Upon all of the proceedings conducted in this case, and in accordance with this Court's oral decision on March 2, 2009, following a hearing on the defendant's motion to suppress physical evidence, the motion is granted.

Police Sergeant Zoilo Encarnacion of the Brooklyn North Anti-Crime Unit, while on patrol in an unmarked car, at 11:45 p.m. from a distance of about 30 feet had only a few seconds to determine that the defendant who was "quickly walking" towards his moving vehicle was paying "unusual attention to his surroundings and clutching his waistband" (Hearing at 8) and was "overly alerted, as if he was looking out for danger or for something." (Hearing at 9). The area was a "high-crime area" (Hearing at 32; Transcript erroneously reads "high-front area"). No outline of a gun was observed, or the outline of any other object for that matter.

After the defendant apparently noticed the automobile, he turned and started to run, still holding his waistband with one hand.

The Sergeant pursued and followed the defendant into 35 Saratoga Avenue, a multiple dwelling. He followed the defendant as they both ran very fast up a stairwell to the third floor without stopping. At the third floor landing with the Sergeant following about two seconds [*2]behind, the Sergeant saw the defendant open a compactor chute door, pull a firearm from his waist, and drop it down the chute. The defendant was arrested, and the firearm was recovered at the bottom of the chute.

In People v Martinez 80 NY2d 444 (1992), the Court of Appeals held that under the State Constitution the police pursuit of an individual constitutes a seizure, and, therefore must be based on reasonable suspicion. (This differs from the United States Supreme Court's view that under the Fourth Amendment, a seizure occurs only by the application of physical force and, thus, a police pursuit does not constitute a seizure. California v Hodari D., 499 US 621 [1991]).

Accordingly, the pursuit of the defendant was unlawful, because the police did not have reasonable suspicion he was committing a crime. (Hearing Decision at 43-45). Even assuming the defendant knew he was being pursued by police, his flight when combined with the defendant's prior innocuous behavior which was not indicative of criminality did not give the police the right to pursue him. The defendant's prior behavior, i.e., looking nervous while walking alone in a high crime area at night while holding his waistband with one hand, was certainly less suspicious than carrying a woman's vanity case which in People v Howard, 50 NY2d 583 (1980), was held to not give the police the right to pursue.

The defendant's decision to discard the firearm was made during the pursuit, not after the arrest had been made as in People v Boodle, 47 NY2d 398 (1979), wherein the defendant's abandonment of the firearm while in custody was held to be attenuated from the unlawful arrest. In contrast, the record in this case does not support a finding that the defendant's decision to discard the firearm was not a response to the illegal police pursuit. See, People v Holmes, 181 AD2d 27, 32 (1st Dept. 1992), aff'd, 81 NY2d 1056 (1993); People v Bennett, 170 AD2d 516, 517 (2nd Dept. 1991) ("sudden and unexpected confrontation with the police" did not support hearing court's finding of abandonment); People v Grant, 164 AD2d 170 (1st Dept. 1990), appeal dismissed 77 NY2d 926 (1991); People v Torres, 115 AD2d 93 (1st Dept. 1986).

The only case cited by the People in support of their argument that the defendant made a "calculated decision" to abandon the firearm, is People v Boodle, 47 NY2d 398 (1979), where, as noted, the defendant's decision to throw a gun from a police car was made, not during a police pursuit, but, rather, after the defendant had been placed inside the car for a period of time (Hearing at 39; Transcript erroneously reads "Bodden").

In "drawing a distinction between spontaneous and calculated acts, we must be guided by the principle that a presumption exists against the waiver of constitutional rights." People v Howard at 593. "Courts, therefore, should conclude that an abandonment has occurred only in the clearest of cases." People v Torres, 115 AD2d at 99. In a case where a defendant discarded a weapon at the end of an unlawful police pursuit, Boodle was distinguished, because "the time for reflection is not measured in minutes or seconds it is measured in facts, ... [and,] the frenetic activity of running two blocks while being chased by police cannot be said to have afforded time for a rational calculation of strategy, independent of the unlawful police action." People v Grant, 164 AD2d at 175-176. See also, People v Mc Cullough, 31 AD3d 812 (3rd Dept. 2006) (suppression of drugs erroneously denied when it was thrown away after continuous close unlawful police pursuit).

