State v. K. L. G.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 16, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP658 Cir. Ct. No. 2018JV338

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE INTEREST OF K.L.G., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-APPELLANT,

V.

K.L.G.,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
LINDSEY CANONIE GRADY, Judge. Reversed and cause remanded for further
proceedings.
No. 2019AP658

¶1 BRASH, P.J.1 The State appeals an order of the trial court granting
K.L.G.’s motion to suppress the identification made by Milwaukee Police Officer
Kim Lastrilla. In his motion, K.L.G. argued that Officer Lastrilla used an
improper identification procedure when she looked up his booking photo from a
previous incident.

¶2 The trial court, citing State v. Dubose, 2005 WI 126, 285 Wis. 2d
143, 699 N.W.2d 582, granted the motion and dismissed the case against K.L.G.
without prejudice. However, our supreme court recently abrogated Dubose in
State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813, with a
directive to “return to ‘reliability [a]s the linchpin in determining the admissibility
of identification testimony.’” Id., ¶3 (citation omitted; brackets in Roberson).

¶3 After reviewing this case under that standard, we conclude that
Officer Lastrilla’s identification of K.L.G. was sufficiently reliable. We therefore
reverse and remand this matter for further proceedings consistent with this
opinion.

BACKGROUND

¶4 On May 24, 2018, at approximately 9:29 a.m., Officer Lastrilla
responded to a call regarding a stolen vehicle in the area of 4th Street and Center
Street in Milwaukee. Officer Lastrilla saw the vehicle described in the call—a tan
minivan with Iowa plates—parked in an alley behind a residence on 4th Street.
She then observed two African-American males enter the vehicle. At that point,

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).

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No. 2019AP658

Officer Lastrilla was still in her squad car at the other end of the alley, about a
block away from the vehicle.

¶5 Officer Lastrilla followed the van, which was being driven
erratically. She observed the van run a red light and almost hit another vehicle, at
which time she activated the lights and siren in her squad car. The driver of the
minivan failed to stop, instead accelerating to a high rate of speed, leading Officer
Lastrilla on a 2.9 mile pursuit. The minivan then crashed into residence on East
Garfield Street.

¶6 Following the crash, both of the males in the minivan exited the
vehicle and fled on foot in separate directions. Officer Lastrilla followed the
driver in her squad car. She caught up to him in an alley, while he was between a
garage and a fence. He then ran toward her squad car and continued running down
the alley behind it. As he ran by the squad, Officer Lastrilla was able to view him
for “[a] second or two” at a distance of about five and one-half feet.

¶7 At that point, Officer Lastrilla’s sergeant had arrived on the scene
and joined the pursuit on foot as the driver ran through some yards. Officer
Lastrilla saw the driver again for a couple of seconds after he crossed a street and
ran down another alley; he crossed the alley about half a block down from where
Officer Lastrilla had just entered that alley in her squad. However, neither Officer
Lastrilla nor her sergeant were able to apprehend him at that time.

¶8 Shortly thereafter, Officer Lastrilla was approached by a woman
who said that the driver of the minivan was her nephew. The woman gave Officer
Lastrilla his name—K.L.G.—and told her that his mother was on her way to the
crash scene. Officer Lastrilla then returned to the crash scene, where K.L.G.’s
mother arrived fifteen to twenty minutes later. His mother said he was missing,

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No. 2019AP658

and that she believed he had been driving the minivan. She provided Officer
Lastrilla with his name and birthdate, and showed her a picture of him that was on
her phone. Officer Lastrilla subsequently looked up K.L.G. in the department’s
database and found a booking photo of K.L.G. from February 2018. From that
picture, she was able to identify K.L.G. as the driver of the minivan.

¶9 Later that same day, at about 2:20 p.m., K.L.G.’s mother came into
the police station and told Officer Lastrilla that her son was in the area of 4th
Street and Center Street. Officer Lastrilla drove to that area and saw K.L.G.
walking. She pulled up to him in her squad car and told him to stop. He again
fled. He was found hiding in a yard by another officer, and was arrested.

¶10 K.L.G. was charged with attempting to flee or elude an officer,
second-degree recklessly endangering safety, and obstructing an officer. He filed
a motion to suppress the identification by Officer Lastrilla on the ground that
viewing his booking photo was outside of the proper procedure for making a photo
identification. He argued that it was impermissibly suggestive, and therefore
violated his due process rights.

¶11 A hearing on the motion was held in November 2018, at which
testimony was taken from Officer Lastrilla. The trial court then delivered its
decision on December 21, 2018, granting K.L.G.’s motion. Although it
acknowledged that Officer Lastrilla had probable cause to arrest K.L.G. after
speaking with his mother, the trial court found that Officer Lastrilla’s viewing of
the booking photo—as opposed to viewing a line-up or a photo array—was
impermissibly suggestive, and thus had “tainted the process.” Upon granting the
motion, the case was dismissed without prejudice. This appeal follows.

