Opinion
Indictment No. 70741-20
08-06-2024
People of the State of New York, v. Marlon Quimbaya, Defendants.
People: Assistant District Attorney Felix De Jesus (Kings County District Attorney's Office). Defense Attorney: Craig Newman, Esq. (18B).
Unpublished Opinion
People: Assistant District Attorney Felix De Jesus (Kings County District Attorney's Office).
Defense Attorney: Craig Newman, Esq. (18B).
RAYMOND L. RODRIGUEZ, J.
Defendant Marlon Quimbaya is charged with Criminal Possession of a Weapon in the Second Degree, and other related charges listed in the indictment.
On March 25, and May 1, 2024, this Court conducted Dunaway and Mapp hearings (Dunaway v. New York, 442 U.S. 200 [1979]; Mapp v. Ohio, 367 U.S. 643 [1961]). The Dunaway hearing pertained to defendants' apprehension, and arrest for the aforementioned charges. The Mapp hearing pertained to a firearm recovered during a police chase of defendant.
The People called two witnesses at the hearing, Detective Nicki Canady (hereinafter "Detective Canady") and Detective Rochael Vasquez (hereinafter "Detective Vasquez"), of the New York Police Department (hereinafter "NYPD").
Defendant did not call any witnesses. Based on the testimony of the witnesses and the evidence presented, the Court makes the following Findings of Fact and Conclusions of Law.
I. Findings of Fact
A. Testimony of Detective Nicki Canady
Detective Canady has worked for the NYPD for approximately eight years. She is currently assigned to the NYPD Intelligence Bureau as a detective, where she has been assigned for approximately three years. Before joining the NYPD, Detective Canady spent four years with the United States Marine Corps. Her first assignment with the NYPD was with the 81st Precinct followed by an assignment with the Brooklyn North Anticrime Unit. In September of 2020, she was working as a public safety officer. At that time her responsibilities included combating violent crimes in the confines of Brooklyn North, which constituted ten police precincts throughout the Bed-Stuy, Williamsburg, Downtown Brooklyn, and East New York neighborhoods. Prior to September 5, 2020, Detective Canady was involved in approximately thirty arrests regarding unlawful weapons possession. The Court finds her testimony to be credible and reliable.
On cross examination Detective Canady clarified that she was assigned to the Brooklyn North Auto Larceny Unit in September 2020, where her primary focus was to combat violent crimes and drive-by shootings and get guns off the streets.
On September 5, 2020, Detective Canady was working a 5:30 p.m. to 2:05 a.m. tour. She was assigned to patrol the confines of the 73rd Precinct. Her partners that night were Officer Ardolino, Detective Vasquez, and Sergeant McSherry. Detective Canady and her partners were working in uniform.
At approximately 11:20 p.m. on September 5, 2020, Detective Canady and her partners were riding in an unmarked vehicle on Livonia Avenue in Kings County. Officer Ardolino was driving, Sergeant McSherry was seated in the front passenger seat, Detective Canady was seated behind Sergeant McSherry, and Detective Vasquez was seated behind the driver. Detective Canady testified that the tinted windows on the unmarked police vehicle were rolled down and the vehicle was traveling at a slow rate of speed.
Detective Canady testified that shortly after 11:20 p.m. she observed a group of individuals walking westbound on Livonia, behaving "disorderly," being loud and yelling while walking down the street. At the time of her observation, Detective Canady was traveling eastbound on Livonia, and positioned parallel to the group, approximately fifty feet away from them. The street was lit with streetlights, as well as lights from businesses and buildings in the area. Nothing was obstructing Detective Canady's view of the group of individuals. Officer Ardolino then made a U-turn into a service road and began traveling westbound. Detective Vasquez exited the vehicle and was positioned behind the group of individuals. Detective Canady then observed an individual within the group with a heavy bulge in his sweats. Detective Canady testified that the individual with the bulge in the groin area of his pants, later identified as defendant , was wearing a gray fitted sweatsuit.
On cross examination, when asked about the lighting conditions, Detective Canady testified that there was a deli and a supermarket open at that time providing light to the street. Detective Canady conceded however that when she first observed the group of individuals they were not near the deli or supermarket and thus were away from the lighting provided from those two stores.
