Commonwealth v. Morales-Alvarez, et al. (Lawyers Weekly No. 09-020-17)

1677CR0564, 0565, 0566
The Defendants have all been charged with participating in an armed robbery of a convenience store, assault with a dangerous weapon (because one of them allegedly fired a shot at two people as Defendants fled), and receiving a stolen motor vehicle. Three witnesses (the convenience store owner, the owner of a neighboring pizza shop, and one of the neighbors who was shot at) identified some or all of the defendants as the perpetrators after police had them showup and view three suspects standing next to a marked police cruiser, with their hands behind their backs, and flanked by two uniformed police officers. The fourth witness could not identify any of the suspects. Defendants move to suppress these three identifications.
The Court concludes that it must suppress the identifications made by the convenience store owner because they were brought about by an unnecessarily suggestive identification procedure and also because the limited probative value of his identifications is substantially outweighed by the unfair prejudice of admitting identifications tainted by highly suggestive circumstances. It further concludes that it must also suppress the identifications by the neighbor; although the identification procedure used with this witness was not unnecessarily suggestive in a constitutional sense, the probative value of his identifications is also substantially outweighed by the unfair prejudice of admitting identifications tainted by suggestive circumstances. However, the Court concludes that the separate identification by the pizza shop owner is admissible.
1. Findings of Fact. The Court heard testimony by Lt. Maurice Aguiler and Det. Frank Daly of the Lawrence Police Department. The Court finds that both
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witnesses were credible and credits all of their testimony. It makes the following findings based on this evidence and reasonable inferences drawn from the evidence.
1.1. The Robbery and Witness Statements. On October 17, 2016, shortly before 11:45 a.m., the Lawrence police department received a 911 call reporting an armed robbery at the D&C Convenience store. At that time Aguiler was a police sergeant and was overseeing the day shift. Daly was working his very first shift as a police detective. They responded together to the call, driving to D&C Convenience in an unmarked Ford Crown Victoria sedan. Other police officers also responded.
David Ashness, the owner of D&C Convenience, was the robbery victim. The Court infers and therefore finds that Ashness was the person who had made the 911 call. Det. Daly took his statement. Ashness was bleeding from the head when Daly arrived. Ashness told Daly that he had been robbed by two Hispanic men, that he could not see their faces because both men wore masks, and that the men wore dark clothing. He said that one of the robbers had threatened him with a firearm and then struck Ashness in the head using the butt of the gun. Ashness was unable to provide any other description of the two robbers or their clothing. Ashness suffered a serious laceration when he was struck by the gun. At some point an ambulance arrived and an EMT stitched up Ashness’s head wound inside the ambulance.
Michael Ortiz Sr. and his son Michael Ortiz Jr. lived on Weare Street around the corner from D&C Convenience. They told the police that they had been outside their home when two men ran past and got into a white BMW with New Hampshire plates, which was being driven by a third man who then drove off. As the two men ran past one of them pointed a handgun at the Ortizes, yelled “you didn’t see anything,” and fired a shot in their direction. The Ortizes saw these three men only for a few brief seconds, while being threatened with a handgun and shot at.
The police also spoke with John Enos, who owns the All-Star Pizza shop next door to D&C Convenience. Enos told the police that an Hispanic man had been in his pizza shop for several minutes at around the time of the robbery next door, ordering a sandwich. Enos also reported that after that man left, and presumably after a shot was fired nearby and police responded to the scene, Enos had reviewed surveillance video recorded by a system had installed. Enos could see what appeared to be someone
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running to a car parked outside of his shop in the video recording, immediately after the Hispanic man had left the shop.
1.2. The Chase and Apprehension of Suspects. The police officer who spoke with the Ortizes broadcast by police radio that three Hispanic men believed to have committed the armed robbery were fleeing the area in a white BMW with New Hampshire license plates. When then-Sgt. Aguiler heard that report, he left Det. Daly at D&C Convenience and headed out in his vehicle to help look for the BMW.
After a few minutes Aguiler heard on the radio that an officer had located and was pursuing a white BMW sedan with New Hampshire plates not far from D&C Convenience. Aguiler positioned his vehicle on a side street near Market Street, based on radio reports of the motor vehicle chase. He soon saw the BMW approach him with several police cruisers in pursuit. Aguiler saw the BMW turn onto the street where he was waiting; it was moving fast and fish-tailed as it turned the corner.
