On July 7, 2024, the defendant was arraigned in Bronx Criminal Court on the following charges: two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b], [3]); one count of criminal possession of a firearm (Penal Law § 265.01-b [1]), and one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]), wherein the People alleged that, on or about July 5, 2024, at approximately 10:25 p.m., the defendant possessed a loaded and operable firearm in the vicinity of Sheridan Avenue and East 169th Street, in Bronx County.

On November 12, 2024, the defendant was arraigned in Bronx Supreme Court. The indictment against the defendant contained the same charges presented at the criminal court arraignment, except it charged a single count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and contained the additional offense of possession of ammunition (Administrative Code of City of NY § 10-131 [i] [3]).

During motion practice, the defendant moved to suppress any property that was recovered from the defendant. In a decision and order dated January 22, 2025, the Honorable Shari Ruth Michels ordered Mapp/Dunaway/Boodle hearings to litigate evidentiary issues raised by the defendant. Pursuant to said order, a combined Mapp/Dunaway/Boodle hearing was held on April 3, 2025.

At the hearing, the People called one witness, Detective Frank Russo, shield #7549, assigned to a citywide field intelligence team. The defendant did not call any witnesses and did not offer any exhibits. At the hearing, the court accepted into evidence, without objection from [*2]the defendant, People's Exhibit 1 (Detective Russo's body-worn camera [BWC] footage).^[FN1]

Based on the evidence adduced at the hearing, the oral arguments set forth by the parties, the court file, and relevant legal authority, the court makes the following findings of fact and conclusions of law:

The court finds Detective Russo credible and credits his hearing testimony on all material points.

Detective Russo testified that he worked for the NYPD for approximately six and a half years and is assigned to the citywide SRT field intelligence team. As an NYPD officer, he has made approximately 70 arrests, with approximately 20 of them involving firearms. He had also assisted in over 1,000 arrests, with over 100 arrests involving firearms. He testified that he had received firearms-related training, including particularized plain clothes training.

On July 5, 2024, Detective Russo was on patrol within the confines of the 44 precinct with his partners, Detective Vukosa and Police Officer (PO) Georgakis, all in uniform, but in an unmarked vehicle.

At approximately 10:25 p.m., the officers were in their vehicle in the vicinity of Sheridan Avenue and East 169th Street, in the County of the Bronx. This was an intersection that was known to the police to generate "chronic 911 calls of shots fired and chronic 311 calls, quality-of-life complaints." It was dark, with streetlights illuminating the area.

During his patrol, Detective Russo, while seated in the front passenger seat of his vehicle, observed the defendant, walking in the street, wearing a "black two-strap backpack" containing a "weighted object in the backpack pooling toward the bottom of the backpack due to its weight." When the detective made this initial observation, he was within five feet of defendant. The detective described his observation as that of "a weighted object, angular, toward the bottom also causing a point toward the bottom of the backpack." The detective further observed, while the defendant was walking, "the weighted [object] to be kind of swing[ing] back and forth within the backpack."

For approximately the next ten seconds, the officers observed the defendant from inside their vehicle. During that time, the detective testified that he observed that the object inside the defendant's backpack was "rectangular, angular in shape, and pointed[,] consistent with that of a grip or a slide of a firearm."

When the defendant walked next to the officers' car, Detective Russo asked the defendant where he was going. The defendant answered "home," and "immediately made an about-face and started walking the opposite way." As the defendant walked away from the officers, Detective Russo observed, through his car's sideview mirror, that the defendant continuously looked back at the officers' vehicle.

A few moments later, the detective and PO Georgakis exited their car and yelled at the defendant to stop. Detective Vukoso remained in the car. At this point, the detective believed that the defendant was "potentially armed" based on the detective's "observations of the item in the backpack and the [defendant's] body language and manner of acting."

The defendant kept walking while Detective Russo and PO Georgakis followed him on foot. The detective testified that the defendant continuously looked over his shoulder while he continuously walked away from the officers. While the detective was farther away from the backpack than when he first observed the defendant from inside his vehicle, he still observed that "there was a weighted object and it was toward the bottom of the backpack, indicating it was significantly heavy and swinging back and forth in the bottom of the backpack."

