Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 16, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2027
SERGIO RUIZ,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:21-CR-01389-KG-1) _________________________________
Amanda Skinner, Assistant Federal Public Defender (Imtiaz Hossain, Assistant Federal Public Defender; and Margaret A. Katze, Federal Public Defender, with her on the brief), Office of the Federal Public Defender, Las Cruces, New Mexico, for Defendant-Appellant.
Joni Autrey Stahl, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with her on the brief), Office of the United States Attorney, Las Cruces, New Mexico, for Plaintiff-Appellee. _________________________________
Before TYMKOVICH, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________
BALDOCK, Circuit Judge. _________________________________
United States Customs and Border Patrol (CPB) Officers seized Defendant Sergio
Ruiz at the Columbus, New Mexico port of entry with 20.8 kilograms of methamphetamine
and an active GPS tracker concealed inside his pickup truck’s spare tire. To prove Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 2
Defendant’s knowledge of the drugs, the Government put on a confidential informant’s
testimony identifying Defendant as “Señor de Llanta,” or in English, “Tire Man,” a courier
with a twenty-year history of concealing and transporting narcotics in spare tires.
Defendant argues the identification should have been suppressed because it was based on
a purportedly suggestive pretrial photo array. Setting aside the photo array procedure, we
conclude there was no substantial likelihood of misidentification under the totality of the
circumstances, where the informant met with Defendant for three separate drug
transactions—including a ten-minute face-to-face conversation—and provided consistent,
detailed, and accurate descriptions of Defendant before identifying him in the photo array.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
A.
Defendant Sergio Ruiz lived in the border town of Columbus, New Mexico, and
crossed into Mexico nearly every day. On the afternoon of April 28, 2021, Defendant
entered the Columbus port of entry from Mexico alone in his Chevrolet Silverado pickup.
CBP officers recognized him as a regular crosser. But this time was different—
Defendant’s truck bed was loaded with cinderblocks, rebar, and two 55-gallon drum
barrels. Defendant told officers he had purchased the materials to build a wall at his home.
The primary investigating officer, Adrian Alvarado, suspected Defendant’s cargo might be
a “commercial load” that he would have declare to customs. Officer Alvarado phoned his
supervisor to confirm. During their phone call, Officer Alvarado’s supervisor advised him
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there was a “Be on the Lookout” (BOLO) for someone matching Defendant’s name and
physical description for possible narcotics trafficking.
Officer Alvarado referred Defendant to the secondary inspection area for further
investigation. There, officers instructed Defendant to drive through a “Z Portal” vehicle
X-Ray machine. The scan revealed an anomaly in Defendant’s spare tire. Officers
removed the tire, cut it open, and discovered packages containing 20.8 kilograms of
methamphetamine along with an active GPS tracking device. Officers also discovered the
tool used to remove the spare tire was loose in the truck bed rather than its original location.
Defendant consented to a custodial interview at the port of entry. He denied any knowledge
of the narcotics. Defendant told officers he had purchased the truck three years ago and
“maintained control of the vehicle at all times.” He also told officers, however, that he left
the truck unattended overnight at a hardware store in Mexico to have the cinderblocks
loaded in the bed. He picked the truck up the following day and drove it to the port of
entry where he was seized. Defendant consented to a search of his phone, which contained
no call or text history.1
B.
A federal grand jury indicted Defendant on three counts: (1) conspiracy to possess
with intent to distribute 500 grams or more of methamphetamine; (2) possession with intent
to distribute 500 grams or more of methamphetamine; and (3) importation of 500 grams or
1 Homeland Security and Investigations (HSI) Special Agent Joshua Laughter testified that, in his experience, narcotics couriers often delete their call and text message history prior to crossing the border.
