People v Millar

Supreme Court, Kings County

Decided on June 3, 2026

Ind. No. 74988-25

E. Niki Warin, J.

The defendant is charged with Attempted Murder in the Second Degree, Criminal Use of a Firearm in the First Degree, Criminal Possession of a Weapon in the Second Degree and other related charges, based on allegations that on September 12, 2025 at approximately 4:00 p.m., the defendant fired at an unknown individual near the corner of Church and Utica Avenues in Kings County. A bystander was hit in the leg.

The defendant moves to suppress a firearm recovered from his backpack and his clothing. The defendant further moves to suppress his statements to law enforcement which the People intend to admit in their case in chief: namely, statements he made when officers first approached him, and statements he made during a recorded interrogation at the 67th Precinct later that same day.

The Court conducted a combined Mapp/Huntley/Dunaway hearing on April 20, 2026. The People called one witness, Officer Jeffrey Deleon. The People introduced into evidence photographs of the defendant's backpack, body-worn camera footage from Officer Deleon and his partner Officer Jason Davy, and a video recording of the defendant's interrogation. The defendant did not call witnesses at the hearing but cross-examined the People's witness and introduced into evidence a radio run recording of Officer Deleon and a map of the area where the defendant was stopped.

For the reasons set forth below, the defendant's motion to suppress is GRANTED in part and DENIED in part.

I. Officer Deleon's Testimony

Officer Delon testified that at about 4:08 p.m. on September 12, 2025, he and his partner Officer Davy were on uniformed patrol in a marked police car when they received a radio run for an incident with a knife. Moments later, they received additional radio runs indicating a ShotSpotter notification and a person shot at the intersection of Church and Utica Avenues (Tr., pg. 11).

Officer Deleon testified that on their way to the scene, a man flagged them down on the corner of Utica Avenue and Linden Boulevard: this was one block away from the suspected shooting (Id.). Officer Deleon did not activate his body-worn camera when speaking with this person. Officer Deleon testified this man reported "I seen [sic] everything that happened and there's a male running east on Linden Boulevard wearing a backpack, tall, light skin � tall, black male with an afro" (Id.). When asked at the hearing what the man said he had seen, Officer DeLeon responded "Shooting. Discharge firearm" (Tr. at 12). Officer Deleon testified he did not get the witnesses' name or contact information because "in the heat of the moment, we wanted to ascertain as much as we could and get to canvassing" (Tr. at 12, 43).

On direct examination, Officer Deleon testified he conveyed the full description he was given over the radio: specifically, he testified that he radioed "subject is a black male, tall, skinny, with an afro and a backpack. . .Black sweatshirt and black backpack . . . Tall skinny, black male with an afro, backpack, heading towards � up Linden" (Tr. at 12-13).

On cross-examination, the officer was impeached by the audio recording of the radio run. In the radio run, the dispatcher asks for a description of the perpetrator and Officer Deleon responds "Possible witness states male running eastbound on Linden, what'd he have? Afro. Male black, afro as of now" (Def. Ex. A, 4:12 p.m.). ^FN1The dispatcher repeats the description given and another officer asks "have you got a clothing description?" The dispatcher replies "no clothing description at this time" (Id. at 4:13 p.m.). Officer Deleon then gets back on the radio and asks all other officers to "try to obtain any clothing description at this time" (Id.). There are no other transmissions by Officer Deleon conveying the additional descriptive details he testified he had been given.

On cross examination, the officer was also shown his own body-worn camera footage immediately after the defendant's arrest when he was discussing the stop of the defendant with other officers still on scene (see P's Ex. 2). In that footage, Officer Deleon recounts to the other officers:

"we caught him at Kings, we said, yo, let's make this male stop right here, he's the only one on Linden with an afro, but I was trying to get the clothing descriptions . . . "

(P's Ex. 2, at 16:21:05 et seq). The officer admitted that he did not say anything "on camera" [*2]about a black sweatshirt, nor did he say that the defendant matched the description given by a person who said he'd seen the shooting (Tr. at 76). The officer also acknowledged that his stop report did not refer to a black sweatshirt (Tr. at 767). He further admitted that in his grand jury testimony, he referred to the individual on the street as a "bystander," while in the stop report, he described him as an "eyewitness" (Tr. at 59).^FN2

On cross-examination, Officer Deleon continued to assert that his testimony was true (Tr. at 50), while also admitting that he did not correct the dispatcher's statement that there was no clothing description, and claimed that his own request for a clothing description was only for "additional" descriptions (Tr. at 53). On re-direct, the following exchange took place:

ADA: And why was the full description not placed on the radio?

