from the District Court of the First Judicial District of the
State of Idaho, Bonner County, Hon. Barbara A. Buchanan,
judgment of the district court is affirmed.
Don Fredericksen, State Appellate Public Defender, Boise, for
Appellant. Kimberly A. Coster argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
Respondent. John McKinney argued.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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 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
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.
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.
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.
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). The
district court concluded that the reliability of B.K.'s
identification outweighed the suggestive aspects of the
entered an Alford 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.
STANDARD OF REVIEW
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