Summary

Defendant, Kenneth Colon, stands charged in an indictment with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and other related charges. A Dunaway/Huntley/Mapp/Boodle suppression hearing was held before the court on July 15, 2025. The NYPD police officer who arrested defendant (AO) was unavailable to testify due to a line-of-injury duty unrelated to this matter. Instead, the AO's partner officer (PO) who assisted in defendant's arrest testified as the sole prosecution witness. After receiving the hearing evidence, but not issuing a final ruling on defendant's motion, the court, over defendant's objection, granted the People's application to reopen the suppression hearing and to admit the AO's testimony (see ___ Misc 3d ___, 2025 NY Slip Op 51247[U] [Sup Ct, Bronx County Aug. 7, 2025]). The reopened hearing took place on August 13, 2025; the AO testified as expected.

The People's evidence consists of the AO's and the PO's testimonies; the PO's body-worn [*2]camera (BWC) footage of the events surrounding defendant's arrest; and nearby surveillance camera footage of the same. The defense presented no testimonial evidence but did enter into evidence the AO's BWC footage. All exhibits in evidence were admitted on consent of the opposing party.

The AO and the PO are, respectively, nearly eight- and seven-year veterans of the NYPD. During the summer of 2024 both officers were assigned to the NYPD's Citywide Community Response Team (CCRT). The AO testified that CCRT officers are assigned to "areas where the community has a lot of complaints and we deal with complaints such as ghost cars, people drinking, violent crime areas, whatever problems the community has." The PO explained similarly that the CCRT addresses "mostly community complaints. . . . [W]hatever the community is concerned for—we are deployed there to address those things, whatever they may be."

In the late evening hours of July 27-28, 2024, the AO, the PO and a third CCRT officer were on overnight vehicular patrol in a dark unmarked Toyota Corolla, not readily identifiable as an NYPD police vehicle (A 4:19).^[FN1] The AO was the driver; the PO was seated behind the AO; and the third officer sat in the front passenger seat (P 0:01). The officers were all dressed in standard CCRT uniform, which the PO described as "khaki" "tactical pants, our duty vest and our—a shirt like a dark shirt or tactical shirt underneath" (P 1:03). The AO testified that he also was wearing a hat that "says NYPD on it" and a vest with POLICE written across it, and that his shield was on his vest.

At approximately 1:21 a.m. on July 28, 2024, the officers were driving northbound on Elder Avenue, a two-way street in Bronx County, NY (A 0:05). The lighting conditions were dark, but the area was illuminated by streetlights and lighting from nearby commercial establishments (A 0:29; P 0:03). Defendant was on the sidewalk on the opposite side of Elder Avenue, to the officers' left, walking in the same direction the officers were traveling in their vehicle (A 0:54). Both officers testified about their observations of defendant and the immediate surroundings.

The PO testified that she first observed defendant "[p]robably like 10 feet" away. Other than a row of parked vehicles, nothing obstructed the officer's view of defendant (P 0:57). When asked on direct examination, "What first drew your attention to [defendant]?," the PO answered, "[I]t was late at night; he was, like, the only person on that block." As the patrol car closed to within "[l]ess than five feet," the PO first observed that defendant "was carrying a bag, black shopping bag" that she described as "heavy." As a follow-up question on direct examination the PO was asked, "Besides the relative weight of the bag, something that was heavy, were you able to observe anything else about the bag?" The PO responded, "No," and provided no additional descriptors about the black grocery bag or its heavy contents, neither of which defendant can be seen holding on either of the officers' respective BWC footage or the surveillance footage. Other [*3]than walking alone while holding the "heavy" grocery bag, the PO did not point to anything else about defendant's presence on the sidewalk as having been, in her mind, indicative of criminality, unusuality or other necessity.

The PO did testify that she had inferred that the AO was "homed in on" defendant at about the same time that she was, as the AO had "instinctually slowed the vehicle down and we made our observations from the car." This "slowing down" is reflected in the PO's BWC footage (P 0:18-0:25 [the police vehicle slows down at 0:21]). The PO's BWC footage also shows the third officer in the front passenger seat turning his head to the left, craning his neck and positioning himself to see outside of the vehicle in defendant's vicinity (P 0:33).

The AO's testimony confirmed the PO's supposition. The AO testified further that, as he watched defendant, "he looked in my direction, [and] he picked up his pace" while continuing to travel in the same direction. The AO saw, too, that defendant was carrying a black grocery bag in his right hand. "So, as I got closer," to approximately a "[c]ar length" away from defendant, "I was able to see a heavy weighted object that had a rectangular shape consistent to what I believed to be the slide of a firearm."

"[PROSECUTOR]: And, can you describe how the firearm was situated in the bag when you saw it?

