Nevada Adopts Mixed Standard of Review for Suppression of Pretrial Identifications; Flight Instruction Error Harmless

Introduction

In Camacho (Ocean) v. State, 141 Nev., Advance Opinion 52 (Nov. 6, 2025), the Nevada Supreme Court affirmed the convictions of Ocean Celestino Camacho for two counts of first-degree murder with a deadly weapon and related offenses arising from a planned drug “rip” that escalated into a vehicular pursuit and fatal shootings in Las Vegas. The appeal presented multiple constitutional and evidentiary issues, led by a due process challenge to a pretrial identification obtained through a six-pack photo array.

The court used the case to settle an important appellate question: the standard of review for suppression decisions involving pretrial identification evidence. It held that Nevada appellate courts will apply a mixed standard—reviewing factual findings for clear error and legal conclusions de novo—when assessing whether an identification procedure was unnecessarily suggestive and, if so, whether the identification was nevertheless reliable. Beyond that doctrinal clarification, the court rejected challenges to the admission of Camacho’s custodial statements, declined to recognize prejudice from delayed rulings on pretrial motions, upheld the authentication of incriminating text messages sent from a girlfriend’s phone, and affirmed the denial of severance. Although it found a “flight” instruction was improperly given under existing Nevada law, the court held the error harmless given the weight of the State’s evidence.

Summary of the Opinion

• Standard of Review for Pretrial Identification Suppression Motions: The court expressly adopts a mixed standard. Appellate courts review the district court’s factual findings for clear error and determine de novo whether the identification procedure was unnecessarily suggestive and, if so, whether the identification was reliable.
• Photo Array Due Process Challenge: The array was not unnecessarily suggestive. The presence of a white T-shirt (a common item) in the suspect’s headshot did not create undue suggestiveness where all fillers shared similar facial features and attire was minimally visible; re-showing the same array four days later was not inherently suggestive. The identification was sufficiently reliable in any event.
• Miranda/Voluntariness: Camacho knowingly and voluntarily waived his rights; the interrogation was calm, relatively brief, and free of coercive promises or threats. His ambiguous remarks did not invoke the right to silence; when he unambiguously ended the interview, the detective stopped immediately.
• Delayed Rulings on Motions: Without deciding whether due process guarantees timely rulings, the court held that even under the Doggett factors (assumed arguendo), Camacho failed to show prejudice; COVID-19 and defense continuances largely accounted for delay.
• Authentication of Text Messages: The State sufficiently authenticated text messages sent from the girlfriend’s phone through corroborating evidence, including geolocation data and contextual ties to the offense.
• Severance: No abuse of discretion; antagonistic defenses alone did not create a serious risk to specific trial rights or an unreliable verdict.
• Flight Instruction: Improper under Weber and Guy because evidence showed, at most, “mere going away” and inaction (no 911 call/no aid), which are insufficient to infer consciousness of guilt or intent to avoid arrest. Error was harmless given the overall strength of the case.
• Cumulative Error: Only one error (flight instruction) identified; no cumulative error.