OFFICER DELEON: Again, same thing as � I didn't activate my body cam, so it could be one small part that was just missing when I ran it over.

THE COURT: I didn't understand that response. Why didn't you put the full description on the radio?

OFFICER DELEON: Sometimes, when you're canvassing, everything is unfolding quick, so you miss out one small �

THE COURT: You missed it? Is that what you are saying?

OFFICER DELOEON: I might not have said it. I didn't say it through the radio.

THE COURT: Okay.

(Tr. at 79-80).

Officer Deleon testified that after he spoke to the man on the corner of Linden and Utica, he and his partner canvassed down Linden Avenue in the direction indicated � eastbound. About three minutes later he saw a man, later identified as the defendant, who matched the description of a "black male, tall, with an Afro, black backpack and black sweatshirt" (Tr. at 13-14); the defendant was not running, but was "in a rush, walking fast, steady pace, walking" (Tr. at 14). Officer Deleon testified there were no other people on Linden Boulevard when he saw the defendant, and the defendant was the only person that matched the description (Id.). He stated the defendant "kept walking, picked up a little pace," then made a right turn onto East 58th Street and the officers followed in their police car (Id.).

Officer Deleon testified he stopped the car and Officer Davy got out and approached the defendant. Officer Deleon stated his partner said "they were looking for a person matching your description" and "before he could even finish, the subject . . . was back pedalling and took off" (Tr. at 15). Officer Davy ran after the defendant on foot and Officer Deleon followed in the car: the officer testified that he never lost sight of the defendant during the pursuit.

The defendant was stopped approximately one block away by Detective Okvist and Officer Gulotta and placed in handcuffs (Tr. at 16-17). The location was about eight or nine blocks from the shooting incident (Tr. at 18). Officer Deleon testified that after the defendant was detained, he was frisked "due to safety measures" and he believed the defendant was armed because an "eyewitness stated he was a shooter" (Tr. at 18-19). Officer Deleon testified he [*3]frisked "the backpack, through the outer garment � outside the backpack" and felt "a heavily-weighted object, L-shaped, depict [sic] --feel of a firearm" that he recognized from his training (Id.). He testified that he felt the bottom of the backpack � "the leather part" (Tr. at 21).

Officer Deleon testified he opened the defendant's backpack "to further confirm [his] suspicion," took out a notebook, and "confirmed" there was a firearm inside. Officer Deleon stated he called out "92, lunch" when he saw the firearm to indicate he found a gun (Tr. at 71). Officer Deleon acknowledged he did not indicate there was a gun until he had removed a notebook and looked inside the bag (Tr. at 72). He further testified that after the defendant's arrest, he viewed surveillance footage from the shooting that showed the individual wearing "the exact same clothing", which led him to voucher the black sweatshirt and other clothing (Tr. at 26-27).

II. Credibility Assessment of Officer Deleon's Testimony

Officer Deleon's testimony regarding the description of the suspect heading up Linden Avenue is not credible. His initial claim that he radioed a lengthier description than "male black afro" heading up Linden Avenue was shown to be inaccurate by a recording of his own radio transmission. Notwithstanding this impeachment, the officer continued to insist his testimony was truthful. Not until re-direct, did he admit that he did not say it on the radio, although he continued to hedge � that he "might not have said it," and that he might have "missed one small part." The difference between "male black afro" heading up Linden Avenue and "black male, tall, skinny, with an afro and a backpack. . .[b]lack sweatshirt and black backpack" heading up Linden Avenue is not small.

