Judge Gerri Pickett
Warnock's counsel moved to suppress defendant's identification as unduly suggestive arguing Warnock was the only person in the photo array smiling. Counsel contended the viewing of Warnock's face while smiling was done to draw attention to him, thereby violating his constitutional right to a fair photo array, and tainting the lineup. Prosecutors disagreed arguing suggestiveness required dissimilar fillers in various descriptive characteristics, including age, race, and clothing. They claimed as all of the people in the photo array resemble Warnock, a smile was a minimal characteristic that was barely noticeable since all other characteristics were similar. The court noted the test for suggestiveness was if Warnock was specifically and uniquely highlighted. It found the lineup was not unnecessarily suggestive because Warnock was the only person smiling, noting a smile was a facial expression, not a descriptive, distinctive feature, such as height, weight or race. Also, the court stated Warnock was not instructed to smile, but chose to do so of his own volition, finding his smile did not set him apart from the others. Thus, as the fillers were similar in other respects, Warnock's smile was insufficient proof he was singled out for identification. Suppression of lineup was denied.
