State v. Cosey, 927 N.W.2d 822

On Oct. 17, 2016, a confidential informant met twice with a man known only as “G” and purchased methamphetamine; the informant observed G for extended periods (total ~18 minutes) and made an audio recording of the transaction.
Officer Thomas Hayes investigated and, on Nov. 9, 2016, obtained a photograph of Eugene T. Cosey (known to some as “G”) from Hastings PD and sent that single photo via text to the informant asking, “Is this ‘G’?”
The informant identified the photo as the seller; Cosey was charged Aug. 2, 2017 with delivery of a controlled substance and later tried as a habitual offender (later dismissed).
Cosey moved to suppress the identification, arguing the single-photo/text question was unduly suggestive and tainted the identification; the district court found the procedure suggestive but admitted the ID as sufficiently reliable.
The jury convicted Cosey; he appealed solely arguing the district court erred in denying suppression because the identification was unreliable given the suggestive procedure.

Issue	Plaintiff's Argument (Cosey)	Defendant's Argument (State)	Held
Whether police used an unnecessarily suggestive identification procedure	The single-photograph text asking “Is this ‘G’?” was unduly suggestive and infected the ID	The State did not contest that the procedure was suggestive for purposes of appeal	Court agreed the single-photo/text was unduly suggestive
Whether the suggestive procedure rendered the identification so unreliable that it must be suppressed	The suggestive procedure + 23-day delay and informant incentives made misidentification substantially likely; suppression required	The identification’s indicia of reliability (opportunity to view, attention, accurate prior description, certainty, corroboration) outweigh the suggestiveness and admission is appropriate for the jury	Court held identification was reliable under the Biggers/Manson factors and admissible; affirmed conviction

Neil v. Biggers, 409 U.S. 188 (establishes multi-factor test for reliability of pretrial identifications)
Manson v. Brathwaite, 432 U.S. 98 (reliability—not suggestiveness alone—controls admissibility; jury weighs remaining questions)
Perry v. New Hampshire, 565 U.S. 228 (identifications infected by police influence are not automatically excluded; judge must screen for reliability)
Simmons v. United States, 390 U.S. 377 (discusses risks of suggestive identification procedures)
State v. Faust, 269 Neb. 749 (Nebraska adopts Biggers/Manson reliability factors)