                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 45100

STATE OF IDAHO,                                     )
                                                    )
      Plaintiff-Respondent,                         )        Boise, August 2018 Term
                                                    )
v.                                                  )        Filed: November 28, 2018
                                                    )
STEVEN MICHAEL MOORE,                               )        Karel A. Lehrman, Clerk
                                                    )
      Defendant-Appellant.                          )

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Bonner County, Hon. Barbara A. Buchanan, District Judge.

       The judgment of the district court is affirmed.

       Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant.
       Kimberly A. Coster argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. John
       McKinney argued.
             _______________________________________________

HORTON, Justice.
       Steven Michael Moore appeals the district court’s decision denying his motion to
suppress his identification by an eyewitness. The district court found that law enforcement had
engaged in a suggestive identification procedure but concluded that the identification was
nonetheless reliable under the five-factor reliability test first articulated by the United States
Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972). Moore argues that the district court
should have suppressed the identification because the district court’s findings regarding several
of the reliability factors were not supported by substantial and competent evidence. We affirm.
                 I.     FACTUAL AND PROCEDURAL BACKGROUND
       The eyewitness whose identification is at issue is a twelve-year-old boy, B.K. On May 6,
2016, B.K. was riding an all-terrain vehicle (ATV) when he realized that he was being followed
by a pickup. After B.K. pulled into his driveway, the pickup followed him into the driveway and


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intentionally rammed the ATV while B.K. was stilled seated on it. Although he did not exit the
pickup, the male driver threatened B.K., saying “If I see any f***bags like you driving fast on
my road again, I will shoot and kill you with a bullet.” The pickup then left. The Bonner County
Sheriff’s Office was notified and Patrol Deputy Kempton responded to the scene.
       B.K. described the driver of the pickup as “between 50 and 70 years old, a full head of
gray hair, a thick gray and white mustache, medium build, dirty teeth,” and smelling of cigarette
smoke. B.K. described the vehicle as a “dark blue older truck with a matching canopy.” B.K. told
police that he would be able to identify the perpetrator and his truck if he saw them again.
        After some investigation the following day, Kempton suspected that Moore might have
been involved in the incident. Using the computer in her patrol car, she obtained Moore’s
driver’s license photograph. She forwarded the color photograph to Sergeant Cotter who was
closer to B.K.’s home. Cotter went to B.K.’s home, where B.K. and his stepfather were standing
in the driveway. Cotter told them that he had a picture for B.K. to look at and showed B.K.
Moore’s driver’s license photograph on his in-car computer. Within seconds, B.K. identified
Moore as the driver from the incident the preceding day. When Cotter asked B.K. if he was sure
of the identification, B.K. responded that he was positive. Moore was then arrested.
       B.K. left town to visit his father for the summer, returning in late July. On July 29, 2016,
Kempton went to B.K.’s home and showed B.K. a “six-pack,” i.e., a photographic array
consisting of six black and white booking photographs, two of which (including Moore’s) bore,
in small letters along the bottom of the photograph, the words “Bonner County Sheriff’s Office”
and a booking number. Before showing B.K. the photographic array, Kempton told B.K. that the
line-up had six people matching his description of the pickup driver, that the driver may or may
not be in the line-up, and that if B.K. saw somebody that he thought was the driver, to initial the
photograph. B.K. chose the photograph of Steven Moore within seconds, and he placed his
initials on the photograph.
       Moore moved to suppress B.K.’s identification of him as the driver of the vehicle. At the
suppression hearing, based upon the prosecutor’s stipulation, the district court found that Cotter’s
use of the single photograph was impermissibly suggestive. The district court then evaluated the
reliability of B.K.’s identification in light of this Court’s decisions in State v. Hoisington, 104
Idaho 153, 657 P.2d 1362 (1983), and State v. Almaraz, 154 Idaho 584, 301 P.3d 242 (2013).


