Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

MEMORANDUM^** 

Raymond Chandler appeals his conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). Chandler contends that the district court erred in admitting a witness' in-court identification which was allegedly tainted by an impermissibly suggestive pretrial photographic identification procedure.

Admission of a pretrial identification may violate due process if the identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. See United States v. Givens, 767 F.2d 574, 581 (9th Cir.), cert. denied, 474 U.S. 953 (1985). To determine whether a challenged identification procedure is impermissibly suggestive the court must examine the totality of the surrounding circumstances. United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987); United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986). Photographic procedures which focus the participant's attention on a single individual increase the danger of misidentification. Id. at 493.

In this case appellant contends the police officer's procedure was suggestive because the police officer focused the witness' attention on Chandler when he first showed the witness a group of six photographs, then showed him separately a seventh photograph, depicting Chandler. There may have been a suggestive element in this procedure, which emphasized Chandler's picture to some extent. See Bagley, 772 F.2d at 493 (repeated showing of one individual's picture may be impermissible suggestion). Even if the procedure was suggestive, however, the identification evidence need not be excluded if the totality of the circumstances showed that the identification was nevertheless reliable. See United States v. Givens, 767 F.2d at 581.

Evidence regarding the identification may be admitted if an evaluation of the totality of the circumstances demonstrates that the reliability of the procedure outweighs its corrupting effect. Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977); Neil v. Biggers, 409 U.S. 188, 199-200 (1972). The five factors to be considered in evaluating the reliability of a challenged identification procedure include: (1) the witness' opportunity to observe the individual at the time of the crime; (2) the degree of attention focused by the witness on the individual; (3) the accuracy of the witness' description of the individual prior to the challenged procedure; (4) the level of certainty demonstrated by the witness during the challenged procedure; and (5) the elapsed time between the crime and the identification procedure. Neil v. Biggers, 409 U.S. at 199. The district court in this case considered the appropriate factors.

In this case the relevant circumstances included the following: (1) the witness, Davidson, had two opportunities around the time at which the crime occurred to observe the individual whom he subsequently attempted to identify; (2) his attention was focused on the individual because he initially thought that he knew him; (3) prior to the photographic procedure, Davidson gave descriptions of the individual he saw which accurately described Chandler; and (4) Davidson underwent the photographic identification procedure only two months after the time in which he observed the individual at the crime scene. In addition, the witness was able to describe the man he observed at the crime scene on two occasions prior to taking part in the photographic identification procedure. He testified that his in-court identification of Chandler was based on his memory of the man he observed at the scene of the alleged crime, rather than his recollection of his subsequent examination of the photographs. It is also significant that the witness thought the person's actions were odd at the time he observed him near the bank, and the witness himself contacted the police, after learning of the robbery, to report the suspicious behavior of the person he observed at the crime scene. Because the instant photographic identification procedure possessed these indicia of reliability, the district court did not err in admitting Davidson's subsequent in-court identification of Chandler.

AFFIRMED.