Supreme Court, Bronx County, September 20, 2021

The Legal Aid Society (William Woods and Jane White of counsel) for defendant.

Darcel D. Clark, District Attorney (Jennifer Leung of counsel), for plaintiff.

Defendant stands indicted for criminal possession of a weapon in the second degree and related charges. In connection therewith, defendant moved to suppress (1) a loaded firearm and other physical evidence and (2) certain statements he made to officers on the ground, among other things, that they were the result of his illegal arrest. The court directed a pretrial Mapp/Dunaway/Huntley suppression hearing, over which this court presided on August 17 and 18, 2021.

The following findings are based on the hearing testimony of New York City Police Department (NYPD) Officers Jarren Smalls, Gina Mestre, and Ryan Cotter and other submitted evidence, including video from officers' body cameras:^[FN*] In the early morning of August 23, 2020, NYPD Officers Smalls, Cotter, and Tuma and Sergeant Allifi, all of the 52nd Precinct, were patrolling Bronx County in an unmarked police vehicle. The officers were in uniform; Cotter drove, while Smalls sat in the rear passengers' seat. At about 1:17 a.m., the officers observed a large group "drinking and smoking [marijuana]" on the sidewalk in front of 2951 Briggs Avenue, which Smalls described as a "high crime location." Smalls testified that, when defendant saw the officers' vehicle, he separated from the group and briskly walked away, heading north on Briggs Avenue. In testimony, Cotter and Smalls acknowledged that they had not{**73 Misc 3d at 616} seen defendant himself engage in any criminal activity while a member of the group or when he left the area (tr at 7, lines 7-8; at [*2]42, lines 3-12; at 43, lines 13-15; at 109, lines 4-12).

Smalls described defendant's behavior as he walked from the area as follows:

"He had a fanny pack across his chest, a black and white fanny pack. He . . . began to maneuver the fanny pack underneath his shoulder . . . As he's briskly walking away, he's walking closer to the wall, blading his body, trying to conceal his right side of his body while looking over his shoulder at us."

Cotter drove the vehicle around the block to intercept defendant. When the officers reached defendant, Cotter rolled down a window and said "Police." Defendant ran away from the police vehicle, and Smalls exited the vehicle and chased defendant on foot. While running, defendant allegedly un-clipped his fanny pack and let it fall to the ground, and then he "reache[d] towards the right side of his waistband and produce[d] an object and drop[ped] the object [on] the ground."

After chasing defendant for half a block over about 10 seconds, Smalls apprehended him at the corner of Briggs Avenue and Kingsbridge Road. Smalls and other officers canvassed the area and recovered the fanny pack which defendant had dropped, containing synthetic marijuana and heroin, from behind the tire of a parked vehicle. Mestre, who had been called to the scene to help collect evidence, recovered a bag containing a loaded firearm from underneath another vehicle parked on Briggs Avenue.

After defendant's arrest, he made statements to Officer Cotter in the police vehicle and at the 52nd Precinct. The People have noticed defendant of their intent to use his statements in their case-in-chief.

On a motion to suppress evidence, the People bear "the burden of going forward to establish the legality of . . . police conduct in the first instance" (People v Berrios, 28 NY2d 361, 367-368 [1971]). The question is whether the encounter, which culminated with the police pursuing, forcibly stopping, and detaining defendant, comported with the four-level standard for intrusive conduct which the Court of Appeals set forth in People v De Bour (40 NY2d 210, 223 [1976]). The first level of{**73 Misc 3d at 617} intrusion permits an officer to approach a citizen to request information "when there is some objective credible reason for that interference[,] not necessarily indicative of criminality" (id.). The second level, the common-law right of inquiry, permits an officer "to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure," when there is "a founded suspicion that criminal[ity] . . . is afoot" (id.). The third level permits "a forcible stop and detention" of a citizen if an officer "entertains a reasonable suspicion that [the citizen] has committed, is committing or is about to commit a felony or misdemeanor" (id.). Finally, the fourth level permits an officer to arrest a citizen if the officer has probable cause to believe that the citizen has committed, is committing, or is about to commit a crime (id.).

In evaluating whether an officer's intrusion was justified, a court must consider the totality of the circumstances that were presented to the officer (see People v Graham, 211 AD2d 55 [1st Dept 1995], lv denied 86 NY2d 795 [1995]). An intrusion by officers must be justified by the information they possessed when they began that intrusion; a subsequent event or observation cannot validate a prior police action that was unjustified at its inception (see De Bour, 40 NY2d at 215).

In this case, when the officers observed defendant before giving chase, they were [*3]presented with the following circumstances: (1) they saw defendant in a group of people who were drinking alcohol and smoking marijuana on the street, but did not observe him drinking, smoking, or otherwise breaking the law; (2) he walked away from the group while adjusting his fanny pack and looking over his shoulder at the police vehicle; (3) he turned his body while walking as if to conceal something from the officers' line of sight; and (4) he was in a high-crime neighborhood.