3 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 4
more of methamphetamine and aiding and abetting. Defendant exercised his right to a jury
trial. The Government anticipated Defendant would put on a defense at trial that he served
as an unknowing courier or “blind mule” for the cartel. As such, the Government proposed
to offer confidential informant Eric Weaver’s testimony identifying Defendant as “Senor
de Llanta,” or “Tire Man”—the person Weaver knew to be a courier who transported
narcotics in spare tires.2
Weaver purchased a spare tire containing methamphetamine from the person he
knew as Tire Man three times in August and September of 2020. On the first occasion,
Weaver arranged to buy a pound of methamphetamine from a contact in Mexico. That
person directed Weaver to meet up with a woman at a park in El Paso, Texas. Weaver met
with the woman and paid her, but she did not immediately hand over the
methamphetamine. Instead, she walked over to a dark colored ‘90s pickup truck and
removed a spare tire from the bed. Weaver observed who he described as an older Mexican
man in his fifties, dressed like a cowboy—the person he came to know as Tire Man—help
the woman put the spare tire in her van. Weaver had a clear view of Tire Man through his
car window in broad daylight for approximately thirty seconds. Shortly thereafter, the
2 Eric Weaver agreed to cooperate with police following his arrest for possession with intent to distribute eleven pounds of methamphetamine in September 2020. Weaver continued to sell narcotics until police arrested him again in December 2020 with multi-kilogram quantities of methamphetamine. Defendant argues these facts, along with Weaver’s other prior convictions, render his identification unreliable. But this is an argument about Weaver’s credibility as a witness generally, not the reliability of his identification. The jury took into consideration Weaver’s prior convictions and his status as an informant in evaluating the credibility of his testimony in its totality, including his statements regarding the photo array.
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woman provided the spare tire to Weaver at a second location. Inside the tire were nine
packages of methamphetamine wrapped in duct tape.
One week later, Weaver met Tire Man directly for a second transaction. This time,
Weaver’s contact in Mexico instructed him to drive to an apartment adjacent to the same
park in El Paso. When he arrived, Tire Man knocked on his car window and led Weaver
to the apartment. Weaver spent approximately ten minutes in close proximity to Tire Man,
including a period where the two conversed while standing “next to each other” in the
kitchen. Weaver observed that he was dressed in a short sleeve starched “livestock” shirt,
blue jeans, cowboy boots, and a bolo tie. Weaver also noticed the man had splotches on
his arms and hands resembling a chemical burn. Tire Man provided Weaver with a second
spare tire containing 14 or 15 packages of methamphetamine wrapped in duct tape and
brown packing tape.
A few days before Weaver’s arrest in September 2020, he met with Tire Man for a
third and final time. Weaver drove to the same apartment and arrived to find Tire Man
standing outside next to his truck. Weaver placed his money in the bed of the man’s truck,
and, in exchange, Tire Man helped load a spare tire from his truck bed into Weaver’s
vehicle. The transaction took place during daylight hours and lasted less than one minute.
Weaver stood within five feet of Tire Man. Weaver recalled acting nervous because he
thought he was being followed. Tire Man warned him not to act paranoid and explained
that he avoided arrest over a twenty-year period as a courier because “he knew how to act.”
The third tire contained bundles of methamphetamine and fentanyl pills. Over the course
of their three interactions, Weaver learned that Tire Man obtained his methamphetamine
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from sources in Juárez, typically smuggled the narcotics across the Columbus port of entry,
and earned approximately one thousand dollars per kilo of narcotics he transported.
Weaver relayed this information to law enforcement in a series of interviews soon
after his arrest. Weaver’s first interview was just one or two days after his third encounter
with Tire Man. Weaver described the man to police as an older Hispanic male with grey
hair, dressed in “cowboy style,” with skin discoloration on both arms resembling chemical
burns. Weaver also described Tire Man’s vehicle as a dark-colored ‘80s or ‘90s square-
bodied pickup—like the one Defendant was driving at the time of his arrest. Weaver
consistently recounted the same description to police in at least four more interviews.
During his final interview with law enforcement in March 2022, Weaver identified
Defendant as Tire Man from a photo array. At the outset of the meeting, Weaver repeated
the same consistent physical description of the courier who provided him
methamphetamine. Then, HSI Special Agent Juan Carlos Vargas presented him with a six-
person photo array. All six photos depicted similarly aged Hispanic men. Agent Vargas
told Weaver that Defendant’s photo may or may not be in the array. Weaver “focused
immediately” on Defendant’s photo and asked for a lighter version. Agent Vargas then
showed Weaver a second distinct photo of Defendant. The second photo appears to be
taken at the same time and place as the first photo, but from a slightly different angle, with
brighter lighting, and with the subject’s COVID-19 surgical mask removed from his neck.
Upon viewing the second photo, Weaver positively identified Defendant as Tire Man. He
expressed no doubt or uncertainty about his identification.
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C.