Officer Deleon's claim that he received additional descriptive details from the bystander but failed to convey them by radio is also not credible. First, Officer Deleon did not provide any credible explanation for their omission. To the contrary, Officer Deleon acknowledged on the stand the importance of conveying a full and accurate description during a canvass and that "the more accurate information you relay, the more likely it is they are going to get the right guy" (Tr. at 47). While the Court recognizes the officers want to start canvassing as soon as possible, an accurate description of a suspect is perhaps the most important information during a canvass. The Court cannot perceive any credible reason why the officer would not provide as many details as possible for officers looking for an armed shooter. It is particularly incredible that Officer Deleon would withhold descriptions of the suspect's clothing when another officer asked if any existed, and that Officer Deleon would ask his fellow officers to obtain clothing descriptions, if he himself had already been told of a "black sweatshirt, black backpack." It is further telling that his own recounting of the stop was that they approached the only person with an "afro" without any further identifying details.

The Court concludes that if Officer Deleon had also been given a description of the suspect as tall and skinny, and that he was carrying a black backpack and wearing a black sweatshirt, these characteristics would have been conveyed to his fellow officers over the radio. His testimony to the contrary is not worthy of belief.

"The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value" (People v. Maiwandi, 170 AD3d 750, 751 [2d Dept 2019][internal quotation marks omitted]). Where the testifying officer's credibility is "severely undermined" and the hearing court is confronted with "choices of possible scenarios" for what occurred between the officer and the defendant, the Second [*4]Department has found error when the hearing court tried to "select a credible version based upon guesswork" (People v. Lebron, 184 AD2d 784, 787 [2d Dept 1992]; accord People v. Harris, 192 AD3d 151, 165 [2d Dept 2020][where two police witnesses contradicted each other and were not corroborated by contemporaneous records, their testimony should not be credited]).

The Court will therefore disregard the testimony of Officer Deleon in rendering this decision.

III. Other Evidence Presented by the People

The People also presented body-worn camera footage from Officer Deleon and Officer Davy and photographs of the backpack, and the defense presented the radio run recording of the police response. This objective evidence does not suffer from the same failure of credibility as Officer Deleon's testimony, and is therefore appropriate for the Court to consider in determining whether the People have met their burden of going forward to show the legality of the police conduct (see e.g. People v. Creary, 236 AD3d 672 [2d Dept 2025][comparing body-worn camera footage of officer's approach to defendant's car to her testimony at the hearing]; People v. Nunez, 126 AD2d 576 [2d Dept 1987][relying on radio run recording which contradicted officer's testimony]; People v. Turner, 248 NYS3d 1172 [4th Dept 2026][relying on body-worn camera footage to contradict officer's testimony that defendant consent to frisk]; see also US v. Garcia, 554 F Supp 3d 421, 435 [ED NY 2021][body-worn camera footage considered "irrefutable proof of what had occurred"]).

IV. Findings of Fact for the Stop and Frisk

On the radio run at about 4:07 p.m., the dispatcher states there is a call for an altercation involving four black teenagers at 876 Utica Avenue in Brooklyn, involving a knife and a "possible firearm" and directs officers to respond (Def. A). At 4:09 p.m., the dispatcher radios that there is a ShotSpotter activation for 876 Utica Avenue, at the corner of Church Avenue, and directs all units to respond (Id.). An officer radios confirming that a female was shot in the leg at the southwest corner of Church and Utica Avenues and requests an ambulance (Id.).

The dispatcher requests a description of the perpetrator, and at about 4:11 p.m., Officer Deleon radios "possible witness states male running eastbound on Linden, what'd he have? Afro? Male, black, afro as of now" (Id.). On the recording, Officer Deleon's question "what'd he have?" is followed by a pause, indicating he is waiting for an answer. After this description is transmitted, Officer Deleon and other officers radio they will begin canvassing.

An officer requests the description to be repeated and at about 4:13 p.m., the dispatcher responds "male black with an afro fled eastbound on Linden Boulevard" (Id.). Another officer asks for a clothing description, and the dispatcher says there is no clothing description (Id.). Officer Deleon then radios requesting other units to obtain "any clothing description at this time" (Id.).