Contrary to the People's position, those circumstances do not justify the police pursuit. The police circled the block to intercept defendant, exited the police vehicle, chased defendant on foot, and forcibly detained him. Those actions constituted a level-three intrusion (see People v Holmes, 81 NY2d 1056, 1057-1058 [1993]; People v Martinez, 80 NY2d 444, 447 [1992] [police "may . . . pursue an individual if they have information which . . . provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed"]; Matter of Emmanuel O., 32 AD3d 948, 949 [1st Dept 2006]). Accordingly, the officer's actions would have been justified only if he{**73 Misc 3d at 618} reasonably suspected that defendant had committed a crime (see De Bour, 40 NY2d at 210).

Smalls, however, lacked such reasonable suspicion. It was not supplied by defendant's flight, because it is well-settled that a person's flight from the police does not by itself justify pursuit:

"An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away . . . . Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause . . . , seize or search the individual . . . even though he ran away" (People v Howard, 50 NY2d 583, 586 [1980]; see also People v Holmes, 81 NY2d 1056, 1058 [1993] ["(f)light alone, . . . even in conjunction with equivocal circumstances that might justify a police request for information . . . , is insufficient to justify pursuit"]).

The other circumstances of the police encounter, whether considered separately or together, do not justify a level-three intrusion (see People v Clermont, 133 AD3d 612 [2d Dept 2015]). In Clermont, a factually similar case, the Appellate Division, Second Department held that the arresting officer's

"awareness that he was in an area known for gang activity, and his observation that the defendant made 'constant adjustments' to the right side of his waistband, did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant's flight from the police" (133 AD3d at 614).

In contrast, the courts have authorized pursuits by officers who observed the defendants engage in specific conduct indicating criminal activity (see People v Matienzo, 81 NY2d 778 [1993] [upholding police chase where the defendant, standing on a street corner in a high-crime area, was observed removing a small plastic bag from a brown paper bag and handing it to another man in exchange for money]; People v Martinez, 80 NY2d 444 [1992] [upholding chase where the defendant was observed removing a Hide-a-Key box, known to be used by drug dealers to "stash" drugs, from the steel grate of a closed store window]; People v Leung, 68 NY2d 734 [1986] [upholding chase where the defendant was observed passing an envelope to a companion{**73 Misc 3d at 619} which resembled a "three dollar bag" used in drug transactions]). Here, however, [*4]defendant's conduct was possibly innocent and at most ambiguous.

People v Simmons (133 AD3d 1275 [4th Dept 2015]), which the People cite in support, is inapposite. In Simmons, the defendant began to run when an officer approached him to ask questions. After taking two steps, defendant

"pulled an object from the right pocket of his sweatshirt, which the officer observed was a dark object, and threw it. The officer testified that he 'heard a distinct metal sound clanging as [the object] hit the ground.' At that point, the officer began to run and, when he observed that the object on the ground was indeed a gun, he continued to pursue defendant" (133 AD3d at 1276).

The Court found that the pursuit was lawful because "[t]he officer's observation of the weapon on the ground, along with the attendant circumstances, gave rise to the requisite reasonable suspicion justifying police pursuit" (id. [internal quotation marks and citations omitted]). In this case, conversely, the officers did not see defendant discard an object that they knew was a gun, and lacked reasonable suspicion that defendant was in unlawful possession of a weapon or had committed any other crime.

As a final matter, I reject the People's argument that defendant lacks standing to seek suppression of the physical evidence because he deliberately abandoned it. Defendant discarded the property while being unlawfully chased by the police. Where, as here, a defendant spontaneously responds to an illegal "hot pursuit" by discarding property, the defendant's actions do not constitute abandonment (see People v Grant, 164 AD2d 170, 173-176 [1st Dept 1990]). In Grant, a defendant who the police had been unlawfully chasing for two blocks threw a pistol to the ground. The Court found that the defendant had not abandoned the pistol and suppressed it, finding that

"the frenetic activity of running two blocks while being chased by [the] police cannot be said to have afforded time for a rational calculation of strategy, independent of the unlawful police action . . . during which [the] defendant discarded the gun while actively attempting to evade his pursuers. It is clear that it was the coercive pressure of the police action that provoked defendant's spontaneous reaction with respect to the gun and negated his ability{**73 Misc 3d at 620} to make that decision as a result of thought and reflection" (Grant, 164 AD2d at 176; see also People v Torres, 115 AD2d 93 [1st Dept 1986]).

In sum, the totality of the circumstances here did not create reasonable suspicion that defendant had committed, was committing, or was about to commit a crime. Since defendant's seizure was unlawful, both the recovered physical evidence and defendant's post-seizure statements must be suppressed as the fruit of an illegal arrest (see Dunaway v New York, 442 US 200 [1979]).

Accordingly, it is ordered that the Bronx County District Attorney is restrained and precluded from using, upon the trial of the above-named defendant, (1) the physical evidence recovered in connection with this case and (2) the noticed statements by defendant.