Opinion
No. 0846–2012.
08-15-2014
The PEOPLE of the State of New York, Plaintiff, v. Fredrick HALL, Defendant.
Robert T. Johnson, Bronx County District Attorney, by Assistant District Attorney Douglas Meisel, for The People of Bronx County. The Bronx Defenders, by Mr. Mark Loudon–Brown, Esq. and Mr. Tyler Maulsby, Esq., of counsel, for Defendant.
Robert T. Johnson, Bronx County District Attorney, by Assistant District Attorney Douglas Meisel, for The People of Bronx County.
The Bronx Defenders, by Mr. Mark Loudon–Brown, Esq. and Mr. Tyler Maulsby, Esq., of counsel, for Defendant.
Opinion
ALVIN M. YEARWOOD, J.
It is hereby ordered that the defendant's motion to suppress a firearm possessed by him and thrown over a fence in response to an impermissible police pursuit is granted for the reasons that follow.
The defendant filed a motion to suppress physical evidence in this matter, to wit: a silver firearm on the grounds that the police had no reasonable suspicion or probable cause to believe the defendant had committed, was committing, or was about to commit a crime. The People opposed defendant's application. A Mapp/Dunaway hearing was held on May 7 and May 8, 2014 in the above captioned matter. The People called two witnesses from the New York City Police Department (hereinafter NYPD) Sergeant Brian Clements (Sgt.) and Police Officer (P.O.) Michael Madera. The defendant called no witnesses. The Court finds the People's witnesses to be credible, and credits their uncontroverted testimony.
FINDINGS OF FACT
The People's first witness was P.O. Michael Madera who testified that he has been a member of the NYPD for six years. For the last year and a half he has been assigned to the Bronx Evidence Collection Team (ECT). Prior to joining the ECT P.O. Madera was assigned to the 48th Precinct anti-crime unit. P.O. Madera testified that he has personally made approximately one hundred arrests, six involving firearms. P.O. Madera testified that he was working the 10:00 PM to 6:35 AM tour of duty on February 4, 2012. At approximately 1:50 AM he made or assisted in the arrest of the defendant and another individual named Mark Gardner. P.O. Madera also testified that he saw the defendant on 181st Street and Mohegan Avenue as he and his partner were outside of their vehicle about to conduct a vertical check of one of the clean halls buildings in the area that was a drug-prone location (Hearing Transcript [hereinafter HT], p. 12). As they were next to their vehicle, they heard a group of people screaming and yelling. P.O. Madera heard a member of the group state “let's go get those mother fuckers.” P.O. Madera stated that it sounded as if “they had just gotten into a fight. Everyone was very agitated.” P.O. Madera further stated that he heard the group before he saw them and that they were approximately 20 to 30 feet away from him, and when he first heard them “there was two vans parked on the side of the street, so they were behind the vans walking towards the corner of Mohegan and 181. And we approach the front of the vehicle where they had come out and we identified ourselves as police officers, asked them to stop, and everyone stopped except the two defendants.” (HT, p. 13, 1.8–14).
P.O. Madera continued to testify that the group had been “walking on 181 eastbound towards Mohegan from Southern Boulevard” and that the two defendants were in the rear of the group and that after they identified themselves as police officers everyone “stopped except the two defendants. They kept walking away from us” (HT, p. 14, I.1–21). P.O. Madera characterized Gardner and Hall as “both walking with their backs towards us looking back at us nervously, and they were kind of bumping into each other as they were walking.”
P.O. Madera testified that at this point in the encounter that “Sgt. Clements had said they're gonna run so I, that's when I looked specifically up at them. I saw, I observed them walking away and so I said police stop, police stop, a few times. And then when I took a step they kept walking away, as I stepped towards them is when they took off running.” (HT, p. 15). P.O. Madera further testified that both he and his partner, P.O. Bermudez, pursued the defendants on foot while Sgt. Clements pursued in their vehicle. P.O. Madera stated that, to this point in the encounter, he had not observed any bulges nor any other indication of weapons on the defendants. He further testified that during the pursuit, he could not see the defendants' hands. P.O. Madera stated that, as the chase continued, Sgt. Clements observed the defendant clutching at his waistband, remove and toss a firearm over the fence at the front of 820 East 180th Street. P.O. Madera “did not personally observe” this activity (HT, p. 17, lines 9–23).
