Opinion
2009QN007310.
Decided December 4, 2009.
Joshua Glick, Esq., for the Defendant.
ADA Andres Munoz, for the People.
The defendant is charged with one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01). The defendant has moved to suppress the revolver on the grounds that its seizure was the product of an unlawful stop and arrest. On October 23, 2009, this court held a Mapp/Dunaway hearing. The People presented Police Officer John Chavatte as a witness and the defense did not present any witnesses. This court finds the witness credible and makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
Police Officer Chavatte ("Chavatte"), assigned to the Conditions Unit of the 101st Precinct for the past three years while assigned to the same precinct for the last five years, was on routine motor patrol on February 7, 2009, at about 4:05 p.m. with Lieutenant Schleyer, and fellow officers Michael Depace and Edward Moore. All were in plainclothes and riding in an unmarked silver Chevy Impala in the residential area of Chandler and Nameoke Streets in Queens County. Chavatte, the driver, was traveling southbound on Nameoke as he turned westbound onto Chandler Street towards Dix Street.
While on Chandler Street, Chavatte saw a group of individuals — at least three but not more than eight young black males ranging in age from their late teens to their early twenties — walking in the middle of Chandler Street about 150 feet away from the corner. One member of this group, a heavy set male, turned around, made eye contact with Chavatte, then turned away from Chavatte and toward a second group of individuals who were standing on a sidewalk about 60 to 70 feet from the first group of males and about 30 to 40 feet from Chavatte, and shout "Yo yo, po po". Chavatte was now about 30 to 50 feet from the second group of males, and knew the term "Yo yo, po po" as a warning to others that the police were in the area.
Immediately after hearing the warning, Chavatte saw the defendant, who was among the five or six individuals that comprised the second group and wearing baggy jeans and a brown hooded sweatshirt while he stood on the sidewalk near a fence at 13-59 Chandler Street, turn and look in Chavatte's direction. Chavatte, without activating the Impala's siren or turret light, continued to drive down Chandler Street to the area where the second group of individuals were located. As Chavatte proceeded, he passed the first group which then separated. Just as Chavatte's car approached the second group, the defendant made eye contact with Chavatte, grabbed the front of his waistband or the front belt area of his pants and ran from the area.
Chavatte and his lieutenant exited the Impala and chased after the defendant as he ran westbound on an icy walkway that led to the rear of 13-59 Chandler Street. The walkway was situated between the house and the property or fence line of the property. Chavatte, as he pursued the defendant, called out that he and the lieutenant were police officers. Chavatte saw the defendant reach into his waistband, remove a black and tan object, which Chavatte thought to be a firearm, and toss that object with his right hand towards the garage area. Chavatte also saw the defendant toss another object. The defendant then raised up his hands. As Chavatte recovered a black and tan NEF .32 caliber revolver from the area where he saw the defendant toss the black and tan object, Lt. Schleyer secured the defendant and brought him to the front of 13-59 Chandler Street. Chavatte also searched the backyard and the other side of the fence for the second object he saw the defendant toss while being pursued but did not find anything. Chavatte then went to the front of the house and observed the defendant in front of the house adjacent to 13-59 Chandler Street. The defendant was then arrested.
CONCLUSIONS OF LAW
The question presented at this hearing is whether the defendant, in fleeing the police, was simply exercising his right to be left alone, or whether Chavatte's pursuit and detention of the defendant was based on reasonable suspicion and lawful. It is well established that simply fleeing the police, or fleeing the police coupled with or under circumstances or conduct which is susceptible of innocent as well as culpable interpretation will not establish reasonable suspicion.( People v Holmes, 81 NY2d 1056; People v May, 81 NY2d 725; People v DeBour, 40 NY2d 210, 218.) In this regard, reasonable suspicion has been defined as that "quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand." ( People v Cantor, 36 NY2d 106, 112-113.)
In this case, at about 4:05 pm on February 7, 2009, while on routine patrol Chavatte was driving an unmarked police vehicle with three other police officers in the area of Chandler and Nameoke Streets in Queens County. Chavatte observed a group of several individuals walking in the middle of Chandler Street. One of these individuals made eye contact with Chavatte and then shouted "yo yo, po po" to another group of individuals down the street. Chavatte explained that he knew that "po po" was a street term for police and that this term was used to warn others that police were in the area.
Chavatte drove further down Chandler Street and there observed the other group of individuals standing near the curb line. The defendant was among this group. The defendant made eye contact with the officer, grabbed the front of his waistband and turned and ran from the police. Chavatte and Lieutenant Schleyer pursued the defendant. During the pursuit, the defendant discarded a black and tan object which the officer believed to be a firearm. The defendant was detained and after Chavatte recovered a black and tan NEF .32 caliber revolver, the defendant was arrested.
The Court of Appeals in People v Sierra, 83 NY2d 928, 929 (1994) reiterated "that a defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit." In this case, Chavatte heard an individual shout "yo yo, po po" to a group of individuals. The defendant was a member of that group of individuals which were warned of the presence of Chavatte and his partners. As Chavatte approached this group of individuals, the defendant grabbed his waistband and ran from the police. While Chavatte testified he did not know that the defendant had a firearm when he grabbed his waistband, it has long been held that a bulge or grasp at the waist to an experienced police officer is a telltale sign of a weapon. ( People v Benjamin, 51 NY2d 267, 271; People v Rivera, 286 AD2d 235 [1st Dept 2001,] lv denied 97 NY2d 760.) Based upon the defendant's act of grabbing his waistband after being warned of the presence of police and his subsequent flight from persons he thought to be police officers, Chavatte had reasonable suspicion that the defendant may have engaged in criminal activity justifying his pursuit, stop and detention of the defendant. ( Cf. People v Moore , 6 NY3d 496 ; see People v Zeigler, 61 AD3d 1398 [4th Dept 2009]; People v Brewer , 28 AD3d 265 [1st Dept], lv denied 7 NY3d 753; People v Cruz , 14 AD3d 730 [3rd Dept], lv denied 4 NY3d 852; People v Varlack, 290 AD2d 647 [3rd Dept], lv denied 97 NY2d 762; People v Rivera, 286 AD2d 235 [1st Dept], lv denied 97 NY2d 760.) Once the defendant tossed away the revolver, Chavatte had probable cause to arrest the defendant. As such, the defendant's act of discarding the revolver was not the result of any unlawful conduct by the police.
Accordingly, the defendant's motion to suppress the revolver on the ground that its seizure was the product of an unlawful stop and arrest is denied.
The foregoing is the decision and order of the court.