
    Commonwealh vs. Timothy Smith.
    August 1, 1988.
    
      Identification. Practice, Criminal, Motion to suppress. Evidence, Identification.
   This case presents the same issue as the one we decided today in Commonwealth v. Warren, ante 137 (1988). The defendant was indicted for armed robbery arising out of a hold-up of a McDonald’s restaurant in Lynn on March 22, 1986. He moved to suppress all out-of-court and in-court identifications of him by three witnesses to the robbery, on the ground that the identifications were the product of unnecessarily suggestive police procedures. After a hearing, a judge suppressed the identifications made by witnesses Cheryl Brinton and Debra Behen. A single justice of this court granted the Commonwealth leave for an interlocutory appeal. We took the case on our own initiative and now reverse the order of suppression.

David A. Grossbaum, Assistant District Attorney, for the Comonwealth.

Michael P. Hickey for the defendant.

As in Commonwealth v. Warren, supra, the judge concluded that the police photographic identification procedures “were fair and not suggestive. The defendant was not denied due process.” Nevertheless, he suppressed the identifications made by Brinton and Behen because he found them “unreliable and fraught with danger."

We reverse the suppression order because, as we held in Warren, supra at 139, the due process issue was the sole issue before the judge, and it was resolved in favor of the Commonwealth. The defendant does not challenge that determination. Once the judge concluded that the police photographic identification procedures were valid, the witnesses’ reliability was no longer at issue on the motion to suppress. The order suppressing the identification evidence must be reversed.

So ordered.  