The defendant has been indicted by a Bronx County Grand Jury for Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law § 265.03(3) and related charges. The case was referred to this Court by the Honorable Margaret Clancy for Mapp/Dunaway hearings. Those hearings were held on August 8 and 10, 2011. The People called two witnesses, Lieutenant John McAndrew and Detective Mark Martin, both of whom I find credible. The defendant called no witnesses. Based upon the evidence adduced at the hearing, I make the following findings of fact and reach the following conclusions of law.

Lieutenant John McAndrew, an 18-year veteran of the New York City Police Department, [*2]was a patrol supervisor in the 48th Precinct. The lieutenant was familiar with the defendant from prior encounters in the neighborhood, including an incident in which the defendant was issued a summons.^[FN1] McAndrew was also aware that detectives in the 48th Precinct Detective Squad wanted to interview the defendant in connection with a 2009 shooting; they had issued an"I-card" for the defendant, which is a device detectives use to notify patrol officers that a person is wanted for questioning either as a witness or suspect. McAndrew learned about the I-card a few months before the events of August 8, 2010, and recalled that a detective had told him that the defendant was a suspect in the shooting.^[FN2]

McAndrew had also seen the defendant's photograph on the precinct's Crime Information Center, a video screen used to keep patrol officers apprised of witnesses or suspects detectives were seeking to question. He saw the same photograph before going out on patrol on August 7th going into August 8th of 2010. At about one-thirty in the morning of August 8, 2010, he was on routine patrol with two other officers in a marked police van. The officers were heading west on east 187th street near Prospect Avenue. They approached the light on the corner at a speed of less than five miles per hour, and were rolling to a stop when Lieutenant McAndrew saw the defendant and another man walking quickly.

When the defendant saw the police van and made eye contact with McAndrew, his facial expression changed to one of surprise. The defendant pressed his right forearm against his waist, and "bladed" or turned his body to the side, to avoid showing his full body. This "blading" conduct reminded McAndrew of a self defense technique he had been taught in the police academy in which an officer turns his "weapon side" away. The defendant moved his right hip backwards and his left shoulder forward, and then sidestepped south.

As the van approached the corner, the defendant's companion stopped. The defendant, however, turned on his heels, and walked quickly in the other direction, down Prospect Avenue. Lieutenant McAndrew started to get out of the van, and called to the defendant, "Excuse me, yo, excuse, yo, excuse me. I want to talk to you." Before he could get out of the van, the defendant "broke into a run," holding his side. McAndrew got out of the van, and chased the defendant. He saw the defendant move both hands to his waist and dig down. The defendant then threw a gun to the ground, which bounced in front of the lieutenant. McAndrew picked up the gun, a loaded, silver .357 revolver, and continued to chase the defendant as he fled south on Prospect [*3]avenue.^[FN3] He lost sight of the defendant when the defendant climbed over a fence into an abandoned lot.

Lieutenant McAndrew returned to the precinct, and made efforts to locate the defendant. He did a computer check, and learned that the defendant was on parole. He called the defendant's parole officer and advised him of what had just transpired. On August 11, 2010, McAndrew accompanied the parole officer to the defendant's apartment at 450 Cross Bronx Expressway. The defendant was at home. The parole officer searched the apartment and found brass knuckles and a knife. The parole officer arrested the defendant for violating his parole, and Lieutenant McAndrew arrested him for possessing the loaded gun on August 8, 2010.

As the Court of Appeals has observed, "police-citizen encounters take a variety of forms," from a simple request for information to a full-blown arrest; the greater the level of police interference, the greater the quantum of information necessary to justify it. People v. Martinez, 80 NY2d 444, 446-47 (1992). Accordingly, the police need only some "objective credible reason" to approach a citizen for information, but must have probable cause to believe that a crime is being committed, or has been committed in order to arrest a citizen. People v. DeBour, 40 NY2d 210, 223 (1976). Encounters that fall in between those extremes — forcible stops that significantly impede an individual's freedom of movement — require a "reasonable suspicion that a crime has been, is being, or is about to be committed." People v. Martinez, 80 NY2d at 447 (citations omitted).

Moreover, because the facts in suppression cases "are not always neatly categorized," the proper test to be employed in making a determination about the legality of a particular encounter is one of reasonableness; the Court must determine "whether the officer's action was justified in its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." People v. Wheeler, 2 NY3d 370, 373-74 (2004) (citations omitted). The analysis should not be "narrowly focused" on any single factor, but on "an evaluation of the totality of the circumstances, which takes into account the realities of everyday life unfolding before a trained officer." People v. Stephens, 47 AD3d 586, 588-89 (1st Dep't 2008) (citations and internal quotation marks omitted).