Detective Canady conducted an in-court identification of defendant, stating that he is the person she observed wearing the fitted grey sweatsuit with the bulge in his pants.
Detective Canady exited the vehicle and positioned herself in front of the group and began to approach the group. Detective Canady testified that she approached the group because she wanted to "investigate why they were being disorderly" as well as the bulge that she observed.
As Detective Canady was walking towards the group, she was approached by another individual in the group who stated, "you could check me" and lifted his shirt. Prior to her being approached by this individual, neither Detective Canady nor any other officer in her vicinity communicated anything to the group. Detective Canady testified that she then checked the individual, and as she was frisking him, defendant began to approach her from the right. As defendant got closer to her, Detective Canady was able to get a better look at the bulge in defendant's pants and observed what appeared to be the outline of a gun. Detective Canady, in describing the outline, testified that the barrel of the gun was facing downward, and the handle was facing towards the right. At the time of this observation, Detective Canady was approximately "two arm's length" away from defendant, the area was well lit from the surrounding businesses and buildings, and there was nothing between Detective Canady and defendant.
Detective Canady testified that prior to conducting the frisk of the other individual, she had not said anything to the group when she approached. She testified that she was in uniform, and her firearm was in the holster. After observing the bulge in defendant's pants, Detective Canady attempted to approach him, but defendant ran westbound on Livonia. Detective Canady could not recall whether she had told defendant to stop at that time. Prior to defendant running, Detective Canady had not requested anything from any of the individuals in the group.
Detective Canady testified that prior to defendant running, no officer touched defendant or displayed a firearm. Other than commanding defendant to stop, no other commands were communicated with defendant prior to his running. Detective Canady testified that she chased defendant for approximately one block. During the chase, she observed defendant reach into his sweatpants with his right hand and throw a gun onto the sidewalk. Detective Canady observed the gun land on the sidewalk and heard a sound of metal hitting concrete. Detective Canady continued to chase defendant, ultimately apprehending him on Rockaway and Riverdale, one block around the corner from where the chase began. During the chase, Detective Canady never lost sight of defendant. During the apprehension, defendant got down on the ground. Officer Ardolino assisted Detective Canady by holding defendant's hands and handcuffing him.
After defendant was apprehended, Detective Canady communicated with Detective Vasquez via police radio, directing Detective Vasquez to where she had observed defendant throw the gun on the sidewalk and asking Detective Vasquez to retrieve the gun.
Detective Canady's interactions with defendant were captured on her body-worn-camera. Detective Canady testified that she and her partners used the term "turn up" as code signifying recovery of a gun. After defendant's apprehension, Detective Canady had no further involvement with this case.
Detective Canady's body-worn camera footage was entered into evidence as People's Exhibit 1.
On cross examination Detective Canady testified that when she first observed defendant and the group, they were behaving "disorderly" in that they were yelling and screaming; however, Detective Canady was unable to recall what the group was saying. Detective Canady was unable to say whether the individuals in the group were yelling at a particular person or who specifically from the group was yelling. Detective Canady testified that she observed defendant's group for less than a minute. The vehicle she was in drove by the group at a slow rate of speed. Detective Canady testified that while there were cars parked on the side of Livonia, between Detective Canady and the group, there were gaps between the cars through which Detective Canady observed the group.
In describing the allegedly "disorderly" behavior, Detective Canady testified that the group was yelling and talking loudly down the street, but that she did not observe any physical pushing or throwing and did not observe the group smash any windows.
Detective Canady testified that she did not observe the bulge in defendant's pants during this initial observation; it was not until after her vehicle made a U-turn that she observed the bulge. After making the turn, while the police vehicle was behind the group, Officer Vasquez got out of the vehicle. The vehicle then continued past the group and stopped on the service road. There were other vehicles positioned between the police vehicle and the group. Once the vehicle was stopped, Detective Canady got out, walked around the vehicle, walked between other vehicles parked in the area and positioned herself in front of the group. It was at this point that another member of the group walked up to Detective Canady and lifted his shirt. Detective Canady then began to frisk that individual. While that individual was with Detective Canady, defendant and the rest of the group walked closer to Detective Canady, at which point Detective Canady states she observed that the bulge in defendant's pants looked like the outline of a gun. Detective Canady testified that defendant was wearing a grey sweatsuit and that the top of the sweatsuit came down over the top of defendant's sweatpants. Detective Canady testified that at this point she did not see an actual gun, just what appeared to be an outline of a gun inside defendant's grey sweatpants.