P.O. Madera went on to testify that as part of his anti-crime duties, he regularly responds to the area, “at least a few times per night” and had occasions to make arrests for weapons and drugs, (HT, p. 19–20). Additionally, he stated there were prior shootings in the area, but was unable to provide statistics. (HT, p. 23). P.O. Madera stated that they pursued the defendant several blocks to 820 East 180th Street where Sgt. Clements had pulled up into a bus stop as the defendant had run into the building's vestibule. P.O. Madera continued to testify that “Sgt. Clements ran into the building. Mark Gardner proceeded to turn around and run directly towards me. Me and Officer Bermudez apprehended Mark Gardner. Once he was—and I could hear Sgt. Clements in the vestibule area screaming to get down, get down, so I ran into the building to assist Sgt. Clements.” (HT p. 24). “Sgt. Clements said to place the defendant in handcuffs, so I placed him in handcuffs.” (HT, p. 25).
On cross-examination P.O. Madera testified he learned the information about the defendant tossing the gun over the fence from Sgt. Clements and from watching the video surveillance recording. He did not witness the events himself, nor did he particularly notice the defendant until after Sgt. Clements “said they are going to run. So that's when I looked up and I noticed Mr. Gardner and Mr. Hall in the back of the group, everyone else stopped and they kept walking. It was actually a fence along that way and they were along the fence with their backs, kept walking and kept looking back. I told them to stop several times, they kept walking away and as I took a step towards them is when they took off running.” (HT, p. 46) As P.O. Madera had arrived at the vestibule he observed the defendant “on the ground but up on his hands.” At that point P.O. Madera had placed the defendant in handcuffs.
The People then called Sgt. Brian Clements, who testified that he has been assigned to the Patrol Borough Bronx Anti-crime for approximately a year and a half and his duties include going on patrol with two other officers patrolling “areas throughout the whole Bronx that have high spikes in crime like shootings, robberies, burglaries.” (HT, p. 63). Prior to his current assignment, Sgt. Clements was the Anti-crime Sergeant at the 48th Precinct for four years. Over the course of that time Sgt. Clements has personally made approximately 300 arrests and has been involved in approximately 2,000 arrests that he was either assisting in or supervising.
Sgt. Clements testified that he was working on the evening of February 4, 2012 on anti-crime patrol with P.O.'s Madera and Bermudez, who were in plain clothes, while Sgt. Clements was in uniform. Sgt. Clements stated that at approximately 1:50 AM, he and P.O.'s Madera and Bermudez exited their vehicle to conduct a vertical floor patrol when “a loud commotion. Like a lot of noise, like a lot of swearing. I actually thought somebody was having a fight or dispute at that point. Just heard a, like I said a lot of commotion, a lot of yelling.” (HT, p. 66). Sgt. Clement further stated that at “that point Officer Madera and Officer Bermudez started to walk towards the group. When they started to approach the group, I observed Mr. Fredrick Hall and Mr. Gardner kind of separating from the group to start walking towards, more towards Mohegan Avenue because they weren't quite at the corner yet. I heard one of them, I don't know if it was Officer Bermudez or Madera because they had their backs to me, at that point say, police hold up. At that point Mr. Fredrick Hall and Mr. Gardner continued to walk away so I kind of was keeping my eye on those two, and they kept bumping into each other as they were starting—because they kept looking back at us. And the last, I would have to say last look that I saw from Mr. Fredrick Hall was he looked, clenched his front of his waist, and at that point the look that I had was like a wide-eyed look from Mr. Fredrick Hall. And I yelled to my officers, I said they're gonna run, I said they're gonna run. At that point they started to run.” (HT, p. 67, 1.8–25)
When asked to describe what the defendant was doing with his hands at the time Sgt. Clement observed “the wide-eyed look”, the sergeant stated that it “[L]ooked like he clenched, I think, he clenched the front because he turned like over his left shoulder to see where we were at that point and I could see his hands clench the front of his waistband area.” (HT, p. 68, 1.5–8). When asked if he could see if there was anything the defendant was clutching or grabbing, Sgt. Clement responded he “couldn't see anything what he was grabbing or holding there. Like I said, at that point it was, it was a—it all happened really fast and that's when I said they're gonna run. And then as soon as I said that they started running, and then Officer Madera and Bermudez gave chase. And that's when I got back into my vehicle and then proceeded to chase after them in my vehicle.” (HT, p. 68, 1.14–20).