Application of these principles to the facts of this case demonstrates that the police action was reasonable, and conformed with the four-tiered standard outlined by the Court of Appeals in People v. DeBour, supra. Indeed, the defendant's behavior coupled with the information McAndrew already had about him gave rise to reasonable suspicion that criminal activity was afoot. Lieutenant McAndrew recognized the defendant as someone who, at the very least was a "person of interest" in a shooting, and for whom an I-card had been issued.^[FN4] In fact, before going [*4]on patrol that very evening, McAndrew had seen the defendant's picture on the precinct's video monitor, the purpose of which was to provide patrol officers with information about people being sought by the detective squad. Shortly thereafter, he encountered the defendant on the street. Upon seeing the marked police van, the defendant pressed his forearm against his waist, turned in an effort to shield one side of his body, and then "side stepped" to the south. As the police van drew nearer, the defendant's companion stopped, but the defendant abruptly turned, and started walking in the opposite direction. At no point did McAndrew order the defendant to stop, or draw his weapon. Nor did he do anything to impede the defendant's progress. Although it was his intention to speak with him about the 2009 shooting, there is no evidence that McAndrew did anything more than call out to the defendant while still in the police van. Even at that point, the only thing he said was "Yo, excuse me. I want to talk to you," or words to that effect. Certainly at this point, no reasonable person could have concluded that "the officer's conduct was a significant limitation on his or her freedom." People v. Bora, 83 NY2d 531, 535 (1994). However, it was at this point that the defendant broke into a run, still clutching his side.

The defendant's flight, prompted by nothing more than the officer's request to speak with him, was another escalating factor in this rapidly unfolding situation, and heightened the officer's level of suspicion. Under these circumstances — the defendant's status as a "person of interest" in a shooting, his peculiar behavior when he first saw the officers, including his efforts to shield one side of his body from view, and his flight when the officer called out to him — McAndrew had reasonable suspicion that the defendant was engaged in criminal activity, and thus, had a sufficient predicate to pursue the defendant in order to investigate. People v. Leung, 68 NY2d 734, 736 (1986); People v. Collado, 72 AD3d 614, 615 (1st Dep't 2010); People v. Agramonte, 57 AD3d 333 (1st Dep't 2008); People v. Diaz, 180 AD2d 415 (1st Dep't 1992); People v. Fields, 171 AD2d 244, 249-249 (1st Dep't 1991). See also People v. Bora, supra. There was no actual stop, of course, since the defendant was able to elude McAndrew.

The facts that confronted the police in this case are almost identical to those in People v. Pines, 99 NY2d 525 (2002). In that case, police officers saw Pines walking with another person, nervously looking around. When he saw the police car, his eyes "bulged out," and he continued to stare at the police car as he walked. As the car got closer, Pines pressed his arm against his side, "reminding the ... officer of how he himself would sometimes adjust a gun under a jacket." Id. at 526. Next, Pines "maneuvered in such a way" as to shield his right side from the police. When the car drew up alongside him, Pines "abruptly turned and began walking in the opposite direction abandoning his companion, still cradling the side of his coat." Id. Two officers got out of the car, approached Pines, and asked if they could speak with him. Pines ran away, and the officers chased him. During the chase, Pines threw a gun into a garbage can. The officers stopped Pines, and recovered the gun. The Court of Appeals, affirming the Appellate Division's conclusion that the police had a "founded suspicion" that the defendant may have been engaged in criminal activity, reiterated that a defendant's flight was a factor in determining whether reasonable suspicion exists.

The First Department's decision in People v. Hernandez, 3 AD3d 325 (1st Dept. 2004) provides an equally instructive analogy. There, officers were patrolling a drug-prone neighborhood in a marked police car. When Hernandez saw the car approach, he "repeatedly looked over his shoulder at the officer, making eye contact several times. Hernandez walked [*5]stiffly and braced his arm against his waist in a manner that suggested that he was concealing something under his bulky jacket. He quickly entered and left a restaurant known to the officer for drug activity. The court found that the "[t]otality of these observations gave rise to a founded suspicion that criminal activity was afoot," thereby giving the officers the right to inquire. Hernandez's "immediate flight," before the police could even approach him to ask a question, gave the officers reasonable suspicion and justified their pursuit. Id. Accordingly, the police were entitled to retrieve the package of narcotics that the defendant discarded as he fled.