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The district court concluded that the reliability of B.K.’s identification outweighed the suggestive
aspects of the identification procedure.
           Moore entered an Alford 1 plea to attempted aggravated assault in which he reserved the
right to appeal the district court’s order denying his motion to suppress. The district court
sentenced Moore to two years’ imprisonment, with one year fixed, and suspended the sentence,
placing Moore on probation for two years. Moore timely appealed from the judgment of
conviction.
                                      II.      STANDARD OF REVIEW
           “The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, the Court accepts the trial court’s findings of fact that are
supported by substantial evidence, but freely reviews the application of constitutional principles
to the facts as found.” State v. Page, 140 Idaho 841, 843, 103 P.3d 454, 456 (2004). “Substantial,
competent evidence is such evidence as a reasonable mind might accept as adequate to support a
conclusion.” In re Doe Children, 163 Idaho 536, 538, 415 P.3d 945, 947 (2018) (quoting Idaho
Dep’t of Health & Welfare v. Doe (2015-01), 158 Idaho 764, 767, 351 P.3d 1222, 1225 (2015)).
                                                III.   ANALYSIS
           The issue presented in this appeal is whether the district court correctly denied Moore’s
motion to suppress after finding that the reliability of B.K.’s identification outweighed the
suggestive nature of the identification procedure used by the sheriff’s department.
                   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, 108 (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.

1
    North Carolina v. Alford, 400 U.S. 25 (1970).


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State v. Almaraz, 154 Idaho 584, 593, 301 P.3d 242, 251 (2013). The five-factor reliability
analysis of Manson was first articulated by the United States Supreme Court in Neil v. Biggers,
409 U.S. at 199–200. Manson, 432 U.S. at 114. In Almaraz, we explained that the analysis of the
five reliability factors is further informed by “estimator variables,” observing that the following
tend to diminish the reliability of a witness’ identification:
         (1) stress; (2) the use of a visible weapon during a crime; (3) the shorter the
         duration of a criminal event; (4) the greater the distance and the poorer the
         lighting conditions; (5) increased levels of intoxication; (6) the use of disguises
         during the crime and changes in facial features between the time of initial
         observation and a subsequent identification; (7) the greater the period of time
         between observation and identification to law enforcement; (8) race-bias; and (9)
         feedback from co-witnesses confirming the identification of a perpetrator.
Almaraz, 154 Idaho at 594, 301 P.3d at 252. In Almaraz, we made clear that these estimator
variables are to be considered within the scope of the existing test to weigh the five reliability
factors against the “corrupting effect of the suggestive identification.” Id. at 593, 301 P.3d at 251
(quoting Manson, 432 U.S. at 108).
         The district court correctly recognized the problematic nature of the use of a single
photograph for B.K.’s initial identification of Moore. Hoisington, 104 Idaho at 162, 657 P.3d at
26 (“In particular, single subject showups are inherently suspect and generally not condoned.”).
The State concedes that the district court correctly held that the use of the single photograph was
overly suggestive. Therefore, we will only address the district court’s decision that the reliability
of B.K.’s identification outweighed the impact of the suggestive identification procedure.
         A. The witness’ opportunity to view the perpetrator
         The first factor used to evaluate whether an identification made after an overly suggestive
procedure is nevertheless reliable is the witness’ opportunity to view the perpetrator. Almaraz,
154 Idaho at 595, 301 P.3d at 253. Several of the estimator variables identified in Almaraz assist
in this determination: “under the first factor courts may consider the lighting at the time the
crime was committed, whether the perpetrator was wearing a disguise, and the length of time
taken to commit the crime, among other variables.” Id.
         Finding that this factor supported the reliability of B.K.’s identification, the district court
wrote:




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       [T]his Court finds that [B.K.] had an opportunity to view [the perpetrator]. While
       still seated on the ATV, [B.K.] could turn around and view the driver’s face
       through the windshield of the truck. Further, counsel stipulated that it was “dark”
       at the time of the incident. But remember, [B.K.] had driven the ATV 50 yards up
       the driveway to near his house, and his mother “observed [B.K.] pull into the
       driveway and the truck hit him. She ran out and the male left in the truck.” So,
       although it was “dark” and no testimony was elicited as to whether the exterior
       lights from the [witness’] home or from the ATV or the truck illuminated the
       scene, due to the detail of the description given by [B.K.], this Court finds that the
       lighting conditions—whether natural or artificial—were sufficient to allow [B.K.]
       to get a clear view of the perpetrator’s face at the time of the crime through the
       windshield of the truck.
       For factual questions, this Court “will not substitute its view for that of the [trial] judge if
the situation is such that reasonable minds might differ.” State v. Howard, 135 Idaho 727, 732,
24 P.3d 44, 49 (2001). The applicable standard of review requires this Court to affirm a factual
finding “if a reasonable trier of fact would accept it and rely upon it in determining whether a
disputed point of fact had been proven.” Shawver v. Huckleberry Estates, L.L.C., 140 Idaho 354,
363, 93 P.3d 685, 694 (2004). The district court’s observations regarding B.K.’s opportunity to
view the perpetrator—including that the lighting conditions were sufficient—were reasonable
inferences drawn from the evidence presented to it. Substantial and competent evidence
supported the district court’s factual finding regarding B.K.’s opportunity to observe Moore.
       B. The witness’ degree of attention
       When examining the witness’ degree of attention, several different estimator variables
apply: “[u]nder the second factor courts may consider the amount of stress the witness was
under, whether a weapon was present, or the witness’s level of intoxication.” Almaraz, 154 Idaho
at 595, 301 P.3d at 253. The district court concluded that because there was no firearm present,
there was no visible weapon that would decrease reliability of the identification. Additionally,
the district court found that while:
       verbal threats made to [B.K.] during the incident may have caused him stress, the
       [district court] finds that such stress, if any, did not undermine his degree of
       attention to the perpetrator. On the contrary, any words spoken by the male driver
       would cause [B.K.] to focus even more attention on the driver’s face.
The research that the Court embraced in Almaraz demonstrated that stress, along with the other
estimator variables, tends to “diminish the reliability of a witness’s identification . . . .” Almaraz,
154 Idaho at 594, 301 P.3d at 252; see also State v. Abdullah, 158 Idaho 386, 498, 348 P.3d 1,


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113 (2015) (recognizing reliability where “the situation was non-threatening and non-stressful”).
The district court correctly recognized that stress was an appropriate subject for its consideration.
The degree of stress experienced by the witness and its corollary impact upon the reliability of
the identification is a fact-specific determination for the trial court. The district court evaluated
the evidence and made the factual determination that any stress that B.K. experienced did not
negatively affect the reliability of his identification. Substantial and competent evidence
supported this factual finding and we will not overturn it.
         C. The accuracy of the witness’ prior description of the perpetrator
         Under the third factor of reliability, courts determine whether the description of the
perpetrator was accurate enough to indicate reliability. Almaraz, 154 Idaho at 596–97, 301 P.3d
at 254–55. The district court found that “the description of the male driver by [B.K.], given to
Deputy Kempton almost immediately following the incident, bears a striking resemblance to
[Moore’s] driver’s license photograph.”
         Moore raises several challenges to this determination, specifically that: (1) Moore’s hair
is brown, not gray; (2) Moore does not have a full head of hair, nor is his hair curly; (3) Moore
claims that he does not smoke; 2 and (4) Moore’s mustache extends beyond the point of the
description. Therefore, Moore argues that the only remaining features in B.K.’s description are
far too general to constitute the striking similarity found by the district court. Moore also points
out that B.K.’s identification was based upon a color photograph while the district court
examined only a black and white copy of that photograph.
         The district court’s finding that Moore resembles the description is supported by
substantial and competent evidence, despite the contradictions identified by Moore. See Hull v.
Giesler, 163 Idaho 247, 409 P.3d 827, 830 (2018) (“Findings of fact that are supported by
substantial and competent evidence are not clearly erroneous—even in the face of conflicting
evidence in the record.”). The district court explained why the differences raised by Moore were
of little consequence:
         Moore’s gray and white mustache appears to stop at or just below the crease of
         his mouth; strands of gray hairs are visible around his temples and at the top of his

2
  The district court observed the lack of evidence supporting this claimed discrepancy: “Lastly, the defendant asserts
that [he] does not smoke. Moore did not testify at the suppression hearing.” The district court then stated that it did
not find “the fact that Moore does not smoke, if true, to undermine the accuracy of [B.K.’s] description.”


