COURT OF APPEALS

DECISION

DATED AND FILED

January 7, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1595-CR Cir. Ct. No. 2017CF5792

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

ANDRE DAVID NASH,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County: 

PEDRO COLON, Judge. Reversed and cause remanded with directions. 

Before Brash, P.J., Dugan and Donald, JJ.

¶1 BRASH, P.J. The State appeals an order of the trial court granting 

Andre David Nash’s motion to suppress identification evidence obtained in a 

lineup. The State argues that it was Nash’s burden to prove that the lineup was 

impermissibly suggestive, but that the trial court improperly shifted that burden to 
No. 2018AP1595-CR

2

the State and effectively required that it prove the lineup was not impermissibly 

suggestive. Furthermore, the State contends that the trial court failed to address 

the reliability of the lineup, which is required upon finding that a lineup is 

impermissibly suggestive.

¶2 We agree that the trial court did not properly apply the relevant case 

law with regard to determining whether a lineup is impermissibly suggestive. 

Furthermore, we conclude that Nash did not meet his burden of proving 

impermissible suggestiveness. Therefore, we reverse the order of the trial court 

and remand this matter with instructions to deny Nash’s suppression motion and 

continue the proceedings.

BACKGROUND

¶3 Nash was charged with two counts of armed robbery in December 

2017. Over the span of a few days—December 5 and December 7—Nash had 

entered two different Family Dollar stores, each time stealing a bottle of laundry 

detergent and a comforter. On both occasions, store employees attempted to stop 

Nash, who then pulled out a black revolver. A fingerprint lifted from the door at 

one of the stores was identified as belonging to Nash. 

¶4 While investigating these incidents, police discovered an address on 

North 34th Street that was associated with Nash. An officer spoke with D.L.C., 

who lived at that residence; Nash was her nephew. The officer showed D.L.C. 

surveillance photos from one of the robberies, and she identified the suspect in the 

photos as Nash. 

¶5 Police took Nash into custody at Mitchell International Airport on 

December 16, 2017, after removing him from a plane. He was arrested on a 
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temporary felony want; no warrant had been issued at that point. On 

December 18, 2017, a lineup was conducted that included Nash and “fillers” from 

the Milwaukee County Jail. An employee from one of the Family Dollar stores

viewed the lineup and identified Nash as the perpetrator. The employee stated that 

he recognized Nash’s face as well as his posture and mannerisms. Charges were 

then filed against Nash on December 19, 2017. 

¶6 Nash filed a motion to suppress the identification evidence, arguing 

that he was denied his right to an attorney during the lineup. He also asserted that 

the lineup was impermissibly suggestive because the orange jail top that he was 

wearing was faded while the fillers’ tops were bright orange, and because he had 

the lightest skin complexion “by far” of all the individuals in the lineup. 

¶7 A hearing on Nash’s motion was held in February 2018. At the start 

of the hearing, the trial court asked the State to call its first witness. The State 

explained that pursuant to the relevant case law, Nash had the burden to show that 

the lineup was impermissibly suggestive; if Nash established impermissible 

suggestiveness in the lineup, the burden would then shift to the State to prove that 

the lineup was nevertheless reliable. See Powell v. State, 86 Wis. 2d 51, 65-66, 

271 N.W.2d 610 (1978). However, the court continued to ask for evidence from 

“[e]ither party,” stating that otherwise “we can just close the evidence now.” The 

State then asked if the court was ruling that it was an impermissibly suggestive 

lineup, reiterating that it was Nash’s burden to prove. 

¶8 The trial court did not respond to that question. Instead, the court 

turned to Nash’s other argument regarding his right to an attorney during the 

lineup. On that issue, the State asserted that at the time of the lineup, Nash had not 

yet been formally charged so his right to counsel did not apply. Thus, the State 
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suggested that this issue was a question of law. Nash’s trial counsel provided no 

evidence to refute the timing of the lineup as compared to when the charges were 

filed against Nash, nor did he provide any legal arguments to counter the State’s 

position. 

¶9 The trial court then again asked the parties whether they were going 

to present evidence with regard to either issue, or resolve them with a stipulation 

to the facts. Nash’s trial counsel stated he would “gladly” stipulate to the facts 

contained in his motion; the State did not agree. The court then stated that the 

issue was “how do we get it into evidence so we know what happened?” At that 

point, the State said it would call the detective who ran the lineup as a witness. 

¶10 The detective then testified. He stated that in choosing fillers from 

the jail, he considered age, race, sex, height, and weight. Additionally, the 

detective stated that he had made an effort to ensure that they were all dressed as 

similarly as possible, and had them all wear knit hats to conceal their 

“significantly” different hairstyles. A photo of the lineup was also admitted into 

evidence. 