Before trial, Defendant filed a motion to suppress Weaver’s pretrial photo array
identification and his anticipated in-court identification of Defendant. Defendant argued
the photo array was suggestive because his photo had three unique characteristics that set
it apart from the other five: it was darker, had horizontal lines in the background indicative
of a mug shot, and only Defendant wore a mask around his neck, suggesting his arrest was
during the COVID-19 pandemic and therefore more recent. These differences were
magnified, Defendant argued, by the fact that the array contained just six photos.
Defendant maintained the district court should prohibit Weaver from identifying Defendant
at trial because the tainted photo array created a substantial likelihood of misidentification.
The district court disagreed. The court remarked the photo array “leans toward not being
impermissibly suggestive,” but regardless, held Defendant’s motion failed because
Weaver’s identification was reliable under the totality of the circumstances. The court
reasoned that Weaver had three opportunities to view Defendant at close range, had
consistently and accurately described Defendant’s physical appearance and vehicle, and
expressed no doubt or uncertainty as to his conclusion.
Weaver identified Defendant at trial. The jury convicted Defendant on all counts.
Defendant now appeals the denial of his motion to suppress.
II.
“When reviewing the district court’s denial of a motion to suppress, we view the
evidence in the light most favorable to the government and accept the district court’s
factual findings unless they are clearly erroneous.” United States v. Tolbert, 92 F.4th 1265,
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1273 (10th Cir. 2024) (citation omitted). We may consider evidence introduced at the
suppression hearing and any evidence properly admitted at trial. United States v. Jones,
523 F.3d 1235, 1239 (10th Cir. 2008). We review the ultimate legal question of whether a
defendant’s constitutional rights were violated de novo. Tolbert, 92 F.4th at 1273.
The Supreme Court has recognized “a due process check on the admission of
eyewitness identification, applicable when the police have arranged suggestive
circumstances leading the witness to identify a particular person as the perpetrator of a
crime.” Perry v. New Hampshire, 565 U.S. 228, 232 (2012). But “a suggestive
preindictment identification procedure does not in itself intrude upon a constitutionally
protected interest.” Manson v. Brathwaite, 432 U.S. 98, 113 n.13 (1977).3 Rather, the
suggestiveness “must create a very substantial likelihood of irreparable misidentification”
to warrant exclusion of a witness’s identification testimony. United States v. Thody, 978
F.2d 625, 629 (10th Cir. 1992). In other words, the suggestive photo array “must so affect
the witnesses’ perceptions as to render their subsequent in-court testimony unreliable.” Id.
Ultimately, “reliability is the linchpin in determining the admissibility of identification
testimony.” Manson, 432 U.S. at 114. The relevant constitutional concern is that an
eyewitness misidentification may deprive a criminal defendant of his right to a fair trial, as
3 In Manson, the Supreme Court explicitly declined to adopt a per se rule excluding all identifications based on suggestive photo arrays. 432 U.S. at 112. The Court reasoned such a rule would go “too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant.” Id.
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secured by the Due Process Clause of the Fourteenth Amendment. Johnson v. City of
Cheyenne, 99 F.4th 1206, 1219 (10th Cir. 2024).
We employ a two-part test to determine when an identification based on a suggestive
photo array violates a defendant’s Due Process rights. First, we “determine whether the
photo array was unduly suggestive.” United States v. Kamahele, 748 F.3d 984, 1019 (10th
Cir. 2014). Second, if so, “we decide whether the identifications were still reliable in view
of the totality of the circumstances.” Id. In assessing reliability, we consider the five so-
called Biggers factors: “(1) the opportunity of the witness to view the suspect during the
crime, (2) the witness’s level of attention during the crime, (3) the accuracy of the witness’s
prior description of the suspect, (4) the level of certainty the witness demonstrated during
the array, and (5) the time lapse between the crime and the array.” Id. at 1021 (see also
Neil v. Biggers, 409 U.S. 188, 199—200 (setting forth factors relevant to reliability)). In
this case, we need not decide whether the photo array procedure was unduly suggestive
because we agree with the district court that Weaver’s identification was sufficiently
reliable under the Biggers factors to dispel any risk of misidentification.
