Commonwealth v. Rushon Hemingway.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-980

COMMONWEALTH

vs.

RUSHON HEMINGWAY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order of a Superior Court

judge suppressing evidence of a firearm that the defendant

allegedly discarded while running from the police through the

Bromley-Heath housing development (BHHD) in Jamaica Plain.

After a hearing on the defendant's motion, the judge ruled that

the defendant was seized when a single officer began to run

after him, and, if not at that point, then when a group of

approximately ten other officers joined the pursuit. The judge

suppressed the evidence of the firearm after concluding that the

Commonwealth failed to demonstrate reasonable suspicion at the

time of the seizure.
Although we place the moment of the seizure at the later of

the two points highlighted by the judge -- that is, when the

defendant realized he was being followed by nine or ten police

officers as he ran -- on the facts as the judge found them, we

agree that the police lacked reasonable suspicion to justify

that seizure. Accordingly, we affirm the order suppressing the

evidence of the gun.

1. Background. We recite the relevant facts as the judge

found them, supplemented by uncontroverted facts from the record

that the judge appeared to credit and that "do not detract from

the judge's ultimate findings" (citation omitted). Commonwealth

v. Jones-Pannell, 472 Mass. 429, 431 (2015). We reserve certain

facts for later discussion. In addition, we review de novo the

surveillance video recordings (videos) and other documentary

exhibits introduced in evidence at the hearing. Commonwealth v.

Tremblay, 480 Mass. 645, 656 (2018).

At approximately 10 P.M. on May 21, 2020, four Boston

police officers in an unmarked car driven by Officer Christopher

Smerz responded to two ShotSpotter1 activations near the BHHD.

Arriving at the BHHD about one minute later, the officers saw a

1 "ShotSpotter" is "a system that identifies firearm
discharges by sound and directs officers to the general location
of the shots." Commonwealth v. Evelyn, 485 Mass. 691, 694
(2020).

2
man, later identified as Clifford Jones, quickly walking away

from the area. Three of the officers got out of the car and

intercepted Jones, who was in possession of three guns. This

information was relayed to Smerz.

Meanwhile, Smerz got out of his vehicle and walked into a

nearby BHHD parking lot at the center of the complex, where he

found a man suffering from a gunshot wound. There were twenty

to forty people in the parking lot when Smerz arrived, but

neither the victim nor anyone else provided the police with any

identifying information about the shooter.

Shortly after encountering the gunshot victim, Smerz

focused his attention on the defendant, who was among other

people walking away from the area. The defendant, whom Smerz

did not know, had his back to Smerz, and Smerz could not see the

defendant's hands or the front of the defendant's body. As

Smerz watched, however, he saw the defendant "move[] his right

shoulder up while dipping his left shoulder/arm to the front of

his body. He then raised his left shoulder up and brought his

right shoulder back to its normal position." Based on these

movements, Smerz testified that he believed that the defendant

had a weapon in his waistband.

Smerz began to follow the defendant as he walked away.

When the defendant turned left around a corner of the BHHD

3
building at 275-279 Centre Street, Smerz lost sight of him.

Smerz accelerated and, after rounding the corner of the same

building, saw the defendant walking ahead of him toward Centre

Street. At that point, the defendant looked back toward Smerz

and began to run.2 Smerz testified that when the defendant

started to run, he brought both arms toward his waist "as if

holding something." Again, Smerz testified that he believed the

defendant had a gun, so he began to run after the defendant.

The defendant, followed by Smerz, ran roughly the length of

the 275-279 Centre Street building before reaching Centre Street

itself, where he turned left. The defendant, with Smerz several

yards behind him, ran along Centre Street before turning left

again and up a concrete walkway that followed the zigzagging

contours of the eastern side of the same building.3

As the defendant made his second left turn from Centre

Street onto the walkway, he extended his right arm; although

there was no direct evidence on this point, the judge assumed

without deciding that in doing so, the defendant discarded a

gun. The judge found that at the time, "[the defendant was]

The judge found that Smerz, although not in uniform, was
2

recognizable as a police officer.