Sgt. Clements further testified that during his vehicular pursuit of the defendant, he pulled in front of 820 East 180th Street because “there's like a little bus stop right there. I observed Mr. Fredrick Hall at that point with his left hand pull a firearm from his waistband and throw it over a gate, which is kind of like the storage garbage area for that building over the gate. I saw it come out, I saw him throw it, and then I heard the metallic sound of it hitting on the concrete.” (HT, p. 69, 1.4–11). Sgt. Clements then chased the defendant into the vestibule and drew his weapon on the defendant, as he was unsure if the defendant had any additional weapons on him. He held the defendant at gunpoint until addition assistance arrived. Sgt. Clements testified that P.O. Madera was the first to arrive and place the defendant in handcuffs. Then Sgt. Clements climbed over the gate and retrieved the firearm from that location, and placed it in his back pocket until they returned to the precinct where the weapon was vouchered.
On cross-examination Sgt. Clements stated that the first time he noticed the defendant was when he “observed the group. Like I said about five feet from the corner of East 181 and Mohegan and my officers started to walk that way, I saw him and Mr. Gardner separate from that group that's when I first noticed them.” (HT, p. 88, 1.9–13). Sgt. Clements further testified that it was their separating from the group that drew his attention and “they kept, they kind of like picked up their walking pace a little bit and kept looking over their shoulders behind them.” “They made the turn onto Mohegan and that's when he started to look over their shoulder. They kept on bumping into each other because they kept looking behind them and then like I said, the last look that I remember is Mr. Hall looking back and his body turn, I could see him grab the front of his waistband and that's when I yelled to my cops that he is going to run and that's when they took off running. (HT, p. 89, 1 .1–6).
On cross-examination Sgt. Clements acknowledged that the last wide-eyed look he saw from the defendant was when he reached for his waistband. When asked when he “saw the wide eye look is that when Mr.—had Mr. Hall turned around?” Sgt. Clements responded “He bladed, he like turned to look back in the direction I was standing in ... [O]r as well as my officers and so I was able to—his body did turn ... his whole upper body turned.” (HT, p. 94, 1.4–25). When asked where on his waistband did the defendant grab Sgt. Clements stated “He took both hands and grabbed in front of his waistband and his waist area like around the belt area, where a belt would be.” (HT, p. 95, 1.2–4). He also testified that the defendant then “turned back around and ran.” During the pursuit Sgt. Clements stated “he saw Mr. Hall toss” the firearm over the fence as he was pulling his police cruiser into the bus stop. Sgt. Clements testified that he knew it was a gun as he “could see a silver firearm being thrown over the fence.” (HT, p. 95, 1.9).
CONCLUSIONS OF LAW
Defendant seeks suppression of firearm discarded by the defendant while fleeing from the police.
With respect to the Mapp/Dunaway portion of the hearing defendant argues the police did not have probable cause to arrest him. The People have the initial burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct (People v. Baldwin, 25 N.Y.2d 66 [1969] ; People v. Malinsky, 15 N.Y.2d 86 [1965] ). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct (People v. Berrios, 28 N.Y.2d 361 [1971] ; People v. Baldwin, 25 N.Y.2d 66 [1969] ). “Reasonable cause exits when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was (or is being) committed and that such person committed it.” (CPL § 70.10[2] ).
In People v. Debour, 40 N.Y.2d 210 (1976) the Court of Appeals established a four-tiered approach for police conduct when encountering individuals. The first level of intrusion permits a law enforcement officer to approach and request information provided there is an objective, credible, and articulable reason not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a “founded suspicion that criminal activity is afoot.” The third level is where an officer has a reasonable suspicion that an individual has been involved in criminal activity, the officer may forcibly stop and detain that person. Finally, at level four, an officer may effectuate an arrest when there is probable cause to believe that an individual has committed, is committing, or is about to commit a crime (id. at 223 ).
