[*1]
People v BAILY
2004 NY Slip Op 51783(U)
Decided on October 25, 2004
Supreme Court, Queens County
Rotker, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 25, 2004
Supreme Court, Queens County


THE PEOPLE OF THE STATE OF NEW YORK

against

RAHEEM BAILY, Defendant.




2533-03

Seymour Rotker, J.

An indictment has been filed against the defendant accusing him inter alia of the crime of criminal possession of a weapon. The charge is that on September 16, 2003, defendant knowingly possessed a 9mm handgun.

Defendant, claiming to be aggrieved by an unlawful search and seizure, has moved to suppress the 9mm handgun seized by Police Officer Brendan Parpan on September 16, 2003 as a result of defendant being unlawfully detained and allegedly dropping the weapon while fleeing from the officer who lacked reasonable suspicion. Defendant also claims that a seizure of marijuana from his person was unlawful.

In this case, the People assert that the seizure of the 9mm handgun by Police Officer Brendan Parpan was based upon the abandonment of the property by the defendant after the defendant was lawfully detained for questioning. The People assert that the seizure of the marijuana from the defendant's person was incident to a lawful arrest. The People have the burden, in the first instance, of going forward to show the legality of police conduct. Defendant, however, bears the ultimate burden of proving by a preponderance of the evidence that the physical evidence should be suppressed.

A pretrial suppression hearing was conducted before me on October 21, 2004.

Testifying at this hearing was Police Officer Brendan Parpan.

I find his testimony to be mostly credible.

I make the following findings of fact:

Police Officer Brendan Parpan and two brother officers were riding in an unmarked police vehicle in civilian clothes on patrol working out of the 115th Precinct on September 16, 2003. At about 11:15P.M. they were in the vicinity of Hollis Boulevard and Francis Lewis Boulevard. Officer Parpan was seated in the right rear passenger part of the vehicle. Parpan observed a male black riding a bicycle eastbound on the sidewalk of Hollis Boulevard. The person, later identified by Officer Parpan as the defendant, was wearing blue jeans, a bulky sweatshirt and a red bomber jacket. Officer Parpan saw something that he characterized as a "bulge" at defendant's waist. While making this observation, at night, defendant was in a seated position riding his bicycle. Defendant was followed to a gas station where he was about to fill his tires with air. Officer Parpan exited the vehicle, walked over to the defendant, who appeared to be nervous, told the defendant that he wanted to talk to him and to drop the air nozzle. The officer, who was dressed in plain clothes did not identify himself as a police officer before approaching or speaking to defendant. Up to this time, there is no credible evidence that the officer observed the outline or shape of a gun under what the officer described as a bulky sweatshirt worn under a bomber jacket while defendant was actually bent over at the waist riding his bicycle. Therefore, there was no evidence of criminal conduct at this juncture.

Prior to approaching defendant, Police Officer Parpan did not observe the defendant committing any crime. When the defendant did not drop the air nozzle, Parpan grabbed his arm. The defendant broke free and began to run eastbound on Hollis Boulevard. Officer Parpan gave chase. He was within about ten feet behind him, when the defendant made a left turn northbound onto 207th Street. Defendant ran into a backyard and Parpan saw him drop a dark object in an alleyway or backyard, between private houses. The defendant jumped over the fence. Officer Parpan retrieved a 9mm pistol where he saw the defendant drop something. At that point, Officer Parpan lost sight of the defendant but within fifteen minutes and approximately one block away, defendant was found hiding underneath a parked vehicle, sans jacket and sweatshirt, he was wearing a white tank top shirt. The general area where the defendant was, was searched but no jacket or sweatshirt was found.

The defendant was placed under arrest and searched and found to possess a small quantity of marijuana.

