MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION TO SUPPRESS IDENTIFICATIONS
L. Ullmann, Justice
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.
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. 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
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.
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.
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.
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.
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.
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.
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
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.
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."
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 ...