Officer Deleon and Officer Davy's body-worn camera footage began recording as the officers drove eastbound on Linden Boulevard at 4:13 p.m.^FN3 The body-worn camera footage captures the officers' interactions with the defendant on the scene.

Officer Davy's body-worn camera footage is from the front passenger seat of the police car (P's Ex. 3, 16:14:00). The weather is clear, and the sun is bright. The police car proceeds eastbound on Linden Boulevard and after about 15 seconds, makes a right turn onto East 58th [*5]Street (Id.). At about the 45 second mark, the defendant is visible on the footage through the passenger window walking southbound on East 58th Street; he is a black man with a slim build with his hair styled in an afro and is wearing a backpack and a black sweatshirt (Id., at 16:14:45). At 52 seconds, the police car pulls over on the right side of the street, Officer Davy steps out of the car and the audio starts.^FN4

Officer Davy says "don't make me run, come here, I'm not going to tell you again" (Id.). The defendant stops walking and responds, "what happened?" (Id.). Officer Davy walks toward the defendant until he is within a few feet of him, saying "we got a description that matches you, firearm [sic], come here, don't move bro" (Id.). As Officer Davy is speaking, the defendant begins to turn away from him and when he says the word "firearm," he backpedals and then takes off running towards Kings Highway (Id.). The entire exchange between Officer Davy and the defendant takes about six seconds.

Officer Davy runs after the defendant, radios that he is in pursuit, and his service weapon is visible in his right hand (Id., 16:15:12). Officer Deleon's body-worn camera footage also shows the initial encounter between Officer Davy and the defendant described here. When the defendant starts to run, Officer Deleon runs back to the police car, radios their location, and follows in the car (P's 2, at 16:15:08).

The defendant runs eastbound across Kings Highway, toward a gas station on Church Avenue (P's 3, 16:15:18 to 16:15:32). As the defendant runs along the sidewalk by the gas station, other officers run toward him and he comes to a stop (Id.). The flight and pursuit lasts about 30 seconds total. The other officers grab the defendant, force him to the ground, and begin to handcuff him behind his back while he is still wearing his backpack (Id.). Officer Davy arrives immediately after the defendant is brought to the ground and stands near his feet, and asks "why you running?" (Id. 16:15:43).

Both of the body-worn camera footages show that the officers who stopped the defendant begin to pat him down once he is on the ground (P's 3 at 16:15:49 et seq; P's 2 at 16:15:53 et seq).

Officer Deleon's body-worn camera provides the clearest view. Initially, the defendant is lying on the ground on his side, handcuffed and not moving. His backpack is still on his back and the main pocket is unzipped (P's 2 at 16:15:50)^FN5. Officer Deleon leans down and grasps the defendant's right elbow, while the officer kneeling on the ground next to the defendant starts frisking the defendant's legs and body (Id. at 16:15:53).

The defendant is still on his side but leaning his chest towards the ground as the officer kneeling on the ground puts his hand on the outside of the backpack close to the vertical stripe on the front, then opens the main pocket wide: spiral notebooks are visible inside the backpack and the officer slides his hand into the interior compartment on top of the notebooks� that is, so [*6]his hand is between the notebooks and the inside front of backpack (Id. at 16:15:56-59). He slides his hand down until his arm is inside the pocket past his elbow, then takes it out again and continues to frisk the defendant's waistband and pants, pulling up the front of his sweatshirt. Officer Deleon reaches down and pulls the sweatshirt up to the defendant's chest, exposing his stomach (Id. at 16:16:08). The kneeling officer continues to pat down the defendant's sweatpants, as Officer Davy walks down to the defendant's feet. Officer Deleon leans over, asks "you got anything on you?", and briefly pats the outside of the defendant's backpack (Id. at 16:16:16). The defendant says "no" and Officer Deleon stands up again and responds "so why you running, brother, why you running?" (Id. at 16:16:20).

