Commonwealth v. Browning

99 Mass.App.Ct. 735

171 N.E.3d 751

COMMONWEALTH

v.Walker BROWNING.

No. 20-P-240

Appeals Court of Massachusetts, Suffolk.

Argued March 19, 2021.

Decided June 14, 2021.

Barry A. Bachrach, Leicester, for the defendant.

Ian MacLean, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Hanlon, & Shin, JJ.

HANLON, J.

The defendant, Walker Browning, was indicted for armed robbery, unarmed robbery, and assault and battery by means of a dangerous weapon. After a judge in the Superior Court denied his motions to suppress, he appeals, arguing that he was illegally seized when Boston police detectives boarded the bus he was traveling on, and that the identification procedures they later employed were unnecessarily suggestive. We affirm.

Background. "We recite the facts as found by the motion judge, ‘supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the judge,’ " reserving certain details for later discussion. Commonwealth v. Leslie, 477 Mass. 48, 49, 76 N.E.3d 978 (2017), quoting Commonwealth v. Warren, 475 Mass. 530, 531, 58 N.E.3d 333 (2016). In September 2018, Boston police officers were investigating a series of recent robberies in the Mattapan section of Boston, on and around Blue Hill Avenue. There had been six or seven reports of a Black male in his twenties robbing women who were walking alone in that area late at night, usually after they had left a bus or the Massachusetts Bay Transportation Authority (MBTA) station at Mattapan Square. The robberies were occurring around approximately 10 P.M. and into the early morning hours in late August and into September of 2018.

As part of the investigation, the detectives collected surveillance video recordings (videos) from businesses between Mattapan Square and the intersection of Blue Hill Avenue and Morton Street. Based on the robbery reports, combined with the videos, the officers developed a profile of the robber as a dark-skinned Black male in his early twenties, about five feet, seven inches or five feet, eight inches tall, with a slight build. They also noted that, on most of the videos, the suspect was carrying a black North Face backpack; on at least one video, he was wearing Adidas sneakers.

Detective Juan Seoane, while reviewing the videos, believed that he recognized the suspect, but could not identify him. Seoane testified at the hearing on the motions to suppress, "[W]hen I was watching the video, I knew the person. I just couldn't identify him, yet.... Especially, when we pulled the ... video [from an area jewelry store], which was the most clear one ... I made a comment, ‘I know this guy. I deal[t] with him before. I just cannot place where.’ "

On September 10, 2018, police officers "saturated" the Mattapan Square area in an effort to apprehend the suspect. Around 11 P.M. , they received a report of a robbery in the area of Walk Hill Street; the report indicated that an individual had stabbed a woman and stolen her purse. Seoane and Detective Matthew Fogarty, traveling in an unmarked police vehicle, immediately left the Area B-3 police station at the intersection of Morton Street and Blue Hill Avenue and began to patrol the nearby area of Walk Hill Street and Blue Hill Avenue.¹

Roughly fifteen to twenty minutes after they received the report of the robbery,² Fogarty and Seoane were driving south on Blue Hill Avenue toward the town of Milton when they observed an MBTA bus leaving the bus stop near Hazelton Street by the Mattapan branch of the Boston Public Library; the bus was headed in the opposite direction, that is, roughly north on Blue Hill Avenue.³ Earlier, in a video recorded immediately after a previous robbery, the detectives had seen the suspect trying to board a bus near the library. When they saw the bus, the detectives made a U-turn and "fell in" behind it; however, they did not turn on their unmarked vehicle's lights or sirens. The bus then pulled over at the bus stop at the intersection of Blue Hill Avenue and Morton Street. As the detectives passed it, Fogarty observed three individuals on board. One was a woman; one was a man, facing out into the street and he appeared to be approximately six feet, three inches or taller. The third individual was a Black male with a gray hood pulled over his head, sitting about three rows from the back of the bus. Fogarty testified that the individual generally matched the description of the suspect. "He matched the age description, as well as the complexion. He had a hood over his head, and he had the same physical stature. So, you know, that [five feet, seven inches, five feet, eight inches], slight build that we had seen in all the surveillance videos." Fogarty told Seoane, "We have to look at him."

