United States v. Ruiz

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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
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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.

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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”).
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(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

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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.
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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

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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.



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     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.
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      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.

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      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.
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      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

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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.




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