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United States v. Rachal

United States District Court, D. Massachusetts

November 3, 2016

UNITED STATES OF AMERICA, Government,
v.
JOSEPH G. RACHAL, Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         Defendant Joseph Rachal (“Rachal” or “defendant”) has been indicted on charges of bank robbery, 18 U.S.C. §§ 2113(a) and (d), using a firearm while committing a crime of violence, 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Currently before the Court is Rachal's motion to suppress evidence obtained during a seizure and search of his person that occurred on November 19, 2015. For the reasons that follow, the motion will be denied.

         I. Background

         The government and defendant disagree on exactly what happened on the day in question. The government relies on police reports for its description of the facts. According to the government, a masked person (“the robber”) went into a branch of the TD bank located at the corner of Market Street and Surrey Street in Brighton, Massachusetts at about 4:51 P.M. on November 19, 2015. The robber purportedly told two tellers to give him money at gun point, placed the money in a black bag and left.

         Two be-on-the-lookout (“BOLO”) alerts were circulated to police officers moments later. The first reported that “a male wearing a dark brown mask” had robbed the TD Bank and the second described the perpetrator as a “short black male . . . wearing a tan jacket [and] a green hat” who “exited the bank onto Surrey Street”.

         After the BOLO alerts, Boston police officers headed to the area around the bank. One unit turned onto Bennett Street which is a block away from the Bank and parallel to Surrey Street. In the government's version of events, an officer from that unit observed a person hiding behind a parked car with a dark jacket and a bag. The officers then got out of their vehicle and identified themselves as the police. The person behind the car ran away from the officers. They were able to identify the individual as a white male and chased him, repeatedly identifying themselves as the police and telling him to stop. The individual purportedly stopped and turned toward the police in a combative manner and the officers gained control of him after a violent struggle.

         Officers identified the individual as defendant Rachal and secured and frisked him. He was wearing a dark jacket, tan pants and a black mask around his neck. During the frisk the officers felt a hard object on his belt which was a scanner set to a Boston Police Department radio frequency. An officer picked up the bag that Rachal had been carrying, felt the outside, identified a hard object that he believed might be a firearm, opened the bag and found a black Glock nine millimeter firearm and ammunition. The officers also found a face mask, gloves and currency matching the amount stolen from the bank.

         Rachal's version of events commence with him about to cross Market Street, not hiding behind a car. Before he crossed the street, Rachal says he saw police vehicles with flashing lights heading toward him “at a high rate of speed”. He “jog[ged] across the street . . . [to] clear the street” prior to the arrival of the police cruisers. After that, he was “tackled by multiple individuals”. He alleges that people “beat him” and he “lost consciousness” and was under arrest when he regained consciousness. Rachal's report mentions nothing about police officers on foot identifying themselves, telling him to stop or chasing him.

         In February, 2016, a grand jury indicted Rachal and in August, 2016, he moved to suppress the evidence from the seizure and ensuing search that occurred on November 19, 2015. That motion is the subject of this memorandum.

         II. Motion to Suppress

         Defendant seeks to suppress all fruits of the search. According to defendant, the evidence should be suppressed because the seizure was a de facto arrest without probable cause or, alternatively, the police lacked reasonable suspicion to justify a Terry stop. The government opposes both grounds for suppression and contends that defendant has not demonstrated that material facts are in dispute and thus there is no need for an evidentiary hearing.

         A. De Facto Arrest and Probable Cause

         1. Legal Standard

         The Fourth Amendment governs the seizure of a person by law enforcement officers. United States v. Chaney, 647 F.3d 401, 408 (1st Cir. 2011). A seizure that rises to the level of a warrantless arrest, whether de facto or formal, ...


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