¶11 The detective testified that Nash had requested an attorney just prior 

to the lineup, but he had informed Nash that he was not entitled to one at that 

point. The detective noted that lineups are generally recorded with both video and 

audio for an attorney to subsequently review; however, in this case, there was no 

video made of the lineup presentation, although there was a recording made of the 

witnesses filling out the forms while viewing the lineup. 

¶12 At a subsequent hearing in March 2018, the trial court granted 

Nash’s motion to suppress. With regard to Nash’s claim relating to the difference 

in his appearance as compared to the fillers—that his complexion was lighter and 
No. 2018AP1595-CR

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that his shirt was faded—the court stated that it was unable to “ascertain” from the 

group photograph of the lineup “to what degree” those differences existed. 

Nevertheless, the court opined that it was indicative that the lineup was “unduly 

suggestive[.]” Primarily, however, the court focused on the fact that a lineup had 

been conducted rather than a photo array. The court stated that the policy of the 

Milwaukee Police Department is to conduct a photo array, and asserted that there 

is “a state statute that indicates that’s the preferred system so that it’s fair.” 

¶13 The trial court further noted that although Nash’s request for an 

attorney during the lineup did not “have to be honored,” it did “inform” the 

constitutionality of the lineup. Thus, based on the totality of these circumstances, 

the court granted Nash’s motion. 

¶14 The State filed a motion for reconsideration, asserting that the trial 

court had relied on “misinterpreted facts” and had misapplied the law in failing to 

recognize controlling precedent regarding identification suppression. The State 

further argued that the court’s statement regarding its inability to ascertain 

similarities and differences based on the photograph of the lineup indicated that 

Nash did not meet his burden of proving impermissible suggestiveness. 

Moreover, the State noted that after the court made its determination, it did not 

make any findings as to whether the lineup was nevertheless reliable, as required 

by Powell. 

¶15 Additionally, the State contended that the trial court’s focus on 

procedure—that is, the use of a lineup rather than a photo array—was in error, 

because there is no “[p]er se rule” that a photo array must be used instead of a 

lineup. Furthermore, the State asserted that the lack of an attorney is not a 

consideration relating to impermissible suggestiveness. 
No. 2018AP1595-CR

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¶16 The trial court denied the State’s motion for reconsideration. This 

appeal follows.

DISCUSSION

¶17 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 (citations omitted). A challenge of identification evidence consists of two 

prongs. First, the defendant must show that the procedure used in the 

identification was impermissibly suggestive. Powell, 86 Wis. 2d at 65. This 

burden is met if it is shown that the procedure used would “give rise to a very 

substantial likelihood of irreparable misidentification.” Id. at 64 (citation 

omitted). If the defendant successfully establishes impermissible suggestiveness, 

the burden then shifts to the State to establish the second prong: that “the

identification was nonetheless reliable under the totality of the circumstances.” Id.

at 66.

¶18 The findings of fact made by the trial court in making this 

determination “may not be disturbed unless they are ‘clearly erroneous.’” Benton, 

243 Wis. 2d 54, ¶5 (citation omitted). However, the application of constitutional 

principles to those findings of fact is reviewed de novo. State v. Eason, 2001 WI 

98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625. 

¶19 The record shows that the trial court did not adhere to the procedure 

set forth in Powell. At the start of the motion hearing, the court began by asking 

whether the State wanted to call its first witness. After the State pointed out that 

Nash carried the burden for the first prong of the Powell test, Nash’s trial counsel 

merely deferred to his motion as filed. 
No. 2018AP1595-CR

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¶20 The trial court then stated that if neither party had evidence to 

present, it would “close the evidence now.” The State asked for clarification as to

whether the court was ruling that the lineup was impermissibly suggestive. 

However, the court did not make that finding; instead, it asked about the other 

issue raised by Nash—whether he had invoked his right to counsel for the lineup. 

After the parties argued that issue, the trial court again asked whether either party

had evidence to present, at which time the State called the detective to testify. 

¶21 Prior to the State calling its witness, Nash had not presented any 

evidence to demonstrate that the lineup was impermissibly suggestive; in other 

words, Nash had not met his burden of proof in accordance with the first prong of 

the Powell test. See id., 86 Wis. 2d at 65. Furthermore, at that point the trial court 

had not made a finding that the lineup was impermissibly suggestive. Therefore, 

the burden of proof should not have shifted to the State; instead, Nash’s motion 

should have simply been denied based on his failure to meet his burden of proof. 

See id. at 66.

¶22 Nevertheless, even after recognizing—and pointing out—this 

erroneous application of the Powell test, the State presented evidence on the issue. 