Analysis

Precedents Cited and Their Role

• Due Process/Identification Framework:
  • Perry v. New Hampshire (U.S. 2012): Establishes a two-step due process analysis—courts assess whether the police used an unnecessarily suggestive identification procedure; only then does reliability become relevant.
  • Stovall v. Denno (U.S. 1967) and Simmons v. United States (U.S. 1968): Foundational cases recognizing that suggestive procedures risking misidentification implicate due process.
  • Manson v. Brathwaite (U.S. 1977) and Sexton v. Beaudreaux (U.S. 2018): List the reliability factors (opportunity to view, attention, accuracy of description, level of certainty, and time between crime and confrontation).
• Nevada Identification Jurisprudence and Standard of Review:
  • Thompson v. State (Nev. 2009): Applies Perry’s two-step framework in Nevada.
  • Bias v. State (Nev. 1989), Banks v. State (Nev. 1978), Cunningham v. State (Nev. 1997): Nevada decisions treating pretrial identifications as constitutional questions, anticipating a mixed law/fact approach.
  • Johnson v. State (Nev. 2002): Although a search-and-seizure case, it uses a mixed standard for suppression questions—legal issues de novo, factual findings deferentially—supporting today’s holding.
  • United States v. Radaker-Carter (6th Cir. 2025): Persuasive authority favoring de novo review of the constitutional questions embedded in identification cases.
• Array Composition and Repeat Showings:
  • United States v. Gershman (2d Cir. 2022), People v. McBride (N.Y. 2010), United States v. House (8th Cir. 2016): Generic clothing or similar appearance features do not render arrays unduly suggestive where fillers are reasonably similar.
  • People v. Vanvleet (N.Y. App. Div. 2016): Two identification procedures within four days are not inherently suggestive.
• Miranda/Voluntariness:
  • Jackson v. Denno (U.S. 1964): Due process prohibits convictions based on involuntary confessions.
  • Passama v. State (Nev. 1987): Voluntariness assessed under totality of circumstances (age, education, detention length, police conduct, etc.).
  • Moran v. Burbine (U.S. 1986): Waiver must be free of intimidation, coercion, or deception.
  • Berghuis v. Thompkins (U.S. 2010): Invocation of rights must be unambiguous.
• Delayed Rulings and Speedy Trial Analogy:
  • Doggett v. United States (U.S. 1992) and State v. Inzunza (Nev. 2019): Four-factor speedy-trial analysis referenced hypothetically; not adopted as a due process test for motion-ruling delays in this case.
  • Jones v. State (Nev. 1980), State v. Autry (Nev. 1987): Pre-arrest/pre-indictment delays analyzed as due process issues when speedy trial right not applicable; distinguishable here.
• Authentication of Electronic Communications:
  • NRS 52.015(1): Authentication requires evidence sufficient to support a finding that the item is what the proponent claims.
  • Rodriguez v. State (Nev. 2012): Corroborating evidence is critical to authenticate the identity of a text-message author.
• Severance and Antagonistic Defenses:
  • Chartier v. State (Nev. 2008): Severance reviewed for abuse of discretion; reversal requires substantial and injurious effect.
  • Marshall v. State (Nev. 2002): Severance is warranted only with serious risk to specific trial rights or unreliable verdicts; incompatible defenses must be truly irreconcilable and prejudicial.
  • Martinez v. State (Nev. Aug. 14, 2024) (unpublished): Codefendant’s severance claim rejected; persuasive symmetry here.
• Flight Instruction:
  • Weber v. State (Nev. 2005): Flight requires evidence of consciousness of guilt and intent to avoid arrest; mere departure is insufficient.
  • Guy v. State (Nev. 1992): Speculative evidence cannot justify a flight instruction.
  • Potter v. State (Nev. 1980): Errors in giving flight instructions can be harmless if no miscarriage of justice.
  • Tavares v. State (Nev. 2001), McLellan v. State (Nev. 2008): Standard for reviewing jury instructions; harmless error framework.
• Cumulative Error:
  • Valdez v. State (Nev. 2008): Cumulative error doctrine.
  • United States v. Sager (9th Cir. 2000) and Pascua v. State (Nev. 2006): One error cannot constitute cumulative error; minimal or nonexistent errors cannot cumulatively deprive a fair trial.

Legal Reasoning and Application

1) Clarifying the Standard of Review

Addressing inconsistent signals in Nevada’s unpublished dispositions, the court formalized a doctrinal rule: when a defendant seeks suppression of pretrial identification evidence on due process grounds, appellate review is mixed. Factual findings are reviewed for clear error, but whether (i) the procedure was unnecessarily suggestive and (ii) the identification, despite suggestiveness, was reliable are legal questions reviewed de novo. This aligns Nevada’s approach with its general treatment of constitutional suppression issues and with federal appellate reasoning emphasizing the role of de novo review in shaping constitutional standards.