Officer Davy walks back towards Officer Deleon who is standing near the defendant's head, looks down at the defendant and asks "has he got anything on him?" then bends down towards the defendant (Id. at 16:16:33). Officer Deleon bends down again towards the defendant, picks up the side of the defendant's backpack and grabs the bottom of it closer to the defendant's back, saying "you got anything?" (Id. at 16:16:38). Officer Deleon then holds one side of the main zipper compartment open and reaches into the backpack and pulls two spiral notebooks out of the backpack, puts them on the ground, and again asks "you got anything on you we should know about?" (Id. at 16:16:42-45). Officer Deleon then pulls the backpack higher in the air and uses both hands to separate the front and back of the inside pocket, looks inside, and calls out "92, 92" as he straightens up and waves his hand at the other officers, and then says "lunch, lunch, lunch" (Id. at 16:16:45). Officers stand the defendant up, remove the handcuffs and take the backpack off, and then re-cuff the defendant (Id.). Officer Deleon puts the two notebooks back into the backpack a few seconds later (Id. at 16:17:52).

One photograph of the exterior of backpack shows a black Nike backpack made of soft cloth with a section at its base that appears to be made of a stronger material, and a broad white stripe with the word "ELITE" running vertically on the outside front (P's 1A). The second photograph shows the inside of the backpack with the two spiral notebooks inside and the gun lying at the bottom of the compartment on the side of the notebooks furthest away from the backpack's shoulder straps (P's 1B).^FN6 Comparing the photograph with the images from Officer Deleon's body-worn camera footage (P's 2, 16:16:17), the gun was located on the front side of the backpack with the white stripe, on top of the notebooks: the gun was not in between the notebooks and the defendant's back, nor was it in between the notebooks.

The defendant is placed in a police van and Officers Deleon and Davy speak with other officers at the gas station. Officer Davy tells an officer "we got a witness that said it was a guy with an afro, and we didn't have colors, so I was gonna stop him and talk to him, see if he seen anything and he took off" (P's 3 at 16:18:43).^FN7 Officer Deleon tells other officers "I said yo, let's get this male stopped because he's the only one on Linden with an afro, but I was trying to get the clothing description" (P's 2 at 16:20:54). The defendant was then transported to the 67th Precinct.

V. Conclusions of Law

At a suppression hearing, the People carry the initial burden of going forward to prove the legality of police conduct, and the defendant bears the ultimate burden of proving that the evidence should not be used against him (see People v. Berrios, 28 NY2d 361, 367 [1971]; People v. Washington, 107 AD3d 4, 15 [2d Dept 2013]; People v. Popko, 33 Misc 3d 277, 281 [Crim Ct Kings County 2011]). As set forth below, the Court makes the following conclusions of law.

A. Mapp

1. Officers' Initial Approach

To evaluate the propriety of a street encounter with the police, the Court must employ the familiar graduated test set forth in People v. Debour (40 NY2d 210 [1976]):

[L]evel one permits a police officer to request information from an individual and merely requires that that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime.

(People v Jones, 164 AD3d 1363 [2d Dept 2018] citing People v. Moore, 6 NY3d 496 [2006]).

A level one request for information must be limited to "basic, non-threatening questions regarding [for example] identity, address or destination" (People v. Kennebrew, 106 AD3d 1107, 1109 [2d Dept 2013]). By contrast, more pointed questions which would reasonably lead the person approached to believe that they are suspected of some wrongdoing, will constitute a level two intrusion and are only permitted where there is a "founded suspicion that criminal activity is afoot" (Id). Before elevating the intrusion to a level three forcible stop and detention, the police must make additional observations of suspicious conduct to support a reasonable suspicion of criminal activity (Id).

A vague description by a civilian informant, even if unidentified, can support a level two intrusion (see People v. Heidt, 95 AD3d 1234 [2d Dept 2012]; People v. Dunbar, 70 Misc 3d 734 [Sup Ct, Queens County 2020][face to face unnamed informant did not raise the same concerns of reliability as "nothing about the informant's actions � flagging down the police to provide them with information, in the middle of the day, on a public street � implied any interest in anonymity"]). However, without a more detailed description of the suspect, or credible testimony regarding what the informant actually witnessed, a forcible seizure would not be justified (see People v. Thomas, 300 AD2d 416, 416 [2d Dept 2002][description of black male wearing black clothing insufficient for reasonable suspicion]).