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No. 2019AP658

DISCUSSION

¶12 In reviewing a trial court’s decision on a motion to suppress, we
apply a two-step standard of review. See State v. Eason, 2001 WI 98, ¶9, 245
Wis. 2d 206, 629 N.W.2d 625. We first review the trial court’s findings of fact,
and will uphold them unless they are clearly erroneous. Id. We then “review the
application of constitutional principles to those facts de novo.” Id.

¶13 A defendant’s due process rights are violated if identification
evidence is admitted that stems from a police procedure that is “impermissibly
suggestive.” State v. Benton, 2001 WI App 81, ¶5, 243 Wis. 2d 54, 625 N.W.2d
923. A police identification procedure is impermissibly suggestive if it “give[s]
rise to a very substantial likelihood of irreparable misidentification[.]” Roberson,
389 Wis. 2d 190, ¶31 (citations and internal quotation marks omitted).

¶14 “[I]dentifications arising from single-photograph displays may be
viewed in general with suspicion[.]” Manson v. Brathwaite, 432 U.S. 98, 116
(1977). This identification procedure is referred to as a “showup”—“an out-of-
court pretrial identification procedure in which a suspect is presented singly to a
witness for identification purposes,” as opposed to the suspect being presented in a
lineup or photo array that includes other similar-looking individuals from which
the witness must identify the suspect. Roberson, 389 Wis. 2d 190, ¶47 (citing
Dubose, 285 Wis. 2d 143, ¶1 n.1).

¶15 The trial court in this case determined that Officer Lastrilla’s
viewing of K.L.G.’s previous booking photo was essentially a showup. Therefore,
in making its decision on the suppression motion, the court relied on the standard
adopted in Dubose. The Dubose court, while declining to adopt a per se
exclusionary rule for showups, held that “a showup will not be admissible unless,

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No. 2019AP658

based on the totality of the circumstances, the showup was necessary.” Id., 285
Wis. 2d 143, ¶2. The Dubose court further stated that a showup would not be
deemed 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.

¶16 The trial court found that Dubose was on point, and that Officer
Lastrilla’s viewing of the booking photo was “inherently suggestive[.]” However,
“not all showings of a single photo are infected by improper police influence
causing a very substantial likelihood of misidentification. Each identification
must be evaluated based on its own facts.” Roberson, 389 Wis. 2d 190, ¶67. In
fact, in Roberson our supreme court rejected the Dubose standard as being
“unsound in principle.” Roberson, 389 Wis. 2d 190, ¶3. Instead, the Roberson
court instituted a return to the standard for reviewing challenged identification
procedures in which the reliability of the identification is the “linchpin” for
determining admissibility. See id.

¶17 According to that standard, the defendant must first demonstrate that
the showup was impermissibly suggestive. Id., ¶4. If the defendant is successful,
the burden then shifts to the State to prove that “under the ‘totality of the
circumstances’ the identification was reliable even though the confrontation
procedure was suggestive.” Id. (citations omitted).

¶18 The State argues that Officer Lastrilla’s viewing that photo was “not
suggestive at all” under the circumstances: she had seen the driver of the minivan
twice for brief periods, from relatively close proximity, while pursuing him after
the crash; the incident had occurred on a bright, clear day; and Officer Lastrilla
was a veteran police officer who, as a part of her regular duties, had abundant

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No. 2019AP658

experience identifying crime suspects under stressful situations. Furthermore,
Officer Lastrilla had been informed by both K.L.G.’s mother and his aunt that he
was probably the driver of the minivan.

¶19 Although Officer Lastrilla stated that she did not positively identify
K.L.G. until she looked at the booking photo, she testified that in looking up the
photo she was primarily attempting to put K.L.G.’s mother “at ease” as to whether
it was her missing son who was involved in the incident. Officer Lastrilla further
testified that even before viewing the booking photo, she had sufficient probable
cause to arrest him and could have made the arrest based on her recognition of him
from the pursuit.

¶20 “Due process does not require the suppression of evidence with
sufficient ‘indicia of reliability.’” Id., ¶3 (citation omitted). Even if we were to
assume that Officer Lastrilla’s identification of K.L.G. by viewing his prior
booking photo was impermissibly suggestive, we conclude that the identification
was nevertheless sufficiently reliable under the totality of these circumstances.
See id., ¶4. Accordingly, we reverse and remand this matter for reinstatement of
the delinquency petition, and further proceedings consistent with this opinion.

By the Court.—Order reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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