Based upon the totality of the circumstances here, I find that McAndrew reasonably and properly approached and pursued the defendant. Moreover, because the initial encounter with and subsequent pursuit of the defendant constituted "legitimate, justifiable police conduct," ( People v. Leung, 68 NY2d at 736) Lieutenant McAndrews' recovery of the gun the defendant discarded during his flight was plainly lawful. Although the time involved was brief, the defendant had sufficient time "to reflect and formulate a strategy for ridding himself of the incriminating evidence." People v. Boodle, 47 NY2d at 404. Thus, his decision to toss his gun was a "calculated, voluntary abandonment." Id. See also, People v. Thomas, 203 AD2d 96 (1st Dep't 1994); People v. Easton, 182 AD2d 456 (1st Dep't 1992). Lieutenant McAndrew was obviously entitled to pick up the gun that the defendant abandoned, and that gun furnished probable cause for the defendant's arrest three days later on August 11, 2010.

The defendant also challenges the parole officer's search of the defendant's residence on August 11, 2010, which yielded a set of brass knuckles and a knife. The defendant argues that these items must be suppressed for two reasons: first, he claims that this evidence is "directly linked to the illegal seizure of the gun and therefore also tainted fruit of unlawful police conduct," and second, that the parole officer's search of the apartment was not "rationally and reasonably" related to his duties as a parole officer, but as an "agent of the police, thereby enabling the police to circumvent constitutional requirements." Def. Memorandum of Law at p. 11. The People respond that the parole officer acted rationally, reasonably, and legally, and that there was no evidence adduced at the hearing that he was acting as a "conduit" for the police. People's Memorandum of Law at p. 10. For the reasons that follow, I find that the search was proper.

As a condition of release on parole, a parolee signs an authorization giving his parole officer the right to search his residence, person, and property. People v. Huntley, 43 NY2d 175, 182 (1077); 9 NYCRR § 8003.2(d). The New York State Division of Parole's Policy and Procedures Manuel Item 9405.04 authorizes parole officers to search parolees where the officers have an articulable reason for conducting the search that is reasonably related to the circumstances of the particular case, and is rationally related to the officer's duty to supervise the parolee. A parole officer is authorized to enter a parolee's home at any time to search for contraband, such as weapons or drugs, and no search warrant is required to conduct such searches. People v. Hale, 93 NY2d 454 (1999).

It is commonplace for police officers to accompany parole officers during such searches, for a variety of reasons. See, e.g., People v. Lopez, 288 AD2d 70 (1st Dep't 2001); People v. Johnson, 63 NY2d 888 (1984); People v. Peterson, 6 AD3d 363 (1st Dep't 2004), lv. denied, 3 NY3d 710 (2004). It is also commonplace for police officers who accompany parole officers on these searches to have their own separate investigative agenda. People v. Carrington, 25 AD3d [*6]440 (1st Dep't 2006), lv. denied, 6 NY3d 846 (2006) (search of parolee's residence upheld where parole officers were present for the purpose of conducting a home verification visit as part of their official duties, and police officers were also present to investigate a homicide). As long as the parole officer's search is "rationally and reasonably related to the performance of [his] duty," Huntley, supra, the presence of police officers with their own agenda does not compromise the search.

Here, McAndrew testified that the precinct field intelligence sergeant notified the defendant's parole officer that the defendant possessed a gun on August 8, 2010, behavior that is obviously a violation of the terms of his parole. The parole officer contacted McAndrew and met him at the precinct. McAndrew denied that his purpose in contacting the parole officer was to avoid the necessity of getting a search warrant. Indeed, even attributing the worst motives to the police, at this point McAndrew had no need of additional incriminating evidence; he had already recovered the weapon that the defendant threw to the ground. While McAndrew accompanied the parole officer to the defendant's apartment, there is no evidence that he directed the search or gave the parole officer any instructions. The parole officer conducted the search and recovered a set of brass knuckles and a knife, also obvious violations of the conditions of the defendant's parole. I find that the parole officer's search of the defendant's apartment was "rationally and reasonably related to the performance of [his] duties," Huntley, supra, and that he was not acting as "[a]n agent of the police, thereby enabling the police to circumvent constitutional requirements." People v. Candelaria,63 AD2d 85, 91 (1st Dep't 1978). Accordingly, the brass knuckles and the knife are admissible at trial.

The foregoing constitutes the Decision and Order of the Court.

December 22, 2011______________________________

ANN DONNELLY, JSC