Surveillance videos provide a visual record of the
3

defendant's movement and path from his first left turn onto
Centre Street until he ran into and through the building at 277
Centre Street.

4
being pursued by at least nine members of the police." As we

discuss below, we infer the judge's finding that the defendant

was aware of the additional officers in pursuit.

As the defendant ran, several additional officers with

flashlights approached him from the opposite direction. The

defendant veered left and ran into an open door at 277 Centre

Street, trailed by at least ten police officers. When the

defendant emerged on the other side of the building, he was

placed under arrest. Officers later searched the area through

which the defendant had just run and found a gun at the side of

the walkway near 279 Centre Street.

2. Discussion. a. Standard of review. "On appeal, we

review a ruling on a motion to suppress by accepting 'the

judge's subsidiary findings of fact absent clear error,'"

Commonwealth v. Cintron, 103 Mass. App. Ct. 799, 801 (2024),

quoting Commonwealth v. Polanco, 92 Mass. App. Ct. 764, 769

(2018), and "we show substantial deference to the judge's legal

conclusions . . . but independently review the application of

constitutional principles to the facts." Commonwealth v. Cruz,

459 Mass. 459, 464 (2011), quoting Commonwealth v. Torres, 433

Mass. 669, 671-672 (2001). In doing so, we defer to the judge's

determinations of the weight and credibility of witness

testimony. Commonwealth v. Scott, 440 Mass. 642, 647 (2004).

5
b. Seizure. To determine whether a person has been

"seized" in a constitutional sense, we ask "whether, in the

circumstances, a reasonable person would believe that an officer

would compel him or her to stay." Commonwealth v. Matta, 483

Mass. 357, 363 (2019). The question is fact specific and

recognizes that "even though most people would reasonably feel

that they were not 'free to leave' in any police encounter,

. . . coercion must be objectively communicated through the

officer's words and actions for there to be a seizure." Id. at

363-364.

"Whether a police 'pursuit' will be considered a seizure

depends on the particular nature of the law enforcement action."

Commonwealth v. Sykes, 449 Mass. 308, 312 (2007). "Pursuit by

the police becomes a seizure when it 'would communicate[] to the

reasonable person an attempt to capture or otherwise intrude on

[an individual's] freedom of movement." Commonwealth v. Isaiah

I., 450 Mass. 818, 822 (2008), overruled on other grounds by

Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020), quoting

Commonwealth v. Watson, 430 Mass. 725, 731 (2000). "However,

when the police merely engage in '[f]ollowing or observing

someone without more, such as using a siren or lights,

attempting to block or control an individual's path, direction,

6
or speed, or commanding the individual to halt, [that] is not

pursuit.'" Isaiah I., supra, quoting Watson, supra.

The judge in the present case determined that the defendant

was seized "[when] Smerz began to run southbound in pursuit of

an already running [defendant]," and even if not, that "any

doubt that a stop occurred [was] completely dispelled by the

presence of approximately ten officers giving chase by the time

[the defendant] reache[d] Centre Street."4 We are not persuaded

by the judge's initial conclusion that the defendant was seized

when Smerz began to run after him. Because there was no

evidence that Smerz "made [any] show of authority, or

attempt[ed] to stop or restrain the defendant's movement, when

he ran after him," Commonwealth v. Perry, 62 Mass. App. Ct. 500,

502 (2004), we do not agree that Smerz's "pursuit of an already

running [defendant]" constituted a seizure. The judge did not

find, nor is there any evidence to support a finding, that the

police used lights or sirens to signal the defendant to stop, or

made any efforts to block or control the defendant's "path,

direction, or speed" as he ran.5 Commonwealth v. Grandison, 433

4 In either case, and as we discuss below, the judge found
that the seizure occurred before the defendant discarded the
firearm he is alleged to have possessed.

