               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42458

STATE OF IDAHO,                                 )   2015 Unpublished Opinion No. 706
                                                )
       Plaintiff-Respondent,                    )   Filed: November 12, 2015
                                                )
v.                                              )   Stephen W. Kenyon, Clerk
                                                )
DANIEL CURTIS QUILIMACO,                        )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Appellant.                     )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Jerome County. Hon. John K. Butler, District Judge.

       Judgment of conviction for robbery, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Daniel Curtis Quilimaco appeals from his judgment of conviction for robbery.
Specifically, Quilimaco alleges the district court erred in denying his motion to suppress the
eyewitness identification because it was unnecessarily suggestive, rendering the identification
unreliable. For the reasons set forth below, we affirm.
       An unmasked man entered a motel, walked to the front desk, and inquired about renting a
room. The employee looked away and when she looked back, the man had a rifle pointed at her.
The man then walked behind the counter. The employee backed toward a doorway leading to an
adjoined apartment and called for another employee. The second employee walked toward the
door of the apartment and saw the man with the rifle. After obtaining money, the man left and
one of the employees called 911 to report the robbery. During the call, the employee described



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the man as a Hispanic male, approximately twenty-seven years old, having shaved black hair and
a big nose, and wearing a black leather jacket and black gloves. An officer responded to the
motel where the employees described the rifle as black, with a short barrel and a scope.
       Shortly thereafter, a different officer stopped a vehicle for speeding. There were two men
in the vehicle, one of which was Quilimaco. The vehicle was stopped twenty-three miles from
the motel, approximately thirty minutes after the motel was robbed. The officer had received a
report that a robbery had recently occurred at the motel, along with the descriptions of the
suspect and gun provided by the eyewitnesses. The officer observed that both men acted “very
nervous” and that one of the men had some of the characteristics of the robbery suspect. The
officer returned to his vehicle and received information from dispatch that a person driving on
the same highway reported seeing a bag thrown from a vehicle near where Quilimaco’s vehicle
was stopped. The officer returned to Quilimaco’s vehicle and asked for consent to search the
vehicle, which was refused. A canine officer then arrived and searched the exterior of the
vehicle for indications that the vehicle contained drugs. The dog did not alert on the vehicle and
was then used to search for the discarded bag. As a result, the officer recovered a duffle bag
containing a short rifle. Quilimaco and his passenger were taken into custody as suspects of the
motel robbery.
       Photographs of Quilimaco and his passenger were taken and emailed to the officer who
initially responded to the motel. That officer printed the images--two of Quilimaco and one of
his passenger--on a single sheet of paper and returned to the motel.         At the motel, both
employees were shown the images. The officer told the employees that the men had been
stopped on the highway and could possibly be the robbers. Both employees identified Quilimaco
as the man who committed the robbery.
       Quilimaco was charged with robbery, as well as other crimes. I.C. §§ 18-6501, 19-6503.
Quilimaco filed a motion to suppress, asserting that the identification procedure was overly
suggestive.1   The district court denied the motion, finding that, while the identification of



1
       Quilimaco also alleged that the traffic stop was unlawfully prolonged. Quilimaco does
not challenge the district court’s finding that the extension of the stop was lawful.



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Quilimaco was overly suggestive, the identification was sufficiently reliable. Quilimaco entered
an Alford2 plea to robbery and the state dismissed the remaining charges. Quilimaco appeals.
       The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
       To determine whether evidence of an out-of-court identification violates due process, this
Court applies a two-step test. State v. Almarez, 154 Idaho 584, 593, 301 P.3d 242, 251 (2013).
First, the defendant must establish that the identification procedure was overly suggestive. Id.
Once the police procedures are found to be overly suggestive, the trial court must conduct a
second inquiry to determine whether, under the totality of the circumstances, the identification
was reliable despite the identification procedure being overly suggestive. Id. at 596, 301 P.3d at
254. This second step entails considering: (1) the witness’s opportunity to view the criminal at
the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior
description of the criminal; (4) the witness’s level of certainty demonstrated at the identification;
and (5) the length of time between the crime and the identification. Those five factors are then
weighed against the corrupting effect of the suggestive identification. Id. In addition to these
five factors, a trial court also considers the relevant estimator variables, which diminish the
reliability of a witness’s identification. Id. at 593-94, 301 P.3d at 251-52. These estimator
variables include stress; the use of a visible weapon during a crime; the shorter the duration of a
criminal event; the greater the distance and the poorer the lighting conditions; increased levels of
witness intoxication; the use of disguises during the crime and changes in facial features between
the time observation and a subsequent identification; the greater the period of time between



2
        See North Carolina v. Alford, 400 U.S. 25 (1970).


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observation and identification to law enforcement; racial bias; and feedback from co-witnesses
confirming the identification of a perpetrator. Id.
       In this case, the district court found that the identification procedure used by the officer
was overly suggestive. This finding is not challenged by either party on appeal. Thus, the sole
issue on appeal is whether the district court erred in finding that, under the totality of the
circumstances, the identification was reliable despite the identification procedure being
suggestive.
       A number of factors indicate that the employees’ identifications of Quilimaco were
reliable. First, both employees observed the robber for what they estimated to be five to eight
minutes. The robber was not wearing a mask or hat. The two employees and the robber were in
a relatively small area, were in close proximity to one another, and the robber was in plain view
of the employees at all times. Throughout the robbery, the employees’ attention was directed at
the robber and his actions. In addition, immediately after the robbery occurred, one employee
called 911 and gave a description of the robber as a Hispanic male, dark skin, large or distinctive
nose, shaved or buzzed head, wearing a black leather jacket, and having a black rifle with a short
barrel and a scope.     The description is consistent with the employees’ written statements
prepared later that night and with Quilimaco’s appearance when he was arrested. Also, when the
employees viewed the images and identified Quilimaco, they demonstrated a high level of
certainty that he was the robber. The district court found that the employees were positive that
Quilimaco was the robber. Finally, only approximately two and one-half hours had elapsed from
the time of the robbery until the employees were shown the images of Quilimaco. On the other
hand, several estimator variables weigh against the reliability of the employees’ identifications.
First, one employee had taken prescribed pain medication an hour prior to the robbery.
However, the district court found that there was no evidence that the employee’s ability to
observe the robber was impaired by the medication. In addition, the use of a firearm caused both
employees to be under stress at the time they observed the robber, which had potential to affect
their perception of the robber. However, the district court found that the robber’s use of a
firearm was not so distracting that it took the employees’ attention away from the robber.
       Application of the five reliability factors listed above indicates that the employees’
identifications of Quilimaco were reliable. While some of the estimator variables have potential


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to weigh against reliability of the identifications, after balancing the reliability factors against the
suggestive elements of the identification, the reliability of the identification outweighs the impact
of the suggestive elements. Another important event adds to the reliability of the employees’
identification. A citizen observed a bag being tossed from a vehicle prior to the traffic stop. The
officers located the bag, which contained a rifle matching the description (given by the
employee) of the weapon used in the robbery, in the vicinity of Quilimaco’s vehicle. Under the
totality of the circumstances, we agree with the district court that the employees’ identifications
of Quilimaco were reliable despite the identification procedure being overly suggestive. Thus,
Quilimaco has not shown that the district court erred in denying his motion to suppress.
Therefore, Quilimaco’s judgment of conviction for robbery is affirmed.
        Judge GUTIERREZ and Judge GRATTON, CONCUR.




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