Here, the radio run recording establishes the officers were told that a "male black with an afro" was seen going down Linden Avenue. Officer Deleon describes the source of that information as a "possible witness" on the radio.^FN8 The defendant was stopped on a side street off [*7]Linden Avenue, about six minutes after the report of a shooting/ShotSpotter activation and about eight blocks away. The body-worn camera footage of the two officers, although limited by its chest-level vantage point, does not show any other pedestrians on either Linden Avenue or 58th Street.

From the objective evidence, the officers had a vague and/or generic description and a direction the suspect was heading from a person on the street, and that description matched the defendant who was not in the immediate vicinity of anyone else and within reasonably close temporal and geographic proximity to the shooting. On these facts, the Court finds the officers had enough for a founded suspicion that criminal activity was afoot, thus permitting a level two intrusion (see People v. Ramirez, 205 AD3d 933 [2d Dept 2022][right to inquire where defendant matched description of male shooter wearing a gray hoodie]; People v. Porter, 246 AD3d 477 [1st Dept 2026][generic description of a black man wearing a white shirt with a gun near the entrance of building gave officers right to inquire as defendant was only person at the location matching the description]; People v. Michimani, 115 AD3d 528 [1st Dept 2014][group matching the number, age, and ethnicity in close time and distance of a shots fired report permitted common-law inquiry]; compare People v. Thomas, 300 AD2d 416 [2d Dept 2002]["description of a black male wearing black clothing was insufficient to provide reasonable suspicion that he was the perpetrator]).

2. Officer Davy's Commands

The defendant contends that even if the officers had a sufficient basis for a level two inquiry, Officer Davy's commands to the defendant, "don't make me run, come here, I'm not going to tell you again", exceeded the level of questioning permitted in a common law inquiry and constituted a seizure.

Police commands to individuals such as "come back" and "police, don't move" do not, without more, constitute a seizure (see People v. Bora, 83 NY2d 531, 534-35 [1994][officer saying "stop" to individual who matched description then walked away as officer approached did not constitute seizure]; In re Shariff H, 123 AD3d 714 [2d Dept 2014][directing defendant to stop and remove his hands from his pockets not a seizure]; People v. Couch, 104 AD3d 955 [2d Dept 2013][calling "come back" and approaching defendant after he started backpedaling was not seizure]; People v. Shankle, 37 AD3d 742 [2d Dept 2007][saying "police, don't move" to defendant running from direction of shooting was not seizure]; People v. Marte, 242 AD3d 589 [1st Dept 2025]["stop" and "come back" did not amount to a seizure]). However, "one may be seized if the police action results in a significant interruption of the individual's liberty of movement . . . from the use of force or because the individual submits to the authority of the badge" (Bora, 83 NY2d at 534-35 [1994][internal quotation marks omitted]). "While a verbal command, standing alone, will not usually constitute a seizure . . . when coupled with behavior it may" (Id.) Factors to consider are whether guns were drawn, if the person's movement was restricted, the number, tone and content of any police commands, how many officers were involved and where the encounter took place (Id.).

Here, the encounter took place on a public sidewalk with only two officers present, and neither had their gun drawn. Officer Davy walked toward the defendant � who did match the vague description provided � as he instructed him not to move. The defendant's path was not [*8]blocked by either officer. On these facts, Officer Davy's directive did not exceed a level two inquiry.

3. Defendant's Flight and the Police Pursuit

"Police pursuit of an individual significantly impede[s] the person's freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed" (People v. Holmes, 81 NY2d 1056, 1057-1058 [1993][internal quotation marks omitted]). Where an officer has a founded suspicion that criminal activity is afoot, an individual's immediate flight from officers may elevate a common law right to inquire to reasonable suspicion, justifying police pursuit and temporary detention (see People v. Ramirez, 205 AD3d 933 [2d Dept 2022]; People v. Porter, 246 AD3d 477 [1st Dept 2026]).