First and foremost, Weaver had three encounters with Defendant, including a nearly
ten-minute face-to-face conversation in Defendant’s kitchen. All three encounters took
place during daylight hours at close range. This is not the case of the “stranger who jumps
out of the dimly lit alley . . . that would raise reasonable doubts about the witness’s
perception.” Johnson, 99 F.4th at 1222 (internal quotation omitted). Weaver’s three
meetings with Defendant were sufficient for him to become familiar with Defendant’s
physical characteristics. See United States v. Klein, 93 F.3d 698, 702 (10th Cir. 1996)
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(witness’s identification of defendant based on three methamphetamine transactions was
reliable); see also United States v. Sierra, 390 F. App’x 793, 798 (10th Cir. 2010)
(informant’s identification based on several methamphetamine transactions, including a
face-to-face meeting in the defendant’s living room, was reliable).
Second, Weaver exhibited a high degree of attention during his meetings with
Defendant. Weaver recalled Defendant’s clothing from each of the three meetings.
Weaver noticed distinctive skin discoloration on Defendant’s hands and arms. He was
attentive to Defendant’s vehicle and described it in detail as an ‘80 or ‘90s square style,
dark colored pickup truck. Moreover, Weaver learned a host of details about Defendant’s
activities as a courier including the length of his career, his cut of the profits, his strategies
to avoid detection, and the port of entry he typically crossed.
Third, Weaver’s detailed, pre-photo array description closely matched Defendant.
Weaver described Tire Man as an older Hispanic male with grey hair, dressed in “cowboy
style,” with skin discoloration on both arms resembling chemical burns. At the time of
sentencing, Defendant was a 57-year-old Hispanic male with grey hair and skin
discoloration on both hands. Weaver also described Tire Man’s vehicle as a dark-colored
‘80s or ‘90s square-bodied pickup. Defendant was seized at the port of entry in a dark
green 1997 or 1998 Chevrolet Silverado pickup with a square-style body. The fact that
Weaver provided an accurate description of Defendant before viewing the allegedly
suggestive photo array mitigates the risk of misidentification. Cf. Johnson, 99 F.4th at
1223.
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Fourth, Weaver expressed confidence in his identification. Defendant argues this
cannot be so because Weaver asked to see a lightened photo before making his
identification. Defendant mischaracterizes the record. Special Agent Vargas testified that
Weaver “focused immediately” on Defendant’s photo when presented with the array. R.
Vol. III at 28. Weaver testified that Defendant’s photo depicted “the person that [he] knew”
but “was too dark for [him] to be 100 percent certain.” Id. at 349, 351. Once shown a
similar, lighter photo of Defendant, Weaver unequivocally made a positive identification.
At trial, Weaver affirmed he had “no doubt” that Defendant’s photo represented the man
who sold him methamphetamine. R. Vol. III at 341. In our view, Defendant’s objection
to Special Agent Vargas’s use of a second photograph—rather than a lightened version of
the first photo from the array—goes to the suggestiveness of the photo array procedure, not
Weaver’s confidence in his ultimate identification.4
Fifth, approximately eighteen-months lapsed between Weaver’s last meeting with
Defendant and his photo array identification. Such a gap “would be a seriously negative
factor in most cases.” Biggers, 409 U.S. at 201. Here, however, Weaver provided a
detailed physical description of Defendant to law enforcement just one or two days after
his last encounter with Defendant. Weaver’s description was based on three interactions
with Defendant for an amount of time sufficient to become familiar with Defendant’s
physical features, vehicle, and practices as a courier. Weaver repeated that description
4 The lack of precedent for this situation suggests that showing a second, distinct photo of a subject in response to a witness’s request for another photo is, at the very least, not a preferred police practice.
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consistently and accurately numerous times before the allegedly corrupting influence of
the photo array. These circumstances provide “sufficient independent basis for the
identification.” United States v. Williams, 605 F.2d 495, 498 (10th Cir. 1979). Weighing
the Biggers factors, we hold no substantial likelihood of misidentification is present in this
case. The identification was properly admitted before the jury.
***
We AFFIRM the district court’s denial of Defendant’s motion to suppress.
