Opinion
No. 2004-1979(001).
August 9, 2005.
Glenn Jones ("Jones") stands indicted on a charge of assault with intent to rob (001) arising from an incident that allegedly occurred on the evening of November 15, 2004 on Irving Terrace in Cambridge, Massachusetts. Jones has now moved to suppress from evidence all items that were seized from him at the time of his arrest on the evening of November 15th, as well as his identification by the alleged victim at a show-up that evening that was made after he was found by the police not far from the site of the alleged incident.
On June 28, 2005, the court held an evidentiary hearing on Jones' motions. It heard testimony from Detective James F. Dwyer of the Cambridge Police Department, Holly Oblinger Mott, and Richard Tabors. It also received in evidence a Cambridge Police Department Show-Up Identification Checklist (Exhibit 1). Upon consideration of the testimony of the witnesses, the exhibit, and the memoranda of counsel, the court makes the following findings of fact, rulings of law, and order on Jones' suppression motions.
FINDINGS OF FACT
At about 10:15 p.m. on November 15, 2004, Richard Tabors ("Tabors") was accosted by an individual while on the front porch of his house at 6 Irving Terrace in Cambridge. After a brief struggle, the assailant fled onto Irving Street in the direction of Cambridge Street. The Cambridge police were called and responded to the scene within minutes. Tabors described his assailant as a black male, with a thin build and a linear face, wearing dark clothes and a stocking cap.
Several police officers, some in uniform and some in plain clothes, searched the area, and, within a short time, located a black male, later identified as Jones, hiding in the leaves under a mini-van motor vehicle that was parked on Roberts Road, a short distance from Irving Terrace. When the police asked Jones what he was doing under the mini-van, he said that he was waiting for a friend. At the time Jones was found, he was wearing gray sweat pants and a light-colored shirt, and he was holding a stocking cap. The police also found and retrieved a dark-colored shirt under or adjacent to the mini-van.
After Jones was pulled out from under the mini-van, the police brought Tabors to Roberts Road. He was told that he would be asked to look at someone. When Tabors arrived at approximately 11:00 p.m., Cambridge Police Lieutenant Timothy J. Hogan ("Hogan") completed the first page of a two-page Cambridge Police Department Show-Up Identification Checklist form. He then reviewed with Tabors the nine "advisements given to witness before presentation" that were contained on the second page of the form. Hogan then had Jones brought forward to a well-lit area not far from where Tabors was standing at the intersection of Roberts Road and Cambridge Street. Jones was accompanied by two or three uniformed officers, but he was neither handcuffed nor in the custody of those officers.
The "Advisements given to Witness Before Presentation" included the following: "You are going to be shown an individual. This may or many not be the person who committed the crime, so you should not feel compelled to make an identification. It is just as important to clear innocent people as it is to identify possible perpetrators. Whether or not you identify someone, the police will continue to investigate . . . Focus on the event: the place, view, lighting, your frame of mind, etc. Take as much time as you need."
Tabors identified Jones as the individual who had assaulted him, although he said that his assailant had been wearing a dark-colored shirt at the time of the assault. Tabors also asked Jones to put on the stocking cap that Jones was holding, and Jones did so. After Tabors made his identification, he and Hogan both signed the second page of the Show-Up form (Exhibit 1). Tabors was then taken back to his house by the police, and Jones was placed under arrest.
RULINGS OF LAW I. Motion to Suppress Seizure of Clothing
Jones first argues that clothing seized by police, including a hat Jones was holding at the time he was apprehended and a dark shirt found under the mini-van where Jones was discovered, should be suppressed because both items were seized without a warrant. It is unclear whether the hat was seized from Jones prior to his arrest or whether it was only taken from him upon booking. No warrant was necessary for seizure of the hat, however, even if it was seized prior to Jones' arrest, as Jones was holding it in plain view. Under the plain view doctrine, police may seize an item without a warrant if they are lawfully in the position from which they view the item, if the officers have a lawful right of access to the object, if discovery of the item is inadvertent, and if its incriminating character is immediately apparent. Commonwealth v. Santana, 420 Mass. 205, 211 (1995).