I make the following conclusions of law:

Initially, the police are permitted to pursue an individual who is fleeing when they possess "reasonable suspicion" that the individual has committed or is about to commit a crime. See People v. Holmes, 81 NY2d 1056, 601 N.Y.S.2d 459 (1993)(evidence suppressed where police observed the defendant talking to a group in drug prone location with a bulge [*2]in his pocket; defendant was approached by police, fled and during a pursuit defendant discarded drugs); People v. Martinez, 80 NY2d 444, 591 N.Y.S.2d 823 (1992) citing People v. Leung, 68 NY2d 734, 506 N.Y.S.2d 320 (1986).[FN1] Thus, this standard is less than what is required to rise to the level of "probable cause." However, the forcible stop of a person, as well as, a pursuit by the police requires the same degree of information to be justified, since one's freedom of movement is restricted under both circumstances. See Martinez, supra at 447.[FN2]

Reasonable suspicion, which is what is required here to justify the police pursuit of defendant, "represents that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand." See Martinez, supra t 448, quoting People v. Cantor, 36 NY2d 106, 365 N.Y.S.2d 509 (1975)(internal quotations omitted).

Flight, alone or with "other specific circumstances indicating that the suspect may be engaged in criminal activity" can provide the police with reasonable suspicion. People v. Brogdon, 8 AD3d 290, 778 N.Y.S.2d 45 (2d Dept. 2004)[FN3], quoting People v. Sierra, 83 NY2d [*3]928, 615 N.Y.S.2d 310 (1994). However, flight by itself or combined with equivocal circumstances that might permit a request for information is not sufficient to justify pursuit. See Brogdon, supra at 292, citing other cases. Here, even if the police had the right to request information, which was not established, this did not give the officers the right to justify a pursuit of defendant. Therefore, the gun, abandoned pursuant to this unlawful pursuit must be suppressed. See also People v. Sierra, supra (reasonable suspicion lacking where defendant Robbins grabbed at his waist band after the cab he was a passenger in was stopped for a defective tail light; therefore, drugs abandoned by the defendant during the police pursuit were suppressed).

Defendant's application is therefore granted.

Kew Gardens, New York

Dated: October 25, 2004

SEYMOUR ROTKER

JUSTICE SUPREME COURT

Footnotes


Footnote 1:In People v. Leung, the Court found that the police possessed reasonable suspicion to pursue the defendant when he fled and to deny suppression of the gun that he discarded during his flight. In Leung, before defendant fled, the police identified themselves and approached him after they observed him pass what they believed was a bag of drugs in a drug prone location. Thus, the police had reasonable suspicion to justify pursuit. Here, the police did not observe any credible criminal activity before they pursued defendant and therefore, the facts are distinguishable.

Footnote 2:In Martinez, two police officers were patrolling a high crime area in a marked patrol car when they observed the defendant remove a "hide-a-key" box from steel grate in a store window at approximately 10:50 PM. The officer was aware, based upon his experience, that this type of device was used to stash drugs and the area was a drug prone location. The officers, dressed in plain clothes, with shields displayed pulled the marked police vehicle up to the defendant. The defendant recognized the officer because , the officer had, on a prior occasion arrested a friend of the defendant. The defendant turned and ran a few steps into a grocery store when the officers approached and saw the defendant give the box to a co-defendant who discarded it in the rear of the store. The box was retrieved and was found to contain 17 (seventeen) vials of crack cocaine. The Court found that suppression of the evidence was not warranted under the facts presented because the police had reasonable suspicion under the attendant circumstances enumerated above. Flight may be considered in conjunction with other circumstances to give the police reasonable suspicion as was found in Martinez. However, under the present facts presented, there were no other attendant circumstances giving the police the right to pursue defendant once he fled.

Footnote 3:Suppression of a gun, abandoned by defendant when he was pursued by police and which was being carried in a shopping bag by the defendant, was granted in Brogdon. Prior to abandoning the gun, the defendant was observed "hanging out" in a building vestibule from midnight to 6:00 AM, in a drug prone location and speaking with an individual who had previously been banned from the building. The officer approached the defendant and the "trespasser" and upon making eye contact with the officer, the defendant fled and was pursued by the officer. It was during this pursuit that the bag was abandoned. The Court held that the police did not have reasonable suspicion and unlawfully chased defendant and therefore the abandoned gun had to be suppressed. Here, the Court is faced with similar circumstances. Prior to the unjustified pursuit that resulted in defendant's abandonment of the gun, the police did not possess sufficient information giving rise to reasonable suspicion.