Aguiler activated his emergency lights and siren as the BMW drove toward him. In response the BMW driver took a sharp right turn into an alley. Aguiler followed, about three to four car lengths behind.
The BMW driver stopped his vehicle a short distance down the alley. Aguiler saw three men leap out and jump a fence into someone’s back yard. Aguiler got a good look at the three men as he stopped his vehicle behind the BMW. Aguiler leapt out to give chase. He ran past the BMW, glancing inside to make sure there was no one else in the case, and pursued the men over the fence. Aguiler called out on his radio to alert the nearby officers. By this time roughly ten police officers, including detectives and uniformed officers, had responded and began searching for the three suspects.
The police located and seized all three men within the next half hour. Aguiler confirmed that the three men taken into custody were the same three men he had seen jump out of and run away from the BMW. The three defendants in this case are the three men that Aguiler saw exit the BMW.
1.3. The Showup Identifications. Aguiler decided to conduct showup identifications to see whether any of the witnesses could confirm that the three men in custody were involved in the armed robbery. By this time most of the detectives
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and officers at the scene were searching for the firearm that had been used in the robbery. No gun had been found in the BMW or on any of the suspects.
Aguiler instructed two uniformed officers to hold the three suspects near a marked police SUV cruiser on Farnham Street, very close to the spots where the three suspects had been apprehended. All three suspects had their wrists handcuffed together behind their backs.
1.3.1. David Ashness. Sgt. Aguiler drove back to D&C Convenience where he picked up Det. Daly and Mr. Ashness, in order to conduct a showup identification procedure with Ashness. By this time just over an hour had passed since Ashness had called the police to report the armed robbery. When Aguiler arrived at the convenience store he saw Ashness stepping out of the ambulance, where his head had just been stitched up. Daly got into the front passenger seat of the cruiser that Aguiler was driving. Ashness sat in the rear seat. There was no prisoner cage or other divider between the front and rear seats.
As Aguiler drove back to Farnham Street, Daly gave Ashness an explanation and some instructions. Daly told Ashness that the police had detained some men, that those men may or may not have been involved in the robbery, that even if they were involved they may not look the same as at the time of the incident, that the police wanted Ashness to look at the men and see whether he recognized anyone and if so tell the police how certain he was, that it was just as important to clear innocent people as to identify people involved in the incident,1 and that the police would continue to investigate the matter whether or not Ashness identified anyone.
When they arrived at Farnham Street, defendant Morales -Alvarez was standing apart from the other suspects. Ashness immediately said that Morales-Alvarez was one of men who had committed the armed robbery. The police then had Morales-Alvarez stand with the other two men.
1 The Court credits Det. Daly’s testimony on cross-examination, after he refreshed his memory by viewing his written report, that he had instructed Ashness and the other witnesses that it was just as important to clear innocent people as to identify suspects who committed the crimes. The Court does so even though Daly did not recall this part of his instructions during his direct examination.
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Ashness could see all three suspects standing side-by-side and that they were being held behind a marked police SUV, between two uniformed officers, with their arms restrained behind their backs. Ashness had a clear view—through the front windshield of the unmarked cruiser he was seated in—of the suspects, the police SUV, and the two officers guarding the suspects. Morales-Alvarez was on the left and was wearing a black shirt, grey or faded black pants, and white shoes. Rojas was standing in the middle and was wearing a shirt with light horizontal stripes and a dark background, black pants, and light-colored shoes. Fernandez-Pagan was standing on the right and was wearing a black shirt and grey or faded black pants; his shoes are not visible in the photograph of the showup ID that is in evidence.
After viewing the three suspects standing together, Ashness identified Morales-Alvarez and Fernandez-Pagan as the two men who had been inside his store. Ashness said he could do so based on the clothing that the two men were wearing. The two men he identified were wearing outfits that were not very distinctive but were quite similar to each other (black shirts and grayish or faded black pants). Their clothing was notably different from that worn by Rojas, who was the only suspect wearing a striped shirt. Ashness did not say he recognized anything about the two men he identified other than their clothing. For example, he did not say that the suspects had the same size, build, or skin color as the men who attacked him and robbed his store.
Ashness was not asked to and did not say how certain he was that Morales-Alvarez and Fernandez-Pagan were the men who had robbed and attacked him.