In this matter, the defendant and the group of which he was a part were approached by the police as they were attempting to discern the nature of the commotion they heard upon exiting their vehicle. The group was approached by P.O.'s Madera and Bermudez who identified themselves as police officers and asked the group to stop. At this point, the officers remained at a DeBour Level I intrusion. Mr. Hall and Mr. Gardner declined the officer's invitation to stop and decided to continue to walk away from this street encounter, as they had every right to do. Sgt. Clements testified Mr. Hall clutched at his waistband briefly and gave him a “wide-eyed” look before running from the scene. This flight, however, did not escalate this encounter to a Level III intrusion under DeBour.
Indeed, in People v. Howard, 50 N.Y.2d583 (1980), a case with similar facts leading to the pursuit of a defendant, the Court of Appeals unequivocally addressed the issue, stating that:
“An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or search the individual or his possessions, even though he ran away. Nor when the individual, cornered by his pursuers in the basement of a building and while looking for a way out of the basement, drops or throws a package he was carrying into a pile of junk, has he been shown to have intentionally abandoned the package so as to make a warrantless search and seizure permissible.” In the Matter of Darryl C., 98 AD3d 69 (2012), appeal dismissed, 19 NY3d 1040 (2012), the Appellate Division, First Department ruled that “the law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual's involvement in criminal activity” (CPL § 140.50[1] ; People v. DeBour, 40 N.Y.2d 210, 223 [1976] ) and then “knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety” (People v. Batista, 88 N.Y.2d 650, 654 [1996] ; CPL § 140.50[3] ).
The First Department framed the issue as “whether the arresting officer had a reasonable suspicion of appellant's participation in a crime, combined with a reasonable fear for his personal safety, so as to justify the stop and frisk. Absent reasonable suspicion of involvement in a crime, there was no basis to stop and detain appellant and, thus, no basis for even considering conducting a frisk” (Darryl C., citing People v. DeBour, 40 N.Y.2d at 223 ). Then citing to People v. Cantor, 36 N.Y.2d at 112 the Appellate Division, First Department further opined that “the Fourth Amendment is not designed to protect those intent on criminality but to prevent random, unjustified interference with private citizens. The Court's remarks in that case bear repeating”:
“Street encounters between the patrolman and the average citizen bring into play the most subtle aspects of our constitutional guarantees. While the police should be accorded great latitude in dealing with those situations with which they are confronted it should not be at the expense of our most cherished and fundamental rights. To tolerate an abuse of the power to seize or arrest would be to abandon the law-abiding citizen to the police officer's whim or caprice and this we must not do (id. ).To condone Officer Colon's search of appellant would, in essence, subject an individual, without any suspicion of his or her involvement in a crime, to a frisk merely by reason of the person's possibly innocuous behavior and, in this case, a teenager's evasive response to the police officer, and the officer's bare and unfounded claim of fear for his or her safety. If, as the dissent holds, the mere expression of apprehension by a police officer, without suspicion of criminal activity, is enough to justify a search, there will be few instances in which such an intrusion on the security and privacy of the individual could be successfully challenged even when the intrusion is undertaken with intent to harass or is based upon mere whim, caprice or idle curiosity (DeBour, 40 N.Y.2d at 217 ). This would constitute an illegal affront to the individual's fundamental right to be secure from unreasonable searches and seizures” (Darryl C., at 77–78, citing DeBour at 216; NY Const, art I, § 12 ; US Const 4th Amend)(Internal quotations ommitted).
Likewise, in In re Jaquan M., 97 AD3d 403 (2012) the Appellate Division, First Department reversed the trial Court and dismissed the petition where:
“Appellant, who was 14 years old at the time of the incident, was observed by the police at approximately 9:35 p.m. in a drug-prone location, wearing a backpack. When the police first spotted him, they were in a car and he was walking slowly down a sidewalk. Appellant then passed between two parked cars, peering up and down the street, and then passed back between the cars and looked up and down the sidewalk. Appellant stepped back onto the sidewalk, looked around and began pacing in a circle very slowly. He took out his cell phone and used it for about 30 seconds, put it back in his pocket, and then went back between the cars. He repeated the pacing and looking a second time. Appellant then took off his backpack and placed it on the ground between the cars. He kneeled down and removed a white object very slowly and gently from his waistband, placing the object in an outer pocket on the side of the backpack. He used one hand to grip the object and the other to hold the waistband, making it appear to the observing officers that he did not want the object to get caught in his pants and that he was trying to remove the object as quickly, but as carefully, as possible. Appellant placed one hand on the pocket of the backpack and used the other hand to place the object inside the pocket. He zipped up the pocket, put the backpack on his shoulder, and crossed the street. The police thought the object “ could ” have been a firearm because of the way appellant was handling it and because it was in his waistband, the most common location for carrying a gun. However, by the officers' own admissions, nothing about the appearance of the object which appellant placed in the backpack supported that suspicion.” (Jaquan M., at 403–404)(Emphasis added).