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         head; he looks to be of medium build and between 50 and 70 years old. Moore
         does not have a full head of gray hair; however, the 12 year-old victim in this case
         was looking at Moore from the front, and perhaps lower, vantage point of the
         ATV seat, and from that angle it is difficult to ascertain where his hair line starts.
On the record before us, we must defer to the district court’s factual finding that Moore’s
photograph resembled the subject of B.K.’s description.
         However, to buttress its determination that B.K.’s prior description was accurate, the
district court noted that B.K. had described the perpetrator “as driving a dark blue older truck
with a matching canopy” and that Moore’s vehicle matched this description. Moore disputes this
finding, arguing that his vehicle is a different color and is a sport utility vehicle, not a pickup
with matching canopy. Moore also argues that the district court’s reliance on the accuracy of
B.K.’s description of his vehicle is improper because the vehicle was not used in any manner
during the identification.
         We agree with Moore that it was improper for the district court to rely on circumstantial
evidence to evaluate the reliability of B.K.’s identification. The question for the district court
was not whether B.K. correctly identified Moore as the perpetrator. Instead, the question before
the district court was whether an evaluation of the five factors showed that B.K.’s identification
was sufficiently reliable as to outweigh the corrupting influence of the single-photograph
identification procedure. 3 By considering the accuracy of B.K.’s description of a vehicle which
was not involved in the identification, the district court erred. However, given the district court’s
finding that Moore resembled B.K.’s description, we agree with the district court that this factor
weighs in favor of the reliability of B.K.’s identification.
         D. Level of certainty demonstrated at the identification

3
  This is unlike the more common situation where a suspect is arrested shortly after a crime and the reliability of a
show-up or single photograph identification is at issue and the description of the suspect includes a description of
clothing. In State v. Bush, this Court considered the defendant’s clothing when determining the reliability of the
identification where the clothing was used by the witness in both the initial description and subsequent
identification. 131 Idaho 22, 28–29, 951 P.2d 1249, 1255–56 (1997). Thus, this Court used the fact that the
defendant’s clothing during the identification matched the clothing from the witness’ prior description of the
perpetrator as evidence of reliability. Id.; see also Manson v. Brathwaite, 432 U.S. 98, 115 (1977) (noting that
defendant did not dispute that his clothing matched the witness’ description indicated reliability of identification).
The most extreme example of using clothing to evaluate the reliability of an identification may be found in Vessell v.
State, where the Alaska Supreme Court found two eyewitnesses’ identification to be reliable solely on the “detailed
and accurate” descriptions of a robber’s clothing, despite their inability to recognize his facial features.” 624 P.2d
275, 279 (Alaska 1981), overruled on other grounds by Young v. State, 374 P.3d 395 (Alaska 2016).



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        The district court found that B.K. “demonstrated a high level of certainty in his
identification of” Moore as the driver because B.K. identified Moore within seconds after Cotter
showed him the photograph, B.K. told Cotter that he was “positive” that the photograph was that
of the driver, and because B.K. immediately identified Moore in July 2016 when Kempton
showed him the six-pack containing a different photograph of Moore. Moore argues that the
district court incorrectly found that this factor supported reliability because Cotter failed to
record the identification and used an overly suggestive identification procedure.
        In Almaraz, we noted that “courts should be cautious in the amount of weight they give to
a witness’s degree of certainty in their identification when police have used overly suggestive
procedures, particularly when confirmation feedback has been given.” 154 Idaho at 595, 301
P.3d at 253. There, we held that this factor weighed against reliability where the only evidence of
certainty came from police testimony and the officer had willfully failed to record the
identification. Id. at 597, 301 P.3d at 255.
        Here, there is no evidence in the record that indicates the police officers willfully decided
not to record the identification procedure nor is there any indication that Cotter provided any
form of confirmation feedback. We find Moore’s reliance on Almaraz in support of his claim that
this factor weighs against reliability is misplaced. Substantial competent evidence supported the
district court’s finding that this factor indicated reliability.
        E. Length of time between incident and identification
        The district court found that the length of time between the incident and the identification
indicated reliability because the identification took place only the next day. Moore does not
dispute this finding. Almaraz recognizes that a longer “period of time between observation and
identification” diminishes the reliability of a witness’ identification. 154 Idaho at 594, 301 P.3d
at 252. Periods of up to three days have been found to be reasonable. Id. at 598, 301 P.3d at 255.
As only one day had passed, the district court correctly found that this factor weighs in favor of
reliability.
        Considering these five factors together, we agree with the district court’s determination
that B.K.’s identification of Moore was reliable despite the initial use of an overly suggestive
identification procedure. Thus, we affirm the district court’s decision denying Moore’s motion to
suppress.


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                         IV.        CONCLUSION
We affirm the judgment of the district court.


Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER CONCUR.




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