Suppress Results of Line-up or Photo Identification, Motion to

When reviewing a trial court’s ruling on a motion to suppress evidence, this court must afford the prevailing party the “‘strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence.’” State v. Martin, 505 S.W.3d 492, 500 (Tenn. 2016) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). We must uphold the trial court’s findings of fact in a suppression hearing unless the evidence preponderates against them. Id. (citing Keith, 978 S.W.2d at 864). The application of the law to the facts found by the trial court is a question of law that we review de novo on appeal. Id. (citations omitted).

Pursuant to the due process protections afforded in the United States Constitution, “a witness’s pretrial identification of the defendant by photograph will be suppressed ‘only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” Id. (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). Such due process concerns arise “‘only when law enforcement officers use an identification procedure that is both suggestive and unnecessary,’ and only if the eyewitness’s identification ‘is tainted by police arrangement.’” Id. (quoting Perry v. New Hampshire, 564 U.S. 228, 238-39 (2012)). If a witness’s in-court identification is tainted by an unconstitutional pretrial identification, the witness’s in-court identification is not admissible in evidence. State v. Cannon, 642 S.W.3d 401, 447 (Tenn. Crim. App. 2021) (citations omitted).

In assessing whether evidence of an identification from a photographic lineup is admissible, the court first must determine whether the identification procedure was unduly suggestive. Neil v. Biggers, 409 U.S. 188, 198 (1972). An improperly constructed photographic lineup “may sometimes cause witnesses to err in identifying criminals,” and the danger of erroneous identification is increased if the witness is shown a series of photographs in which one individual recurs or is emphasized in some way. Simmons, 390 U.S. at 383. However, photographs in a photographic lineup need not “mirror the accused.” State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998). A lineup “would be considered unduly suggestive only when the other participants were grossly dissimilar.” State v. Edwards, 868 S.W.2d 682, 694 (Tenn. Crim. App. 1993); see United States v. Wade, 388 U.S. 218, 233 (1967); State v. Scarborough, 300 S.W.3d 717, 728-29 (Tenn. Crim. App. 2009).

If the identification procedure or lineup was unduly suggestive, the court must determine whether the identification was reliable despite the undue suggestion. Biggers, 409 U.S. at 198-99. The United States Supreme Court has identified five factors to be considered in making this determination:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Id. at 199-200. “The court must consider the ‘totality of the circumstances’ in determining whether the identification was reliable.” Scarborough, 300 S.W.3d at 729 (quoting Biggers, 409 U.S. at 200). However, “[t]he Biggers test for reliability is only triggered if the identification procedures were conducted in an impermissibly suggestive manner.” State v. Bonds, 502 S.W.3d 118, 139 (Tenn. Crim. App. 2016) (citations omitted).