The defendant, Jon Hall, moves for an order pursuant to CPL 710.20 [1] and 710.60 [1] suppressing tangible property, namely two firearms, seized from an automobile. The defendant alleges that the People lacked sufficient probable cause to justify a warrantless search of the vehicle. The

defendant alleges that there was no justification for the forcible stop of the vehicle and that the defendant never consented to the subsequent search of the vehicle.

In addition, defendant moves to suppress statements allegedly made by the defendant after his arrest.

The People respond that the police had a reasonable suspicion of criminal activity to stop the defendant based upon the reliability of the information conveyed to them by a citizen and their observation of the defendant at the trunk of his car. They also contend that the defendant consented to the search of his vehicle and that any statements made by the defendant were made subsequent to the proper administration of Miranda warnings and that the defendant waived his right to remain silent. A suppression hearing was held before this Court on April 6, 12 and 13, 2006.

The Court finds the following facts:

While on routine patrol on Poplar Street in the City of Buffalo on July 1, 2005 at about 5:00 am, Buffalo Police Officer Melinda Zak was flagged down by an individual who informed her that [*2]the man ahead of them had a gun in his trunk. (She knew the informant to be a resident of the area. She had later learned his name, but could not recall it at the time of the hearing.)

Officer Zak observed the man closing the trunk of his car and watched as he drove away. Because she was alone, Officer Zak radioed for assistance while she followed the subject vehicle. Two other officers, Officer Brendan Kiefer and Officer James Kaska, both in one patrol car, and another officer in a third patrol car responded to her call for assistance. Within a minute or so of the initial call for assistance, all three police vehicles effected a forced stop of defendant's car.

Officer Kaska approached the driver's side of the car while Officer Zak went to the passenger side. Officer Kaska first asked the driver, later identified as the defendant herein, to turn off the car. The defendant complied. Next, Officer Kaska asked the defendant if there was "anything in the car we need to know about," specifying "any guns, knives, grenades or bombs." The defendant replied in the negative. The officer asked again if there were any weapons in the car and, again, the defendant replied in the negative. Officer Kaska never drew his weapon.

At that point, Officer Kaska indicated that he wanted to check the vehicle and made a request for the defendant's keys. Although he could not recall his exact words, Officer Kaska testified (1) at the suppression hearing that he asked the defendant, "ok if we check," and (2) at the preliminary

hearing, held July 11, 2005, that he asked, "would you mind handing me the keys." Officer Kaska asserted that the defendant consented and then gave his keys to him.

Officer Kaska immediately tossed the keys to Officer Kiefer who was standing at the rear of the defendant's car. Meanwhile, Officer Zak approached the passenger, her hand on her undrawn gun, and ordered the female passenger to "let me see your hands." Officer Zak could hear Officer Kaska and the defendant conversing and she saw the defendant take his car keys out of the ignition and give them to Officer Kaska.

Upon opening the trunk, Officer Kiefer found a handgun. The defendant was then arrested and removed from the car. Upon further search of the vehicle, a second handgun was found under the front seat.

After the defendant was handcuffed, another officer, Officer Greg O'Shei, arrived at the scene. He approached the defendant, and after a brief preliminary conversation, he read the defendant his rights from a Miranda warnings card (received as People's Hearing Exhibit 4). The card was signed and dated by Officer O'Shei. The defendant was not asked to sign the card since he was handcuffed with his hands behind his back when the rights were read.

After acknowledging that he understood his rights, the defendant agreed to talk to the officer and made statements indicating that the gun found in the trunk was stolen and that it was purchased by the defendant from a man named Scotty on Poplar Street. When asked if there was anything else in the car, the defendant said there was another gun under the front seat but that he had forgotten about it since it had been there for a long time.

The total time that elapsed from the time the police radioed that the car had been stopped to the time they again radioed that the defendant was in custody was one minute, six seconds. [*3]

The Court concludes the following as a matter of law:

In determining whether a search and seizure is reasonable the court must first look at whether the officer's action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place [Peo. v. DeBour, 40 NY2nd 210]. The common issue is whether the facts and information the police possessed, when coupled with information obtained from a tipster or informant that a certain individual possessed a gun, established reasonable suspicion for the

intrusion [Peo.v.William II, 98 NY2nd 93].

Truly anonymous tips are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability [Florida v. J.L., 529 U.S. 266]. The existence of reasonable suspicion justifying an investigatory stop is dependent upon both the content of information possessed by police and its degree of reliability, both of which should be considered in the totality of the circumstances [See U.S. v. Colon, 250 F 3d 130]. The reliability of a tip can be ascertained either by identifying the informant and thus rendering the tipster not truly anonymous, or by independent police corroboration of the tip [U.S. v. Person, 134 F. Supp. 2nd 517, citing U.S. v. Colon, supra].

In the instant case, the "tipster" was a person known to the police officer as a resident of the area and she was easily able to confirm his identification. Much of the information supplied, namely what person allegedly possessed a gun, where he was located and what vehicle he was driving, was subject to immediate confirmation by the officer. The claim that the defendant had a gun in his trunk was buttressed by the officer's observation of the defendant standing at the rear of the car with the trunk

open.