“One of the officers got out of the car and walked side by side with appellant. The officer saw that appellant's backpack seemed to be bottom-heavy. The officer identified himself and told appellant to walk with him across the street. Appellant replied,” “[W]hat do you want from me? I am only fourteen.” Another officer went to appellant's right, and the one who originally approached him frisked his waistband and patted down his pockets. When asked where he was coming from, appellant replied that he was coming from his uncle's house. When asked where he was going, appellant stated, “I don't know. I am going here,” and showed an address written on his forearm which was located in a housing development in the South Bronx, and which the police knew to be a high-crime, drug-prone location. The first officer, upon smelling marijuana, asked appellant if he was in possession of any. Appellant said, “[N]o.” The officer asked if appellant had ever been in trouble with the law, and he answered, “No. This is the first time.” When the officer asked what was in the backpack, appellant replied, “[N]othing.” (Jaquan M., at 404)
“The officer took the backpack by the upper strap handle at the top and shook it a little. He asked appellant why the bag was so heavy and what was in it. Appellant again replied that there was nothing in the backpack. The officer believed that appellant was lying because the bag was very heavy and he had previously seen appellant place something inside it. The officer asked for pedigree information, and appellant gave him his date of birth and first name. Appellant stated that papers bearing his name might be found among school papers and a folder in his backpack and stated, “You could check if it's in any of those papers in my bag.” The officer told appellant to take off the backpack and hand it to him. Appellant placed the bag on the ground and the officer opened up the larger pocket and looked through the paperwork for something with appellant's name on it, but was unsuccessful. He then opened the outer pocket, which contained no paperwork. However, the officer saw the object that he had seen earlier, a white bag. The officer placed his hand on the bag, which was hard and heavy. He stated that the object “ –uld have been anything, ” but it felt like a firearm. The officer placed appellant in handcuffs for his safety, and detained him so that he could determine the contents of the bag. Also, he considered appellant a flight risk because appellant was nervous, turning his head and leaning his body from side to side. When the officer opened the bag, he saw a firearm wrapped in bubble wrap, and placed appellant under arrest. Eleven rounds of ammunition were loaded in the magazine, and $963 in currency was also recovered from appellant's jeans pocket.” (Jaquan M., at 404–405) (Emphasis added).
In Jaquan M., the trial court denied suppression of the firearm, reasoning that the search was justified by “appellant's presence at night in a high-crime neighborhood, his furtive actions such as peering up and down the street and sidewalk, and his removal of a white object from his waistband, which, in the officers' experience, is where weapons are frequently concealed. The court noted appellant's inability to tell the officers where he was going without first looking at an address written on his arm, and that the officers knew that address to be in a high-crime area. The court further observed that appellant did not have identification, did not give his full name, and suggested that the officer look for some papers in the backpack. The court also relied on the fact that the officer who searched the backpack testified that it was much heavier than it would have been had it contained only papers” (Jaquan M., at 405).
The First Department rejected that analysis opining that “[R]easonable suspicion [to justify a seizure] has been aptly defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand. The requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere hunch' or gut reaction' will not do. This Court has specifically held that the mere fact that an officer sees a person holding something near his waistband is not enough to form a reasonable suspicion, absent any indication of a weapon, such as the visible outline of a gun ” (Jaquan M., at 406–407)(Emphasis added)(internal quotation marks and citations omitted). (See, People v. Manuel, 220 A.D.2d 263, [1st Dept 1995], observation of large bulge under the defendant's shirt above the waistband did not provide a reasonable basis to believe that the defendant was armed; see also, People v. Crawford, 89 AD3d 422, 423 [1st Dept 2011], “Defendant's flight, when accompanied by nothing more than the presence of an object in his pocket that was unidentifiable even at close range, did not raise a reasonable suspicion that he had a gun or otherwise was involved in a crime”).