After Ashness identified two of the suspects, Aguiler used his radio to report that to the other officers and detectives. He did so by broadcasting something like, “Okay, we’ve got a positive.” The Court finds that the other three witnesses probably heard that, and were aware that some other witness had made a positive identification, because police officers with radios were present near them while they waited to be brought to the showup location.
1.3.2. Michael Ortiz Sr. After driving Ashness back to D&C Convenience, Aguiler and Daly then picked up Mr. Ortiz Sr. (who sat in the rear of their cruiser) and drove him to Farnham Street. Daly gave Ortiz Sr. the same
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instructions that he had given to Ashness. When they arrived at Farnham Street, Ortiz Sr. saw the same suspects, standing in the same order, behind a police cruiser, between two uniformed officers, and with their hands behind their backs.
Ortiz Sr. said he did not recognize any of the three suspects either as the men who had run past him and gotten into the BMW, or as the driver of that vehicle.
1.3.3. Michael Ortiz Jr. The next witness brought to Farnham Street was Mr. Ortiz Jr. The police followed the same process as before. Ortiz Jr. sat in the rear seat. Daly gave him the same instructions. Det. Daly did not ask Ortiz Jr. to describe the men he had seen or to describe their clothing before Ortiz Jr. viewed the three suspects. When they arrived at Farnham Street, Ortiz Jr. viewed the same tableau as the first two witnesses.
After looking at the three suspects, Ortiz Jr. eventually identified Morales-Alvarez as the man he saw driving the white BMW, and Fernandez-Pagan and Rojas as the two men who ran past and fired a gun at the Ortizes. At first Ortiz Jr. seemed to be very uncertain of his identification. He said that his view of the men running past and in the BMW was very quick. He then said that he thought he recognized the three suspects as the men he had seen driving or running to the BMW, but hemmed and hawed as he tried to decide which of the three had been the driver. Ortiz Jr. seemed to waiver the longest before saying that Morales-Alvarez was the man he saw driving the BMW. Daly asked him “Are you sure?” Ortiz Jr. said “Yes.” Other than that, Daly did not elicit and Ortiz Jr. did not provide any description of how certain he was in identifying the three suspects. Ortiz Jr. never said how certain or uncertain he was that Rojas and Fernandez-Pagan were in fact the men he had seen run past him, and never identified either one as the individual who fired a handgun.
After Ortiz Jr. identified the three suspects, Aguiler again broadcast on the radio that “we have a positive.” The Court finds that Mr. Enos probably heard that and was aware that a second witness had made a positive identification of someone.
1.3.4. John Enos. The last witness brought to Farnham Street to view the suspects was Mr. Enos. The police again followed the same process as before. Enos sat in the rear seat. Daly gave him the same instructions. Enos viewed the same
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tableau. By this time roughly an hour and a half had passed since Enos had seen the man in his pizza shop that he suspected as being involved in the robbery.
Enos identified Morales-Alvarez as the man who had been in his pizza shop during the robbery. Daly did not elicit and Enos did not volunteer how certain he was of his identification.
2. Legal Background.
2.1. Risks of Witness Misidentification. Courts in Massachusetts and elsewhere “have long recognized that ‘[e]yewitness identification of a person whom the witness had never seen before the crime or other incident presents a substantial risk of misidentification and increases the chance of a conviction of an innocent defendant.’ ” Commonwealth v. Silva–Santiago, 453 Mass. 782, 796 (2009), quoting Commonwealth v. Jones, 423 Mass. 99, 109 (1996). For this reason, the Supreme Judicial Court has adopted and continues to revise rules to help guard against misidentifications resulting from suggestive identification procedures. In so doing it has been mindful “that eyewitness identification may be highly probative of who did (and did not) commit a crime,” and that the realities of police work and witness behavior mean that offenders are often correctly identified as a result of “less than perfect identification procedures.” Silva-Santiago, supra, at 796–797.
One-on-one identifications of suspects in crimes by victims who did not know the assailants “are disfavored because they are ‘inherently suggestive.’ ” See, e.g., Commonwealth v. McWilliams, 473 Mass. 606, 617 (2016). Suggestive identification procedures exacerbate the risk that a witness to a crime may mistakenly identify the wrong person as the offender, and that this will lead to the wrongful conviction of an innocent person. Commonwealth v. Crayton, 470 Mass. 228, 234–35 (2014).
