from the District Court for Clay County: Vicky L. Johnson,
Porto, of Porto Law Office, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Identification Procedures: Due Process: Appeal and
Error. A district court's conclusion whether an
identification is consistent with due process is reviewed de
novo, but the court's findings of historical fact are
reviewed for clear error.
Identification Procedures: Police Officers and
Sheriffs: Pretrial Procedure. An identification
infected by improper police influence is not automatically
excluded. Instead, the trial judge must screen the evidence
for reliability pretrial. If there is a very substantial
likelihood of irreparable misidentification, the judge must
disallow presentation of the evidence at trial. But if the
indicia of reliability are strong enough to outweigh the
corrupting effect of the police-arranged suggestive
circumstances, the identification evidence ordinarily will be
admitted, and the jury will ultimately determine its worth.
___: ___.When considering the admissibility of an
out-of-court identification, a trial court must first decide
whether the police used an unnecessarily suggestive
identification procedure. If they did, the court must next
consider whether the improper identification procedure so
tainted the resulting identification as to render it
unreliable and therefore inadmissible.
Identification Procedures. Reliability is
the linchpin in determining the admissibility of
___.To determine the reliability of an out-of-court
identification, the trial court must consider, based on the
totality of the circumstances, (1) the opportunity of the
witness to view the alleged criminal at the time of the
crime, (2) the witness' degree of attention, (3) the
accuracy of his or her prior description of the criminal, (4)
the level of certainty demonstrated at the confrontation, and
(5) the time between the crime and [303 Neb. 258] the
confrontation. Against these factors is to be weighed the
corrupting influence of the suggestive identification itself.
T. Cosey was charged with delivery of a controlled substance,
a Class II felony, pursuant to Neb. Rev. Stat. § 28-416
(Reissue 2016). During the course of the proceedings, Cosey
repeatedly sought to suppress a confidential informant's
identification of him as the person who sold the drugs to the
informant, arguing that the identification violated his due
process rights. Cosey was convicted following a jury trial in
which the informant's identification was admitted. We
August 2, 2017, Cosey was charged with delivery of a
controlled substance. The charge stemmed from an October 17,
2016, alleged narcotics transaction that had occurred between
a confidential informant and a man known to the informant
only as "G."
October 17, 2016, the informant was working at his regular
job when an acquaintance introduced the informant to a man
who sought to sell the informant an amount of
methamphetamine. The informant, who has served as a
confidential informant for law enforcement since 1999, met
with the purported narcotics dealer, identified as G, for
approximately [303 Neb. 259] 10 to 15 minutes. During the
course of the conversation, the informant and G agreed to
meet later that day to complete the proposed narcotics sale.
The informant then contacted Officer Thomas Hayes, an
investigator with the Fillmore County sheriff's office,
to arrange to have the drug transaction recorded by law
approximately 4 p.m. on October 17, 2016, the informant again
met with G, this time in Sutton, Nebraska. Hayes was
positioned across the street as the informant and G completed
the narcotics sale. According to the informant, G was in the
informant's vehicle for approximately 3 minutes while the
sale of narcotics took place. During that time, the informant
was recording audio of the encounter. The informant testified
that he made detailed observations of the man that sold him
the narcotics, but further indicated that he knew the subject
only as "G" or "John."
the drug transaction, the informant met with Hayes at another
location. At that point, the informant provided Hayes with
the methamphetamine he had purchased, along with the unused
money and the recording device. The informant was only able
to provide Hayes with the name "G" or
"John" as the individual who sold him the
Hayes' behest, the informant subsequently attempted to
conduct a second transaction with G. However, the informant
was advised by a woman purporting to be G's girlfriend
that G was incarcerated and unable to sell the informant any
weeks that followed, Hayes attempted to determine the
identity of G. During the course of his efforts, on November
9, 2017, Hayes contacted the police department in Hastings,
Nebraska, and inquired whether anyone in the department knew
of any person recently arrested going by the moniker
"G." The office manager of the Hastings Police
Department indicated that Cosey was known to use the moniker
"G," but that Cosey had not recently been arrested.
The Hastings Police Department provided Hayes with a
photograph [303 Neb. 260] of Cosey. Hayes then sent a text
message and the photograph to the informant, asking if it was
a photograph of G. The informant responded that the
photograph provided by Hayes was the man he knew as G.
August 2, 2017, Cosey was charged with delivery of a
controlled substance, a Class II felony On December 15,
Cosey filed an amended motion to suppress seeking, among
other things, suppression of the informant's
identification of Cosey on the ground that the identification
was the result of an unduly suggestive identification
procedure utilized by Hayes.
suppression hearing was held on February 22 and 23, 2018. The
district court entered an order finding that the
identification procedure was unduly suggestive; however, the
court ultimately concluded that the informant's
identification was sufficiently reliable to allow it to be
admitted into evidence. The court therefore denied
Cosey's motion to suppress.
2, 2018, the State filed an amended information charging
Cosey with the original charge of delivery of a controlled
substance, as well as a habitual criminal enhancement.
Following a jury trial, Cosey was found guilty of delivery of
a controlled substance. On July 11, the State dismissed the
habitual criminal enhancement and Cosey was sentenced to 3 to
5 years' imprisonment.
sole assignment of error is that the district court erred in