In this case, the police were standing on a public street and could see the hat in the defendant's hand (rather than sticking out of a pocket or waistband), the discovery was inadvertent, and the incriminating character was immediately apparent as the suspect the police were looking for was described as wearing a dark cap. The police were justified in seizing the hat.
Jones next challenges the search under the mini-van that resulted in the seizure of the dark shirt. Again, no warrant was required for this search. The police searched the surface of a public road under a van that did not belong to Jones. In order for Jones' rights under Article XIV of the Massachusetts Declaration of Rights or the Fourth Amendment to the Constitution of the United States to be implicated, Jones must demonstrate that he had an expectation of privacy in the location searched. Commonwealth v. Morrison, 429 Mass. 511, 513-514 (1999); Rawlings v. Kentucky, 448 U.S. 98, 106 (1980).
In considering whether an expectation of privacy exists, "no single factor or characteristic will typically determine a search's validity." Commonwealth v. Simmons, 392 Mass. 45, 48 (1984). The court looks to whether the individual had a legitimate privacy interest in the space searched, but also to whether the expectation of privacy is "one which society would recognize as reasonable." Id. One factor is whether the defendant "took normal precautions to maintain his privacy." Id. at 50. Another, is whether the space is freely accessible to persons other than the defendant. Commonwealth v. Meyers, 16 Mass. App. Ct. 554, 556 (1993). In this case, Jones has not met his burden of showing an expectation of privacy in the surface of a public street under a parked car. He took no precautions to maintain the area under the mini-van as private, and the space was freely accessible to others. See Commonwealth v. Doulette, 414 Mass. 653, 655 (1993), (no expectation of privacy in commuter parking lot); Commonwealth v. Garrett, 56 Mass. App. Ct. 1117 (Rule1: 28 Decision) (2002), (no privacy interest in street ledge outside of residential house); and Commonwealth v. Simmons, 392 Mass. at 50, (no privacy interest in exterior or visible interior of automobile).
Because Jones has not demonstrated a reasonable expectation of privacy in the street under the van where the shirt was found, and because the hat was in his hand when he was apprehended, neither piece of clothing will be suppressed.
II. Motion to Suppress Identification Testimony
Jones next argues that both Tabors' in-court and out-of-court testimony identifying Jones as the person who assaulted him should be suppressed, as Jones was unlawfully stopped and detained for the identification procedure, and Tabors' testimony resulted from an unnecessarily suggestive and unreliable identification procedure.
Police may lawfully stop an individual if they reasonably suspect that the person has committed, is committing or is about to commit a crime. Commonwealth v. Watson, 430 Mass. 725, 729 (2000). Reasonable suspicion is measured by an objective standard, and is viewed from the standpoint of the objectively reasonable police officer. Commonwealth v. Santos, 402 Mass. 775, 780 (1988). The threshold inquiry is whether the reasonable suspicion arose from information provided by a reliable source who had a sound basis for knowing the information. Generally, a victim or witness describing a suspect in the immediate aftermath of a crime satisfies the threshold inquiry. Commonwealth v. White, 44 Mass. App. Ct. 168, 172 (1998).
Factors supporting reasonable suspicion can include temporal and physical proximity to the scene of a crime, physical characteristics matching the description of a suspect and activities inappropriate to a setting. See Commonwealth v. Crowley, 29 Mass. App. Ct. 1, 3-4 (1990); Commonwealth v. Carrington, 20 Mass. App. Ct. 525, 528 (1985); and Commonwealth v. Wren, 391 Mass. 705, 706 (1984).