Based on the information the officer possessed at that time, the determination that an investigatory stop was warranted is not unreasonable. In fact, the stop was clearly founded upon "a reasonable suspicion by articulable facts that criminal activity may be afoot" [U.S. v. Sokolow, 490 U.S. 1, quoting Terry v. Ohio, 392 U.S. 16]. Therefore, the stop of the

vehicle was a lawful encounter made in an effort to gain exploratory information [see Peo. v. DeBour, supra]. To conclude otherwise would

result in the absurd situation where a police officer, advised by a citizen that a crime was just committed, should do nothing to investigate the veracity of the claim.

Officer Zak's actions, alerting other officers to the potential crime and stopping the vehicle to make inquiry, were clearly appropriate. What occurred thereafter is somewhat less clear.

Officer Kaska's "inquiry" was limited to a question, repeated twice,

about whether or not there were any weapons in the vehicle. The defendant was not asked to identify himself, or who owned the vehicle, or where he [*4]

was coming from, or where he was going. No questions were put to the passenger. When the defendant twice denied that there were weapons in the car, Officer Kaska asked for the keys and upon receiving them, the trunk was opened and the gun was discovered.

Police obviously consider a "man with a gun" call to be a serious matter. When investigating that type of call, it is not unusual for officers to take precautions for their own safety and, of course, for the safety of the community. They are legitimately concerned about the number of illegal guns on the street and they appropriately act to remove those guns from the street whenever they can.

In this case, Officer Kaska was not about to let the defendant go without some verification that there was no gun in the trunk of the car.

He testified at the preliminary hearing in response to a question asking why he asked for the keys that he did so "because the information that we had was that there was a weapon in the trunk of the vehicle. We needed to get the keys to get that weapon."

A defendant who challenges the admissibility of physical evidence on a motion to suppress bears the burden of proving illegality [Peo. v. Berrios,

28 NY2d 361] but the People have the burden of going forward to show the legality of the police conduct in the first instance [Peo. v. Malinsky, 15

NY2d 86]. This requires the People to show that the search was conducted pursuant to a valid warrant or a legal exception [Peo. v. DiStefano, 38 NY2d 640]. When a search and seizure is based upon consent, the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right [Peo. v. Whitehurst, 25 NY2d 389]. A consent search is valid only if the People prove by clear and convincing evidence, from the totality of the circumstances, that the defendant's consent was voluntary, that is the unequivocal product of an essentially free and unconstrained choice [Peo. v. Driscoll, 87 AD2d 996]. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle [Peo. v. Gonzalez, 39 NY2d 128].

The testimony in the instant case, elicited at the suppression hearing as well as at the preliminary hearing and the grand jury, is inconsistent and equivocal. The grand jury minutes indicate that Officer Zak questioned the defendant and obtained his consent to search. At the suppression hearing, Officer Zak said that the stenographic minutes of the grand jury proceedings were incorrect and that she overheard Officer Kaska conversing with the defendant. Neither Officer Zak nor Officer Kaska could recall the exact

question put to the defendant which resulted in the defendant turning over his car keys.

Officer Kaska testified at the suppression hearing that he asked, "OK if we check?" but at the preliminary hearing, some ten days after the encounter, Officer Kaska testified that he didn't "recall the exact words. Something along the lines of would you mind handing me your keys.' "

It is not inconceivable that, in light of Officer Kaska's admitted desire to get into the trunk, that the "request" may have sounded more like a command. In other words, the exact nature of the request to search was not clearly established and the extent of such consent, if any, not sufficiently defined. The perception of intimidation on the part of the defendant after his vehicle is stopped by at least three police cars and he is approached and surrounded by at least four police officers with [*5]weapons at the ready calls

into question the existence of a free and voluntary consent to search.

The police have a difficult job in ascertaining whether or not they have the right to search, especially when dealing with an alleged weapon in a car. But in the absence of the perception by them of any criminal or even suspicious activity, they are compelled to take alternative measures. They may, for a reasonable time detain the suspect. They may restrict the

movement of the vehicle until they obtain a warrant, oral or written, based

on information from a reliable source. And, of course, they could establish unequivocally that consent to search was obtained by either getting a signed "consent to search" form or, at the very least, make a complete and accurate record of how consent was given. None of that occurred here.

Accordingly, in light of the totality of the circumstances, the People have failed to establish that the defendant's consent to the search was voluntary and the unequivocal product of an essentially free and unconstrained choice [Peo. v. Driscoll, supra]. Therefore, the defendant's motion to suppress for use at trial the physical evidence seized from the vehicle in this case is hereby granted.

With regard to the defendant's motion to suppress the statements allegedly made to Officer O'Shei, the exclusionary rule renders such

evidence inadmissible [Wong Sun v. United States, 371 U.S. 471]. Since there was no attenuation between the illegal search, the arrest of the

defendant and the alleged admissions, defendant's motion to suppress the statements of the defendant is also hereby granted [Peo. v. Driscoll, supra].

This decision constitutes the Order of the Court and no further order is required.

______________________

MICHAEL L. D'AMICO

COUNTY COURT JUDGE

DATED: May 5, 2006

Buffalo, New York