Opinion
October 31, 1995
Appeal from the Family Court, Bronx County (Stewart H. Weinstein, J.).
It was error here to deny the motion to suppress. Under the circumstances, the police lacked the reasonable suspicion necessary to justify the stop and frisk of appellant ( see, People v. Hollman, 79 N.Y.2d 181; People v. De Bour, 40 N.Y.2d 210). While an in-person report of a gunman by an individual who remains on the scene has been considered reliable information ( see, People v. Mitchell, 196 A.D.2d 401, lv denied 82 N.Y.2d 757; People v. Ramos, 189 A.D.2d 697, lv denied 81 N.Y.2d 891), in Mitchell, Ramos, and other cases cited by the People, additional factors were present to justify the police action.
In Mitchell (supra), the informant pointed out a specific individual, and told officers outside of Port Authority Bus Terminal that the individual had a shotgun with which he had threatened to shoot her; we held that the threat and the officers' concern, not only for their safety, but that of the informant, and the public at such a location, gave them reasonable suspicion to stop the clearly identified defendant and seize a suitcase which he had placed between his legs. In Ramos (supra), our affirmance of the seizure of a gun was based on the facts of the informant's provision of a specific address where defendant was located, the arresting officers' sighting at the address an individual matching the description provided and observation of a bulge in his waistband, and the defendant's flight and discard of the gun upon the officers' approach.
In Matter of Frankie M. ( 200 A.D.2d 479), this Court reversed the suppression of a handgun and a statement, holding that a tip provided by a group of youths that the respondent was carrying a gun was sufficient to establish reasonable suspicion warranting a stop and frisk, where the informants provided a detailed description of and pointed out the respondent to the arresting officers.
In People v. Castro ( 115 A.D.2d 433, affd 68 N.Y.2d 850), we affirmed the admissibility of physical evidence seized pursuant to a tip given to the arresting officer by an individual whom the officer had just arrested. The informant indicated, among other things, that a Hispanic man with a gun was standing across the street with two black men. The officers looked across the largely empty street, saw the trio described, and walked over to investigate. After identifying themselves, the officers conducted a frisk and found a gun on the person of the Hispanic man.
In People v. Harris ( 175 A.D.2d 713, 714-715, lv denied 79 N.Y.2d 827), we affirmed the hearing court which ruled admissible physical evidence seized incident to arrest where an unidentified informant approached the arresting officer at a crime scene, described the perpetrator, his clothing, and his escape route, and the officer, following the escape route, encountered and arrested an individual who was attempting to hide from him and matched the description, which included a bloodstained shirt.
These authorities are inapposite to this case, where there was only a minimal description of the gunman, no corroboration by the officers of the gunman's description as provided by the informant, and no additional factor which served to enhance the degree of suspicion which the officers possessed ( see, People v Patterson, 165 A.D.2d 673, lv denied 76 N.Y.2d 989; People v Francis, 108 A.D.2d 322).
Concur — Murphy, P.J., Rubin and Williams, JJ.
Accepting the well-reasoned analysis of the majority, the additional factors to be considered are that it was 3:40 A.M. on a winter day and the informant had stated that the gunman was wearing a black jacket, which the appellant was wearing, both of which factors should have led to the stop and frisk that took place.