                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1068
                           Filed September 27, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

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. AFFIRMED.



      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.

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                         2


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
                                          3


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 defendant’s due process rights were
       violated as a result of the identification procedure.

Id. (citation omitted). It is the likelihood of misidentification that violates the Due

Process Clause; therefore, if the totality of the circumstances reveals the

identification was reliable, the identification testimony need not be excluded. Id.

at 764.   The two-part analysis to determine if the identification testimony is

admissible includes determining (1) whether the identification procedure was

impermissibly suggestive and, if so, (2) whether the identification made by the

witness at trial was irreparably tainted under the totality of the circumstances. Id.

The focus of the second step is whether the initial identification was reliable, and

the court weighs five factors to make that determination:

              (1) the opportunity of the witness to view the perpetrator at
       the time of the crime;
              (2) the witness’s degree of attention;
                                         4


             (3) the accuracy of the witness’s prior description of the
       perpetrator;
             (4) the level of certainty demonstrated by the witness at the
       confrontation;
             (5) the length of time between the crime and confrontation.

Id. (citation omitted).

       O’Brien claims showing Cortez the still photograph from the gas station

surveillance video two weeks before showing Cortez the six-person photo array

was unnecessarily suggestive. O’Brien admitted he was in the gas station using

Cortez’s ATM card and was at the party Cortez hosted at the motel, but he

claimed he was not part of the robbery. Assuming without deciding that showing

Cortez the still photograph of the individuals using his ATM card within minutes of

the robbery was impermissibly suggestive as to the identity of the individuals who

robbed him, we still conclude the district court correctly denied the motion to

suppress because the initial identification was reliable under the totality of the

circumstances.

       Cortez had ample opportunity at the party in the hotel room to observe the

individuals who would become his attackers; O’Brien was observed on the hotel

security camera and admitted being at the party. In addition, Cortez had an

opportunity to observe the passengers in his car as he drove them across town.

Cortez described his attackers for police, including their skin tone, height, build,

hairstyle, clothing, and location in the car weeks before being shown the still

photograph from the gas station surveillance video. That description matched

the individuals observed in the video, and those individuals can be observed on

the video running into the gas station within minutes of the robbery and using

Cortez’s ATM card. Cortez was certain of his identification both when he was
                                        5


shown the still photograph from the surveillance video and when he was shown

the six-person photo array two weeks later. Finally, the still photograph was

shown to Cortez four weeks after the crime, and the six-person photo array was

presented to Cortez two weeks later.

      Considering the totality of the circumstances, we agree with the district

court that the identification was reliable. Because O’Brien did not prove there

was “a very substantial likelihood of irreparable misidentification,” he cannot

prove his due process rights were violated, and the district court properly denied

his motion to suppress. See State v. Webb, 516 N.W.2d 824, 829 (Iowa 1994).

We affirm O’Brien’s conviction and sentence.

      AFFIRMED.
