Defendant Michael H. is charged with criminal possession of a weapon in the fourth degree (PL 265.0[1]) based on his alleged possession of a pistol on May 26, 2012. On March 25, 2014, the court conducted a Dunaway, Mapp, Huntley hearing (see Dunaway v New York, 442 US 200 [1979] Mapp v Ohio, 367 US 643 [1961] People v Huntley, 15 NY2d 72 [1965]). Police Officer Dennis Steele alone testified, and I fully credit his testimony.

Officer Steele testified that he has been a New York City Police Officer for six years, and that on the day in question he was assigned to the Brooklyn South Anti-Crime Unit. While on patrol with his partner, an Officer Tagnosky, and a Sergeant Mourad, he was driving in the vicinity of Clarendon Road and Brooklyn Avenue, Kings County, when, at approximately 5:30 AM, he observed a pedestrian walk into the lane of traffic on Clarendon Road when the officer was driving through a green light. The pedestrian was defendant (tr 5-8).

The officer stopped his vehicle and, without emerging, asked defendant if he "was okay." The officer was dressed in plain clothes but around his neck he had a police shield, which he held up for defendant to see. Defendant stepped backward onto the curb and put his left hand into the air. His right hand went to the outside of his jacket as if he were "clenching something" or "holding something" (tr 9-11).

Observing this, the officer opened his door and exited his car along with Sergeant Mourad. Their guns were not drawn. Officer Steele approached defendant. Defendant "was still stepping backwards" with his "hands in the same position." Defendant said to the officer, "I can [*2]explain, I can explain." According to the officer, defendant's "backpedalling" and holding one hand, rather than two hands in the air, while clutching his pocket and saying, "I can explain, I can explain," made him believe that "something [was] going on, something with the right-hand side." When the officer reached the curb, he "stop[ped]" defendant and "grab[bed]" the jacket defendant was clutching. Although the officer did not "get into" defendant's jacket pocket, he "[f]elt what appeared to be a firearm" in it. Officer Steele then placed defendant in handcuffs and retrieved a firearm from defendant's right jacket pocket and a magazine with six rounds of ammunition from defendant's left jacket pocket and transported defendant to the precinct. There, the officer administered Miranda warnings and elicited a statement from defendant admitting possession of the weapon, which defendant said that he had found and was going to take to the police (tr 11-19).

The conduct of the officer must be analyzed according to the framework set forth in People v. DeBour, 40 NY2d 210 (1976). When Officer Steele "stopped" defendant and "grabbed" defendant's jacket he stopped and frisked him (see People v Perez, 224 AD2d 313 [1st Dept 1996] People v Ayala, 265 AD2d 155 [1st Dept 1996] People v Vaughan, 187 AD2d 685 [2d Dept 1992] [suspect is "seized" when police officer grabs his arm and conducts a pat-down frisk]). "A forcible stop and detention is permissible 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' (People v Loper, __ AD3d __, 981 NYS2d 806 [2d Dept 2014] [citing DeBour, 40 NY2d at 223]. A frisk is permissible when the police possess a particularized reasonable suspicion that the suspect is armed and dangerous (People v Forest, 77 AD3d 511 [1st Dept 2010] People v Gonzalez, 295 AD2d 183 [1st Dept 2002]).

The amount of suspicion that the officer needed in these circumstances, "reasonable suspicion," has been defined as "knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand" (People v Martinez, 80 NY2d 444, 448 [1992] [internal quotation marks and citation omitted]). Whether an officer possesses reasonable suspicion requires an evaluation of the totality of the circumstances (see Loper, supra).

Here, Officer Steele saw nothing more suspicious than defendant's clutching his jacket pocket. That defendant backed up after walking into traffic, raised one hand, rather than two, and tried to "explain" does not raise suspicion to a level where the officer could reasonably have believed that defendant was engaged in criminal activity. The officer's unspecified hunch (that, as he testified, "something [was] going on") may have been right and a gun is now off the street. But the means of recovering it offend the state and federal Constitutions because Officer Steele lacked reasonable suspicion to believe that defendant had committed, was committing, or was about to commit a crime.

A recent Second Department case is helpful in reaching this conclusion. In People v Haynes, __ AD3d __, 981 NYS2d 542 (2d Dept 2014), the defendant Haynes, as here a pedestrian, was observed by two plainclothes officers from an unmarked vehicle. When their vehicle came next to Haynes, he made eye contact with one of the officers, "grabbed his waistband area" so that it "seemed" as if he "had a bulge or something heavy," and took off running at the officer's approach. As the Second Department observed, defendant's "grabbing" his "waistband" did not specifically indicate criminal activity so as to establish the reasonable [*3]suspicion that was necessary to pursue him.

That conclusion may be reached with even more ease here, where the circumstances were less indicative of criminality: Michael H. grabbed his jacket pocket, rather than his waistband - a more likely place to conceal a gun - and Officer Steele failed to observe a bulge or something heavy, as in Haynes, that might indicate the possession of gun.

Because the police conduct in this case was unlawful, the fruits of the search must be suppressed (People v Holmes, 81 NY2d 1056 [1993] [property recovered during police chase based on pocket bulge and flight, without more, suppressed] People v Brogdon, 8 AD3d 290 [2d Dept 2004] [handgun and ammunition found pursuant to unlawful police action suppressed]).

Finally, although Miranda warnings were administered, defendant's precinct statement must be suppressed because there is nothing in the record that shows that, aside from the warnings, it was sufficiently attenuated from the unlawful arrest (see Brown v Illinois, 422 US 590, 603 [1975] People v Bradford, 15 NY3d 329 [2010] People v Thompson, 296 AD2d 513 [2d Dept 2002] [statements made shortly after unlawful arrest suppressed] People v Conyers, 68 NY2d 982, 983 [1986] [post-arrest Miranda warnings are an "important" but not conclusive attenuation factor]). The attenuation doctrine requires a court to consider, among other things, the temporal proximity of the arrest and the confession and the presence of intervening circumstances (Thompson, supra; Brown v Illinois, 422 US at 603-04; Conyers, 68 NY2d at 983).

Here, the evidence is insufficient to support a finding of attenuation. Defendant was arrested and immediately taken to the police precinct and questioned. There was no significant break or intervening circumstance prior to defendant's statement, other than the administration of Miranda warnings (cf. Bradford, supra [defendant's statement to police attenuated after two and one-half hours elapsed after administration of Miranda warnings]).

For the foregoing reasons, defendant's motion to suppress is granted.

Dated: April 7, 2014

Brooklyn, New York__________________

John T. Hecht

J.C.C.