Commonwealth v Polizzotti (Lawyers Weekly No. 12-171-16)

COMMONWEALTH OF MASSACHUSETTS   MIDDLESEX, ss.                                                                     SUPERIOR COURT                                                                                                     CRIMINAL ACTION                                                                                                     No. 1581-CR-0436   COMMONWEALTH vs.   KYLE POLIZZOTTI, Defendant.   MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO SUPPRESS IDENTIFICATIONS               Shortly after two men fled from Lowell police detectives during an investigative  stop, two detectives separately identified the defendant, Kyle Polizzotti (“Polizotti”), as one of the men who had fled, based on a single booking photograph.  Polizzotti moved to suppress the two identifications as unnecessarily suggestive and therefore in violation of his due process rights.  The Court held a hearing on December 6, 2016, at which Lowell police detectives David Kew (“Detective Kew”) and Nicholas Dokos (“Detective Dokos”) testified.  For the below reasons, the defendant’s motion is DENIED. FINDINGS OF FACT On September 24, 2015, around 11:30 p.m., Detective Kew, Detective Dokos and a third Lowell police officer were riding in an unmarked police vehicle on Perry Street in Lowell.[1]  Perry Street is in a neighborhood that was known to the officers as having recently experienced repeated incidents of auto theft.  Detective Kew was driving, and Detective Dokos was in the front passenger seat.  Detectives Kew and Dokos were both experienced police officers who worked with the police department’s gang unit. Detectives Kew and Dokos noticed two men around 50 yards down Perry Street circling a vehicle and looking into it.  Neither man was using a key to open the car door. As the police officers approached the two men, Detective Dokos recognized one of them as Luis Morales, a suspected gang member.  Neither officer recognized the second man, Polizzotti, at that time.[2] Detective Kew stopped the car around 5-10 feet from where the two men were standing.  Detective Dokos rolled down his car window and asked Polizzotti and Morales if they would talk to him.  Dokos stated that there had recently been car thefts in the area.  The men’s response did not indicate that either of them had a key or authority to use the vehicle that they had been circling.   Detective Dokos asked the two men where they were going.  Morales said they were going to Smith Street, which is a few miles from the scene of the stop.  Other conversation followed for a couple minutes.[3] As Detective Dokos was talking to Polizzotti and Morales, Detectives Kew and Dokos both noticed that Polizzotti and Morales were “hip checking.” i.e., checking their hip area in a way that suggests possession of a firearm.  Detective Dokos knew from his police work that Morales did not have a license to carry a firearm.  Based upon their belief that both men had firearms, Detectives Kew and Dokos decided to exit the police vehicle.  As […]

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