Opinion
7129 2017
03-09-2018
The PEOPLE of the State of New York, Plaintiff, v. Paul MOORE, Defendant.
ADA Janet L. Gleeson, Kings County District Attorney's Office Matthew Cohen, Esq., Legal Aid Society
ADA Janet L. Gleeson, Kings County District Attorney's Office
Matthew Cohen, Esq., Legal Aid Society
John T. Hecht, J.On February 21, 2018, the court held a Dunaway, Huntley and Mapp hearing on defendant's motion to suppress pursuant to Criminal Procedure Law § 710.20. The court has considered arguments of counsel and their memorandums of law. For the following reasons, the motion is granted.
Detective Reginald Smith, the sole witness, testified credibly to the following facts:
Detective Smith has been with the New York City Police Department for seven years. On June 8, 2017, while working a Brooklyn North Anticrime assignment, he was dispatched to Brownsville because of a spike in shootings there. That night he was patrolling with a partner in plainclothes as the driver of an unmarked vehicle.
Shortly after 1 AM on June 9, Detective Smith was near Eastern Parkway Extension and Somers Street. The area was well lit by streetlamps and visibility was clear. The officers were headed in the direction of the Ocean Hill New York City Housing Authority buildings. They were traveling at approximately 15 miles per hour and did not observe anyone until they saw a group of three individuals walking in their direction. Defendant was one of the three. The others separated from defendant and walked towards the officers' car, which stopped as a result of their approach. Detective Smith testified that he believed that the individuals were going to either rob them or ask for help.
As the two individuals approached, Detective Smith made eye contact with defendant, who grabbed his right jacket pocket and started walking very fast. The others came up to the vehicle and said, "He ain't got nothing." Detective Smith's partner then exited their vehicle, and Detective Smith again made eye contact with defendant, who started running away. Detective Smith put his car in reverse and pursued defendant while his partner pursued defendant on foot. Defendant continued to tug at his right jacket pocket.
During the chase, Detective Smith never lost sight of defendant. Defendant took out a metallic (or chrome) object and tossed it over a fence. At the time, Detective Smith was about 20 feet away from defendant. The chase continued until Detective Smith, and then his partner, caught up with defendant at Sackman Street, a short distance away. During the pursuit, defendant also threw off clothing—a jacket and perhaps a hooded sweatshirt.
Defendant was apprehended and handcuffed. Without being questioned, he said, "It's just brass knuckles, it's just brass knuckles." Detective Smith summoned another police vehicle. After it arrived, he went to the fence over which he had seen defendant toss the object. He climbed over the fence and found a metallic revolver. He also recovered the clothing defendant had discarded. He did not find brass knuckles.
Based on these facts, I make the following conclusions of law:
Detective Smith pursued defendant merely because defendant grabbed his pocket and fled from him. That pursuit required reasonable suspicion that defendant was engaged in criminal conduct. Defendant's flight from the detective, along with his grabbing or clutching at his jacket pocket, did not in combination rise to reasonable suspicion that would justify Detective Smith's pursuit of defendant (see People v. Beckett , 88 A.D.3d 898, 931 N.Y.S.2d 126 [2nd Dep't 2011] ; People v. Cadle , 71 A.D.3d 689, 894 N.Y.S.2d 910 [2nd Dep't], lv den 15 N.Y.3d 772, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010] ). Without reasonable suspicion that defendant was committing or about to commit a crime, the officers' pursuit of him was unlawful and defendant's disposal of the gun and clothing during the pursuit was precipitated by, and not attenuated from, the illegal police action (see People v. Furrs , 149 A.D.3d 1098, 53 N.Y.S.3d 147 [2nd Dep't 2017].
Notably absent from the evidence was any indication that defendant had any connection to a specific report of illegal activity (cf. People v. Gray , 92 A.D.3d 892, 938 N.Y.S.2d 633 [2nd Dep't 2012] [defendant observed running from direction of reported shooting] ). See also People v. Thompson , 127 A.D.3d 658, 8 N.Y.S.3d 185 [1st Dep't 2015] [nothing unique about four men walking together late on a summer evening despite their having left a building in the housing project to which a radio run had reported robbers were running]; People v. Cady , 103 A.D.3d 1155, 959 N.Y.S.2d 321 [4th Dep't 2013] [defendant's location in general vicinity of shooting insufficient to provide reasonable suspicion in absence of objective indicia of criminality]. Defendant was simply in a neighborhood that had experienced a spike in reported crime at the time.
Defendant's grabbing or tugging at his jacket pocket—a far less incriminatory place to store a gun than a waistband—was insufficient to constitute a specific circumstance indicative of criminal activity that would justify Detective Smith's pursuit (see People v. Carmichael , 92 A.D.3d 687, 688, 938 N.Y.S.2d 197 [2nd Dep't 2012] [tensing arm around waistband coupled with flight insufficient for pursuit] ). Similarly, because Detective Smith did not testify that he believed defendant possessed a gun or that defendant's actions indicated that defendant possessed a gun, defendant's grabbing his pocket does not permit the court to conclude that Detective Smith reasonably believed defendant had a gun (see People v. Clermont , 133 A.D.3d 612, 20 N.Y.S.3d 85 [2nd Dep't 2015] [suppressing where People failed to adduce testimony that officers observed what appeared to be a gun or that defendant's conduct indicated he possessed a gun], lv den 27 N.Y.3d 1149, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016] ; People v. Crawford , 89 A.D.3d 422, 931 N.Y.S.2d 313 [1st Dep't 2011] [suppressing where defendant adjusted unidentified heavy-looking bulge in pants pocket] ).