[AO]: Yeah. It was—the slide laid flat all the way on the bottom, it was—

[PROSECUTOR]: Officer, what about — going back to before the bag was dropped when you are observing it in the defendant's hand. What about the object that you saw in the bag led you to believe that it was a firearm?

[AO]: It was just the shape, size. It was the shape, size and how heavy it was, the weight.

[PROSECUTOR]: Was there anything else about the defendant and the bag that led you to believe that the object in the bag, the shape that you were seeing was a firearm?

[AO]: Just the outline, you know, his demeanor.

[PROSECUTOR]: And, prior to asking the defendant about the contents of the bag, saying what's in the bag, when you were still in the car, could you see the defendant's face?

[AO]: Yes.

[PROSECUTOR]: And, when you saw him, how did he look to you?

[AO]: He looked nervous.

[PROSECUTOR]: What about him looked nervous to you?

[AO]: He—like he saw a ghost. It felt like he saw a ghost.

[PROSECUTOR]: And, that, the look that he had that you described as seeing a ghost, did you observe that before or after you had asked about the contents of the bag?

[AO]: No, that was after.

[PROSECUTOR]: So, you saw his face after you asked about the contents of the bag?

[AO]: Yes. Sorry.

[PROSECUTOR]: Was there a point in time where you saw his face before you asked about the contents of the bag?

[AO]: I did, yes.

[PROSECUTOR]: Can you describe how he looked before you asked about the contents of the bag?

[AO]: It was pretty much a nervous look, but once I asked about the bag, that's when it was like oh."

The AO testified that he owns, carries and is familiar with the Glock 19 and the Smith & Wesson M&P, both of which are 9mm pistols with slides.

"[PROSECUTOR]: Is a slide something that is on all firearms?

[AO]: No.

[PROSECUTOR]: What types of firearms have slides?

[AO]: Pistols.

[PROSECUTOR]: Does a Glock have a slide?

[AO]: Yes.

[PROSECUTOR]: What about a Smith & Wesson M&P . . . ? Does that have a slide?

[AO]: Yes."^[FN2]

The surveillance footage recorded the AO calling out to defendant, "Do you have anything in that bag, brother?" (S 0:05-0:07). Responses of "I don't got nothing" and "nah" can be heard soon thereafter (S 0:09-0:12); the PO attributed both statements to defendant, who has not been visible up to this point on the surveillance or any BWC footage. Both officers testified that they next heard a clanging sound which also is captured in the surveillance footage (S 0:12). The AO described it as a "metal clink," and the PO described it as "the clank of metal hitting the ground." Soon thereafter, an individual identified as defendant is seen on the surveillance footage walking on the sidewalk without a bag (S 0:14-0:16).

The AO testified that, as soon as he heard the sound, which he attributed to defendant "dropp[ing] the bag," the AO "got out" of the police vehicle.

"After I got out of the car, he doesn't have no bag in his hands [sic]. He says he don't have nothing. I tell my partner [the PO], 'Go get the bag.' I hold [defendant]. He is still trying to walk away from us. She went to go get the bag, confirmed there is a firearm in there."

The PO exited the vehicle (P 0:55); approached the sidewalk area where the metallic clank had been heard (P 0:56-1:00); saw a black grocery bag lying on the ground (P 1:00); and felt the bag without opening it (P 1:02). The PO testified that, she felt "a firearm . . . [b]y the weight. I felt the barrel, the handle. I carry a firearm; I recover firearms. There was nothing in the bag besides the firearm." The PO then called out to her partners, who arrested the already-seized defendant (P 1:05). The PO handed the still-unopened plastic bag to the AO (1:49), who opened it (A 1:54). Inside was not a loose firearm, but rather a messily wrapped or crumpled up brown paper bag resembling a paper lunch bag (P 1:03). A firearm was inside of the bunched up brown paper bag (A 2:03). Nothing else was inside of either the brown paper bag or the black plastic bag.

During summary oral arguments that immediately followed the evidentiary presentation on August 13, 2025, defense counsel took the position that the PO's testimony of more limited observations was more credible than the AO's more detailed observational testimony. "It is more credible tha[t] [the PO] simply witnessed a heavy black bodega bag than what [the AO] testified to which was a rectangular object that was consistent with a slide of a firearm."

The prosecutor's responsive argument respecting the AO's observations of the subject [*4]firearm's slide through the brown paper and black plastic bags led to a pertinent exchange with the court.

"[PROSECUTOR]: I think it's important to note that yes, this officer did not say that he used his X-ray vision and saw a gun through a black bag. Nor could any officer say that. He said he saw an object that was the size, weight and shape of the slide of a firearm. The slide of a firearm being a component of a firearm that is not available on all firearms, but is available on the two firearms that [the AO] carries which makes him quite familiar with that size, shape and weight of a particular component of a firearm.

[THE COURT]: Did the [AO] testify to that?