As the bus pulled in at the bus stop, Seoane stopped "kind of towards the front corner" of the bus to let Fogarty out of the vehicle; Fogarty then walked in front of the bus and onto the sidewalk. Meanwhile, Seoane parked "a few spots up, in front of the bus." He noticed two people standing at the bus stop, but he was unsure whether they were waiting to board the bus.

Fogarty boarded the bus, showed the bus driver his badge, which was on his waistband, asked the driver how he was doing, and walked down the aisle of the bus. As Fogarty walked toward the back of the bus, the individual with the hood did not look up, but kept his head "fixated on the back of the rail of the chair in front of him[, a]nd, even as [Fogarty] approached, he never raised his head." When Fogarty reached the back of the bus and turned to walk to the front, he noticed that the individual had a black North Face backpack like the one Fogarty had observed in the videos.⁴ By this time, Seoane had entered the bus and was walking toward Fogarty. Fogarty made eye contact with Seoane and pointed to the backpack. Seoane pointed at the same individual's shoes, which were brown Adidas sneakers like those the officers had observed in a video.

Seoane then approached the individual, who was later identified as the defendant, and said, "Hey buddy, how you doing?" Seoane testified that when the defendant looked up, "I kn[e]w exactly who he [was], from [a] previous encounter and from the video, everything comes to that at once, as the person that I recognize[d] in the video before." In his capacity as a crisis negotiator, Seoane had previously interacted with the defendant for approximately forty minutes; Seoane had given the defendant his card at that time and then spoken with him more than once following that first interaction: specifically, Seoane had encouraged the defendant to seek counselling and had offered to help him find employment.

When Seoane spoke to the defendant, the defendant responded, "What's up[?]" and Seoane believed that the defendant recognized him. As Seoane testified, "He [said] hello to me. He was very cordial, and then, he got, he stood up, and I asked him, ‘Do you have any weapons on you?’ " The defendant responded that he had a knife, and the detectives recovered it; they then asked the defendant to step off the bus with them, and he did. The detectives then read the defendant the Miranda warnings and walked him across the street to the police station.⁵

Beginning on September 11, 2018, police officers conducted five photographic arrays with the various robbery victims in an attempt to identify the suspect. Seoane assembled the arrays; each one had one photograph of the defendant and seven "filler" photographs of people who fit the defendant's description, taken from a police booking photograph database. Each array was presented by a "blind" administrator, i.e., "a detective who [was] unfamiliar with the case." Several victims identified the defendant in the arrays. One victim was shown two arrays on September 11, 2018, one around 12 A.M. and one around 9 A.M. ⁶ Another victim was unable to identify the defendant in an array, but she did identify the defendant's shirt as one that her assailant had worn. Specific facts relating to the identification procedures are discussed in more detail, infra.

The defendant was indicted on three counts of armed robbery, in violation of G. L. c. 265, § 17, two counts of unarmed robbery, in violation of G. L. c. 265, § 19 (b ), and two counts of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b ). He filed motions to suppress all of the evidence that resulted from his seizure and the identifications resulting from the out-of-court identification procedures; after a hearing, the judge denied the motions in a thoughtful memorandum. The defendant filed a petition for interlocutory appeal with a single justice of the Supreme Judicial Court, who allowed the petition and ordered the matter to proceed in this court.

Discussion. We accept the motion judge's findings of fact unless those findings are clearly erroneous. Commonwealth v. Jones-Pannell, 472 Mass. 429, 438, 35 N.E.3d 357 (2015). However, "[w]e conduct an independent review of the judge's application of constitutional principles to the facts found." Commonwealth v. Matta, 483 Mass. 357, 360, 133 N.E.3d 258 (2019), quoting Commonwealth v. Pinto, 476 Mass. 361, 363, 67 N.E.3d 713 (2017). "A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (citation omitted).

Commonwealth v. Tremblay, 480 Mass. 645, 655 n.7, 107 N.E.3d 1121 (2018).

1. Stop and seizure of the defendant. "Under the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights], an individual has the right to be free from all unreasonable searches and seizures." Commonwealth v. Tavares, 482 Mass. 694, 702, 126 N.E.3d 981 (2019). " ‘[Article] 14 provides more substantive protection than does the Fourth Amendment in defining the moment’ of seizure. Commonwealth v. Lyles, 453 Mass. 811, 812 n.1, ...