Had Detective Smith testified that he believed the pocket contained a gun and sufficient reasons were offered to support that belief, defendant's flight, before the police could approach to make any inquiry, may have elevated Detective Smith's suspicion to reasonable suspicion sufficient to justify pursuit (see People v. Bush , 129 A.D.3d 537, 11 N.Y.S.3d 589 [1st Dep't 2015] ; see also People v. Simmons , 30 N.Y.3d 957, 64 N.Y.S.3d 634, 86 N.E.3d 526 [2017], aff'g 149 A.D.3d 1464, 52 N.Y.S.3d 762 [4th Dep't 2017] [officer had founded suspicion of criminality based on his having been involved in numerous gun arrests where individuals holding their waistbands had weapons] ). Indeed, the police were justified in approaching defendant to ask him basic non-accusatory questions given his companions' statement that defendant had nothing. But these equivocal circumstances, even combined with defendant's flight, did not justify pursuit because they were insufficiently indicative of defendant's engaging in a misdemeanor or felony (see Clermont, supra, 133 A.D.3d at 614, 20 N.Y.S.3d 85 ; see also People v. Holmes , 81 N.Y.2d 1056, 601 N.Y.S.2d 459, 619 N.E.2d 396 [1993] ; cf. People v. Sierra , 83 N.Y.2d 928, 615 N.Y.S.2d 310, 638 N.E.2d 955 [1994] [flight, combined with objective facts indicating defendant was committing or about to commit a drug-related crime, constituted reasonable suspicion to justify pursuit, whereas flight, combined with grabbing at waistband, did not] ).Finally, Detective Smith was working as an anticrime officer and therefore not obviously a police officer, as a uniformed officer in a marked car would have been. This fact also undermines the reasonableness of any suspicion Detective Smith may have had that defendant was attempting to flee the police (see People v. Beckett , 88 A.D.3d 898, 931 N.Y.S.2d 126 [2nd Dep't 2011] [evidence insufficient to establish that defendant knew officer was a police officer at the time he started to flee] ). From Detective Smith's testimony that he thought that the individuals who approached the officers may have been either attempting to rob them or seeking help, it is evident that the police officers' status was not apparent (even if defendant's companions recognized them to be officers, as will be discussed below).
The court is aware that the Appellate Division, First Department, in People v. Echols , 158 A.D.3d 575, 73 N.Y.S.3d 134 [1st Dep't 2018], on similar facts, upheld the denial of suppression. There are sufficient differences between the facts of that case and the present one, however, for the court to conclude that suppression is required here.
In Echols , as here, plainclothes officers were on patrol at night. The location in Echols was described as "a high-crime area," but it is unclear from the facts whether the "area" was as large as Brownsville, the neighborhood under patrol in this case. The officer in Echols was "trained and highly experienced in detecting concealed weapons" and made an observation that objectively indicated that Echols was armed with a weapon: the officer noticed that Echols had one arm "at a 90–degree angle with his hand at his waistband," which the court concluded was "objectively suggestive of the presence of a firearm in the waistband, which the suspect [was] steadying or keeping in place with his hand." Id. at 576, 73 N.Y.S.3d 134.
In finding that the evidence objectively established the presence of a weapon, the Echols court relied on its prior decision in People v. White , 117 A.D.3d 425, 985 N.Y.S.2d 47 [1st Dep't], lv den 23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513 [2014], where the officers gave "detailed testimony" that White's " ‘clutching’ " at his waistband" indicated, "based on their experience, [that] defendant clearly appeared to have a firearm in his waistband, even though the officers could not see a weapon."
In contrast, Detective Smith did not testify that he believed that defendant possessed a firearm, and defendant merely grabbed or tugged at his jacket pocket, rather than clutched or steadied his waistband. In other words, the present case, unlike both Echols and White , lacks evidence that a trained and experienced officer or officers concluded that defendant possessed a firearm and objective facts to support that conclusion.
In Echols , the court also determined that Echols had recognized the plainclothes officer to be a police officer because Echols "made a spontaneous statement to the effect of ‘I didn't do anything’ " ( Echols , 158 A.D.3d at 576, 73 N.Y.S.3d 134 ). In the present case, in contrast, a similar statement made by defendants' companions, after they had separated from him—"He ain't got nothing"—indicates that they recognized the officers to be police; but it says nothing about defendant's state of mind. Eye contact with a plainclothes officer, coupled with flight, does not elevate the suspicion necessary to pursue an individual who is grabbing an unspecified object (see People v Haynes , 115 A.D.3d 676, 981 N.Y.S.2d 542 [2nd Dep't 2014] ).
For these reasons, the pursuit of defendant was not founded on reasonable suspicion that he was engaged in criminal conduct. Although Detective Smith may have intuited correctly that defendant was engaged in some unspecified illegality, defendant's right to be free from an unreasonable seizure requires more than such intuition. Defendant's motion to suppress physical evidence is therefore granted.
Because defendant's statement, which occurred immediately upon arrest, was not attenuated from the arrest, it too is suppressed as a fruit of the unlawful arrest.
The foregoing constitutes the decision and order of the court.