The defendant then reached a group of people and stopped walking. Seconds after the defendant stopped, he was approached, from his front, by PO Georgakis, who placed his hand on [*3]the defendant. Approximately a second later, Detective Russo reached the defendant. The defendant bladed his away body away from Detective Russo, "then pressed the backpack against another individual, squishing the backpack against [the defendant's body] and the [other] individual's body." The detective "then frisked the portion of the backpack where [he] observed the object previously," while the defendant again "tried to blade their back away from [the detective]." When the detective touched the backpack, he "felt a hard object and then upon further frisking the object, [he] was able to feel that it was a hard L-shaped object consistent with that of a firearm." The detective testified that because the defendant was pressing the backpack against another individual, it was "making it difficult for [him] to get a successful frisk of the object." While the detective did feel a hard object at the initial frisk, "to be positive [that] what [he] was feeling was a firearm, [he] did want to further frisk. Upon further frisk, [he] did feel there was a grip and a slide consistent with that of a firearm."

The detective then made eye contact with PO Georgakis, and "at that moment, the defendant then shed the backpack and took off on foot." According to People's Exhibit 1, approximately 15 seconds after PO Georgakis first made contact with the defendant, the defendant left the backpack and ran away from the officers. Detective Russo chased after the defendant before catching up to him and placing him under arrest.

Upon a search of the backpack, the officers found a firearm, loaded with five rounds of ammunition, that is the subject of the defendant's motion.

At a Mapp hearing, the People have the burden of going forward with evidence demonstrating the legality of the police conduct (People v Berrios, 28 NY2d 361, 367-368 [1971]; see People v Johnson, 134 Misc 2d 474, 476 [Crim Ct, Queens County 1987], citing Mapp v Ohio, 367 US 643 [1961]). Upon the People meeting this burden, the burden shifts to the defendant to establish the illegality of the conduct (Berrios, 28 NY2d at 367).

A Boodle hearing requires the court to resolve two inquiries:

"whether the police action was illegal, requiring that the gun, which was seized as a direct result of that action, be suppressed as the fruit of the poisonous tree, and whether despite the illegal conduct defendant waived his constitutional right to challenge it by his act of discarding the gun in a manner indicative of an intentional abandonment" (People v Torres, 115 AD2d 93, 95 [1st Dept 1986]; see People v Boodle, NY2d 398, 404 [1979]).

At a Dunaway hearing held to determine whether there was probable cause for an arrest without a warrant, the People bear the burden of proving a defendant's arrest was lawful (Dunaway v New York, 442 US 200 [1979]; see People v De Bour, 40 NY2d 210, 223 [1976]). An officer has probable cause to arrest a person for committing an offense when it "appear[s] to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice" (People v Carrasquillo, 54 NY2d 248, 254 [1981]).

Whether the police may legally seize a defendant depends upon whether the police possess the requisite information to justify the seizure under De Bour. The Court of Appeals recognized, in laying out De Bour's four-tiered analysis, "that police-citizen encounters are dynamic situations during which the degree of belief possessed at the point of inception may blossom by virtue of responses or other matters which authorize and indeed require additional action as the scenario unfolds" (De Bour at 225; see People v Hollman, 79 NY2d 181, 191 [1992]). Further, "[t]here are no bright lines separating various types of police activity. Determining whether a seizure occurs during the course of a street encounter between the police and a private citizen involves an analysis of the 'most subtle aspects of our constitutional guarantees'" (People v Bora, 83 NY2d 531, 535 [1994]; People v Cantor, 36 NY2d 106, 112 [1975]).

As applicable here:

"[a]t a level-one street encounter, a police officer is permitted to approach and request information from an individual. This requires that the request be supported by an [*4]objective, credible reason, not necessarily indicative of criminality. The brevity of the encounter and the absence of harassment or intimidation will be relevant in determining whether a police-initiated encounter is a mere request for information. Level two, a common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot. Level three allows an officer to forcibly stop and detain an individual and requires a reasonable suspicion that the individual has committed, is committing, or is about to commit a felony or misdemeanor. Level four occurs when an individual is arrested and requires probable cause to believe that the individual has committed a crime" (People v Walker, — AD3d —, 2025 NY Slip Op 01194, *3 [1st Dept 2025] [internal citations omitted]).

