United States of America, Plaintiff-appellee, v. Robert Eldon Bennett, Defendant-appellant, 892 F.2d 1047 (9th Cir. 1989)

MEMORANDUM^** 

This is an appeal from a conviction based, in part, upon witness identification of Bennett from a show-up at the bank shortly after the robbery and police use of a single photo identification two days after the robbery.

We review the constitutionality of pre-trial identification procedures de novo. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985). We determine whether an identification procedure is so unnecessarily suggestive as to give rise to a substantial likelihood of mistaken identification by viewing the totality of the surrounding circumstances. Id.

The show-up at the bank shortly after the commission of the robbery, although suggestive, was a legitimate procedure. Id. at 492-93. Since the show-up was a legitimate identification procedure, "we need not reach the question of whether the teller's identification was reliable." Id. at 492.

The photo identification was made after the show-up identification from a surveillance photograph taken of the robbery in progress. The camera was turned on when the robbery began by the teller who was being robbed. Since the witnesses had already identified Bennett at the show-up, and since the photo used was of the person "who actually committed the robbery," the possibility of misidentification because only a single photograph was used was minimal. United States v. Stubblefield, 621 F.2d 980, 983 (9th Cir. 1980).

AFFIRMED.