5 Although it is evident from the videos that police lights
were visible in different locations near the area in which the
defendant and the police eventually ran, until the final moments

7
Mass. 135, 138 (2001), quoting Watson, 430 Mass. at 731. See

Commonwealth v. Franklin, 456 Mass. 818, 822 (2010).

Critically, Smerz never issued any verbal command to the

defendant to stop; indeed, there was no evidence that Smerz said

anything to the defendant as they ran.6

Yet, we are persuaded that where the judge found that

"approximately ten officers [were] giving chase" as the

defendant began running on the eastern side of 275-279 Centre

Street, and where we can infer a finding that the defendant was

aware of the number of officers then in pursuit,7 the judge did

of the defendant's flight, those lights were not being
controlled by the officers running behind the defendant, and the
judge made no finding that emergency lights or sirens were
directed at the defendant. Compare Commonwealth v. Smigliano,
427 Mass. 490, 491-492 (1998).

6 Smerz testified that he did not verbally request the
defendant to stop. The judge noted his skepticism about this
statement by finding that it was "unlikely" to be true.
However, the judge did not make an explicit finding on this
point, and because the videos have no audio component that might
resolve the issue, there remains no affirmative evidence of any
verbal instruction or command.

7 At the hearing, the judge acknowledged the significance of
the defendant's awareness that other officers had joined in
Smerz's pursuit and concluded, "you get seven officers chasing
one guy. . . . I'm going to guess the guy being chased has
figured out at that point that he's being chased by the
officers." From this comment, we infer that the judge found
that the defendant was aware that additional officers had joined
Smerz in following him as he ran along 275-279 Centre Street.
Our review of the video evidence certainly does not require such
a finding, given the lack of an audio component to the
recordings and the videos' documentation of the limited

8
not err in concluding that the defendant had been seized at that

point. We are satisfied that, viewing the evidence as the judge

did, "a reasonable person [in the defendant's position] would

believe that [the pursuing officers] would compel him . . . to

stay." Matta, 483 Mass. at 363.

c. Reasonable suspicion. We agree with the judge that the

police did not have reasonable suspicion at the moment the

defendant was seized. Reasonable suspicion exists "where

suspicious conduct gives the officer reason to suspect that a

person has committed, is committing, or is about to commit a

crime." Grandison, 433 Mass. at 139, quoting Commonwealth v.

Silva, 366 Mass. 402, 405 (1974). "Reasonable suspicion may not

be based on good faith or a hunch, but on specific, articulable

facts and inferences that follow from the officer's experience."

Grandison, supra. "The test is an objective one." Id., quoting

Commonwealth v. Helme, 399 Mass. 298, 301 (1987).

The Commonwealth points to several factors in support of a

finding of reasonable suspicion in this case. These include:

(1) the two ShotSpotter activations in the area of the BHHD that

triggered the initial police response to the area of the

shooting; (2) the officers' discovery of three guns in Clifford

sightlines along the walkway resulting from the layout of the
path around protruding corners of the 275-279 Centre Street
building. It does, however, permit that finding.

9
Jones's possession; (3) the officers' discovery of a gunshot

victim in a BHHD parking area; (4) the defendant's presence in

the same parking lot as the gunshot victim; and (5) Smerz's

opinion that the defendant's shoulder and arm movements as he

walked away from the area suggested that he was hiding a weapon.8

While the first four of these factors provide evidence that

a crime was committed at the BHHD, see Commonwealth v. Ford, 100

Mass. App. Ct. 712, 717 (2022), and place the defendant near the

scene of that crime, see Commonwealth v. Robinson-Van Rader, 492

Mass. 1, 14-15 (2023), nothing in that evidence differentiates

the defendant from the "twenty to forty [other] people" who were

in the same parking lot when Smerz first noticed the defendant.9

Contrast Ford, supra at 714 (defendant only person officer saw

in area); Commonwealth v. Privette, 100 Mass. App. Ct. 222, 229

(2021), S.C. 491 Mass. 501 (2023) (same).

