, Vargas filed a motion in limine seeking suppression of the officer’s
identification of Vargas, both in and out of court. The magistrate denied the motion. On
March 15, 2016, the case proceeded to trial and a jury found Vargas guilty. The magistrate
sentenced Vargas to 166 days in jail, but credited her with 166 days served. Vargas timely
appealed the judgment of conviction to the district court.        The district court affirmed the
judgment of conviction, holding that the magistrate did not err in denying Vargas’s motion in
limine. Vargas timely appealed the district court’s decision.
                                                II.
                                   STANDARD OF REVIEW
       For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho
Supreme Court. The Supreme Court reviews the magistrate record to determine whether there is
substantial and competent evidence to support the magistrate’s findings of fact and whether the
magistrate’s conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415,
224 P.3d 480, 482 (2009).       If those findings are so supported and the conclusions follow
therefrom, and if the district court affirmed the magistrate’s decision, we affirm the district
court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review the

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decision of the magistrate. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App.
2014). Rather, we are procedurally bound to affirm or reverse the decision of the district court.
Id.
                                                  III.
                                             ANALYSIS
A.        Out-of-Court Identification
          To determine whether evidence of an out-of-court identification violates due process, this
Court applies a two-step test. See State v. Hoisington, 104 Idaho 153, 162, 657 P.2d 17, 26
(1983).     First, the defendant must establish that the identification procedure was overly
suggestive. United States v. Wade, 388 U.S. 218, 240 n.31 (1967); Hoisington, 104 Idaho at 162,
657 P.2d at 26.       Second, if the defendant meets that burden, courts consider whether the
identification was nonetheless reliable under the totality of the circumstances. Id. This second
step entails considering the witness’s opportunity to view the perpetrator, his degree of attention,
the accuracy of his description, his level of certainty, and the time between the crime and pretrial
confrontation, and then weighing those factors against the “corrupting effect of the suggestive
identification.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Hoisington, 104 Idaho at 162,
657 P.2d at 26. Thus, greater indicia of reliability may be necessary the more egregious the
suggestive procedures.
          However, the preliminary issue for this Court is whether the identification stemmed from
police suggestiveness. State v. Almaraz, 154 Idaho 584, 593, 301 P.3d 242, 251 (2013) (focusing
on whether the suggestive procedures leading to the identification stemmed from police action);
State v. Trevino, 132 Idaho 888, 892, 980 P.2d 552, 556 (1999) (“Due process requires the
exclusion of identification evidence if police suggestiveness created a substantial risk of
mistaken identification.”). The United States Supreme Court reaffirmed the existence of this
preliminary hurdle in Perry v. New Hampshire, 556 U.S. 228, 232-33 (2012). In Perry, the
Court explained:
          We have not extended pretrial screening for reliability to cases in which the
          suggestive circumstances were not arranged by law enforcement officers. . . . Our
          decisions . . . turn on the presence of state action and aim to deter police from
          rigging identification procedures, for example, at a lineup, showup, or photograph
          array. When no improper law enforcement activity is involved, we hold, it
          suffices to test reliability through the rights and opportunities generally designed
          for that purpose, notably, the presence of counsel at postindictment lineups,

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       vigorous cross-examination, protective rules of evidence, and jury instructions on
       both the fallibility of eyewitness identification and the requirement that guilt be
       proved beyond a reasonable doubt.
Id. Accordingly, the question that the parties and lower courts in the present case focused on
was whether the officer’s actions created suggestive circumstances leading to an unreliable
identification, with Vargas’s trial counsel asserting that the officer was impermissibly suggestive
toward herself. The magistrate and district court both rejected that argument.
       The district court, in rejecting Vargas’s argument, relied on State v. Hooks, 752 N.W.2d
79 (Minn. Ct. App. 2008). In Hooks, an undercover officer completed a controlled purchase of
narcotics. The officer and the dealer were in separate cars that were pulled up alongside one
another; the drivers were in reach of one another, and the transaction lasted less than one minute.
After other officers stopped the dealer’s car and obtained his license, they radioed his name to
the undercover officer. Within twenty minutes of the controlled purchase, the undercover officer
reviewed Hooks’ driver’s license photo, identifying him as the dealer.           Rejecting Hooks’
argument that the officer’s identification was influenced by impermissibly subjective
identification procedures, the Minnesota Court of Appeals reasoned that an officer cannot be
unduly influenced by his own identification procedure. Id. at 85. Other states have reached the
same conclusion. See State v. Manna, 539 A.2d 284, 312 (N.H. 1988) (“Officer Casale could not
be found through the photo identification process to have impermissibly suggested to himself the
[identity of the suspect].”); see also Terry v. State, 857 N.E.2d 396, 409 (Ind. Ct. App. 2006)
(“[W]hen a police officer who is both an investigator and a witness views a single photograph in
order to verify a suspect’s identity, the identification procedure is not unduly suggestive.”). This
conclusion is logical because the purpose behind scrutinizing police identification procedures is
to prevent witnesses from being prejudiced by suggestive police tactics and by their own
assumptions that the police have unique expertise and information to determine the suspect’s
identity. Hooks, 752 N.W.2d at 84-85.
       On appeal, Vargas contends that the two-step reliability test applies whether or not the
identification is made by law enforcement or a lay witness. In support of that contention, Vargas
cites to Brathwaite. We agree that, pursuant to Manson, the two-step reliability test should be
applied where one officer presents a single photograph lineup to another officer. But those are
not the facts in the present case. Here, the officer presented herself with the photograph.
Accordingly, there was no need to analyze the officer’s identification procedures under the two-

