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STATE v. COSEY

Cite as 303 Neb. 257

State of Nebraska, appellee, v. Eugene T. Cos

also known as John Lnu, als

as “G,” appellan

___ N.W.2d ___

Filed May 31, 2019. No. S-18-747.

1. 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.

2. 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.

3. ____: ____: ____. 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.

4. Identification Procedures. Reliability is the linchpin in determining the 

admissibility of identification testimony.

5. ____. 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/28/2019 09:06 AM CDT
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the confrontation. Against these factors is to be weighed the corrupting 

influence of the suggestive identification itself.

Appeal from the District Court for Clay County: Vicky 

Johnson, Judge. Affirme

Mark Porto, of Porto Law Office, for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Heavican, C

INTRODUCTION

Eugene 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 affirm.

BACKGROUND

On 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.”

On 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 
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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 enforcement.

At 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.”

Following 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 methamphetamine.

At 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 additional methamphetamine.

In the 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 
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Cite as 303 Neb. 257

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.

On August 2, 2017, Cosey was charged with delivery of 

a controlled substance, a Class II felony.1 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.

A 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.

On May 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.

ASSIGNMENT OF ERROR

Cosey’s sole assignment of error is that the district court 

erred in denying his motion to suppress.

STANDARD OF REVIEW

[1] 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.2

1 See § 28-416(1)(a) and (2)(a).

2 State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).
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ANALYSIS

Cosey argues that the district court erred in denying his 

motion to suppress. Cosey notes that the district court was correct in finding that the photographic identification of Cosey 

made by the witness was unduly suggestive, a finding that 

the State neither contests nor concedes. Cosey argues that the 

district court erred in its conclusion regarding the reliability 

of the witness’ identification as analyzed with the five factors 

set forth in U.S. Supreme Court precedent.3 Therefore, Cosey 

contends, the identification made by the informant should not 

have been admitted.

[2] The U.S. Supreme Court has noted:

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.4

[3] The U.S. Supreme Court has set forth a two-prong test 

for determining the admissibility of out-of-court identifications. The Court stated that 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 

3 See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). 

See, also, Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 

2d 140 (1977).

4 Perry v. New Hampshire, 565 U.S. 228, 232, 132 S. Ct. 716, 181 L. Ed. 2d 

694 (2012).
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inadmissible.”5 As is the case here, a claimed violation of due 

process of law in the conduct of a confrontation depends on the 

totality of the circumstances surrounding it.6

[4,5] Reliability is the linchpin in determining the admissibility of identification testimony.7

 In State v. Faust,

8

 we adopted 

the U.S. Supreme Court’s test for determining the admissibility of identification testimony such as the identification in this 

case. 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 the 

confrontation. Against these factors is to be weighed the corrupting influence of the suggestive identification itself.9

Applying the two-prong test to this case, we accept for the 

purpose of this appeal the district court’s conclusion that law 

enforcement’s use of a single photograph sent to the witness 

with the potentially leading question, “‘Is this “G”?’” resulted 

in the identification’s being infected by improper police influence. But our analysis does not end there.

We turn to the second prong of the two-prong test and weigh 

the reliability of the identification against the unduly suggestive acts of law enforcement. We begin by weighing the reliability of the identification, and in doing so, we turn to the five 

factors discussed above.

5 Id., 565 U.S. at 235.

6 Manson v. Brathwaite, supra note 3.

7 State v. Faust, 269 Neb. 749, 696 N.W.2d 420 (2005) (citing Manson 

v. Brathwaite, supra note 3). See, also, Perry v. New Hampshire, supra

note 4.

8 State v. Faust, supra note 7.

9 Id. (citing Manson v. Brathwaite, supra note 3; Neil v. Biggers, supra

note 3).
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Opportunity of Witness to 

View Alleged Criminal 

at Time of Crime.

Cosey concedes that the informant had a significant opportunity to view G during the course of two meetings that lasted for 

a combined total of approximately 18 minutes. The evidence 

presented at the hearing on Cosey’s motion to suppress was 

that the informant was introduced to G through an acquaintance. The informant testified that their introduction and initial 

meeting lasted for approximately 10 to 15 minutes and that the 

two were in close proximity to one another.

Later the same day, October 17, 2016, the informant and G 

met again. Although their second meeting lasted only approximately 3 minutes, the two were again within mere feet of one 

another. During the course of this meeting, the two exchanged 

money for narcotics and engaged in a brief discussion. We 

further note that the second meeting, like the first, occurred 

during daylight hours when the informant had an uninhibited view.

Witness’ Degree of Attention.

During the course of the informant’s testimony, he indicated 

that he had worked as an informant since 1999. The informant 

testified that throughout the course of his 19-year career, he 

learned to make concentrated observations of specific details 

of his surroundings and interactions. Specifically, the informant 

noted that he was sure to take note of license plates; speech 

patterns; and physical, as well as clothing, descriptions when 

interacting with others.

The informant indicated that on October 17, 2016, he was 

engaging in such concentrated observations. The informant testified that he observed G pull into the area of an ethanol fuels 

plant in Hastings in a white, four-door Buick. The informant 

recalled G’s being seated in the rear passenger seat of the 

vehicle and further provided an accurate description of G under 

the circumstances.
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Cosey argues that the informant’s attentiveness is “virtually 

meaningless” considering the delay between the informant’s 

observations on October 17, 2016, and Hayes’ presentation of 

Cosey’s photograph on November 9.10 Cosey argues that the 

informant’s testimony, in which he indicated that he had been 

provided Cosey’s photograph “four days later or so, five days 

later,” calls into question the informant’s level of attention, 

given the fact that he was not presented with Cosey’s photograph until 23 days after October 17. Cosey further argues that 

the informant’s inaccuracies with regard to when the informant 

provided the identification should be viewed in light of the 

“significant financial incentive” to identify Cosey and “remain 

in the good graces of . . . Hayes.”11

While the informant’s attention and recollection as to the 

specific dates and overall timeline of the investigation may 

be flawed, that lapse does not necessarily translate to a lack 

of attention with regard to the specific event recalled and 

described. Additionally, Cosey’s claim regarding the informant’s recollection of the timetable and his financial incentive calls into question the informant’s overall credibility, 

which was a determination more appropriately considered by 

the jury.