The First Department continued its analysis rejecting the “dissent's implication that an officer's suspicion that an unidentified object in, as opposed to near, a person's waistband, is a gun, is always reasonable.” The First Department further opined that absent such an actual indication of a firearm, “other objective indicia of criminality” are necessary before a suspect may be seized (People v. Powell, 246 A.D.2d 366, 370 [1998], appeal dismissed 92 N.Y.2d 886, [1998] ). Thus, in Powell, suppression of a gun was granted where the defendant, while walking at a quick pace, adjusted his waistband and walked with one arm held stiffly against his body, because those “actions were at all times innocuous and readily susceptible of an innocent interpretation ” (Id., at 369 )(Emphasis added).
An examination of First Department jurisprudence indicates that the touching one's waistband, without more, before fleeing from the police is not indicative of criminal conduct that would give rise to a DeBour Level III intrusion. (See, People v. Sierra, 83 N.Y.2d 928, 930 [1994] ; People v. Jaquan M., AD3d 403, 406–407 [1st Dept 2012], appeal dismissed, 19 NY3d 1041 [2012] ; People v. Fernandez, 87 AD3d 474, 476 [1st Dept 2011] ; People v. Manuel, 220 A.D.2d 263 [1st Dept 1995] ; People v. Crawford, 89 AD3d 422, 423 [1st Dept 2011] where “defendant's flight, when accompanied by nothing more than the presence of an object in his pocket that was unidentifiable even at close range, did not raise a reasonable suspicion that he had a gun or was otherwise involved in a crime.”)This Court now turns once again to the Court of Appeals decision in People v. Howard, 50 N.Y.2d 583, where it was held “[A]n individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or search the individual or his possessions, even though he ran away. Nor when the individual, cornered by his pursuers in the basement of a building and while looking for a way out of the basement, drops or throws a package he was carrying into a pile of junk, has he been shown to have intentionally abandoned the package so as to make a warrantless search and seizure permissible.” (People v. Howard, 50 N.Y.2d at 586 ).
Indeed, the facts adduced at the hearing are similar to the facts in Howard in some respects. In the instant matter the defendant was with a group of people who were not engaged in any criminal behavior. The two plain-clothed police officers approached the group as they were loud and boisterous and an unidentified member of the group was shouting “let's go get those mother fuckers”. As the police officers approached the group P.O. Madera asked them to stop, and everyone stopped except the two defendants. The defendant and another individual continued on their way, declining the officer's invitation. The defendant took both hands and grabbed in front of his waistband and his waist area where a belt would be as he turned his upper body towards Sgt. Clements and gave him a “wide-eyed” look. In response, Sgt. Clements “yelled to [his] cops that he is going to run and that's when they took off running”. (HT, p. 89 1.2–6). As they approached 820 East 180th Street, the defendant reached into his waistband with his left hand pulled out a silver firearm and threw the firearm over the gate before entering the vestibule area of 820 East 180th Street, where he was ultimately apprehended.
In People v. Howard, the Court held “that there was no justification for police action of any kind; that in any event he had a constitutional right to refuse to answer a police inquiry; that his exercise of that right by walking and then running away did not justify detention of him or seizure of the vanity case; and that as a matter of law there was no abandonment. While we hold that there was a sufficient basis to permit inquiry, we agree that defendant had the right not to answer, that his running did not, absent any indication that any crime had been or was about to be committed, permit detention; that there was no probable cause for defendant's arrest; and that the vanity case had not been abandoned.” (Id. at 588 ).
Here, likewise, there was no justification for police action against the defendant as the officers initially approached. Nor did defendant's grabbing at his waistband and running from the scene, without more, elevate the street encounter from a DeBour Level I intrusion to a DeBour Level III intrusion.
With respect to the defendant's throwing the firearm over the fence, the People argue such actions were an abandonment of the firearm in that the act was a calculated, voluntary abandonment when officers lawfully pursued the defendant. However, based on the testimony adduced at the suppression hearing the police encounter should never have elevated beyond a DeBour Level I intrusion and, therefore, the police pursuit of the defendant was not lawful. Citing to People v. Boodle, 47 N.Y.2d 398, 404, the People argue that “[T]he question of whether or not a defendant made a conscious decision to discard property ultimately turns on whether the suspect had time enough to reflect and formulated a strategy for ridding himself of the incriminating evidence” and concludes that “the evidence fully supports the finding that the defendant made a calculated and voluntary' decision to abandon his gun.”
