Opinion
14-P-889
06-29-2015
COMMONWEALTH v. EDDY G. TEIXEIRA-FURTADO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 (2008).
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.
In pertinent part, General Laws c. 90, § 17, reads as follows:
"No person operating a motor vehicle on any way shall run it at a rate of speed greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public."G. L. c. 90, § 17, as appearing in St. 1975, c. 329, § 1.
A police officer's observation of a civil motor vehicle violation, such as speeding in violation of G. L. c. 90, § 17, provides justification for an initial stop. See Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 470 (1996). See also Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) ("Where the police have observed a traffic violation, they are warranted in stopping a vehicle"); Commonwealth v. Santana, 420 Mass. 205, 207 (1995); Commonwealth v. Avellar, 70 Mass. App. Ct. 608, 613 (2007).
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.
The judge's ruling that there was no reasonable suspicion of a § 17 violation was entered notwithstanding that police officers on patrol had previously seen the subject Honda parked at a pizza store with a known gang member driving and the defendant as a passenger, and soon thereafter, as the officers continued to cruise the area, the police re-encountered the same subject Honda. As to this second sighting of the Honda and its occupants, one officer testified at the suppression hearing that the subject car was traveling at an unreasonable rate of speed in a residential neighborhood, which included a park and "plenty of kids." For the reasons that follow, we reverse the suppression order and remand the case.
1. Background. 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 (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 (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 defendant stopped and said, "All I have is a gun."
2. Discussion. Here, as noted, the stop occurred upon activation of the police car's blue lights. Commonwealth v. Smigliano, supra. On appeal, the Commonwealth contends the stop was justified because the officers had reasonable suspicion that a violation of G. L. c. 90, § 17, had occurred. As noted above (see note 1, supra), G. L. c. 90, § 17, provides that "[n]o person operating a motor vehicle on any way shall run it at a rate of speed greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public."
In ordering suppression of the firearm, the motion judge wrote that "[a] mere statement [by a testifying police officer] that a vehicle was traveling at an unreasonable rate of speed" was not sufficient to support reasonable suspicion of a G. L. c. 90, § 17, unreasonable speed violation. More specifically, the motion judge appeared to rest her suppression ruling on the fact that there was no specific miles per hour testimony. Without such, the judge appeared to conclude that § 17 would be subject to arbitrary application. The motion judge wrote as follows on these points:
"As the defendant in this case has argued, if the court were required to accept the officers' subjective conclusions, every search warrant request would require
mere rubber stamping without a setting out of objective facts to support the need for the intrusion into homes. Likewise, every arrest would be acceptable upon the officer's mere statement that he believed that a crime had been committed; every search of a citizen would be approved without question upon the officer's testimony that he/she believed that reasonable suspicion existed to stop and to search.
"The defendant's point is well taken. Such a finding would seem to suggest that any police officer, at any time, and without necessity for justifying his/her conclusion, may stop and search motorists whenever the officer, by subjective rationale, concludes that the motorist is 'traveling at an unreasonable rate of speed.' Without any specific, articulable, objective facts that explain the conclusion, and which would permit the court to decide that the stop was justified, a finding that the vehicle here was traveling 'at an unreasonable rate of speed' would amount to the rubber-stamping of police action without inquiry into the underlying reasons for the challenged conclusion."
We conclude there are fundamental flaws in this analysis. Whether there is reasonable suspicion that a violation of G. L. c. 90, § 17, has occurred, requires consideration of a number of objective factors that should be calibrated in the determination whether a motor vehicle is being operated in violation of the statute, including, but not limited to, the reasonableness of the speed measured in light of the characteristics of the street area, the makeup of the surrounding neighborhood, the traffic pattern, and importantly, the safety of the public.