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step reliability test. See Manna, 539 A.2d at 312 (“[Manson] is clearly distinguishable from this
case because the suggestive photo identification procedure was employed by a second regular
officer.”).
        Vargas further misstates the rationale in Hooks as being that a law enforcement officer
cannot be “impermissibly and unnecessarily swayed by a single-photo lineup.” This is an
incorrect reading of Hooks. Hooks holds that a law enforcement officer cannot impermissibly
suggest something to himself. Accordingly, the following cases, which Vargas cites to show
how other jurisdictions have rejected the rationale in Hooks, are distinguishable on the basis that
they deal with situations in which the officer was presented with a photograph by another
officer: United States v. Lumpkin, 192 F.3d 280, 284 (2d Cir. 1999) (applying Manson test when
a detective displayed a single photograph to two undercover officers); Butcher v. State, 931 A.2d
1006, at *2 (Del. 2006) (applying Manson test when detective identified suspect after being
provided a “confirmatory photo” upon returning to the police station); and State v. Abdo, 518
N.W.2d 223, 225 (S.D. 1994) (applying Manson test when one officer showed a single
photograph of the defendant, along with three photographs that the identifying officer had
already said were not the suspect, to the identifying officer).
        The only case that Vargas cites to that directly contradicts the reasoning in Hooks,
Manna, and Terry is State v. Padgett, 2000 WL 873218 (Ohio Ct. App. June 30, 2000), which
appears to be an outlier. In Padgett, the Ohio Court of Appeals held that an officer, who
obtained a photograph of a suspect by running his fingerprints and then pulling a booking
photograph, had undertaken an identification procedure that was impermissibly suggestive
toward himself. Id. It is noteworthy that the court in Padgett did not discuss the rationale behind
Manson:       the need to protect defendants from improper police conduct, such as rigging a
photograph array or lineup, and the sheer influence an authority figure can have over an
identifying witness. See Perry, 556 U.S. at 232-33. This could be due to the fact that Padgett
was written in 2000, while Perry, Almarez, Hooks, and Manna were all handed down after 2000.
        The cursory reasoning in Padgett is not as persuasive as the reasoning in Hooks, Manna,
and Terry, nor does it comport with the focus on improper police action found in Perry and
Almarez. Accordingly, the magistrate and district court were correct in determining that an
officer’s identification of a suspect pursuant to a photograph discovered as part of that officer’s



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investigation--as opposed to a photograph provided by another officer--does not raise due
process concerns, thus obviating any need to employ the two-step reliability test. 1
B.     In-Court Identification
       The due process test for suppression of an in-court identification that is allegedly tainted
by an impermissibly suggestive out-of-court identification is whether the out-of-court
identification was so suggestive that there is a very substantial likelihood of misidentification.
State v. Crawford, 99 Idaho 87, 103, 577 P.2d 1135, 1151 (1978). Because we hold that the out-
of-court identification could not have been impermissibly suggestive as a matter of law, Vargas’s
in-court identification argument necessarily fails.
                                                 IV.
                                          CONCLUSION
       The lower courts were correct in concluding that the out-of-court identification did not
raise due process concerns, as the officer in this case could not have impermissibly suggested to
herself the identity of the suspect. Accordingly, the district court’s decision is affirmed.
       Judge GUTIERREZ and Judge Pro Tem WALTERS, CONCUR.




1
        If the reliability of an officer’s identification is questionable based on factual
circumstances such as lighting and distance, as opposed to impermissible police suggestion, the
correct procedure for challenging the identification is not pretrial screening under Manson, but
rather vigorous cross-examination, invocation of applicable rules of evidence, and the proposal
of jury instructions addressing the fallibility of eyewitness identification. See Perry v. New
Hampshire, 556 U.S. 228, 232-33 (2012).
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