Appellate Division cases deciding whether or not a defendant's discarding contraband during an unlawful police pursuit are not always clear in stating the criteria for determining [*3]whether the defendant made a "calculated decision" to do so. It should be noted that the Court of Appeals has not decided whether its Boodle "calculated decision" rationale is applicable to decisions made during unlawful police pursuits. For example, two cases seemingly similar to this case have stated in dicta that following lawful police pursuits, the respective defendants' discarding of contraband were "calculated acts" as opposed to a "spontaneous reactions." People v Rivera, 175 AD2d 78,80 (1st Dept. 1991); People v Anderson, 185 AD2d 355, 356 (2nd Dept. 1992).

In People v Stewart, 174 AD2d 769 (2nd Dept. 1991), the defendant's decision to discard a gun during an unlawful police pursuit was found to be "an independent act involving a calculated risk" but the facts of the "brief chase" in Stewart were not discussed. The Court in Stewart, cited People v Martin, 140 AD2d 632 (2nd Dept. 1988) and People v Williams, 137 AD2d 568 (2nd Dept. 1988), two other cases in which defendants discarding guns during unlawful police pursuits were found to have taken calculated risks. However, the Court in Stewart did not cite its own prior decision in People v Bennett, 170 AD2d 516, which reversed the suppression Court's finding that a defendant who dropped a pouch containing narcotics during an unlawful police chase had abandoned the pouch. The specific facts of the police chase in Bennett also were not discussed in the decision.

What is clear is that in this case the pursuit of the defendant constituted "flagrant" misconduct, a factor to be considered in determining if a statement or a consent to search is sufficiently attenuated from the initial police misconduct. People v Martinez, 37 NY2d 662 (1975), relying on Brown v Illinois, 442 US 590 (1975); see also People v Harris, 77 NY2d 434, 438 (1991) (recognizing that finding a defendant's statement to be attenuated from a Payton violation would remove the incentive for the police to obey the law and obtain a warrant before arresting someone in their home); People v. Kern, 75 NY2d 638, 657 (1990) (recognizing that an unlawful pursuit may result in a conviction for second degree manslaughter if the person pursued dies as a result of running into traffic). There is a danger to public safety in general from police pursuits and, in this Court's opinion, the public, as well as the individual being pursued, is unnecessarily placed in danger from pursuits that are unlawful.

In this case, there was no objective evidence whatsoever that the defendant was committing or had committed any crime. There was not even an anonymous tip or evidence of any ambiguous, possibly suspicious, interaction with other people. There was only the Sergeant's brief observation of the defendant holding his waistband with one hand and the Sergeant's totally subjective testimony that the defendant, as he walked alone quickly in a high-crime neighborhood, looked "overly alerted" to his surroundings. Based on this innocent behavior, and likely because the defendant fit the Sergeant's "profile" based on neighborhood, gender, age, and race, of someone who should be questioned, the defendant was not allowed to exercise what the Court of Appeals has recognized as his right to "walk or run away" from the police. People v Howard 50 NY2d at 586.

In addition, the facts, at least when compared with those in Boodle, do not support a finding that the discarding of the firearm was attenuated from the unlawful conduct. According to the Sergeant's testimony, he was "two seconds" behind the defendant as the defendant exited the stairway door to the compactor chute which was about 30 feet away (Hearing at 19). "Just before he [the defendant] got there he was he seemed like a little disoriented, like he couldn't [*4]find where the compactor was." (Hearing at 19). When the defendant opened the chute, the Sergeant was "about ten feet" from the defendant (Hearing at 20). Given the flagrant circumstances of the police misconduct and the matter of two seconds or so that passed from the time the "disoriented" defendant arrived at the compactor chute, it would require a mindreader to conclude if and when the defendant made a "calculated" as opposed to a "spontaneous" decision to throw the firearm down the compactor chute.

If New York's Constitution were to permit the adoption of the rationale of California v. Hodari D., then such close examination of the facts of police pursuits would not be necessary, and Courts would not have to claim knowledge of what a pursued defendant might be thinking. Nevertheless, under the facts of this pursuit, given the presumption against waivers of Constitutional rights, the flagrant violation of the defendant's right to walk or run away from police pursuits based on nothing more than a subjective hunch, the nature of the close pursuit, and the circumstances under which the defendant decided to discard the firearm, the Court concludes that the People have not met their burden to show that the discovery of the firearm was so attenuated from the unlawful pursuit so as to break the causal connection between them. Wong Sun v United States, 371 Us 471 (1963).

Accordingly, the motion to suppress is granted.

SO ORDERED

Joel M. Goldberg

JUDGE