Defendant argues that the People's reliance on their case law in support of the People's abandonment argument “are not instructive in this case. All three cases the People rely upon (People v. Fields, 171 A.D.2d 244 [1st Dept 1991] ; People v. Curtis, 29 AD3d 316 [1st Dept 2006] ; and People v. Duncan, 234 A.D.2d 8 [1st Dept 1996] ) found the officer's conduct to be lawful from the outset .” Defendant argues that “[C]ontrary to the above cited cases, there was no testimony of any actions taken by Mr. Hall that were calculated, independent, or anything other than an attempt to escape an unlawful pursuit by the police.” Finally, defendant argues the Prosecution has not borne its burden of establishing that Mr. Hall's throwing of the gun in the midst of a short, abrupt, continuous police pursuit, was an independent, unprovoked, calculated decision.” (See, Defendant's Reply to the People's Memorandum of Law, p. 6–7). Indeed, in People v. Torres, 115 A.D.2d 93 (1st Dept 1986), a case relied on by the defendant, the Appellate Division, First Department opined:
“The only escalation was in the adamance with which defendant endeavored to exercise his constitutional rights to remain silent and walk away freely from a nonconsensual situation which was increasingly becoming illegally coercive. Without additional indicia of criminality, his flight simply did not justify the pursuit. Because probable cause to pursue defendant was lacking, and the gun was seized as a direct result of that pursuit, it is clear that the gun must be suppressed as the fruit of the poisonous tree unless it can be found that defendant waived his constitutional right to challenge the seizure of the gun by abandoning it in what amounted to an “independent act involving a calculated risk. ” (People v. Boodle, 47 N.Y.2d 398, 404, cert denied, 444 U.S. 969 )(Emphasis added).
“In People v. Boodle, the Court of Appeals reiterated the principle that evidence revealed as a direct consequence of unlawful police action is tainted and must be suppressed. However, the court distinguished cases where a defendant seeks to rid himself of evidence as a “spontaneous, provoked reaction” to police illegality and those cases where his actions dissipate that taint because they amount to “an independent act involving a calculated risk.” (People v. Boodle, pp 403–404)(Emphasis added).
“In performing the difficult task of drawing a distinction between spontaneous and calculated acts, we must be guided by the principle that a presumption exists against the waiver of constitutional rights. ( People v. Howard, supra., at p. 593.) Courts, therefore, should conclude that an abandonment has occurred only in the clearest of cases. Indicative of a spontaneous response to unlawful police behavior are instinctual, rather than thought-out, reactions provoked by the coercive pressure of the illegal conduct. This coercion negates the ability to make a thoughtful decision involving the conscious assumption of a risk.”(Emphasis added).
“Thus, in Howard (supra.), after being unlawfully approached and then pursued into a basement of a building and after reaching a locked door, defendant dropped or threw a package he was holding which contained a gun. The court concluded that defendant's act of dropping or throwing the package was not an act “ ‘involving a calculated risk” ’ but was “a spontaneous reaction to the necessity of evading his pursuers”. (People v. Howard, supra., at p. 593.) “Similarly, this defendant, under the pressure of an unlawful hot pursuit, ran into an alley only to find himself fenced in with a number of policemen breathing down his neck. As he reached the fence, he threw the gun over it and was then seized by Officer Rodriguez. It is only realistic to assume that defendant's actions were precipitated by an instinctive drive to escape his pursuers rather than a reflective, intellectual formulation of strategies. As in Howard, defendant's act was a provoked and spontaneous response to unlawful police conduct, requiring suppression of the gun. ” (Torres, at 99).
This Court agrees with the legal analysis in People v. Howard, 50 N.Y.2d 583, People v. Boodle, 47 N.Y.2d 398 (1979), and People v. Torres, 115 A.D.2d 93 (1st Dept 1986) in that, in this matter the police officers did not possess any objective credible information that a crime had been, was being, or was about to be committed when they initially approached the defendant. As such, the police acted without reasonable suspicion or probable cause when they pursued the defendant.
Accordingly, it is hereby ordered that the defendant's motion to suppress the firearm recovered in this matter must be granted.