It may be “difficult for a jury to evaluate” whether an identification has been “tainted by suggestive circumstances.” Commonwealth v. Johnson, 473 Mass. 594, 600 (2016) (“Johnson (2016)”). “Jurors … tend to be unaware of … how susceptible witness certainty is to manipulation by suggestive procedures or confirming feedback.” Id., quoting Commonwealth v. Gomes, 470 Mass. 352, 373 (2015), and State v. Lawson, 352 Or. 724, 778 (Appendix) (2012).
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2.2. Per Se Rule for Suggestive Police-led Identifications. If a defendant shows that the police used “unnecessarily suggestive” procedures to have a witness identify a suspect, it would violate the due process guarantee in art. 12 of the Massachusetts Declaration of Rights to admit that pretrial identification into evidence. Commonwealth v. Johnson, 420 Mass. 458, 463-465 (1995) (“Johnson (1995)”). The defendant has the burden of proving by a preponderance of the evidence that a showup or other identification procedure is “so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [him] due process of law.” Commonwealth v. Phillips, 452 Mass. 617, 628 (2008), quoting Commonwealth v. Odware, 429 Mass. 231, 235 (1999).
A suggestive identification procedure, such as asking a witness to view a single suspect or group of suspects, is “unnecessarily suggestive” if either (1) there was no “good reason” for the police to use that procedure under the circumstances, or (2) the police had good reason for using a suggestive procedure but did so in a manner or under circumstances that made it “so unnecessarily suggestive that it created a substantial risk of a mistaken identification.” Commonwealth v. Figueroa, 468 Mass. 204, 217 & 218 (2014). Thus, having a good reason to conduct a showup identification is a necessary but not a sufficient reason for doing so.
“Even where there is ‘good reason’ for a showup identification, it may still be suppressed if the identification procedure so needlessly adds to the suggestiveness inherent in such an identification that it is ‘conducive to irreparable mistaken identification.’ ” Id. at 217, quoting Commonwealth v. Martin, 447 Mass. 274, 279-280 (2006); accord, e.g., Crayton, 470 Mass. at 236. “The pertinent question [is] not whether there may have been a mistaken identification, but whether any possible mistake in identifying the defendant was, or might have been, caused by improper suggestions made by the police” either consciously or unconsciously. Commonwealth v. Andrews, 427 Mass. 434, 438 (1998); accord Commonwealth v. Meas, 467 Mass. 434, 441 (2014) (inconsistencies among identifications by witnesses viewing same showup identification procedure does not establish that positive identifications are unreliable). A judge “must examine ‘the totality of the circumstances attending the
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confrontation to determine whether it was unnecessarily suggestive.” Odware, 429 Mass. at 235, quoting Commonwealth v. Otsuki, 411 Mass. 218, 232-233 (1991).
This exclusionary rule is a “per se” rule; the Commonwealth cannot save the admissibility of an unnecessarily suggestive out-of-court identification brought about by the police by showing that the identification was nonetheless reliable. Johnson (1995), 420 Mass. at 464-472; accord, e.g., Johnson (2016), 473 Mass. at 597-598; Commonwealth v. Watson, 455 Mass. 246, 254 (2009).
In addition, if an initial identification was obtained by police using unnecessarily suggestive procedures, no subsequent identification by that witness will be admissible unless the Commonwealth demonstrates by clear and convincing evidence that the later identification has an independent source and was not impermissibly tainted by the prior suggestive circumstances. Odware, 429 Mass. at 235; Johnson (1995), 420 Mass. at 464-464, 467.
2.3. Balancing Test for Potentially Unreliable Identifications.
2.3.1. Recent Change in Law. If a judge determines that an identification procedure conducted by the police was not unnecessarily suggestive, that no longer “end[s] the inquiry” as to whether any resulting identification is admissible at trial. Commonwealth v. Carter, 475 Mass. 512, 518 (2016) (reviewing photo arrays).
A judge deciding a motion to suppress an identification elicited by police showing suspects to an eyewitness under potentially suggestive circumstances now must also apply a balancing test to determine whether the probative value of the identification “is substantially outweighed by the danger of unfair prejudice” from admitting an identification tainted by suggestive circumstances. Id., quoting Johnson (2016), 473 Mass. at 599. The Supreme Judicial Court held in Johnson (2016) that this balancing test applies under Massachusetts common law “[w]here an out-of-court eyewitness identification is suggestive through no fault of the police,” in lieu of the per se rule described above. See 473 Mass. at 598-600. It clarified in Carter that the same balancing test also applies to potentially suggestive identification procedures conducted by the police, in addition to the per se rule that bars unnecessarily suggestive identifications arranged by law enforcement officers.
