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SJC-12010

            COMMONWEALTH   vs.   EDDY G. TEIXEIRA-FURTADO.


                           June 20, 2016.


Constitutional Law, Search and seizure. Search and Seizure,
     Threshold police inquiry. Threshold Police Inquiry.


     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, § 17.1
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

    1
       General Laws c. 90, § 17, provides in part 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. . . . If a speed limit has been duly established upon
any way, . . . operation of a motor vehicle at a rate of speed
in excess of such limit shall be prima facie evidence that such
speed is greater than is reasonable and proper; but,
notwithstanding such establishment of a speed limit, every
person operating a motor vehicle shall decrease the speed of the
same when a special hazard exists with respect to pedestrians or
other traffic, or by reason of weather or highway conditions."
                                                                   2


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 The Appeals Court reversed in an unpublished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.

     Background. The 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.2 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."


     2
       There was uncontradicted testimony at the hearing on the
motion to suppress that the time was about 7:45 P.M.
                                                               3


     Discussion. It is 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
(1984).

     In this 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
                                                                  4


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).

     Conclusion. When a 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).3

                                   Order allowing motion to
                                     suppress affirmed.


     Sarah Montgomery Lewis, Assistant District Attorney, for
the Commonwealth.
     Rebecca Kiley, Committee for Public Counsel Services, for
the defendant.




     3
       We decline to consider the alternative ground urged by the
Commonwealth to reverse the suppression ruling. It contends
that, regardless of the validity of the vehicle pursuit, the
defendant's action in alighting from a moving vehicle, clutching
his waistband, and fleeing from the scene constituted an
"independent, intervening crime" that broke the chain of
causation. Compare Commonwealth v. Thibeau, 384 Mass. 762, 764
(1981). The argument was raised by the Commonwealth for the
first time in its motion for reconsideration, which the motion
judge denied. See Commonwealth v. Gilday, 409 Mass. 45, 46 n.3
(1991) (motion to reconsider not "appropriate place to raise new
arguments inspired by a loss before the motion judge in the
first instance").