Based on the record, the informant was not a casual 

observer. The record demonstrates that through the informant’s 19 years of experience, which formed his expertise in 

information gathering, the informant developed a strategy to 

coordinate a surveilled narcotics purchase with G. The informant was in close proximity to G during the narcotics transaction; thus, his observation of G was not based on passing 

glances, but on studied observation. The record further demonstrates that the informant testified he was able to describe, 

by paying close attention, the environment, background, 

and physical description of the parties involved in the two 

10 Brief for appellant at 13.

11 Id. at 14.
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transactions; thus, the informant had a high degree of certainty in this case.

Accuracy of His or Her Prior 

Description of Criminal.

The informant first described to Hayes that G was an 

African-American male, bald, and 5 feet 8 or 9 inches tall. 

During the course of the suppression hearing, the informant 

identified Cosey as G, but noted that G had “gained some 

weight” since the informant had last seen him on October 17.

Cosey makes two arguments in an attempt to call into question the accuracy of the informant’s identification. First, Cosey 

alleges that the informant had no way of knowing whether 

G was in fact bald, because the photographs taken by Hayes 

during the narcotics transaction show G wearing a baseball 

cap. Second, Cosey argues that the informant misidentified the 

name of the suspected drug trafficker to Hayes as being “John” 

and not “G.”

Cosey’s argument that the informant could not have observed 

G’s hair length and style does not carry much weight. The 

presence of a baseball cap does not necessarily defeat the ability of the informant to observe G’s hair length at some point 

during the course of their two interactions. The State contends 

that the photographs depicting G wearing a baseball cap were 

taken at the second meeting, during the afternoon of October 

17, 2016.

As to Cosey’s second argument that the informant originally misidentified or misrepresented to Hayes the name of 

the suspected trafficker, we find this argument disingenuous. 

In his brief, Cosey argues that the informant “stated that the 

seller went by the name ‘John’” and further contends that 

Hayes testified almost exclusively that the seller’s name was 

“‘John’” rather than “‘G.’”12 However, the record reflects that 

while Hayes used the name “John” when referring to the seller, 

Hayes, in fact, noted that he was provided with two names that 

12 Id.
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the seller was known to use. We find that the informant’s prior 

description was sufficiently accurate.

Level of Certainty Demonstrated 

at Confrontation.

At the suppression hearing, the informant testified that he 

had no doubt that the person from whom he purchased drugs 

was Cosey. The district court, in its order, took note of the 

level of certainty that the informant had with regard to Cosey’s 

being the person that allegedly sold the contraband. The record 

reflects that the informant had a high level of certainty in his 

identification and that the level of certainty did not waver at 

the confrontation stage.

Time Between Crime 

and Confrontation.

The first instance of the informant’s meeting G and purchasing narcotics occurred on October 17, 2016. Hayes testified 

that he received the photograph of Cosey on November 9. At 

that point, the photograph was provided to the informant, who 

identified it as a photograph of Cosey, or G, the man who sold 

him the drugs. This initial identification occurred 23 days after 

the informant observed G.

The suppression hearing where the informant identified 

Cosey as “G” occurred on February 22, 2018, more than 16 

months after the events giving rise to Cosey’s arrest. Although 

this is a significant lapse in time that weighs against allowing 

the identification, based on the totality of the circumstances, 

we cannot say that there is a substantial likelihood of irreparable misidentification in this case.13

Balancing Test.

Although identifications arising from single-photograph displays may be viewed in general with suspicion, in this case, 

13 See Manson v. Brathwaite, supra note 3 (acknowledging Court’s concern 

regarding lapse of 7 months in Neil v. Biggers, supra note 3).
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we find little pressure on the witness to acquiesce in the suggestion that such a display entails.14 Cosey raises a legitimate 

concern regarding the potential coercive nature of the quid pro 

quo relationship that often exists between confidential informants and law enforcement; here, that fear is largely alleviated 

by the fact that the informant has provided reliable information to law enforcement for 19 years and has significant interest in providing accurate information.

Although it plays no part in our Faust analysis, the assurance as to the reliability of the identification is hardly undermined by the fact that Cosey was also identified by his 

acquaintance as the person the acquaintance introduced to the 

informant.15 Further, on the voice recording of the narcotics 

transaction, Cosey’s voice was identified by an officer familiar 

with Cosey’s voice and speech patterns.

We cannot say that under all the circumstances of this 

case there is “‘a very substantial likelihood of irreparable 

misidentification.’”16 Short of that, such evidence is for the jury 

to weigh.17 Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has 

some questionable feature.18 Under the totality of the circumstances, the identification of Cosey was reliable, even though 

the confrontation procedure may have been suggestive.

CONCLUSION

The judgment of the district court is affirmed.

Affirmed

14 Id. See, also, Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. 

Ed. 2d 1247 (1968).

15 See State v. Faust, supra note 7.

16 See Manson v. Brathwaite, supra note 3, 432 U.S. at 116 (quoting 

Simmons v. United States, supra note 14).

17 Id.

18 Id.