In this case, Jones was apprehended a few blocks from the scene of the crime and within twenty minutes of the alleged assault. He was lying under a van on a public street, and when questioned about what he was doing there, he stated that he was "waiting for a friend." Jones matched the description of the assailant, with the exception a dark shirt and hat. When pulled from underneath the van, however, he was clutching a hat in his hand and there was a dark shirt on the ground. All of these factors considered together could certainly arouse reasonable suspicion in an objective police officer. The stop was therefore lawful, and detaining Jones for thirty minutes until Tabors had an opportunity to view him was also reasonable. "An expeditious collateral inquiry which might result in the suspect's arrest or prompt release is not unreasonable when done to meet the practical demands of effective criminal investigation and law enforcement." Crowley, 29 Mass. App. Ct. at 5, citing Commonwealth v. Salermo, 356 Mass. 642, 646-647 (1970). See Commonwealth v. Hill, 64 Mass. App. Ct. 131 (2005).
Jones next contends that Tabors' identification testimony should be suppressed because the identification procedure was impermissibly suggestive. Show-up identifications are considered inherently suggestive. Commonwealth v. Johnson, 420 Mass. 458, 461 (1995). "The witness knows he would not be asked to make an identification unless the police had reason to suspect the detainee's involvement." Commonwealth v. Hicks, 17 Mass. App. Ct. 574, 583 (1984). Such identifications are not, however, subject to per se exclusion. Johnson, 420 Mass. at 461; Commonwealth v. Day, 42 Mass. App. Ct. 242, 248 (1997). Only if an identification procedure is unnecessarily or impermissibly suggestive is a defendant's right to due process implicated. Commonwealth v. Austin, 421 Mass. 357, 361 (1995). The burden is on the defendant to show that the identification is unnecessarily suggestive. Commonwealth v. Thompson, 427 Mass. 729, 736 (1998).
A show-up identification procedure is permissible if there was "good reason" for using that procedure instead of the less suggestive photo array or line up procedure. Id. at 735. Considerations that may support a finding of good reason include the nature of the crime involved and corresponding concerns for public safety, the need for efficient police investigation in the immediate aftermath of a crime, the prompt verification of information so that police can follow other leads if necessary, and the accuracy of an identification shortly after the crime, when the witness' or victim's memory is still fresh. See Commonwealth v. Hill, 64 Mass. App. Ct. 131 (2005), Thompson, 427 Mass at 735, citing Austin, 421 Mass at 361-362. The factors supporting the finding of good reason do not have to include exigent or special circumstances. Austin, 421 Mass. at 362.
In this case, the crime involved a violent assault where the victim was grabbed at his door and dragged from his porch. Jones was apprehended immediately following the crime, hiding under a mini-van within blocks of the incident. Tabors had been face to face with his assailant and gotten a good look at him. He identified Jones as the man that had assaulted him less than an hour after the attack. Considering all of these factors, the police had good reason to use a show-up identification procedure in this case.
The fact that Jones was asked by Tabors to put on the hat he was holding did not render the identification unnecessarily suggestive. See Commonwealth v. Florek, 48 Mass. App. Ct. 414, 419-420 (2000), (not impermissibly suggestive when police had defendant remove shirt before identification where witness described assailant as shirtless). Nor did the police do anything to make the situation more suggestive than necessary. Tabors was simply asked to look at someone. He was also given the nine warnings addressing the importance of being certain before identifying a person, considering all the factors that might affect one's ability to make an accurate identification, and the importance of clearing innocent people. While the police approached Tabors with Jones between them, he was not handcuffed, restrained, in a police car, or under arrest. See Commonwealth v. Hill, 64 Mass. App. Ct. 131 (2005), Commonwealth v. Barnett, 371 Mass. 87, 92 (1976); Day 42 Mass. App. Ct. 242, 248 (1997). Accordingly, Jones' motion to suppress identification testimony must be denied.
ORDER
For the foregoing reasons, the defendant's Motion to Suppress Evidence Obtained from Warrantless Search and Seizure is DENIED. The defendant's Motion to Suppress Identification Testimony is also DENIED.