2) No Unnecessary Suggestiveness in the Photo Array; Reliability Satisfied

The court applied Perry’s two-step framework. It first found no unnecessary suggestiveness:

• Array composition: All six headshots depicted Hispanic or mixed-race men with long dark hair, moustaches, and similar apparent age and build. Necklines suggested similar casual attire; the focus was facial features and hair, not clothing.
• Generic clothing: Although the eyewitness mentioned a white T-shirt, that ubiquitous apparel, partially visible in headshots, does not render an array unduly suggestive—particularly where other fillers wore similar styles and the witness emphasized facial features rather than clothing.
• Photo selection: The State used the clearer of two available photos, prioritizing a “clear and accurate depiction” of the suspect’s face (chin raised, hair tucked). The record did not support any inference of manipulative selection based on shirt color.
• Repeat showing: Re-presenting the same array four days later did not create inherent suggestiveness, especially since the witness had already recognized the suspect at the first showing but chose not to disclose it for extraneous reasons (preference for “street” retribution). Changing fillers would likely have injected confusion.

Because Camacho did not establish unnecessary suggestiveness, the reliability inquiry was technically unnecessary. The court nonetheless observed that the Manson/Sexton factors confirmed reliability: the crime occurred in daylight with multiple opportunities to view; the description given two hours after the offense was detailed and consistent; the witness expressed complete certainty at identification; and the 20-day gap was not disqualifying under the circumstances. Any residual credibility issues were for the jury.

3) Miranda Waiver and Voluntariness; No Unambiguous Invocation Until the End

Under Passama and Moran, the court assessed the totality of the circumstances and found a valid waiver and voluntary statements:

• Miranda warning was administered, acknowledged, and understood; the interview lasted just over an hour; both tones were calm; no physical coercion or deprivation occurred; and Camacho was an adult high school graduate with prior law enforcement exposure.
• The detective’s vague statements about being able to “help” did not amount to promises of leniency, nor were there threats of harsher punishment for silence. This fell short of coercion or deception.
• The initial remarks that he would “rather be sitting in jail” were non-responsive to specific questions and equivocal under Berghuis; once Camacho unambiguously stated he did not want to continue, the interrogation ended immediately.

4) Delayed Rulings on Pretrial Motions: No Prejudice Shown

The court declined to decide whether due process guarantees timely rulings on motions. Assuming arguendo a Doggett-inspired analysis applies, Camacho failed to show prejudice:

• The four-year interval was largely attributable to defense continuances and the pandemic; Camacho even asked to suspend proceedings until a vaccine existed.
• The identification suppression motion was adjudicated months before trial, providing counsel time to prepare.
• Claims of prejudice from fading memory were speculative and, as to the State’s witness, likely favorable to the defense.

5) Authentication of Text Messages from a Girlfriend’s Phone

Applying NRS 52.015 and Rodriguez, the court found sufficient corroboration that Camacho authored the relevant texts:

• Content linked directly to the planned drug deal with codefendant Martinez.
• Geolocation data tracked the phone from near Camacho’s residence to the crime scene and back at relevant times.
• No independent evidence placed the phone’s registered owner (the girlfriend) at the crime scene.

This holistic corroboration satisfied the threshold for admissibility; any residual doubts went to weight, not admissibility.

6) Severance: Antagonistic Defenses Not Irreconcilable to a Prejudicial Degree

Under Marshall and Chartier, severance is warranted only upon a serious risk to specific trial rights or an unreliable verdict. Although each defendant sought to shift blame to the other, the court found no showing that the conflict alone would cause the jury to convict both improperly. The denial of severance mirrored the court’s resolution of Martinez’s parallel appeal.

7) Flight Instruction: Improper but Harmless

Reaffirming Weber and Guy, the court underscored that “flight” requires evidence beyond a “mere going away,” specifically signs of consciousness of guilt and intent to avoid arrest. Here, the record showed only that the Maxima did not stop, with no 911 call or attempt to render aid—inactions deemed insufficient to infer flight. Nevertheless, the error was harmless, given robust evidence of guilt: the eyewitness identification, inculpatory text messages, geolocation data, and surveillance corroboration of a matching vehicle.

