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Commonwealth v. Polizzotti

Superior Court of Massachusetts, Middlesex

December 21, 2016

Commonwealth
v.
Kyle Polizzotti No. 135516

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS IDENTIFICATIONS

          Robert L. Ullmann, Justice

         Shortly after two men fled from Lowell police detectives during an investigative stop, two detectives separately identified the defendant, Kyle Polizzotti (" Polizzotti"), 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 they exited the vehicle, Polizzotti asked, " Why are you searching us?" Polizzotti and Morales then immediately began to run in opposite directions on Perry Street.

         Detective Kew chased Polizzotti, and Detective Dokos chased Morales. As Polizzotti neared the end of the block, he threw a firearm onto the ground, then looked back toward Detective Kew, giving Kew a final view of Polizzotti's face.

         After pursuing Polizzotti some 50 yards and around a corner of Perry Street, Detective Kew went back to Perry Street to recover the firearm. Kew took possession of the firearm, which contained live ammunition, and a Green Bay Packers hat that had fallen off Polizzotti's head.

         Detective Dokos caught Morales. Morales took out his cell phone, and rapidly received three telephone calls. Each time, the name " Kilo" was on the cell phone screen as the caller. Detective Dokos knew " Kilo" to be Polizzotti's street name.

         Morales was arrested and taken to Lowell General Hospital. Detectives Dokos and Kew went to the hospital to interview Morales. When Detective Dokos reached the hospital, less than 30 minutes after the arrest, he viewed a booking photo of Polizzotti on his police iPad, and recognized Polizzotti as the man with Morales at the scene.

         While at the hospital, within one hour of the arrest, Detective Dokos showed Detective Kew the photo of Polizzotti in order to confirm Dokos's identification. Detective Kew said, " I think this is the guy I saw."

         There is no evidence as to when police first searched for Polizzotti. A warrant for Polizzotti's arrest issued on September 28, 2015. He was arrested and arraigned on ...


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