Law, Search and seizure. Search and Seizure, Threshold police
inquiry. Threshold Police Inquiry.
Montgomery Lewis, Assistant District Attorney, for the
Rebecca Kiley, Committee for Public Counsel Services, for the
defendant, Eddy G. Teixeira-Furtado, was a passenger in a
motor vehicle that was pursued and then stopped for traveling
at a "speed greater than is reasonable." See G. L.
c. 90, § 17.While the vehicle was still in motion, the
defendant got out of the vehicle, looked uncertainly in the
direction of the police officers, and grabbed the right side
of his waist area. The police officers gave chase. When the
defendant was apprehended, he was carrying a firearm. A
complaint issued in the Boston Municipal Court charging the
defendant with several firearm offenses. Before trial, a
Boston Municipal Court judge allowed the defendant's
motion to suppress the evidence derived from the encounter,
and denied the Commonwealth's motion for reconsideration.
A single justice of this court granted the Commonwealth's
application for leave to pursue an interlocutory appeal. See
Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501
(1996). The Appeals Court reversed in an unpublished
memorandum and order pursuant to its rule 1:28,
Commonwealth v. Teixeira-Furtado,
87 Mass.App.Ct. 1133 (2015), and remanded for further
proceedings. We granted further appellate review. We affirm
the order allowing the motion to suppress.
motion judge's findings establish that on the evening of
November 23, 2012, three officers of the Boston police
department's youth violence strike force, wearing
plainclothes and traveling in an unmarked police vehicle,
were patrolling areas of the city known as "hot
spots" -- areas they knew to be gang affiliated and
where guns had been recovered. One officer observed a known
gang associate park a vehicle and then enter a pizza store
with the defendant. Approximately fifteen minutes later,
"the officers were on Bentham Road close to a stop sign
facing Mt. Ida Road when they 'observed a car traveling
at a speed greater than reasonable' on Mt. Ida. The area
is a residential one with 'plenty of kids around.' It
was nighttime. The officers recognized the car as the Honda
Accord that [the gang associate] had been driving earlier.
They activated the unmarked cruiser's lights and siren
and went after the Honda Accord. The car did not stop
immediately but went about a block and then slowed down as if
to pull over. While the car was still in motion, the
defendant exited the front passenger side. He came toward the
cruiser, went forward, turned, and came back again, as if he
[did not] know where he wanted to go. He was grabbing the
right side of his waist area, which made the officers -- at
least one of them having been trained in the characteristics
of armed gunmen -- suspect that he might have a firearm in
his possession. The unit has rid the streets of Boston of
numerous illicit firearms.
"The officers immediately gave chase. About [forty]
yards into the chase an officer caught up to the defendant.
Un-holstering his firearm, the officer ordered the defendant
to show his hands. The defendant stopped and said, 'All I
have is a gun.' He was wide-eyed and excited. The
officers secured his hands and removed a firearm from his
right side, in the waist area."
established that "[w]here the police have observed a
traffic violation, they are warranted in stopping a
vehicle." Commonwealth v. Bacon, 381
Mass. 642, 644 (1980). See Commonwealth v.
Santana, 420 Mass. 205, 207 (1995). Although operating at a
"speed greater than is reasonable" provides a basis
for a valid stop, a police officer's suspicion that a
violation has occurred must be supported by articulable facts
sufficient to warrant a reasonably prudent person in the
police officer's position in forming that conclusion. See
Commonwealth v. Torres, 433 Mass. 669,
672-673 (2001). "A hunch will not suffice."
Commonwealth v. Wren, 391 Mass. 705, 707
case, the police officer testified to his impression that the
Honda Accord was "traveling at a speed greater than
reasonable." Although the officer's conclusory
testimony tracked the statutory language, he failed to
articulate specific facts on which his impression could be
evaluated. See Terry v. Ohio, 392
U.S. 1, 21-22 (1968) ("the police officer must be able
to point to specific and articulable facts which, taken
together with rational inferences from those facts,
reasonably warrant" intrusion). Cf.
Commonwealth v. Thomas, 451 Mass.
451, 452 (2008) (officer followed automobile for about one
mile, and measured its speed as between eighty and
eighty-four miles per hour); Commonwealth
v. Twombly, 435 Mass. 440, 441-442 (2001)
(officer followed defendant's vehicle for approximately
three miles and estimated speed at fifty to fifty-five miles
per hour in zones where limit was twenty-five and thirty-five
miles per hour; also observed improper passing);
Commonwealth v. Whynaught, 377
Mass. 14, 16-17 (1979) (judicially noting "radar
speedmeter as an accurate and reliable means of measuring
velocity"; observing that "opinion evidence, while
admissible, may tend to leave doubts in the minds of judges
and jurors"). Here, the Commonwealth offered nothing
that would have permitted the motion judge to evaluate the
reasonableness of the officer's conclusory statement that
the speed was unreasonable. Cf. Selibedea
v. Worcester Consol. St. Ry., 223 Mass. 76,
79 (1916) (although plaintiff testified that vehicle was
"going fast and that the speed was uniform, " no
evidence that speed "was unusual or improper"). The
Commonwealth was not required to identify the vehicle's
precise speed, but the testifying officer provided nothing on
the subject of speed beyond his conclusion that it was
greater than reasonable. He did not, for example, estimate
the vehicle's speed; compare its speed to the vehicle in
which he was riding or to other vehicles; provide any
measurement from a radar gun or other device; or testify that
the vehicle was traveling faster than the posted speed limit
for that particular road and location. Nor was there evidence
presented regarding the traffic on the road, the use being
made of the road at the time by pedestrians or others, or
other relevant safety considerations. See generally
Commonwealth v. Bosworth, 257
Mass. 212, 217 (1926).
motor vehicle is pursued and then stopped for a motor vehicle
violation, both the passengers and the operator are seized
for constitutional purposes. See Commonwealth
v. Quintos Q., 457 Mass. 107, 110 (2010) .
Because the Commonwealth did not present evidence of
articulated, specific, facts to support the officer's
opinion that the vehicle was being driven at an unreasonable
speed, the Commonwealth failed to prove that the stop was
lawful and the evidence seized as a result of the stop must
be suppressed. See Commonwealth v.
Cruz, 459 Mass. 459, 477 (2011).
allowing motion to ...