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United States v. Ruiz, No. 23-2027
ROSSMAN, J., concurring
The majority opinion says, “In this case, we need not decide whether
the photo array procedure was unduly suggestive because we agree with the
district court that Weaver’s identification was sufficiently reliable under
the Biggers factors to dispel any risk of misidentification.” Maj. Op. at 10. I
agree with the reliability determination under Neil v. Biggers, 409 U.S. 188,
199–200 (1972), so I join in the decision to affirm. But I have no trouble
concluding the photo identification procedure used to identify Mr. Ruiz was
impermissibly suggestive.1 And there are principled reasons for us to say
so. Because the majority opinion does not reach suggestiveness, I
respectfully write separately. First, I will describe how suggestiveness
informs reliability. Second, I will explain why the photo identification
procedure used to identify Mr. Ruiz was impermissibly suggestive.
I
There is no question, “reliability is the linchpin” of admissibility
under the Due Process Clause. Manson v. Brathwaite, 432 U.S. 98, 114
1 Courts—including the Supreme Court—refer to “impermissibly,” “unnecessarily,” and “unduly” suggestive searches interchangeably. See, e.g., Neil v. Biggers, 409 U.S. 188, 197–98 (1972) (using both “impermissibly” and “unnecessarily”); Johnson v. City of Cheyenne, 99 F.4th 1206, 1219–20, 1224 (10th Cir. 2024) (using “unnecessarily,” “impermissibly,” and “unduly”). Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 14
(1977). And the majority correctly describes our two-step reliability inquiry:
“First, we ‘determine whether the photo array was unduly suggestive.’
Second, if it was, ‘we decide whether the identifications were still reliable
in view of the totality of the circumstances.’” Maj. Op. at 9 (quoting United
States v. Kamahele, 748 F.3d 984, 1019 (10th Cir. 2014)). We even may
assume an identification procedure was unduly suggestive to “proceed to the
‘linchpin’ question” of reliability. United States v. Bredy, 209 F.3d 1193,
1195 (10th Cir. 2000) (quoting Manson, 432 U.S. at 114).
The fact we can assume suggestiveness does not mean we always
should. When the circumstances allow, as they do here, I would conduct the
suggestiveness inquiry in order to “weigh[] the corrupting effect of the
suggestive identification” against indicia of reliability. Manson, 432 U.S. at
114. Doing so accords with Supreme Court doctrine, ensures the integrity
of the reliability determinations, and may assist law enforcement in
refining the reliability of their identification procedures.
The Supreme Court has consistently weighed suggestiveness against
other circumstances as part of the admissibility inquiry. In Stovall v.
Denno, the Court first recognized the Due Process Clause protects
defendants from admission of identifications “unnecessarily suggestive and
conducive to irreparable mistaken identification.” 388 U.S. 293, 302 (1967).
The Court explained “[t]he practice of showing suspects singly to persons
2 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 15
for the purpose of identification, and not as part of a lineup”—as occurred
there—“has been widely condemned.” Id. In other words, Stovall
acknowledged the suggestiveness problem. Against that suggestiveness, the
Court balanced the victim’s impending death. Id. No due process violation
occurred because the suggestive procedure was “imperative.” Id.
The Supreme Court next passed on these issues in Simmons v. United
States, 390 U.S. 377 (1968). Again, the Court emphasized how suggestive
procedures can result in erroneous identifications. Id. at 383–84. Simmons
also noted “the identification procedure employed may have in some
respects fallen short of the ideal.” Id. at 385–86. And it described how law
enforcement could have improved that procedure. Id. at 386 n.6. Mr.
Simmons’ due process challenge failed, however, given (1) the low degree of
suggestiveness present (“There is no evidence to indicate that the witnesses
were told anything about the progress of the investigation, or that the FBI
agents in any other way suggested which persons in the pictures were under
suspicion”); and (2) indicia of necessity and reliability. Id. at 385.
Then, in Foster v. California, the Supreme Court found admission of
an unduly suggestive identification violated the Due Process Clause. 394
U.S. 440, 443 (1969). The Court began by detailing the suggestive procedure
at issue:
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[P]etitioner stood out from the other two men by the contrast of his height and by the fact that he was wearing a leather jacket similar to that worn by the robber. When this did not lead to positive identification, the police permitted a one-to-one confrontation between petitioner and the witness. . . . [S]ome days later another lineup was arranged. Petitioner was the only person in this lineup who had also participated in the first lineup.
Id. (citation omitted). “The suggestive elements in this identification
procedure made it all but inevitable that [the witness] would identify
petitioner[.]” Id. No factors seemed to indicate reliability or necessity.
Rather, “the witness’ identification of petitioner was tentative” during most
of his time with the police. Id.
