Background
While traveling on Interstate 70, a motorist saw two teenage boys in a blue Jeep Liberty tailgating his car. The Jeep’s passenger leaned out of a window and fired between twenty and forty shots from what appeared to be a BB or paintball gun, denting the motorist’s car. The motorist reported the Jeep’s license plate and described its occupants as young white men approximately sixteen or seventeen years old.
Police identified G.W.B. as the Jeep’s possible owner and prepared a six-photo array. A Kansas detective, who may have known which photograph depicted the suspect, showed all six photographs to the motorist simultaneously after giving an admonition that the culprit might not be included and that the motorist did not have to identify anyone. The motorist selected G.W.B.’s photograph, verbally expressing substantial confidence but marking “somewhat confident” on the identification report. After the juvenile court denied motions to suppress both the photographic and anticipated in-court identifications, the motorist identified G.W.B. at trial. The court adjudicated G.W.B. guilty of criminal mischief and reckless endangerment and imposed nine months of probation.
The Court’s Holding
The Court of Appeals held that the six-photo array and the manner of its administration were not impermissibly suggestive. Although the array was small and best practices favored blind or blinded administration, the administering detective did not direct or influence the motorist’s selection. Colorado law did not require sequential presentation, and the detective’s admonitions reduced the risk of suggestion.
The photographs also sufficiently matched the motorist’s description and one another in race, approximate age, gender, hair, and other characteristics. Differences in facial hair, face shape, framing, lighting, and background color did not make G.W.B.’s photograph stand out in stark contrast to the fillers. Because G.W.B. did not establish impermissible suggestiveness at the first step of the governing test, the court did not reach whether the identification was independently reliable under the totality of the circumstances.
The court also held that the juvenile court was not required to evaluate the in-court identification under the reliability factors from Neil v. Biggers. The pretrial procedure was not impermissibly suggestive, and neither the motorist’s increased certainty at trial nor the other circumstances made the in-court identification constitutionally suspect beyond the inherent suggestiveness of the ordinary courtroom setting. The court therefore affirmed the judgment.
Key Takeaways
- A six-photo array is not inherently unconstitutional, though its relatively small size warrants close scrutiny for suggestive irregularities.
- Departures from recommended practices, including nonblind administration and simultaneous presentation, do not by themselves make an identification procedure impermissibly suggestive.
- When no impermissibly suggestive police-arranged pretrial procedure preceded an in-court identification and nothing beyond the ordinary courtroom setting makes that identification constitutionally suspect, due process does not require a separate Biggers reliability analysis.
Why It Matters
The decision distinguishes recommended eyewitness-identification safeguards from constitutional requirements. Courts must examine an array’s size, presentation, admonitions, and photographic composition together, but imperfect procedures do not require suppression without impermissible suggestiveness.
The opinion also applies Colorado precedent limiting mandatory reliability screening of ordinary in-court identifications. A defendant seeking such screening must identify constitutionally significant suggestiveness in the police-arranged pretrial process or circumstances beyond the courtroom setting’s inherent suggestiveness that independently make the in-court identification suspect.