This Mapp/Dunaway hearing was brought before this Court on March 27, 2008 and was concluded on March 28, 208. As part of the hearing, the defendant sought to suppress a gravity knife found on his person as the fruit of an illegal stop and search as well as any statements that occurred after the search as fruits from the illegal stop, search and seizure. The only testimony offered was that of the arresting officer Detective Antonio Benero, Jr.

This Court finds Detective Benero [hereinafter "Benero"] to be a credible witness in some instances, however, there are some instances where the Court questions his testimony.

On March 11, 2007 at approximately 11:40 p.m. in the vicinity of 515 Saint Ann's Avenue in Bronx County, plain clothes' Detective Benero and his partner, police officer Mindy Fisher were patrolling the area of and traveling north bound in an unmarked police vehicle on Saint Ann's avenue. While traveling on St. Ann's avenue, Benero, who was driving the unmarked vehicle was forced to slow down for a pedestrian who was crossing the street. As per his testimony, Benero indicated that he "observed a pedestrian cross in front of [his] vehicle in a very slow manner, just basically, **, trying to control the traffic **." (Transcript Pg. 7, L. 18-21). Moreover, that said individual "intentionally slowed down as he walked in front of [his] vehicle." (Transcript Pg 7, L17-18). As the individual crossed from Benero's right side to his left side so that the individual's left side was closest to the vehicle, Benero noted a metal clip on the back right-hand pocket of the individual. Benero testified that in his experience that type of metal clip can be identified as a clip for a knife or a small caliber weapon.

Thereafter, Benero pulled over, stopped and exited the unmarked vehicle. Benero then walked behind the individual with his partner, his gun was not drawn and there was not any conclusive testimony as to whether his partner had her gun drawn, [*2]Benero then stopped Mr. Rolando Herrera, and pulled the clip from the back right-hand pocket of Mr. Herrera's pants. Benero testified that he "feared for [his] safety. And [he] didn't know whether it was a knife or a handgun." (Transcript Pg. 9, L. 12-13). Benero then secured the knife and placed Mr. Herrera under arrest.

During the trip to the precinct, Benero testified that Mr. Herrera blurted out certain statements with reference to the knife.

The defendant argues that Detective Benero lacked probable cause to search and seize the items from his person. That according to the four levels of police intrusion enunciated in People v. Debour (40 NY2d 210[1976]) at most this was a "level two encounter" which would have allowed the detective to stop the defendant and make inquiries when there is a "founded suspicion that criminal activity is afoot." However, when the detective stopped the defendant and removed items from his person, that it constituted a full-blown search and seizure of the defendant which required probable cause. Further, that Benero did not have probable cause because he did not know whether the clip was attached to a legal or illegal knife/weapon or any other innocuous object. Moreover, Benero's assertion that he feared for his life is not supported by any of the testimony or evidence. Neither Benero nor his partner had their guns drawn when they approached the defendant and pulled a knife from his right back pocket. Finally, the defendant reasserts that this was an illegal search and seizure and that the fruit of the same should be suppressed as well as any statements made by the defendant.

The People respond that under Debour, Detective had a reasonable suspicion to stop the defendant, that he indeed feared for his life and was entitled to at least frisk or pat down the defendant.

1) The minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality;

2) The common -law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of forcible seizure;

3) Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the C.P.L. authorizes a forcible stop and detention of that person. A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee;

4) Finally, a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence.

Assuming that this Court's accepts the testimony of the detective other than the [*3]fact that he was in fear of his life when he got out of the unmarked vehicle, at best, the detective had a common law right of inquiry. The facts of this case do not lend themselves to a level three, nor a level four of intrusion.

The issue is what knowledge did the detective have when he approached the defendant and grabbed the clip from his right back pocket. The record contains numerous indications by the witness that his primary observation was of a "clip" hanging from defendant's right back pocket, which he assumed to be either a gravity knife or a small caliber weapon.^[FN1] Benero indicated that based upon his substantial experience that his subjective belief was that the "clip" was attached to either a gravity knife or a small caliber gun and in his experience "knives with those clips they are mostly known to be gravity knives." (Transcript Pg. 12 L. 14-16). Further, "Until I pulled it out of the pocket whether it was a gun or knife, I wasn't sure." (Transcript Pg. 35, L. 6-7). As per the record, then, It is fair to state that the witness was not able to discern whether the defendant was carrying a knife or a gun. At best, Benero was able to view something that was clipped to the defendant's back pocket which he assumed to be a dangerous weapon. However, until he reached into the pocket and took out the knife and flipped it to determine that it was a dangerous weapon or a weapon that was in violation of the law, he did not have knowledge that the defendant possessed such a weapon. Objectively speaking, prior to the officer reaching into the defendant's right back pocket, any number of innocuous objects could have been attached to the oft mentioned "clip" such as a cell phone clip, pen, tape measure, keys, or even a legal knife.

Assuming arguendo, that the Court accepts the People's argument that the detective feared for his life and that he had a reasonable suspicion that a crime was taking place, Benero would have been entitled to frisk or pat down the defendant. Unfortunately, that is not what took place here. Benero neither pat down nor frisked the defendant but instead, placed his hand in the defendant right back pocket and pulled out a knife. Moreover, upon a review of the record, there is no indication that the detective was in fear of his life other than his minimal assertions on the witness stand. Benero testified that "I stepped out of my vehicle. I walked I did not run. I didn't grab Mr. Herrera. I just went and pulled the knife out of his pocket and asked him to stop at the same time." (Transcript Pg. 34 L. 25; Pg. 35, L. 1-3). It is very important to note that the defendant was not acting furtively, he did not reach into his back pocket for the knife or try to conceal it and he did not try to run away at any time. What we do have, is a person who was basically being obnoxious and walking across the street very slowly which attracted the attention of the officers.

The People rely on the Court of Appeals case of People v. Benjamin (52 NY2d 267[1980]). In Benjamin, police officers received a radio call of shots fired and when they got to the scene, they encountered a group and a defendant who was stepping back from the scene and reaching at the rear of his waistband. The Court of Appeals held that "*** [A} radioed tip may have almost no legal significance when it stands alone, [*4]but when considered in conjunction with other supportive facts, it may thus collectively, although not independently, support a reasonable suspicion justifying intrusive police action. The instant case demonstrates that this additional support can, as well, be provided by factors rapidly developing or observed at the scene." id at 270.

Clearly, Benjamin is distinguishable from the case before this Court. Here, the officers were patrolling the area and at no point received a radio call or any other information about criminal activity in the area. Moreover, the primary action that called defendant to their attention was the fact that defendant crossed before their unmarked police car in a "very slow manner" (Transcript Pg 7, L. 19). Thereafter, Detective Benero noted the "clip" which could have been any number of objects and immediately seized the object and arrested Mr. Herrera.

In Debour, the Court of appeals stated that "[w]e have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation will constitute probable cause (citing People v. Davis, 36 NY2d 280; People v. Oden, 36 NY2d 382; People v. Russell, 34 NY2d 662; and People v. Corrado, 22 NY2d 308). It is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand."

Taking all the facts into consideration as well as the case law ^[FN2] submitted by both parties, this Court is compelled to grant defendant's motion and suppress the weapon taken from the defendant's back pocket as the fruit of an illegal search and seizure, furthermore, any and all statements by the defendant are also suppressed as fruit of said illegal search and seizure.

This constitutes the decision and order of this Court.

Dated: May 28, 2008________________________________

Bronx, NYHon. Caesar Cirigliano, J.S.C.