United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
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.
Griffin's Motion to Suppress
Findings of Fact
findings are based upon the testimony presented at the
evidentiary hearing and the exhibits introduced at that same
hearing. D. 92, 106.
Robbery and Immediate Investigation
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.
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.
September 11, 2015 Identification Procedure
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.
After Griffin's September 11, 2015 Arrest
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.
September 14, 2015 Identification Procedure
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. ...