Corrected July 21, 2015.
This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
CORRECTED MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the Commonwealth's interlocutory appeal from the allowance of the defendant's motion to suppress. The defendant was charged by complaint with unlawfully carrying a firearm, unlawful possession of ammunition, and unlawfully carrying a loaded firearm. Thereafter, the defendant filed a motion to suppress the firearm. After an evidentiary hearing, a judge of the Boston Municipal Court allowed the defendant's suppression motion.
Turning to the principal rationale for the suppression ruling, the motion judge found that the Commonwealth did not establish reasonable suspicion that the Honda vehicle in which the defendant was a passenger was lawfully stopped for travelling at an unreasonable speed in a residential neighborhood in violation of G. L. c. 90, § 17. Such a motor vehicle violation would have been valid grounds for a stop.
Because the motion judge rejected the argument that a § 17 violation had been shown, the judge held that there was no basis for the stop of the Honda and that all subsequent evidence of the defendant's exit from the moving car, his flight, and the discovery of the firearm were subject to suppression.
For the reasons that follow, we reverse the suppression order and remand the case.
We summarize the findings of fact as set forth in the motion judge's memorandum of decision. We supplement these facts with " evidence in the record that is uncontroverted and that was implicitly credited by the judge." Commonwealth v. Stewart, 469 Mass. 257, 258-259, 13 N.E.3d 981 (2014).
In the early evening of November 23, 2012, three plain-clothed police officers of the Boston police department's youth violence strike force (gang unit) were patrolling the Area B-3 sector of the city in an unmarked police vehicle. One of the officers spotted Orlando Sequiera, a known gang member, park a Honda Accord near the intersection of Bowdoin and Washington Streets. The defendant was a passenger. Sequiera and the defendant then walked into a nearby pizza store.
About fifteen minutes later, the officers, still patrolling the area in the unmarked vehicle, were driving on Bentham Road. The officers' vehicle approached a stop sign on Bentham Road where there was an intersection with Mount Ida Road. One of the patrol officers saw the same Honda still with Sequiera driving, and the defendant seated as passenger. According to the officer's suppression testimony, the Honda was " travelling at a speed greater than reasonable" on Mount Ida, which is within a residential neighborhood, with at least one park and " plenty of kids around."
The police vehicle turned onto Mount Ida Road to follow the Honda, activating its lights and sirens. This action constituted a stop. See Commonwealth v. Smigliano, 427 Mass. 490, 491-492, 694 N.E.2d 341 (1998) (police officer activating cruiser's blue lights constituted seizure). Notwithstanding the blue lights, the driver of the Honda did not stop. Instead, the Honda continued to travel down Mount Ida for approximately a block with the police car tailing behind. Eventually, the Honda began slowing down to a reduced speed.
Then, although the Honda was still moving, the defendant exited from the front passenger side. The defendant came toward the unmarked cruiser, but turned around and then turned back again. The defendant eventually ran across the street. The defendant was " grabbing the right side of his waist area." One police officer testified during the suppression hearing that he had training in the characteristics of armed gunmen, and believed that the defendant had a firearm in his possession.
The officers chased the defendant. About forty yards into the pursuit, one of the officers caught up to the defendant, unholstered his firearm, and ordered the defendant to show his hands. The ...