Neil v. Biggers and Manson v. Braithwaite solidified the doctrine.
Biggers held “the primary evil to be avoided is ‘a very substantial likelihood
of irreparable misidentification’”—that is, reliability is our linchpin. 409
U.S. at 198 (quoting Simmons, 390 U.S. at 384). Biggers also outlined
factors that indicate reliability. Id. at 199–200. Though Biggers centered on
reliability, the Court still expressed “we are inclined to agree with the
courts below that the police did not exhaust all possibilities in” creating a
non-suggestive procedure. Id. at 199. Only “then”—after addressing undue
suggestiveness—did Biggers “turn . . . to the central question, whether . . .
the identification was reliable even though the confrontation procedure was
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suggestive.” Id. (emphasis added). Biggers ultimately found “no substantial
likelihood of misidentification.” Id. at 201.
In Manson, the Court reaffirmed “reliability is the linchpin” of
admissibility under the Due Process Clause. 432 U.S. at 114. Manson also
instructed courts to use “the factors . . . set out in Biggers” to measure
reliability. Id. The majority faithfully applied those factors here. But
Manson also clearly instructed, “[a]gainst these factors is to be weighed the
corrupting effect of the suggestive identification itself.” Id. Manson heeded
its own instruction. There, indicia of reliability were “hardly outweighed by
the corrupting effect of the challenged identification,” in part because “we
find in the instant case little pressure on the witness to acquiesce in . . .
suggestion.” Id. at 116. The Court acknowledged, “[o]f course, it would have
been better had” law enforcement used a less suggestive procedure. Id. at
117.
Cementing the importance of suggestiveness doctrinally is Perry v.
New Hampshire. There, the Supreme Court held undue suggestiveness is a
prerequisite for due process challenges to unreliable identifications. 565
U.S. 228, 248 (2012). Perry explained, “the [Manson] Court’s reference to
reliability appears in a portion of the opinion concerning the appropriate
remedy when the police use an unnecessarily suggestive identification
procedure.” Id. at 241; see also Johnston v. Makowski, 823 F.2d 387, 391
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(10th Cir. 1987) (“The two prongs of the inquiry should be made separately;
it is necessary to reach the second prong only if the procedure was
impermissibly suggestive.”).
The Court’s focus on suggestiveness provides reason enough for us to
focus on it. Doing so fulfills our mandate and maintains consistency in the
law. Though considering suggestiveness serves other purposes, too.
First, developing law on suggestiveness will improve reliability
determinations in close cases. As the Biggers factors reveal reliability in a
sea of facts, a robust body of law on suggestiveness would help us recognize
unreliability. Cf. Ofer Raban, On Suggestive and Necessary Identification
Procedures, 37 Am. J. Crim. L. 53, 67 (2009) (“The importance of weighing
suggestiveness against reliability is self-explanatory—the more suggestive
the procedure, the greater the risk of misidentification absent strong
reliability indicators.”).
The cases I have discussed illustrate as much. In Simmons, the
Supreme Court compared strong indicia of reliability (“Five bank employees
had been able to see the robber . . . for periods ranging up to five minutes”)
to the weak indicia of unreliability present because the identification
procedure was only moderately suggestive (“Each witness was alone when
he or she saw the photographs.”). 390 U.S. at 385. The Court did the same
in Manson, where strong indicia of reliability (the witness “looked directly
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at” a perpetrator and described him to law enforcement “within minutes of
the crime”) again outweighed weak indicia of unreliability (there “was little
urgency and [the witness] could view the photograph at his leisure”). 432
U.S. at 114, 116. Often, as here, the Biggers factors will be clear enough
that a suggestiveness inquiry would not change our reliability conclusion.
But if we do not use these clearer cases to develop the doctrine, we will not
have a doctrine to use for the harder ones.
Second, judicial acknowledgement of unduly suggestive identification
methods may help guide law enforcement.2 “Police officers [are] engaged in
the dangerous and difficult tasks associated with protecting the safety of
our communities[.]” Jaffee v. Redmond, 518 U.S. 1, 11 n.10 (1996). Yet our
constitutional protections “would evaporate” if we did not scrutinize law
enforcement’s compliance with them. Beck v. Ohio, 379 U.S. 89, 97 (1964).
