State v. Pless, ___ N.C. App. ___, 822 S.E.2d 725 (Dec. 18, 2018)

In this drug case, the trial court did not err by denying the defendant’s motion to suppress evidence regarding in-court identifications on grounds that they were unreliable, tainted by an impermissibly suggestive DMV photograph. Detective Jurney conducted an undercover narcotics purchase from a man known as Junior, who arrived at the location in a gold Lexus. A surveillance team, including Sgt. Walker witnessed the transaction. Junior’s true identity was unknown at the time but Walker obtained the defendant’s name from a confidential informant. Several days after the transaction, Walker obtained a photograph of the defendant from the DMV and showed it to Jurney. Walker testified that he had seen the defendant on another occasion driving the same vehicle with the same license plate number as the one used during the drug transaction. At trial Jurney and Walker identified the defendant as the person who sold the drugs in the undercover purchase. The defendant was convicted and he appealed.

         On appeal the defendant argued that the trial court erred by failing to address whether the identification was impermissibly suggestive. The court found that although the trial court did not make an explicit conclusion of law that the identification procedure was not impermissibly suggestive it is clear that the trial court implicitly so concluded. The court found the defendant’s cited cases distinguishable, noting in part that there is no absolute prohibition on using a single photograph for an identification. The court noted that even if the trial court failed to conclude that the identification procedure was not impermissibly suggestive, it did not err in its alternative conclusion that the identification was reliable under the totality of the circumstances. It concluded:

While we recognize that it is the better practice to use multiple photos in a photo identification procedure, the trial court did not err in its conclusion that, in this case, the use of a single photo was not impermissibly suggestive. And even if the procedure was impermissibly suggestive, the trial court’s findings of fact also support a conclusion that the procedure did not create “a substantial likelihood of irreparable misidentification.” The trial court’s findings of fact in this order are supported by competent evidence, and these factual findings support the trial court’s ultimate conclusions of law.

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