In People v. Parker, 32 NY3d 49 [2018], the Court of Appeals held that officers responding to a radio transmission of a burglary in progress had a founded suspicion that criminal activity was afoot when they approached the defendants on a private driveway headed toward the street. The officers identified themselves and stated they wanted to ask the defendants a question (Id. at 53). The defendants continued to walk away, and then ran after the officer stated "please, stop, we want to ask you a question" (Id.). The Court of Appeals found the defendant's active flight from the police after the inquiry, in combination with their initial observations, gave rise to a reasonable suspicion of criminal activity to justify a pursuit and forcible stop (Id. at 56).

As in Parker, the defendant actively fled after Officer Davy's level two inquiry. He did not walk away or decline to answer any questions. As soon as he heard the officer say he matched the description of a person with a firearm, he backpedaled and sprinted into the street and across multiple lanes of traffic. This behavior, in combination with matching the generic description and direction of travel of a suspect and his location less than six minutes after the ShotSpotter notification, gave the officers a reasonable suspicion of criminal activity to justify their pursuit and forcible stop of the defendant.

4. Search of Defendant's Bag

Reasonable suspicion alone does not authorize a frisk or pat down absent "some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety" (People v. Shuler, 98 AD3d 695, 696 [2d Dept 2012] quoting People v. Batista, 88 NY2d 650, 654 [1996]). Where an officer has founded suspicion an individual is armed, they may conduct a pat down of defendant and "personal items capable of concealing a weapon within the suspect's reach" (People v. White, 136 AD3d 846, 847 [2d Dept 2016] quoting People v. Brooks, 65 NY2d 1021, 1023 [1985]; see also People v. Coleman, 215 AD2d 576 [2d Dept 1995][gun lawfully recovered from bag where officers had reasonable suspicion that defendant was armed]).

Here, officers were investigating a recent shooting, the defendant matched the description of the shooter, he was travelling in the same direction as the suspected shooter, and he fled once Officer Davy said the word firearm. On this record there were sufficient facts to support a reasonable suspicion that the defendant was armed.

The defendant's backpack was within the defendant's grabbable area and thus could properly be subject to an external pat down (e.g. People v. Muhammad, 231 AD3d 868 [2d Dept 2024]). It is also well established when an officer identifies something he or she believes to be a weapon, a more invasive search is permitted to learn what the object is and remove it (see People v. Shackleford, 57 AD3d 578, 579 [2d Dept 2008][opening bag in defendant's grabbable [*9]area justified where during pat down officer felt "a heavy, metal object in the bag . . . and [testified] '(i)t could have been a weapon']; People v. Hardee, 126 AD3d 626, 627 [1st Dept 2015]["[a]fter sensing that the bag's heavy weight was consistent with a weapon, the officer looked inside and saw the handle of a [firearm, and] yelled 'gun'"]; People v. White, 113 AD3d 532, 533 [1st Dept 2014]["[u]pon feeling the handle of a revolver, the officer properly removed it and frisked the defendant's other side"]).

Here, the body-worn camera footage shows an officer kneeling down next to the defendant and conducting a frisk: he is patting down the outside of defendant's clothing, then lifting up his sweatshirt to look at his waistband, and patting down his outside of his pants. That same officer pats down the outside of the defendant's backpack while it is still on his back and also reaches his hand inside the main compartment of the backpack above the notebooks.^FN9 This initial pat-down did not yield any positive results.

The footage then shows Officer Deleon repeating the pat-down of the outside of the defendant's backpack already done by the other officer. There is no visible reaction by Officer Deleon when he grabs at the bottom of the backpack, nor does he say or signal anything to the other officers. Indeed, Officer Deleon repeats "do you have anything on you?" as he frisks the outside of the backpack, and then again as he goes inside it. The officer then removes the spiral notebooks from the backpack and uses both hands to open the compartment so he can peer into the bottom, before announcing his discovery of the firearm.

