Supreme Court, Kings County, March 9, 2018

Legal Aid Society (Matthew Cohen of counsel) for defendant.

Eric Gonzalez, District Attorney (Janet L. Gleeson of counsel), for plaintiff.

On February 21, 2018, the court held a Dunaway, Huntley and Mapp hearing on defendant's motion to suppress pursuant to Criminal Procedure Law § 710.20. The court has considered arguments of counsel and their memorandums of law. For the following reasons, the motion is granted.

Detective Reginald Smith, the sole witness, testified credibly to the following facts:

Detective Smith has been with the New York City Police Department for seven years. On June 8, 2017, while working a Brooklyn North anti-crime assignment, he was dispatched to Brownsville because of a spike in shootings there. That night he was patrolling with a partner in plain clothes as the driver of an unmarked vehicle.

Shortly after 1:00 a.m. on June 9, Detective Smith was near Eastern Parkway Extension and Somers Street. The area was well lit by streetlamps and visibility was clear. The officers were headed in the direction of the Ocean Hill New York City Housing Authority buildings. They were traveling at approximately 15 miles per hour and did not observe anyone until they saw a group of three individuals walking in their direction. Defendant was one of the three. The others separated from defendant and walked towards the officers' car, which stopped as a result of their approach. Detective Smith testified that he believed that the individuals were going to either rob them or ask for help.

As the two individuals approached, Detective Smith made eye contact with defendant, who grabbed his right jacket pocket and started walking very fast. The others came up to the vehicle and said, "He ain't got nothing." Detective Smith's partner then exited their vehicle, and Detective Smith again made eye contact with defendant, who started running away. Detective Smith put his car in reverse and pursued defendant while his{**59 Misc 3d at 971} partner pursued defendant on foot. Defendant continued to tug at his right jacket pocket.

During the chase, Detective Smith never lost sight of defendant. Defendant took out a metallic (or chrome) object and tossed it over a fence. At the time, Detective Smith was about 20 feet away from defendant. The chase continued until Detective Smith, and then his partner, caught up with defendant at Sackman Street, a short distance away. During the pursuit, defendant also threw off clothing—a jacket and perhaps a hooded sweatshirt.

Defendant was apprehended and handcuffed. Without being questioned, he said, "It's just brass knuckles, it's just brass knuckles." Detective Smith summoned another police vehicle. After it arrived, he went to the fence over which he had seen defendant toss the object. He climbed over the fence and found a metallic revolver. He also recovered the clothing defendant had discarded. He did not find brass knuckles.

Based on these facts, I make the following conclusions of law:

Detective Smith pursued defendant merely because defendant grabbed his pocket and fled from him. That pursuit required reasonable suspicion that defendant was engaged in criminal conduct. Defendant's flight from the detective, along with his grabbing or clutching at his jacket pocket, did not in combination rise to reasonable suspicion that would justify Detective Smith's pursuit of defendant (see People v Beckett, 88 AD3d 898 [2d Dept 2011]; People v Cadle, 71 AD3d 689 [2d Dept 2010], lv denied 15 NY3d 772 [2010]). Without reasonable suspicion that defendant was committing or about to commit a crime, the officers' pursuit of him was unlawful and defendant's disposal of the gun and clothing during the pursuit was precipitated by, and not attenuated from, the illegal police action (see People v Furrs, 149 AD3d 1098 [2d Dept 2017]).

Notably absent from the evidence was any indication that defendant had any connection to a specific report of illegal activity (cf. People v Gray, 92 AD3d 892 [2d Dept 2012] [defendant observed running from direction of reported shooting]; see also People v Thompson, 127 AD3d 658 [1st Dept 2015] [nothing unique about four men walking together late on a summer evening despite their having left a building in the housing project to which a radio run had reported robbers were running]; People v Cady, 103 AD3d 1155 [4th Dept 2013] [defendant's location in general vicinity of shooting insufficient to{**59 Misc 3d at 972} provide reasonable suspicion in absence of objective indicia of criminality]). Defendant was simply in a neighborhood that had experienced a spike in reported crime at the time.

Defendant's grabbing or tugging at his jacket pocket—a far less incriminatory place to store a gun than a waistband—was insufficient to constitute a specific circumstance indicative of criminal activity that would justify Detective Smith's pursuit (see People v Carmichael, 92 AD3d 687, 688 [2d Dept 2012] [tensing arm around waistband coupled with flight insufficient for pursuit]). Similarly, because Detective Smith did not testify that he believed defendant possessed a gun or that defendant's actions indicated that defendant possessed a gun, defendant's grabbing of his pocket does not permit the court to conclude that Detective Smith reasonably believed defendant had a gun (see People v Clermont, 133 AD3d 612 [2d Dept 2015] [suppressing where People failed to adduce testimony that officers observed what appeared to be a gun or that defendant's conduct indicated he possessed a gun], lv denied 27 NY3d 1149 [2016]; People v Crawford, 89 AD3d 422 [1st Dept 2011] [suppressing where defendant adjusted unidentified heavy-looking bulge in pants pocket]).