Rather than just one isolated factor, i.e., miles per hour as a number standing alone, the case law makes clear that the totality of the full panoply of other factors under § 17 must be taken into account, even with respect to the statute coming into play at a criminal trial -- where proof beyond a reasonable doubt is required, in contrast to reasonable suspicion, as in this case -- rather than consideration being limited to a specific speedometer reading of miles per hour or a specific distance traveled at unreasonable speed. Indeed, the statute focuses on the reasonableness and propriety of the speed, "having regard to traffic and the use of the way and the safety of the public." See Commonwealth v. Whynaught, 377 Mass. 14, 21-22 (1979) (citations omitted), which held:
"[T]he defendant has misconstrued the statute. The elements which the Commonwealth must prove to sustain a conviction are contained in the first sentence of the section. There it states that '[n]o person . . . shall run [a motor vehicle] at a rate of speed greater than is reasonable and proper, having regard to traffic and the use of the way and safety of the public.' Thus, the Commonwealth's only burden is to present such evidence as to permit the trier of fact to find beyond a reasonable doubt that the defendant has failed so to operate his motor vehicle. Distance travelled may be relevant, but it certainly is not a required element of proof."
In Whynaught, the court rejected the defendant's contention that there must be proof "that the defendant drove her car for a distance of one-quarter of a mile at a rate exceeding fifty-five miles an hour." 377 Mass. at 21.
In this case, the motion judge inappropriately focused too narrowly only on a speedometer-like rate of speed. The motion judge's rationale, quoted above, does not take into account other clearly present specific articulable facts upon which the officers could have based a reasonable suspicion that the Honda was traveling at an unreasonable rate of speed in violation of G. L. c. 90, § 17.
Among such factors not considered in ordering suppression here were: (1) the residential setting of the Mount Ida Road area; (2) the safety of the public (for example, that the suppression testimony established that the area included a nearby park and "plenty of kids"); (3) the close physical proximity of the two vehicles, the police car being close to fifteen to twenty feet near when it was at the stop sign while the Honda drove past on Mount Ida Road; (4) that, albeit for a short time and distance, the police car had a view of the Honda before the activation of the blue lights; and (5) the testifying police officer's belief that the speed limit in the area was "25 to 30 miles an hour."
Again, to be borne in mind is that the standard at issue in cases involving reasonable suspicion is whether there are specific articulable facts and inferences, based on the totality of the circumstances, that a violation of G. L. c. 90, § 17, was committed. See, e.g., Commonwealth v. Baez, 47 Mass. App. Ct. 115, 118 (1999) ("We think the standard to be used in determining the legality of a stop based on a suspected violation of [G. L.] c. 90, § 9D, is whether the officer reasonably suspected, based on his visual observations, that the tinting of the windows exceeded the permissible limits of § 9D"); Commonwealth v. Rivas, 77 Mass. App. Ct. 210, 218 (2010) ("the defendant's operation of the car with a red rejection sticker gave the police officer reasonable grounds to believe that the car was being driven in current violation of the civil traffic laws").
In sum, because the totality of material specific and articulable facts and the reasonable inferences drawn from these facts were not addressed in the motion judge's findings and memorandum of decision, we reverse the suppression order and remand this case. On remand, the judge may consider taking additional evidence in a further evidentiary hearing as deemed appropriate.
It may also be, in the discretion of the judge on remand, that consideration should be given the Commonwealth's alternative argument. That alternative argument is that, even if the stop of the Honda was not supported by reasonable suspicion of a G. L. c. 90, § 17, violation, the defendant's subsequent action of jumping out of the moving Honda and running toward the police car, then turning away from that car, and running with his hand on his waist, broke the chain of causation. See, e.g., Commonwealth v. Coleman, 64 Mass. App. Ct. 558, 562 (2005), and cases cited. Such a break would, the Commonwealth asserts, render the seizure of the firearm admissible irrespective of the impropriety of the initial stop of the Honda for a § 17 violation.
The order allowing the motion to suppress is reversed, and the case is remanded for further proceedings consistent with this decision.
So ordered.
By the Court (Berry, Milkey & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 29, 2015.