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The SJC’s decision in Carter represents a material change in Massachusetts common law. Previously, it was well established that Massachusetts judges could not serve as gatekeepers with the power to preclude identification testimony by witnesses that a judge thinks may not be reliable. The SJC previously held that where a witness who observed the alleged offender makes a pretrial identification, and the defendant does not demonstrate that the identification was the result of unduly suggestive procedures or circumstances, then the question of whether the identification is reliable must be decided solely by the jury. It explained that where pretrial identification procedures “are not suggestive,” a witness’s identification is “admissible without a further showing” as to reliability which “will be for the jury” to decide. Commonwealth v. Warren, 403 Mass. 137, 139-141 (1988) (judge committed reversible error by suppressing identification as unreliable, because “the question of the witness’s reliability was not before the judge”); accord Commonwealth v. Smith, 403 Mass. 1002 (1988) (rescript); see also Commonwealth v. Walker, 460 Mass. 590, 604-605 (2011) (“we have not suggested … that in the absence of an unnecessarily suggestive police identification procedure or especially suggestive circumstances, a judge must serve as a gatekeeper of eyewitness identifications offered by the Commonwealth and admit only those identifications the judge finds to be reliable”); Commonwealth v. DiBenedetto, 427 Mass. 414, 415 & 424 (1998) (since “[c]redibility is for the jury,” trial judge correctly denied motion to suppress eyewitness testimony as unreliable); Commonwealth v. Payne, 426 Mass. 692, 694 n. 3 (1998) (rejecting argument that nonsuggestive pretrial identifications may be suppressed as unreliable). Carter implicitly abrogated, or at least substantially limited the reach of, this prior line of decisions.
2.3.2. Applying the New Test. To trigger the balancing test that Carter applied to police-conducted identification procedures, a defendant need only show that “the circumstances surrounding the identification” were sufficiently suggestive “that there is a substantial risk that they influenced the witness’s identification of the defendant, inflated his or her level of certainty in the identification, or altered his or her memory of the circumstances of the operative event.” Johnson (2016) at 604. In another context the SJC has explained that
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“[t]he term ‘substantial risk’ can be understood to mean a ‘real or strong possibility.’ ” Commonwealth v. Coggeshall, 473 Mass. 665, 668 (2016) (construing G.L. c. 265, § 13L, which makes it a crime to recklessly engage in conduct “that creates a substantial risk of serious bodily injury or sexual abuse to a child”); see also Commonwealth v. Kelly, 470 Mass. 682, 701 (2015) (equating “substantial risk of a miscarriage of justice” with “significant possibility” of such a result). This appears to be what the SJC means by “substantial risk” in Johnson (2016).
In conducting the new balancing-test analysis, the “probative value of the identification depends on the strength of its source independent of the suggestive circumstances of the identification.” Carter, 475 Mass. at 518, quoting Johnson (2016), 473 Mass. at 601. “Relevant factors include ‘the witness’s opportunity to observe the offender at the time of the crime, the amount of time between the crime and the identification, whether the witness’s earlier description of the perpetrator matches the defendant, … whether the witness earlier identified another person as the perpetrator or failed to identify the defendant as the perpetrator,’ and ‘the witness’s prior familiarity with the person identified.’ ” Carter at 519, quoting Johnson (2016) at 601.
On the other side of the scales, “[t]he danger of unfair prejudice arises because the accuracy of an identification tainted by suggestive circumstances is more difficult for a jury to evaluate,” as discussed above. Johnson (2016), 473 Mass. at 600.
“After weighing the risk of unfair prejudice arising from the suggestiveness of the identification against the strength of its independent source, the judge must determine whether the identification is so unreliable that it would be unfair for a jury to give it any weight in their evaluation of the evidence. If it is, the judge must rule it inadmissible.” Id. at 602. In other words, “the danger of unfair prejudice arising from the suggestive circumstances [must] be weighed against the independent source of the identification, with reliability the ultimate measure.” Id. at 604. The defendant bears the burden of proving, by a preponderance of the evidence, that the identification should be excluded. Id. at 599.
Under the Johnson (2016) balancing test, even a relatively modest degree of suggestiveness would require suppression if the identification is based on little else.
