                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              SEP 8 1998
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 97-4180
                                                             (D. Utah)
 BRIAN PAUL MEIK,                                     (D.Ct. No. 97-CR-130)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before McKAY, BRORBY, and MURPHY, Circuit Judges.



      Following the district court’s denial of his pretrial motion to suppress

identification evidence obtained as a result of a photo array shown to two

eyewitnesses to the robbery, Brian Meik was convicted by a jury of bank robbery.

Mr. Meik appeals the denial of his motion to suppress, claiming the unnecessarily

suggestive identification procedures used by law enforcement officers resulted in

unreliable identification evidence that was admitted at trial in violation of his


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
rights to due process. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.



      On January 22, 1997, a branch of First Security Bank located in Magna,

Utah, was robbed by a lone male. The robber entered through the front door,

walking past the desk occupied by bank employee Cynthia Maestas, toward the

teller cages. The robber approached teller Amy Caldwell, and gave her a note

reading, “Give me your money I have a gun.” After Ms. Caldwell complied, the

robber moved to a second teller's window, presenting the same note. After the

second teller complied, the robber turned and left the bank, again walking past

Ms. Maestas who remained seated at her desk. As the robber fled, Ms. Caldwell

announced the bank had been robbed.



      Sheriff’s Detective Brent Adamson responded to the robbery scene and

interviewed witnesses, who generally described the robber as Hispanic or white,

dark hair, approximately 5'9" tall, weighing approximately 150 pounds, and

wearing a cowboy hat and a long coat. The robber eluded the ensuing search, and

no suspect was immediately identified.



      In March 1997, Emily Buonocore contacted the authorities. She told


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Detective Adamson that Brian Meik had told her he had robbed the bank. Based

on this information, Detective Adamson obtained a jail photograph of Mr. Meik,

comparing it to the descriptions of the robber given by witnesses. The

photograph appeared to match the descriptions in particulars such as height,

weight, and hair color. Detective Adamson then generated a "photo spread"

consisting of Mr. Meik's photograph and five photographs of individuals matching

his general physical description. 1



      On March 28, 1997, Detective Adamson took the photo array containing

Mr. Meik’s photograph to the bank, where he showed it to Ms. Caldwell and Ms.

Maestas. Each witness reviewed the photo array independently, and each

identified Mr. Meik’s photograph as that of the robber. Ms. Caldwell stated he

was "definitely" the robber. Ms. Maestas was "pretty sure" Mr. Meik was the

robber. Mr. Meik was subsequently indicted.



      After his arrest, Mr. Meik moved to suppress the identifications made based



      1
         "Photo spreads" are computer-generated photo arrays. When an individual is
booked into the Salt Lake County Jail, a photograph and physical description are entered
into a computer data base. When parameters such as height, weight, sex, race, eye color,
and hair color, are entered, the computer can generate a photo array of up to six
individuals who match the physical description provided.


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on the photo array used by Detective Adamson, and the potential in-court

identifications. Following a hearing, his motion was denied.



      At trial, both Ms. Caldwell and Ms. Maestas identified Mr. Meik as the

robber. Ms. Buonocore testified as to the inculpatory statements Mr. Meik made

to her. The government presented evidence that Mr. Meik lived less than one

mile from the bank, and had a “window of opportunity” during which no one

could account for his whereabouts. The government also presented evidence Mr.

Meik, who was unemployed at the time of the robbery, became

uncharacteristically generous with money and gifts after the robbery. Mr. Meik

raised an alibi defense. A jury convicted Mr. Meik of bank robbery.



      On appeal, Mr. Meik contends the photo array utilized by Detective

Adamson was unnecessarily suggestive, resulting in unreliable identifications

used in violation of his due process rights. In reviewing a due process challenge

to the use of a photo array, we review the district court's underlying factual

findings under the clearly erroneous standard, and the ultimate constitutional

question de novo. United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir.), cert.

denied, 513 U.S. 1007 (1994). We employ a two-step due process inquiry, first

determining "whether the photo array was impermissibly suggestive." Id. at 1261-


                                         -4-
62 (citing Simmons v. United States, 390 U.S. 377, 384 (1968)). If the photo

array was impermissibly suggestive, "then the court must decide whether the

identifications were nevertheless reliable in view of the totality of the

circumstances." Id.



      In assessing whether a photo array was unnecessarily suggestive, we

typically examine three factors: the size of the array, the manner of presentation,

and the details of the photographs in the array. See id. In this instance, the photo

array consisted of six photographs displayed on a single sheet. 2 Mr. Meik does

not challenge directly either the number of photographs contained in the photo

array, or the manner of presentation. However, he does claim an array composed

of a such a small number of photographs, presented simultaneously, must be

closely scrutinized for suggestive irregularities. We agree. This court has held

that a photo array comprised of six photographs is constitutionally permissible but

is “a number sufficiently small to weigh heavily in the balance of factors to be

considered” in determining whether suggestive irregularities are present. Id. at

1262-63 (“The lower the number of photographs used by officers in a photo array,


      2
         In this case, the photo array consisted of six photographs depicting five
individuals. One individual, not Mr. Meik, appeared in two booking photographs taken
on different dates. We have examined the photo array and are unable to positively
determine which of the photographs featured the same individual.


                                          -5-
the closer the array must be scrutinized for suggestive irregularities.”).



      Mr. Meik contends several details of the photographs comprising the array

constitute suggestive irregularities. He claims four of the other persons depicted

have darker complexions, darker hair, and darker eyes, and the fifth has

noticeably protruding ears. He also claims his photograph is distinguishable from

the others because of the “unusual or tense expression on his face.”



      The court has scrutinized 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. The purported differences emphasized by Mr. Meik are

not readily discerned, if at all. Given the similarities among the photographs,

there are no differences in Mr. Meik's photograph that would draw a witness' eye

to his picture, or make it stand out from the others in any way. Therefore, we

conclude the photo array is not unconstitutionally suggestive.




                                          -6-
      Having determined the photo array was not impermissibly suggestive, we

have no occasion to proceed to the second step of the due-process analysis.

Accordingly, the judgment of the district court is AFFIRMED.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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