[PROSECUTOR]: Yes, I asked him what type of weapons he carried. He described the weapons both in the model and manufacturer, a Glock 17 and a Smith & Wesson M&P.^[FN3]

[THE COURT]: I don't recall him discussing them having a slide similar to the slide [of the subject firearm]. I don't know a lot about the different components of guns and what the different slides mean.

[PROSECUTOR]: I can tell you what I asked him and what he said. I asked him about the weapons that he carried. I asked him about a slide and whether or not a slide is something that is on all firearms. He said no. I asked him if a slide—

[THE COURT]: I am getting to the one specific point that you hit that the slide on the gun recovered from the bag is like the slide on the two guns that the officer possesses. I don't recall that coming into evidence at any point.

[PROSECUTOR]: I don't think I asked him him [sic] that specific question. I asked him if the slide, if a slide is on a Glock 17, which is one of the weapons that he owns,^[FN4] and I asked if a slide is on a Smith & Wesson M&P, which is one of the weapons that he owns. I don't believe I specifically said that, asked him if the slide is like the slide—

[THE COURT]: Let me just check. I might be misunderstanding, . . . were you simply saying[ ] [that] [the AO] has two guns each with slides just like the gun that was recovered has a slide. Or, are you saying that the slides that he has, the composition is similar to the composition, the look, of the gun that was recovered?

[PROSECUTOR]: I was saying the former.

[THE COURT]: Okay, I was thinking you were saying the latter.

[PROSECUTOR]: I am saying the former.

[THE COURT]: Apologies.

[PROSECUTOR]: No problem. So, he observes this object that he sees . . . based on his training, and his experience and the fact that, again, he owns two firearms that have that component where not all firearms do have that component and he observes that object to be consistent with the slide of a firearm. And, the question is whether that is enough to reach the standard of a founded suspicion, not reasonable suspicion. We are looking for a lower standard in this case of just simply a founded suspicion. . . . The fact that he says a rectangular object, which defense counsel points out on numerous times, and not an L-shaped object, . . . it is not a magic word, it is not the abracadabra of search and seizure. [*5]It needs to be an object that the officer can reasonably believe is a firearm. That shape, whether it's an L or a J or a rectangle or whatever, just needs—there needs to be enough facts that the officer can articulate that he believed it to be a firearm."

The court found previously, based on the testimony solely of the PO, that "the AO's questioning of defendant [w]as a level-two De Bour inquiry indicative of criminal suspicion" (Colon, 2025 NY Slip Op 51247[U], *4; see People v De Bour, 40 NY2d 210 [1976]). Nothing in the now-expanded factual record gives the court cause to revisit this determination. It remains the case that, as happened here,

"[a] police official's request to disclose the contents of one's grocery bag . . . , while perhaps not as intimidating as an outright search, is intrusive enough to place such questioning squarely in the ambit of a level-two inquiry for which 'there must exist at that moment a founded suspicion that criminal activity is present' " (Colon at *4, quoting De Bour, 40 NY2d at 215; see People v Garcia, 20 NY3d 317, 324 [2012]; People v Fields (257 AD2d 387 [1999]) ).

Thus, the only issue before the court at this time is whether the totality of the hearing evidence "demonstrate[s] . . . that the independent observations of the [AO and the PO] were sufficient to justify the action taken" by the AO (De Bour, 40 NY2d at 224), namely, initiating a level-two inquiry into items in defendant's personal possession. The court need not undertake the credibility determination that defendant invites respecting the AO's observational assertions. Taking at face value the AO's and PO's observations laid out in their respective testimonies, it remains the case that "the AO improperly initiated a level-two De Bour inquiry of defendant absent an objective basis for a level-one request for information" at most (Colon at *5). Consequently, the fruits of defendant's seizure and arrest must be suppressed.

"Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present. The police may not justify a stop by a subsequently acquired suspicion resulting from the stop. This reasoning is the same which refuses to validate a search by what it produces. To validate this stop under the common-law power to inquire, we must examine the knowledge possessed at that moment and any reasonable inferences. Although this analysis involves a less stringent degree of belief than probable cause, it should be approached in the same manner so as to permit the use of familiar signposts as points of reference.

We have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause. It is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand. Here, we agree with the appellant that this encounter was supported by less than reasonable suspicion and consequently would not justify a stop involving actual or constructive restraint.

. . . .

We have defined a seizure of the person for constitutional purposes to be a significant [*6]interruption with an individual's liberty of movement. Our recent decisions have emphasized the primacy of the right to be free from aggressive governmental interference" (De Bour, 40 NY2d at 215-216 [internal citations omitted]).