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But only a very high degree of suggestiveness will substantially outweigh the probative value of an identification that seems reliable because it has a strong independent source. As the SJC has explained:
“Where the independent source of an identification is slim, this level of suggestiveness may be sufficient to support a finding of inadmissibility; where the independent source is substantial, a greater level of suggestiveness would be needed to support a finding that the danger of unfair prejudice substantially outweighs the probative value of the identification.”
Johnson (2016), 473 Mass. at 604.
The SJC also held that where a witness’s out-of-court identification is deemed to be inadmissible under this standard, the witness is automatically barred from making any in-court identification; the Commonwealth has no opportunity to show by clear and convincing evidence that the later identification has an independent source. Id. at 603. “Where the suggestiveness does not arise from police conduct, a suggestive identification may be found inadmissible only where the judge concludes that it is so unreliable that it should not be considered by the jury. In such a case, a subsequent in-court identification cannot be more reliable than the earlier out-of-court identification, given the inherent suggestiveness of in-court identifications and the passage of time.” Id.
The SJC has made clear that a motion to suppress an allegedly suggestive identification under this new standard should be filed and decided before trial even though such a motion seeks a ruling under the law of evidence, which is normally reserved for decision to the trial judge, rather than a suppression ruling as a matter of constitutional law. Given the importance of eyewitness identification testimony, the SJC has determined that “that the evidentiary hearing on [such a] motion should be conducted and ruled on before trial, so that the Commonwealth and the defendant have the opportunity to challenge the ruling through an interlocutory appeal under Mass. R. Crim. P. 15 (a) (2).” Id. at 599; accord Carter, 475 Mass. at 519 n.12.
3. Analysis.
3.1. Reasonable Suspicion to Stop and Power to Hold Defendants. Activating the flashing emergency lights and siren on a police cruiser in an attempt to compel a motorist to stop, as then-Sgt. Aguiler and other police officers did in this
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case, is a seizure in a constitutional sense that requires justification. See Commonwealth v. Smigliano, 427 Mass. 490, 491-492 (1998).2
The attempt to stop the BMW in this case was lawful. “An investigatory stop [of a motor vehicle] is justified if the police have ‘reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the … motor vehicle had committed, was committing, or was about to commit a crime.’ ” Commonwealth v. Anderson, 461 Mass. 616, 621 (2012), quoting Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996).
In this case the police had learned that two men committed an armed robbery using a handgun, those two men and an apparent accomplice drove off in a white BMW with New Hampshire plates, and just before their escape one of the men fired a shot at a potential witness standing outside his home. A vehicle matching this description and containing the three defendants was located within a few minutes and only a short distance away from the scene of these crimes.
Under these circumstances that police had reasonable suspicion to believe that the Defendants had just committed these crimes and thus could lawfully stop their vehicle. See Commonwealth v. Perez, 80 Mass. App. Ct. 271, 272-279 (2011) (upholding vehicle stop in similar circumstances).
And since the police had reasonable suspicion, they could restrain the suspects in handcuffs for a short period of time after capturing all three of them, to determine whether any witness recognized any of the suspects as having participated in these crimes. See Phillips, 452 Mass. at 627 (okay to handcuff suspect and hold him in patrol wagon for ten minutes while awaiting witness who might be able to identify suspect); Commonwealth v. Barros, 425 Mass. 572, 585 (1997) (okay to hold suspect for fifteen minutes and transport him to witnesses for possible identification); Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970) (okay to hold suspect for several minutes while waiting for witness to arrive for possible identification).
2 Although Mr. Fernandez-Pagan challenged the vehicle stop in his motion papers, arguing that the identifications were the fruit of an unlawful stop and seizure, his counsel waived that part of his motion at the evidentiary hearing. The waiver was a reasonable tactical choice. As explained below, the Court finds that the police acted lawfully in stopping and detaining Fernandez-Pagan.
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“A ‘justifiable threshold inquiry permits a limited restraint of the individuals involved as long as their detention is commensurate with the purpose of the stop.’ ” Phillips, supra, quoting Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006) (okay to hold driver suspected of criminal activity for thirty minutes while waiting for drug-sniffing dog).