Had Detective Smith testified that he believed the pocket contained a gun and sufficient reasons were offered to support that belief, defendant's flight, before the police could approach to make any inquiry, may have elevated Detective Smith's suspicion to reasonable suspicion sufficient to justify pursuit (see People v Bush, 129 AD3d 537 [1st Dept 2015]; see also People v Simmons, 30 NY3d 957 [2017], affg 149 AD3d 1464 [4th Dept 2017] [officer had founded suspicion of criminality based on his having been involved in numerous gun arrests where individuals holding their waistbands had weapons]). Indeed, the police were justified in approaching defendant to ask him basic non-accusatory questions given his companions' [*3]statement that defendant had nothing. But these equivocal circumstances, even combined with defendant's flight, did not justify pursuit because they were insufficiently indicative of defendant's engaging in a misdemeanor or felony (see Clermont, 133 AD3d at 614; see also People v Holmes, 81 NY2d 1056 [1993]; cf. People v Sierra, 83 NY2d 928 [1994] [flight, combined with objective facts indicating defendant was committing or about to commit a drug-related crime, constituted reasonable suspicion to justify pursuit, whereas flight, combined with grabbing at waistband, did not]).{**59 Misc 3d at 973}

Finally, Detective Smith was working as an anti-crime officer and therefore not obviously a police officer, as a uniformed officer in a marked car would have been. This fact also undermines the reasonableness of any suspicion Detective Smith may have had that defendant was attempting to flee the police (see People v Beckett, 88 AD3d 898 [2d Dept 2011] [evidence insufficient to establish that defendant knew officer was a police officer at the time he started to flee]). From Detective Smith's testimony that he thought that the individuals who approached the officers may have been either attempting to rob them or seeking help, it is evident that the police officers' status was not apparent (even if defendant's companions recognized them to be officers, as will be discussed below).

The court is aware that the Appellate Division, First Department, in People v Echols (158 AD3d 575 [1st Dept 2018]), on similar facts, upheld the denial of suppression. There are sufficient differences between the facts of that case and the present one, however, for the court to conclude that suppression is required here.

In Echols, as here, plain clothes officers were on patrol at night. The location in Echols was described as "a high crime area," but it is unclear from the facts whether the "area" was as large as Brownsville, the neighborhood under patrol in this case. (Id. at 576.) The officer in Echols was "trained and highly experienced in detecting concealed weapons" and made an observation that objectively indicated that Echols was armed with a weapon: the officer noticed that Echols had one arm "at a 90-degree angle with his . . . hand at his waistband," which the Court concluded was "objectively suggestive of the presence of a firearm in the waistband, which the suspect [was] steadying or keeping in place with his hand." (Id.)

In finding that the evidence objectively established the presence of a weapon, the Echols court relied on its prior decision in People v White (117 AD3d 425, 425 [1st Dept 2014], lv denied 23 NY3d 1044 [2014]) where the officers gave "detailed testimony" that White's " 'clutching' at his waistband" indicated, "based on their experience, [that] defendant clearly appeared to have a firearm in his waistband, even though the officers could not see a weapon."

In contrast, Detective Smith did not testify that he believed that defendant possessed a firearm, and defendant merely grabbed or tugged at his jacket pocket, rather than clutched or steadied his waistband. In other words, the present case, unlike{**59 Misc 3d at 974} both Echols and White, lacks evidence that a trained and experienced officer or officers concluded that defendant possessed a firearm and objective facts to support that conclusion.

In Echols, the Court also determined that Echols had recognized the plain clothes officer to be a police officer because Echols "made a spontaneous statement to the effect of 'I didn't do anything' " (158 AD3d at 576). In the present case, in contrast, a similar statement made by defendants' companions, after they had separated from him—"He ain't got nothing"—indicates that they recognized the officers to be police; but it says nothing about defendant's state of mind. Eye contact with a plain clothes officer, coupled with flight, does not elevate the suspicion necessary to pursue an individual who is grabbing an unspecified object (see People v Haynes, 115 AD3d 676 [2d Dept 2014]).

For these reasons, the pursuit of defendant was not founded on reasonable suspicion that he was engaged in criminal conduct. Although Detective Smith may have intuited correctly that defendant was engaged in some unspecified illegality, defendant's right to be free from an unreasonable seizure requires more than such intuition. Defendant's motion to suppress physical evidence is therefore granted.

Because defendant's statement, which occurred immediately upon arrest, was not attenuated from the arrest, it too is suppressed as a fruit of the unlawful arrest.