COURT OF APPEALS

DECISION

DATED AND FILED

June 16, 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. 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

2

¶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). 
No. 2019AP658

3

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, 
No. 2019AP658

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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. 
No. 2019AP658

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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-ofcourt 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, 
No. 2019AP658

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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 
No. 2019AP658

7

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.