Photo ID Was Fair, Not Impermissibly Suggestive

By William Vogeler, Esq. on January 09, 2018 | Last updated on March 21, 2019

Anthony Whitewater turned a bad day into 240 worse months.

He got into a fight at a party, got into a van and shot at people who were leaving the party. He was convicted of various crimes, including being a felon in possession of a firearm.

After sentencing, he appealed on the grounds that the photo line-up used to identify him was not fair. The U.S. Eighth Circuit Court of Appeals said it was fair enough.

Photo Line-Up

In United States of American v. Whitewater, a jury decided that the defendant shot at two men as they were driving from a party. The victims testified that they saw a man hanging out of another vehicle, shouting and holding a handgun.

As they sped away, the man fired several shots into the back of their car. They reported the incident to police, who got a description of the suspect.

He was a Native American male with dark hair, squinty eyes, a throat tattoo wearing a black floppy hat. One of the victims said he recognized the shooter from the party.

Police created a six-person photo line-up, and the victims identified Whitewater. They also pointed him out at trial.

Only Native American

Whitewater moved to exclude the identification evidence, claiming it was impermissibly suggestive. He said he was the only Native American in the line-up.

The Eighth Circuit rejected the challenge, noting that all of the individuals were dark-skinned men with short black hair and neck tattoos. The record did not describe their ethnicity.

"But even if Whitewater were in fact the only Native American, all of the men featured in the lineup shared similar physical characteristics such that Whitewater's ethnicity did not isolate him," the appeals court said.

Whitewater was a member of the Winnebago Tribe. The victims, members of the Omaha Tribe, were attending a party on the Winnebago reservation in Nebraska.

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