The AO made clear in his testimony that he initiated the level-two encounter here due to his observation of defendant carrying a bag containing "a heavy weighted object that had a rectangular shape consistent to what I believed to be the slide of a firearm" (emphasis added). In other words, the AO could distinguish the "slide of the firearm" from having observed a "heavy weighted" "object," a portion of which had a "rectangular shape." Even crediting that, due to his training, familiarity and experience, the AO's "Spidey sense" is more attuned to whatever distinctive or quirky type of right angularity pistol slides may have, this is not enough. There is also an objective reasonableness component (see De Bour, 40 NY2d at 218 ["[U]nrealistic restrictions on the authority to approach individuals would hamper the police in the performance of their other vital tasks. This is not to say that constitutional rights to privacy and freedom from unreasonable searches and seizures must be abandoned to accommodate the public service aspect of the police function. The overriding requirement of reasonableness in any event, must prevail"] [emphasis added]).

The court—which, as admitted, "do[es]n't know a lot about the different components of guns and what the different slides mean"—is not satisfied that the AO's subjective comfort making the pistol-slide call here was objectively reasonable. The court has been presented with no material evidence that the right angle of the subject pistol's slide was so unique that its "heavy" outline through the combined brown paper/black plastic bag combo was so objectively, uniquely identifiable as the slide of a firearm as to justify the level-two intrusion here (see Matter of Jaquan M., 97 AD3d 403, 408 [2012] ["the fact that the backpack sagged at the bottom could have been the result of any number of things which it would have been legal for appellant to possess"]; People v Batino, 48 AD2d 619, 620 [1975] ["Even giving credence to the officer's training and experience, the mere observance of a bulge in a person's pocket cannot provide the basis for a frisk. There 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"]). Nothing about the object's mass and shape—heavy, weighted, and rectangular on one corner—inside of the brown paper bag in turn inside of a plastic "black grocery bag that defendant carried . . . [that] are commonly distributed to customers in bodegas, general stores and grocery stores throughout New York City" gives rise to an objectively reasonable, founded suspicion of criminality (Colon at *4).

Yet, the People do not rest their mistaken support for the legality of the level-two De Bour intrusion here on merely the officers' joint observation of a heavy right-angled object in a bag. The People also point to the officers' joint observations of defendant's nervousness, fast walking and being "the only person on that block" as objectively justifying the reasonableness of the AO's conclusion that something was amiss to the degree that a level-two De Bour intrusion respecting the plastic grocery bag was justified. Based upon the full circumstances surrounding defendant's apparent nervousness as testified to by the officers, the court begs to differ with the conclusion reached by the People.

By the time the AO had come to realize that defendant knew that he was being watched, defendant's apparent nervousness was already objectively reasonable. Three individuals were slowly following him in an dark nondescript vehicle as he walked alone at approximately 1:21 [*7]a.m. That the three individuals were police officers and wore police insignia does not compel the inference that defendant observed their clothing. Nor does it necessarily follow that he would have been more focused on a police vest or hat than the fact that a dark, nondescript car was slowly creeping up on him as he walked alone in the middle of the night (see De Bour, 40 NY2d at 216 ["innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand"]).

In the alternative, assuming valid the People's narrower viewpoint, that defendant's nervousness was specifically attributable to his awareness that the police were nearby, does not compel a different legal conclusion. Defendant's nervous, in conjunction with a heavy right-angled object in a paper bag in a black plastic grocery bag, still would not provide the police with level-two De Bour clearance to inquire as to his belongings. Defendant stood in shoes similar to those of the defendant in People v Thorne (207 AD3d 73 [2022]), whose "desire not to make eye contact with the officers," the First Department explained, "was equally consistent with an innocent desire as a black male to avoid interactions with the police" (id. at 79).

In sum, the police witnesses' observations may have justified a level-one De Bour request for information. However, "[w]ithout more, these facts, even taken together, do not provide 'objective indicia of criminality because there were plausible, noncriminal reasons' for the defendant's behavior" (People v B.S., 86 Misc 3d 1121[A], 2025 NY Slip Op 50995[U], *4 [Sup Ct, Bronx County 2025], quoting Jaquan M., 97 AD3d at 408). "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. Nor did they observe a bulge in the defendant's waistband or other location indicative of criminality" (B.S., 2025 NY Slip Op 50995[U], *4 [internal citation omitted]).

As to defendant's abandonment of the grocery bag,

"[w]ithin the context of an illegally initiated police chase, only when the defendant's act is independent and unrelated to the illegal police conduct is the abandonment voluntary. If the defendant's act is spontaneous, and provoked by the illegality, the abandonment cannot be intentional or voluntary. A spontaneous response is instinctual, rather than planned, and it is precipitated by the coercive nature of the illegality" (People v Bilal, 170 AD3d 83, 92 [2019]).

Accordingly, the defense applications to suppress the fruits of defendant's seizure and arrest are GRANTED in their entirety; this includes all statements attributed to defendant (including those made during the AO's level-two questioning from the vehicle), the black plastic grocery bag and the entirety of the contents therein (namely, the firearm).

THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.