The defendant, citing to, inter alia, People v Holmes (181 AD2d 27 [1st Dept 1992], affd 81 NY2d 1056 [1993]), and People v Jones (164 AD3d 1363 [2d Dept 2018], lv denied 32 NY3d 1173 [2019]), argued that, here, there were two distinct, impermissible, level three stops under De Bour. They asserted that, given the totality of the surrounding circumstances, i.e. the length of time and distance the police followed defendant, and their ordering of the defendant to stop, the first level three encounter was effectuated when the officers followed the defendant after exiting their car. The defendant further argued that a second level three encounter occurred when the officers stopped and frisked the defendant's person. The defendant urged the court to suppress the firearm as fruit of these illegal seizures.

To rise above a level one encounter, the police need a "founded suspicion that criminal activity is afoot" (De Bour, 40 NY2d at 223). While the common-law right to inquire "permits a somewhat greater intrusion in that [an officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, [it is] short of a forcible seizure" (id.; see People v Moore, 6 NY3d 496, 500 [2006] ["(the common-law right of inquiry) authorized the police to ask questions of defendant—and to follow defendant while attempting to engage him—but not to seize him in order to do so"]).

Here, the information available to the officers at the time the officers reached the defendant did not support any such founded suspicion. The police were not operating on the basis of witness testimony, a 911 call, a ShotSpotter report, or any other information that an individual in the area possessed a firearm (see People v Howard, 50 NY2d 583, 590 [1980] ["[t]he officers had no information that a crime had occurred or was about to take place, had not seen defendant do anything criminal, and were confronted only by facts susceptible of innocent interpretation"]). Nor did they observe a bulge in the defendant's waistband or other location indicative of criminality (see People v Holmes, 81 NY2d 1056, 1058 [1993]; De Bour, 40 NY2d at 221). Detective Russo's testimony established that he observed an angular, weighted object causing a point at the bottom of the defendant's backpack. The only other information that the detective possessed when he began to follow the defendant was that the defendant reversed course after speaking with the detective when the detective was still inside his car, that the defendant continuously looked back at the officers as he walked away, and that this was an area with chronic 911 and 311 calls. Without more, these facts, even taken together, do not provide "objective indicia of criminality because there were plausible, noncriminal reasons" for the defendant's behavior (Matter of Jaquan M., 97 AD3d 403, 408 [1st Dept 2012], appeal dismissed 19 NY3d 1041 [2012]).

The People attempted to distinguish the circumstances in this case from those in Jones by arguing that observations of the weighted object here were different from the bulge observed in Jones. In Jones, the court found that the police did not have the requisite "reasonable suspicion of particularized criminal action" when the police observed that "the defendant had a nondescript bulge in his right jacket pocket, was leaning to the right side, and walked away from the officer without complying with the officer's requests for him to stop . . . ." (Jones, 164 AD3d at 1366). While the People contended that, here, Detective Russo's observations were more than those in Jones, in that the detective testified that the object was angular, pointed, swinging back and forth, and heavy enough to pool at the bottom of the backpack, the court finds these facts insufficient to [*5]provide the police with reasonable suspicion of particularized criminal activity justifying further intrusion (see Walker, 2025 NY Slip Op 01194, *1, *3 [finding that the trial court erred in denying suppression when the testifying officer observed a heavy weighted object in defendant's jacket pocket and "did not say that the object resembled the outline of a firearm, (but) he suspected the object was a gun," holding, "absent other circumstances evoking suspicion, indicative of or referable to the possession of a handgun, the observation of a mere bulge or heavy object in a pocket does not imply a reasonable conclusion that the person is armed"]).

Much like the bulging jacket pocket in Jones, a backpack "sagg[ing] at the bottom could have been the result of any number of things which it would have been legal . . . to possess" (Jaquan M., 97 AD3d at 408; see In Matter of Allan L., 59 AD2d 865, 866 [1st Dept 1977] ["(t)here was no testimony that the bulge formed the outline of a gun and the description given by the officer as to the appearance of the bulge was consistent with the possession of numerous objects, not contraband in nature"]). Even an object which is angular, pointed, and swinging back and forth because of its weight, can be innocuous. For instance, a book could produce a similar angle, particularly if the contents of the bag forced it to be propped on one of its corners. And, while a heavy rectangular shape may be "consistent with that of a grip or a slide of a firearm" as the detective testified, it could also be consistent with an umbrella, portable power pack, laptop charger, folding bike lock, stapler, or any number of other common household objects, tools, and appliances.