Indeed, under the circumstances of this case the police had probable cause to arrest Defendants before the showup identifications took place. “Probable cause … is a decidedly low standard,” requiring only “reasonably trustworthy information” sufficient to make a reasonable person “believ[e] that the defendant had committed or was committing an offense.” Commonwealth v. Hanright, 466 Mass. 303, 311 (2013). The information known to the police at the time they tried to stop the BMW and then took the three Defendants into custody was more than enough to give them probable cause to arrest these men. Cf. Commonwealth v. Claiborne, 423 Mass. 275, 281 (1996) (police had probable cause to make warrantless arrest of armed robbery suspect where defendant was stopped a short time and distance away from robbery scene, and defendant and his vehicle matched general descriptions by eyewitness); Commonwealth v. LeBlanc, 373 Mass. 478, 486 (1977) (police had probable cause to make warrantless arrest of homicide suspect where defendant and vehicle matched general descriptions by eyewitness).
3.2. Identification by David Ashness. The Court agrees with the Commonwealth that police had a good reason for asking Mr. Ashness and the other three witnesses to view the three men in custody and tell the police whether they had in fact seized the right people. These showup identifications took place an hour to an hour and a half after several violent crimes had been committed nearby. The Defendants had been travelling in a vehicle that matched witnesses’ description of the getaway car, they were first seen and ultimately apprehended by the police a short distance away from and a short time after the armed robbery and assault with a firearm had occurred, and their appearance was consistent with the very general descriptions provided by the witnesses. All four witnesses had some opportunity to observe some or all of the suspects. And the police needed to determine quickly, if they could, whether they had stopped the wrong men and therefore needed to
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continue to search for three violent and dangerous criminals, and were searching in the wrong place for the firearm used to commit these crimes. Under these circumstances, the police had a very good reason to conduct showup identifications of all three suspects standing together. See, e.g., Meas, 467 Mass. at 437-441 (showup viewings of four suspects placed in a line, handcuffed behind their backs, and standing near uniformed police officers upheld under similar circumstances).
Nonetheless, the Court concludes that the identifications by Mr. Ashness must be suppressed on constitutional due process grounds because they were obtained under circumstances that made them “so unnecessarily suggestive that it created a substantial risk of a mistaken identification.” Cf. Figueroa, 468 Mass. at 217 & 218. Ashness never saw the faces of the men who robbed his store, because both men wore masks. Nor did he note anything distinctive about their appearance. After viewing the three suspects during the showup, he identified two of them based solely on the fact that they each had on black shirts and dark pants. Ashness had described that assailants’ clothing as “dark,” but did not observe anything distinctive about it. It is unsurprising that Ashness did not notice or recall anything distinctive about the assailants’ appearance, since the assailants were in his store for a very short time and Ashness undoubtedly was under great stress and focused on the robbers’ gun. See Model Jury Instructions on Eyewitness Identification, 473 Mass. 1051, 1054 nn. f & g (2015) (juries should be instructed that eyewitness identifications may be less accurate if weapon was visibly present during event of short duration, or if witness was “under a high level of stress” during incident);3 Gomes, 470 Mass. at 372 (principle “that high levels of stress negatively impact both accuracy of eyewitness identification as well as accuracy of recall of crime-related details” is so generally accepted in relevant scientific community that it should be included in jury instruction on eyewitness identification) (quoting Deffenbacher, Bornstein, Penrod, & McGorty, A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687, 699 (2004).
3 The SJC has made clear that judges should consider the model instructions’ compilation and explanation of factors that affect the accuracy of eyewitness identification when deciding whether a particular identification is sufficiently reliable to be admissible at trial. See Johnson (2016), 473 Mass. at 601-602.
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Under these circumstances there is a substantial risk that Ashness identified Morales-Alvarez and Fernandez-Pagan as his assailants solely because the police had presented three men as suspects and these two were wearing solid dark clothing, in contrast to Mr. Rojas who was wearing a striped shirt. Compare Johnson (1995), 420 Mass. at 460-461 (affirming suppression of showup identification based in part on non-distinctive clothing), and Commonwealth v. Botelho, 369 Mass. 860, 870 (1976) (identification procedure was unnecessarily suggestive where witness picked defendant from three-man lineup and defendant was only person wearing leather jacket similar to that worn by robber), with Meas, 467 Mass. at 443 (affirming admission of showup identification based on “rather distinctive” clothing). Since the Commonwealth has not met its burden of proving that any in-court identification by Mr. Ashness would have an independent source, the Commonwealth may not ask Ashness to make any identification at trial. See, e.g., Odware, 429 Mass. at 235.