8 Although the judge considered the additional factors of
the defendant's flight from the police and Smerz's prior gun
arrests in the area of the BHHD in his reasonable suspicion
analysis, he ultimately gave those factors "limited weight," and
the Commonwealth does not argue those points on appeal. We
would, in any case, defer to the judge's assessment of the
weight of that evidence. See Commonwealth v. Warren, 475 Mass.
530, 534 (2016).

9 In fact, to the extent that the discovery of the three
guns in the possession of another person (Jones) with no
apparent connection to the defendant added anything to the
reasonable suspicion analysis, the evidence would seem to
mitigate in the defendant's favor.

10
As the Commonwealth notes, in the circumstances of this

case, Smerz's opinion that the defendant's shoulder and arm

movements before he began to run indicated that he was

attempting to secure a weapon in or around his waistband were

"critical[]" to the reasonable suspicion analysis. The judge,

however, gave "little to no weight to any alleged furtive

movements," because he determined that Smerz's training "le[ft]

much to be desired," and Smerz failed to explain how either his

training or his experience informed his interpretation of the

defendant's shoulder movements. Discounting this testimony, the

judge concluded that "Smerz's unsupported interpretation of [the

defendant]'s movements [was not] objectively reasonable." Cf.

Cruz, 459 Mass. at 462 n.7 ("The subjective intentions of police

are irrelevant so long as their actions were objectively

reasonable"). Deferring, as we must, to the judge's assessment

of the evidence, Commonwealth v. Warren, 475 Mass. 530, 534

(2016), we cannot say that he erred. Cf. Commonwealth v. Karen

K., 491 Mass. 165, 176-177 (2023) (officer's testimony, based on

training and experience, that juvenile's adjustment of waistband

and turning body away from police was consistent with carrying

illegal firearm, relevant to reasonable suspicion analysis);

Commonwealth v. Evelyn, 485 Mass. 691, 708 (2020) (evidence of

defendant's hand gestures relevant to reasonable suspicion where

11
officers testified based on training and experience that

gestures were consistent with concealment of weapon);

Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007) (concluding

that, although a "close [question]," police had reasonable

suspicion that defendant carried illegal firearm based in part

on officers' opinion, "based on [their] training," that

defendant was carrying concealed weapon).

Our determination that the seizure occurred when the

defendant became aware that approximately ten police officers

were chasing him allows the Commonwealth to argue the

significance of Smerz's observations of the defendant's bringing

both arms toward his waist as he began to run, "as if holding

something." However, the judge discredited this opinion as "no

more than a guess."10 We are bound to consider that evidence as

the judge weighed and credited it. Warren, 475 Mass. at 534.

Lastly, to the extent that the defendant's continued flight is

relevant to the reasonable suspicion analysis, it is

insufficient, without more, to support a determination of

reasonable suspicion here, particularly where the judge gave it

only limited weight. See id. at 534-535, 540.

10In coming to this conclusion, the judge noted that Smerz
could not see the front of the defendant's body.

12
After conducting an independent review of the above factors

and leaving all determinations of the weight and credibility of

the testimony to the trial judge, Scott, 440 Mass. at 647, we

conclude that the officers did not have reasonable suspicion to

seize the defendant when the defendant became aware that

approximately ten officers were chasing him.

Conclusion. Because we agree with the judge that the

Commonwealth failed to prove that the officers had the

reasonable suspicion required to seize the defendant in the

circumstances of this case, and because we conclude that the

defendant did not discard the firearm he is alleged to have

illegally possessed until after the seizure occurred, we affirm

the order allowing the defendant's motion to suppress the

evidence of the weapon. See Commonwealth v. O'Laughlin, 25

Mass. App. Ct. 998, 999 (1988) (officers' suspicion must be

reasonable before pursuit begins).

So ordered.

By the Court (Singh, Hand &
D'Angelo, JJ.11),

Clerk

Entered: October 4, 2024.

11 The panelists are listed in order of seniority.

13