Similarly, the defendant failing to stop and continuing to walk away from the officers could not elevate the basis for the seizure (Howard, 50 NY2d at 592 ["where, as here, there is nothing to establish that a crime has been or is being committed, flight, like refusal to answer, is an insufficient basis for seizure or for the limited detention that is involved in pursuit"]; see Holmes, 181 AD2d at 31 ["the officers, at most, had an objective credible reason, not necessarily indicative of criminality, which permitted them to approach defendant and request information. This factual predicate must be distinguished from one in which, before the defendant flees, the police are already in possession of a founded suspicion that criminality is afoot"]). That the defendant continued to glance back at the officers does not give rise to a founded suspicion that criminality is afoot, nor does the general level of crime at the location of the incident (see People v Bond, 116 AD2d 28, 32-33 [1st Dept 1986] ["behavior susceptible of an innocent interpretation, but occurring in a high-crime area, does not permit a greater level of intrusion than is warranted by the same behavior in other areas" (internal quotation marks omitted)], lv denied 68 NY2d 767 [1986]; accord Howard, 50 NY2d at 590). Moreover, a heavy object in a bag is just as, if not more, innocuous than the bulging jacket pocket in Jones (see Jaquan M., 97 AD3d at 408 [disapproving of the argument that "any person on the street, even in a high-crime area, is presumed to be carrying a weapon based only on a drooping pocket or backpack"]).

Furthermore, when the police frisked the defendant, it was an impermissible level three encounter under De Bour. A level three interaction requires that the officer reasonably suspect that the person whom they stop is committing or about to commit a crime (De Bour, 40 NY2d at 223). In this case, given the information under which the police were operating, that belief would not be reasonable. The record was also devoid of any circumstances where officers may reasonably suspect that they were in danger of physical injury (CPL 140.50).

The officers had gained no further information from the moment they exited their car and followed the defendant. After the defendant had stopped walking, the officers approached him and placed the defendant between the two of them. Upon approach, the officers immediately placed their hands on him and began to frisk his bag. This was an impermissible seizure of the defendant's body, and any subsequent search was illegal.

The remaining contention is whether, under Boodle, the "defendant waived his constitutional right to challenge it by his act of discarding the gun in a manner indicative of an intentional abandonment" (Torres, 115 AD2d at 95). We hold that he did not.

To find that the defendant abandoned the bag, the court must evaluate if the People overcame the presumption against the waiver of constitutional rights and met their burden to [*6]show that the defendant intentionally relinquished or abandoned a known right (Howard, 50 NY2d at 593). The People must show that "[t]he proof supporting abandonment should reasonably beget the exclusive inference of the throwing away" of the property (id. [internal quotation marks omitted]). This contrasts with a "spontaneous reaction to the necessity of evading his pursuers" (id.; see Boodle, 47 NY2d at 404).

Here, the court finds that the defendant relinquishing the backpack constituted a spontaneous reaction to the necessity of evading the police. It was only after the police grabbed the bag that the defendant let go of it, and upon doing so, he immediately fled. Moreover, as PO Georgakis was holding the bag at the time the defendant dropped it, the only way that the defendant could flee would have been to relinquish the bag.^[FN2] Nor, given that this chaotic interaction took mere seconds, was there much opportunity for the defendant to engage in conscious action save for fleeing from the police. It follows, therefore, that the defendant's reaction was a "direct result of illegal police action" (see Boodle, 47 NY2d at 401). Under these circumstances, the defendant could not "be said to have knowingly waived his constitutional protection" against a warrantless search of his backpack (Howard, 50 NY2d at 593). Therefore, the discovery of the firearm and ammunition was tainted by the illegal police action and must be suppressed as fruit of the poisonous tree (see Boodle, 47 NY2d at 401-402).

Based on the foregoing, the defendant's motion to suppress the physical evidence is granted.

The foregoing constitutes the opinion, decision, and order of the court.