For much the same reasons, the Court also concludes that it must suppress Mr. Ashness’s identifications based on common law principles of fairness because the danger of prejudice from the admission of identifications brought about by suggestive procedures substantially outweighs any probative value of his identifications. The probative value of Ashness’s identifications is quite low, since he never saw the two assailants’ faces and did not note anything distinctive about their appearance or clothing. In contrast, the unfair prejudice of admitting his identifications is quite high because they seem to be the result solely of the highly suggestive circumstances in which he was asked to view the three suspects and because a jury would have a difficult time evaluating that taint. Cf. Carter, 475 Mass. at 518; Johnson (2016), 473 Mass. at 600-601.
3.3. Identification by Michael Ortiz, Jr. The Court is not convinced that it was unnecessarily suggestive to have Mr. Ortiz, Jr., view the showup in this case. As discussed above, the police had good reason to ask him to view the three suspects. Ortiz Jr. had a clear view of the two men who ran past him and the driver of the BMW. He saw them for several seconds, in daylight, and without anything obscuring his view. The Court is not convinced that it would violate due process to allow the jury to learn of the identifications by Ortiz Jr.
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Nonetheless, the Court concludes that the risk of unfair prejudice from admitting identifications by Ortiz Jr. based on a highly suggestive showup identification substantially outweighs the probative value, because those identifications did not have a very strong independent source. Mr. Ortiz Jr. did not know the men who ran past him or the man driving the BMW before that day. He only saw the three suspects for a few seconds. In addition, his attention was distracted and his ability to remember what he saw was impaired because one of the suspects pointed a gun, yelled in a threatening manner, and fired a shot at Ortiz Jr. and his father. As discussed above, all of these factors suggest that Ortiz Jr. is likely to have had difficulty making accurate observations and forming, retaining, and retrieving an accurate memory of the men he saw run past and the third man he saw driving the BMW. The weakness of Ortiz Jr.’s memory of the assailants was demonstrated by his difficulty in deciding which of the three men he observed during the showup had been driving the BMW. If Ortiz Jr. really had a strong, independent memory of the three men he saw earlier in the day he would not have had to struggle to tell Det. Daly and Sgt. Aguiler which of the three men in custody had been the driver.
The Court will therefore suppress the identifications made by Mr. Ortiz Jr. in accord with Carter and Johnson (2016). Therefore, the Commonwealth may not ask him to make any identification at trial. Johnson (2016), 473 Mass. at 603.
3.4. Identification by John Enos. In contrast, the Court will deny the request to suppress the identification made by Mr. Enos.
Mr. Enos identified Mr. Morales-Alvarez as the man who came into his pizza shop and ordered a sandwich. Enos spent several minutes with that man. He got a good look at him. Enos was neither distracted nor highly stressed by the presence of a weapon, the making or any threat, or the commission of any crime. To the contrary, the interaction between Enos and the man in his shop during the armed robbery next door was no different than similar interactions Enos must have with customers whenever he is at work.
The Court concludes that the identification by Mr. Enos under these circumstances is admissible at trial. The police had good reason to ask Enos to view the three men in police custody. The showup procedure conducted with Enos was not
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otherwise unnecessarily suggestive. The mere facts that Defendants were obviously being held by police as suspects when Enos viewed them, and that Enos probably heard that other witnesses may have made a positive identification of someone, does not make the showup procedure unnecessarily suggestive. See Phillips, 452 Mass. at 628-629. And since the identification by Enos had a strong independent source separate and apart from the inherent suggestiveness of the showup process, the Court concludes that the probative value of that identification outweighs any potential unfair prejudice from admitting the identification.
The motions to suppress by defendant Elisamuel Fernandez-Pagan in docket no. 1677CR0565 and by defendant Angel Rojas in docket no. 1677CR0566 are both ALLOWED. The motion to suppress filed by defendant Edgar Morales-Alvarez in docket no. 1677CR0564 is ALLOWED IN PART and DENIED IN PART.
All evidence regarding any identification made by witnesses David Ashness and Michael Ortiz, Jr., are hereby suppressed and may not be introduced by the Commonwealth as evidence at trial. The motion by Mr. Morales-Alvarez is denied in part to the extent it seeks to suppress any identification by John Enos of Morales-Alvarez as the man whom Mr. Enos saw inside his pizza shop.
October 13, 2017
Kenneth W. Salinger
Justice of the Superior Court

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