After all, “in the first instance, it is law enforcement . . . that can best ensure
against an undue risk of convicting the innocent.” Dennis v. Sec’y, Pa. Dep’t
of Corr., 834 F.3d 263, 344 (3d Cir. 2016) (McKee, J., concurring); cf. Tom
2 Notably, the Due Process Clause binds officers who use suggestive
procedures intentionally or unintentionally. Perry v. New Hampshire, 565 U.S. 228, 232 n.1 (2012) (“[W]hat triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intended the arranged procedure to be suggestive.”). But see id. at 250 (Sotomayor, J., dissenting) (opining “the Court effectively grafts a mens rea inquiry onto our [due process] rule”). I do not suggest police intended to deploy an unnecessary suggestive procedure in this case. 7 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 20
R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and
Justice in Reality and Fiction, 115 Yale L.J. 1050, 1079 (2006) (“Acceptance
of the case put forward by the prosecution during a criminal trial is heavily
dependent upon a juror’s willingness to trust the honesty and the
competence of the state—including the police (who investigate crimes) and
the prosecutors (who manage criminal trials).”). Some of our guidance can
be understood as deterrence, particularly when we identify suggestive
procedures that cut against a finding of reliability. Indeed, “[a] primary aim
of excluding identification evidence obtained under unnecessarily
suggestive circumstances . . . is to deter law enforcement use of improper
[procedures] in the first place.” Perry, 565 U.S. at 241; see also Manson, 432
U.S. at 112 (“The police will guard against unnecessarily suggestive
procedures under the totality rule . . . for fear that their actions will lead to
the exclusion of identifications as unreliable.”).
II
An identification procedure is “impermissibly suggestive” when it
unnecessarily creates (or increases) a danger that the witness will
misidentify the defendant. See Simmons, 390 U.S. at 384; Biggers, 409 U.S.
at 198 (“Suggestive confrontations are disapproved because they increase
the likelihood of misidentification[.]”). The identification procedure used in
this case was impermissibly suggestive. And, in my view, it is not a close
8 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 21
question. The district court’s contrary conclusion was erroneous, even under
the deferential clear-error standard we are bound to apply. See United
States v. Worku, 800 F.3d 1195, 1203 (10th Cir. 2015) (“We apply the clear-
error standard to findings involving suggestiveness of a photo array.”).
To determine whether a photo identification procedure is unduly
suggestive, we consider “factors” like “the size of the array, the manner of
its presentation by the officers, and the details of the photographs
themselves.” United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir. 1994).
Looking at each, I would find the identification procedure used in this case
unduly suggestive.
To begin, we must give “significant weight” to any “irregularities” in
the photo array shown to Mr. Weaver because it included only six
photographs. Worku, 800 F.3d at 1203; see also Sanchez, 24 F.3d at 1262
(“Common sense dictates that slight irregularities are more likely to ‘jump
out’ at a witness reviewing a single sheet of paper with only six photographs
on it than at a witness reviewing a large mug book containing hundreds of
photographs.”). This is not a “substantive factor” indicating suggestiveness,
but it requires us to closely “scrutinize[]” the photo array. Sanchez, 24 F.3d
at 1262–63. The array shown to Mr. Weaver cannot withstand the close look
we must give it.
9 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 22
To evaluate the suggestiveness of a photo array in this context, we
consider whether a defendant’s photo “stands out from the others in the
array.” See United States v. Wiseman, 172 F.3d 1196, 1209 (10th Cir. 1999),
abrogated on other grounds, Rosemond v. United States, 572 U.S. 65 (2014);
see also Grubbs v. Hannigan, 982 F.2d 1483, 1490 (10th Cir. 1993) (finding
photo array unnecessarily suggestive due to obvious differences between
the suspect’s photo and fillers). As demonstrated by the photo array, Mr.