After observing the gun-shaped bulge, defendant ran, and Detective Canady chased him. Detective Canady testified again on cross examination that she never told defendant to stop and never pulled her gun out. Detective Canady testified that at this point defendant was not free to go because he was suspected of carrying a gun.
While chasing defendant, Detective Canady can be heard on the body-worn camera shouting, "stop or I will shoot". Detective Canady testified that at no point during the chase did she ever have her gun drawn. Detective Canady testified that during the chase she observed defendant remove the gun from his sweatpants and throw it. While she never stopped chasing defendant, Detective Canady testified that she turned her head when defendant threw the gun, and in that second, she observed the item that he threw to be a gun. Detective Canady testified that the gun landed in the middle of the sidewalk, and although there were other people in the area, she left the gun there and continued to chase defendant.
Detective Canady testified that defendant was not wearing a holster or a belt, that the gun that was recovered was not in a holster, and no holster was recovered. Detective Canady testified that she has no knowledge of what, if anything, happened to the other individuals that were with defendant.
Detective Canady testified that when defendant was apprehended and told to get on the ground, he complied.
B. Testimony of Detective Rochael Vasquez
Detective Vasquez has worked for the NYPD for approximately eight-and-a-half years. She has held the rank of detective for approximately a year and five months. She is currently assigned to the social media analysis research team. In September of 2020 she was assigned to Brooklyn North Auto Larceny, where her responsibilities included patrolling the confines of Brooklyn North and assisting the Brooklyn North commands in high crime areas. Prior to September 5, 2020, Detective Vasquez was involved in approximately ten arrests involving unlawful weapons possession. The Court finds her testimony to be credible and reliable.
Brooklyn North covers East New York, Brownsville, Bedford-Stuyvesant, Bushwick, Greenpoint and Williamsburg.
On September 5, 2020, Detective Vasquez was patrolling the confines of Brooklyn North. Her tour was scheduled for 5:30 p.m. to 2:05 a.m. the next morning. Her partners were Detective Canady, Officer Ardolino, and Sergeant McSherry. Detective Vasquez was dressed in uniform with her shield visible on the left side of her chest. At approximately 11:20 p.m. on September 5, 2020, Detective Vasquez was conducting patrol in the vicinity of Rockaway Avenue and Livonia Avenue in Kings County. At that time, Detective Vasquez and her partners were in an unmarked police vehicle. Officer Ardolino was driving, Sergeant McSherry was the front passenger, and Detective Canady was seated behind Sergeant McSherry. Detective Vasquez observed a group of individuals whom she described as behaving disorderly and making a lot of noise and making hand gestures. Detective Vasquez testified that amongst the group she observed one individual, dressed in a grey sweatsuit, later identified as defendant, with a large, irregular shaped object in his left groin area. Detective Vasquez testified that at that time she did not know the identity of any of the individuals in the group, including defendant. Upon making her observations, Detective Vasquez alerted the rest of her partners to the group. She and her partners then drove ahead approximately one block and made a U-turn onto the service road to drive down the road in the opposite direction. Detective Vasquez then exited the vehicle. At this time, the group of individuals was further ahead, and Detective Vasquez was eight to ten car lengths behind them. Officer Ardolino then drove the vehicle ahead of the group. Detective Vasquez observed Detective Canady exit the vehicle. Detective Vasquez testified that Detective Canady was positioned in front of the group, facing the group. Detective Vasquez then observed an individual walk towards Detective Canady and put his hands up. Detective Vasquez was positioned approximately eight to ten car lengths away from Detective Canady. When she was approximately, five to six car lengths away, Detective Vasquez then observed defendant take off running. Detective Canady began to chase defendant. Detective Vasquez observed Detective Canady and Officer Ardolino apprehend defendant about twenty seconds later. Detective Vasquez then heard Detective Canady state on the police radio that she observed defendant throw a firearm in the area where he first started running, so Detective Vasquez returned to that location and searched for the firearm. On cross examination, Detective Vasquez testified that she did not personally observe defendant throw the firearm. Within five seconds of returning to the area where defendant began to run, Detective Vasquez and Detective Walsh both observed a Keltec firearm on the ground. Detective Walsh retrieved the firearm from the ground. Defendant was placed under arrest for possession of a firearm and transported to the 73rd precinct. Detective Vasquez testified that she was equipped with body-worn camera on September 5, 2020, which recorded both her street interaction with defendant as well as her interaction with him back at the police precinct during arrest processing.