There is no evidence in the record to explain why the frisk of the backpack was not complete after the first officer did his pat-down. The backpack is made of soft material. The photograph depicts the firearm resting on top of the spiral notebooks, closest to the side the first officer touched from the outside. There is no evidence to suggest the firearm was wedged in between the notebooks, or in some separate compartment or container so that it could not be felt from the outside. The shape and feel of spiral notebooks should be readily distinguishable from the shape and feel of a firearm, and thus, would not appear to require a more intrusive search. However, even assuming the spiral notebooks might have hampered the first officer's ability to feel whether a gun was inside, he also reached into the backpack and put his hand down past the notebooks, with no results.

There is nothing in the record to explain why Officer Deleon continued to search the inside of the defendant's backpack. The officer who performed the first search did not convey anything to the others. There is nothing on the body-worn camera footage to suggest the defendant was attempting to gain access to his backpack, or that the officers had obtained more information as to the location of a weapon.

The Court also points out that Officer Deleon's purported reason for the internal search of the backpack � that from the outside, he felt "a heavily-weighted object, L-shaped, depict --feel of a firearm" � is not only tailored to meet the appropriate legal standards (e.g. People v. Leon, 222 AD3d 998 [2d Dept 2023]), it is also undermined by the objective evidence from the body-worn camera footage. Had the distinctive weight and shape of a firearm been so readily felt from an external pat down, it seems unlikely that the first officer would not have discovered the same. Had Officer's Deleon's external pat down yielded such definitive results, it seems likely [*10]that he would signal his discovery in some way, whether verbally or by his demeanor. Instead, he continued to ask the defendant if he had "anything on him" and removes other objects from the backpack before looking deep inside.

While the initial pat down of the backpack by the first officer was permissible, the People have not presented any credible evidence to justify Officer Deleon's additional and more intrusive search into the backpack itself. The Court recognizes that the officers were dealing with a fast-moving situation, and that chasing a possible suspect after a shooting who fled at their inquiry clearly provided them with the right to stop and frisk him for a weapon. Even under intense and rapidly changing circumstances, however, officers must limit their level of intrusion to what is justified by the facts they have in front of them.

Here, the Court finds the People have not set forth credible evidence that Officer Deleon's search inside the backpack was justified. Because the search of the backpack exceeded the proper limits of a level three stop and frisk, the defendant's motion to suppress the firearm taken from inside the backpack is GRANTED.

B. Dunaway

Without the recovery of the firearm, the officers did not have probable cause to arrest the defendant (see People v. Bailey, 164 AD3d 815 [2d Dept 2018]). Thus, the defendant's motion to suppress the clothing obtained from his person and the later statements at the precinct on Dunaway grounds is GRANTED.

C. Huntley � Statements on the Scene

The defendant was not in custody when Officer Davey initially approached him. Therefore, his response of "what happened?", to Officer Davey's directive to stop was not the result of custodial interrogation. The motion to suppress the statement on East 58th street is DENIED.

Once the defendant had been stopped, handcuffed, and surrounded by officers at the gas station on Kings Highway, he was in police custody for Miranda purposes. An officer asking whether a lawfully handcuffed defendant has any weapons or dangerous items on his person does not have to be preceded by Miranda warnings if it is asked to ensure the officers' safety (see People v. Martinez, 53 AD3d 508 [2d Dept 2008]; People v. Maxwell, 22 AD3d 314 [2d Dept 2005]). Here, the defendant was lawfully detained, and the officers had a reasonable suspicion to believe he was armed. The officers' questions regarding weapons were not for the purpose of eliciting incriminating information, but rather to protect the officers' safety. Accordingly, the motion to suppress the defendant's statements in response to these questions is DENIED.

However, the question "why'd you run" was accusatory, not related to officer safety, and likely to elicit an incriminating response. Accordingly, the defendant's motion to suppress his response that he was afraid of the police is GRANTED.

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

Dated: June 3, 2026

Brooklyn, New York

E. NIKI WARIN, A.J.S.C.