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COA throws out a show up identification based on SCOW’s abrogation of Dubose

State v. K.L.G., 2019AP658, District 1, 6/16/20 (1-judge opinion, ineligible for publication); case activity

What a bummer. K.L.G. moved to suppress an officer’s identification of him made after she looked up his booking photo from a previous incidence. The circuit court granted the motion and dismissed. The State appealed, and the court of appeals reverses.

The trial court granted suppression based on State v. Dubose, 2005 WI 126, ¶2, 285 Wis. 2d 143, 699 N.W.2d 582, which held that “a show up will not be admissible unless, based on the totality of the circumstances, the show up was necessary.” Dubose also held that show up isn’t necessary “unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array.” Id.

Unfortunately, SCOW recently abrogated Dubose as being “unsound in principle.” State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813. Read more about that travesty in our post here. Now a police identification procedure is impermissibly suggestive if it gives rise “to a very substantial likelihood of irreparable identification.” Id., ¶31.

The court of appeals says the procedure here was permissible because the officer saw K.L.G. while she was pursuing him. She had sufficient probable cause to arrest him based on her recognition of him from that.  And while she did not positively identify him until she looked at his booking photo, she took that step that mostly to put his mom “at ease” as to whether he was the guy involved the incident. [Bet mom was relieved to hear the answer “yes.” Not.] Thus the identification was “sufficiently reliable under the totality of the circumstances. Opinion, ¶¶19-20.



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