Impact and Future Significance

• Appellate Practice: The mixed standard of review for pretrial identification suppression motions is now settled Nevada law. Appellants should develop robust factual records in the district court (knowing factual findings are reviewed for clear error) and frame appellate arguments to engage de novo constitutional analysis of suggestiveness and reliability.
• Law Enforcement Procedures: The decision provides operational guidance:
  • Six-pack arrays should emphasize facial features; using clear headshots is preferred, and the mere presence of generic apparel (e.g., white T-shirt) does not create undue suggestiveness when fillers are similar.
  • Re-showing the same array within a short interval is not inherently suggestive; altering arrays post-elimination can create confusion.
• Trial Strategy:
  • Flight Instructions: Prosecutors should request such instructions only when facts show more than non-assistance or departure; evidentiary showing of consciousness of guilt and intent to avoid arrest is essential.
  • Digital Evidence: Authentication of messages from shared or third-party devices can rest on geolocation, contextual content, and surrounding circumstances; defense should contest on weight if threshold met.
  • Severance: Mutually antagonistic themes are not automatically severance-worthy; defendants must demonstrate irreconcilability that risks an unreliable verdict or compromises a specific right.
• Due Process and Delay: While the court did not announce a standalone due process right to timely motion rulings, it signaled that defendants alleging prejudice must make concrete showings; delays attributable to defense requests or extraordinary circumstances (like COVID-19) will weigh heavily against relief.
• Miranda Doctrine: The opinion reinforces that invocations must be unambiguous and that non-specific “help” language by officers, without promises or threats, will typically not render statements involuntary.

Complex Concepts Simplified

• Pretrial Identification and Suggestiveness: Police may ask witnesses to identify suspects using photo arrays. If the procedure unfairly points to the suspect (e.g., the suspect uniquely matches a distinctive description while fillers do not), due process concerns arise.
• Reliability Factors (Manson/Sexton): Courts consider how well and under what conditions the witness saw the perpetrator, the detail and accuracy of early descriptions, the certainty of identification, and the time lapse between crime and identification.
• Mixed Standard of Review: On appeal, factual findings (what the police did, what the witness said) are reviewed deferentially (clear error), but the ultimate constitutional conclusions (was the procedure suggestive? was the ID reliable?) are reviewed anew (de novo).
• Miranda Waiver and Voluntariness: A suspect must be informed of the right to remain silent and to counsel; a waiver must be voluntary and uncoerced. The suspect must clearly and unambiguously invoke rights to stop questioning.
• Authentication of Digital Messages: Before a text or social media post can be admitted, there must be enough evidence to support a finding that the defendant authored it. This can include context, location data, and corroborating facts.
• Severance of Trials: Joint trials are efficient and usually proper. Severance is granted only if combined trials risk an unfair verdict or violate a specific trial right, such as the inability to cross-examine a codefendant’s confession implicating the defendant.
• Flight Instruction: A jury may be told it can consider flight as evidence of guilt only if the defendant’s behavior suggests awareness of guilt and an attempt to avoid arrest—not simply because the defendant left the scene or failed to render aid.
• Harmless Error: Even if the court makes a mistake (such as giving an improper instruction), the conviction stands if the mistake did not affect the verdict or substantial rights, given the overall strength of the evidence.

Conclusion

Camacho delivers a clear doctrinal advance in Nevada law by codifying the mixed standard of review for suppression rulings involving pretrial identifications. On the merits, the opinion reinforces core constitutional guardrails: due process restricts only unnecessarily suggestive identification procedures, and reliability remains the touchstone when suggestiveness is shown; Miranda waivers are assessed holistically, with unambiguous invocation required to halt questioning; and generalized claims of delay require concrete prejudice to warrant relief. The court’s careful delineation of when a flight instruction is appropriate—coupled with its harmless error analysis—offers practical guidance for trial courts and litigants alike.

In sum, Camacho is most significant for its appellate-practice holding on standard of review, while also providing useful, fact-specific clarifications on photo array design, repeat showings, digital-message authentication, severance standards for antagonistic defenses, and the proper limits of flight instructions. The judgment was affirmed.