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United States v. Griffin

United States District Court, D. Massachusetts

February 10, 2017



          Denise J. Casper United States District Judge

         I. Introduction

         Defendant Marion Griffin (“Griffin”) has moved to suppress a September 14, 2015 identification by a store clerk and any subsequent in-court identifications of him. D. 60. Defendants Griffin and Gerald Sibley (“Sibley”) (collectively, the “Defendants”) have also moved to dismiss Count II, charging a violation of 18 U.S.C. § 924(c)(1)(A). D. 62. Having considered the motion papers, the government's opposition, D. 75, the evidence and arguments presented at the motion hearing, D. 92, 106, and the parties' post-hearing briefs, D. 104-05, the Court DENIES Griffin's motion to suppress, D. 60, and DENIES the Defendants' motion to dismiss Count II.

         II. Griffin's Motion to Suppress

         A. Findings of Fact

         These findings are based upon the testimony presented at the evidentiary hearing and the exhibits introduced at that same hearing. D. 92, 106.

         1. Robbery and Immediate Investigation

         On the night of September 10, 2015, Emad Guirguis (“Guirguis”) was working as a store clerk in the Village Market in Brookline, Massachusetts. D. 106 at 13. About twenty minutes before closing time, two men came to the store. Id. One remained outside and the other came into the Market. Id. The man who entered the store, removed a silver gun from his pocket and told Guirguis to give him money and the “lottery drawer.” Id. at 13-14, 21, 25. To stall in hopes that a passerby might see, Guirguis pretended that he did not understand the command. Id. at 14, 25. As the robber persisted, Guirguis got behind the counter since he had “[n]o choice” but to comply. Id. He gave the man the money. Id. After doing so, the robber told him “[d]on't follow me when I go” and departed the store. Id. at 15. After his departure, the clerk called the police and the store owner. Id. at 15, 26. Guirguis described his interaction with the robber as lasting one minute to a minute and a half. Id.

         Although Guirguis was looking at the gun during the course of the incident, D. 106 at 15, 17, 22-23, he saw his face and was able to provide a description of him. D. 106 at 15, 24. He described the robber as a black man, approximately 5'10, ” over age 40 wearing a black baseball hat, black jacket and black pants. Id. at 15, 23. Brookline officers then obtained surveillance footage of the incident from the Village Market store owner. D. 61 at 2; D. 75 at 1; Exh. 3. This footage shows a black male in black clothing and armed with a gun enter and rob the store. Exh. 3. According to the surveillance footage, the robbery lasted approximately 72 seconds. Id.

         2. September 11, 2015 Identification Procedure

         On September 11, 2015, the following day, Brookline police officers, Detective Lacy and Lieutenant Paul Cullinane (“Cullinane”), returned to the store to have Guirguis look at an eight-photo array. D. 106 at 16; D. 92 at 7; Exhibit 1. The photo array contained a photo of Griffin. Detective Lacy, who had put the photographic array together based upon information that he had received from the Boston Police Department, D. 92 at 14, remained outside the store while Cullinane presented the array to Guirguis. Before showing the array, Cullinane read the instructions on the Brookline Police Department Photographic Show Up Admonition form to the Guirguis which included the instruction that the array may or may not include the robber. D. 92 at 9-10; D. 106 at 16-17, 32-33, 35. Cullinane showed the photographs to Guirguis sequentially, one photograph at a time. D. 92 at 10. Guirguis paused at photograph #5, the photograph of Griffin. D. 92 at 12. He did not identify that photograph as the robber, but after the second time reviewing the photographs, he said that this photograph looked like the robber, but that the robber's skin appeared darker than the photograph. D. 106 at 17, 36; D. 92 at 12-13. He said that he would have trouble identifying him since he was focused on the robber having a gun. D. 92 at 13.

         3. After Griffin's September 11, 2015 Arrest

         On September 11, 2015, Boston Police notified the Brookline detectives that they had placed Griffin and Sibley under arrest. D. 92 at 15. Cullinane saw Griffin later that day at the police station and noticed that his complexion was darker and he appeared thinner than his original photograph, the one that had been used as photograph #5 in the original array shown to the store clerk. D. 92 at 16.

         4. September 14, 2015 Identification Procedure

         On September 14, 2015, Brookline Detective Lacy, Lieutenant Burke and Detective Yu Kajita (“Kajita”) returned to the Village Market to show Guirguis another photographic array including an updated photograph of Griffin. D. 92 at 27; D. 106 at 17-18. While the other two other officers waited outside, Kajita presented the second, eight-photograph array to Guirguis. D. 92 at 28. The officer followed the same procedure of reading the instructions and showing the array (also prepared by Lacy, D. 92 at 32) to the store clerk on this occasion as had been done on September 11th. Id.; D. 106 at 18, 38. Kajita read the Brookline Police Photographic Show Up admonition form and showed Guirguis the new photo array. Exhibit 2. On this occasion, Guirguis immediately identified photograph #6-the photograph of Griffin-as the robber. D. 92 at 29; D. ...

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