Ruiz’s photo “stood out” in at least three ways.3
3 The photo array appears in the record at Appellee’s Supplemental
Appendix page 1. 10 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 23
It was significantly darker, he was the only one pictured with a face
mask—indicating he had been recently arrested, during the COVID-19
pandemic—and his photo was the only one taken against a horizontal-line
background. In addition to irregularities in the individual photographs, we
look to the methods used to obtain an identification. See Sanchez, 24 F.3d
at 1262. Courts have long recognized law enforcement’s actions can have
powerful suggestive effects. See, e.g., id. (explaining the “manner of [a photo
array’s] presentation by the officers” is a relevant factor when evaluating
suggestiveness); United States v. Wade, 388 U.S. 218, 228 (1967) (“A major
factor contributing to the high incidence of miscarriage of justice from
mistaken identification has been the degree of suggestion inherent in the
manner in which the prosecution presents the suspect to witnesses for
pretrial identification.”). Suggestive actions “are those which convey
‘intentionally or unintentionally, that [police officers] expect the witness to
identify the accused,’ or are ‘so arranged as to make the resulting
identifications virtually inevitable.’” United States v. O’Neil, 62 F.4th 1281,
1288 n.9 (10th Cir. 2023) (alteration in original) (first quoting Moore v.
Illinois, 434 U.S. 220, 224 (1977); then quoting Foster, 394 U.S. at 443).
When police showed Mr. Weaver the photo array, he requested a
lighter photo of Mr. Ruiz. As Mr. Ruiz persuasively argues, the police
response was unnecessarily suggestive.
11 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 24
First, instead of showing Mr. Weaver another photo array, officers
showed him a standalone photo of Mr. Ruiz. And the photo they showed
communicated to Mr. Weaver that officers had multiple, readily available
photos of Mr. Ruiz but not others in the initial array—likely because Mr.
Ruiz was already in custody. For instance, instead of simply providing a
lightened version of the original photo, officers showed a different one
entirely.4 The second photo was clearly taken on the same day as the
original; Mr. Ruiz was in the same clothing. However, it was taken from a
different angle, the lighting was different, and the mask previously around
Mr. Ruiz’s neck was gone. Driving the point home, the second photo
revealed the horizontal-line background in Mr. Ruiz’s original photo
measured height, like one would expect from a mugshot background. In this
way, law enforcement telegraphed to Mr. Weaver he had picked the right
guy. Foster, 394 U.S. at 443 (explaining identification procedure is
unnecessarily suggestive if it “make[s] the resulting identifications
virtually inevitable”).
Mr. Ruiz’s standalone photo appears in the record at Appellee’s 4
Supplemental Appendix page 2. 12 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 25
Under these circumstances, I would conclude the photo identification
in this case was unduly suggestive.
The stakes are high to improve the practice and adjudication of
eyewitness identifications. “[E]yewitness misidentification is ‘the single
greatest cause of wrongful convictions in this country.’” Perry, 565 U.S. at
263 (Sotomayor, J., dissenting) (quoting State v. Henderson, 27 A.3d 872,
885 (N.J. 2011)); see also Wade, 388 U.S. at 229 (similar). There are multiple
reasons for this problem: “Science has proven that memory is malleable.”
Henderson, 27 A.3d at 895. But still, as Justice Brennan recognized, “there
is almost nothing more convincing [to a jury] than a live human being who
takes the stand, points a finger at the defendant, and says ‘That’s the one!’”
Id. at 889 (alteration in original) (quoting Watkins v. Sowders, 449 U.S. 341,
352 (1981) (Brennan, J., dissenting) and citing additional research).
Courts have a role to play in addressing the problem. The Third
Circuit created a Task Force “to promote reliable practices for eyewitness
investigation and to effectively deter unnecessarily suggestive
identification procedures, which raise the risk of wrongful conviction.” 2019
Report of the United States Court of Appeals for the Third Circuit Task Force
on Eyewitness Identifications, 92 Temp. L. Rev. 1, 7 (2019); see also id. at
10 (observing “[e]yewitness misidentifications have been a factor in well
13 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 26
over half of the cases that resulted in wrongful convictions later overturned
by DNA evidence”); United States v. Gallegos, 111 F.4th 1068, 1081 n.8
(10th Cir. 2024) (acknowledging the “comprehensive report” on eyewitness
identification authored by the Third Circuit task force). The New Jersey
Supreme Court appointed a special master to “evaluate scientific and other
evidence about eyewitness identifications” in light of questions about the
“vitality of the current legal framework for analyzing the reliability of
eyewitness identifications.” See Henderson, 27 A.3d at 877. As I have hoped
to show, developing the law on suggestive identification procedures may
advance the overall goal of decreasing false convictions through wrongful
identification. And the cost is small where, as here, the district court ruled
on the suggestiveness of the identification procedure, the parties provided
meaningful briefing on the issue, and a party urges us to address it.