After considering the State’s evidence, the trial court made a determination that 

there were “several things that [it] think[s] are unduly suggestive[.]” Yet, other 

than briefly discussing its difficulty in ascertaining from the photograph 

differences between Nash and the other men in the lineup, the court made no 

findings that the lineup procedure had “give[n] rise to a very substantial likelihood 

of irreparable misidentification” to establish that the burden of showing 

impermissible suggestiveness had been met. See id. at 64 (citation omitted). 
No. 2018AP1595-CR

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¶23 Instead, the trial court focused on the fact that police had used a 

lineup rather than a photo array, asserting that there is a state statute which 

indicates that a photo array is the “preferred system[.]” However, the court did not 

cite to any statute to support this statement, and we were unable to locate one; the 

statute relating to eyewitness identification procedures, WIS. STAT. § 175.50(2) 

(2017-18),1 mandates only that law enforcement agencies “adopt written policies 

for using an eyewitness to identify a suspect upon viewing the suspect in person or 

upon viewing a representation of the suspect.” There is no preference set forth in 

the statute for either method. See id.

¶24 In fact, the Powell court took note of a United States Supreme Court 

case in which the Court had declared that “in a certain sense, particularly in light 

of the inherent limitation of photographs, ‘the dangers of misidentification are 

even greater at a photographic display than at a lineup.’” See Powell, 86 Wis. 2d 

at 63 (citation omitted). Indeed, the detective in this case testified that when, as in 

this situation, a suspect is available for a lineup, there are benefits to conducting a 

lineup instead of a photo array: the victim or witness can actually see the suspect 

through the one-way mirror and observe movements and mannerisms. 

¶25 The trial court also relied on Nash’s request for an attorney to be 

present during the lineup in its analysis. However, at the time of the lineup, Nash 

had not yet been charged in this matter, and there had been no warrant issued at 

the time Nash was arrested at the airport. “[A]n accused ha[s] no right to counsel 

at a lineup conducted prior to the commencement against the accused of an 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2018AP1595-CR

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adversary, judicial, criminal proceeding.” Jones v. State, 63 Wis. 2d 97, 104, 216 

N.W.2d 224 (1974). 

¶26 Although the trial court acknowledged that Nash’s request for 

counsel did not have to be “honored,” the court stated that it nevertheless 

“inform[ed]” the constitutionality of the lineup. It is not clear what the court 

meant by this statement. However, regardless of the court’s intended point, the 

law unequivocally states that under these circumstances, Nash had no right to 

counsel. See id. Therefore, we agree with the State that this was not a relevant 

factor in the analysis of whether the lineup was impermissibly suggestive. See

Powell, 86 Wis. 2d at 64.

¶27 In short, the trial court’s statement that there were “several things” 

about the lineup that it thought were “unduly suggestive” was based on irrelevant 

and erroneous applications of the law. Thus, it was never established that the 

lineup was impermissibly suggestive, as required by the first prong of the Powell

test. See id. at 65.

¶28 Furthermore, even if the trial court’s “unduly suggestive” comment 

could be construed as a proper determination of impermissible suggestiveness, the 

court then failed to engage in an analysis of the lineup’s reliability—the second 

prong of the Powell test. See id. at 66. In such an analysis, the factors to be 

considered 

include the opportunity of the witness to view the criminal 

at the time of the crime, the witness’ degree of attention, 

the accuracy of the witness’ prior description of the 

criminal, the level of certainty demonstrated by the witness 

at the confrontation, and the length of time between the 

crime and the confrontation.
No. 2018AP1595-CR

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Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Consideration of these factors 

assist in determining the answer to the “central question” of whether “under the 

totality of the circumstances the identification was reliable even though the 

confrontation procedure was suggestive.” Id. at 199 (internal quotes omitted). 

¶29 The trial court considered none of those factors. Instead, in its 

response to the State’s argument on this issue during the hearing on its motion for 

reconsideration, the court again relied on the fact that a photo array had not been 

conducted; we have already pointed out that a photo array is not required by law. 

The court further stated that there was “no way to test the reliability” of the lineup 

because there was no video recording. However, videotaping a lineup is likewise 

not required by statute or case law, see WIS. STAT. § 175.50, and the court failed 

to provide any other basis for this finding. 

¶30 In sum, the trial court failed to consider appropriate factors and 

properly apply the law in granting Nash’s motion to suppress. We conclude after 

reviewing the record and the relevant law that Nash did not meet his burden of 

proof that the lineup was impermissibly suggestive. See Powell, 86 Wis. 2d at 65. 

Therefore, his suppression motion should have been denied. Accordingly, we 

reverse the order of the trial court suppressing the identification evidence, and 

remand this matter with instructions to enter an order denying Nash’s motion to 

suppress, and to continue proceedings in this matter as appropriate. 

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.