Detective Vasquez conducted an in-court identification, identifying defendant as the individual in the grey sweatsuit.
A photograph of the recovered firearm was entered into evidence as People's Exhibit 2.
An arrest photograph of defendant was entered into evidence as People's Exhibit 3.
Detective Vasquez's body worn camera footage was entered into evidence as People's Exhibit 4.
Detective Vasquez testified that Evidence Collection Team (ECT) came to the precinct and processed the gun. Detective Vasquez observed the gun loaded with thirteen rounds in the magazine and one in the chamber.
During cross examination, Detective Vasquez testified, while reviewing body-worn camera in evidence, that from the time Detective Vasquez first observed defendant to when defendant began running away from the officers, the jacket on his gray sweatsuit was zippered and closed. Detective Vasquez testified that when she first observed defendant, she was seated in the backseat of the unmarked police vehicle. Detective Canady was seated next to her, to her right. The group of individuals, including defendant, were also to Detective Vasquez's right-hand side; she described their position to be approximately "1 to 2 p.m." in relation to where she was sitting. Outside the right window Detective Vasquez testified that there were other vehicles, with a space between the vehicles through which she was able to observe defendant. Detective Vasquez testified that she had a firm view of defendant and that the police vehicle was traveling at approximately five to ten miles per hour. Detective Vasquez testified that while she was in the vehicle, she observed a heavy bulge in defendant's groin area which protruded more with each step defendant took with his left leg. Detective Vasquez testified that at that time she could not tell it was a handgun, but that with each step defendant took the bulge protruded more, and the L-shape became more visible. Detective Vasquez then testified that the L-shaped bulge appeared to be heavy, and that she believed it to be a gun. She testified that based upon the shape of the bulge, it appeared that the barrel of the gun was pointing down toward the left side of defendant's leg and the handle of the gun was towards the waistband, though the handle of the gun was always below the waistband. Detective Vasquez testified that she never observed defendant to be wearing a belt or holster and that no such item was recovered.
Detective Vasquez's testimony regarding the bulge taking on an L-shape and appearing to have the shape of a firearm is inconsistent with both the actions then taken by the officers in their interaction with defendant and his group, as well as with Detective Vasquez's statement on direct examination that it was an "irregular shaped object" in defendant's groin area. Had Detective Vasquez seen a gun shaped object on defendant's person while still in her vehicle, she would have presumably communicated such to her partners and would then have immediately seized and searched defendant.
On cross examination, Detective Vasquez testified that located near the area where the gun was recovered is a train station as well as commercial businesses that were still open at the time of the incident. When she returned to the area where the gun was recovered there were multiple people on the street. Detective Vasquez also conceded that the area where the gun was recovered was the same area where defendant had been standing, in close proximity, to the other individuals in his group.
Detective Vasquez reiterated on cross examination that when she first observed the group of individuals they were behaving "disorderly"; however, she clarified that she did not observe them physically assault or harm anyone and that although they were speaking loudly, and the windows on the police vehicle were rolled down, and the vehicle was close enough to the group that she was able to observe a bulge on defendant's pants, she was unable to make out exactly what they were saying. Detective Vasquez testified that multiple people in the group were speaking at once, creating noise, but making it difficult to hear what specifically was being said. Detective Vasquez testified that the group was not blocking strangers from getting by, was not threatening anybody, nor were they damaging any property.
Detective Vasquez testified that when she and Detective Canady first approached the group, Detective Vasquez positioned herself behind the group as a tactical measure in case enforcement was to be taken. Detective Canady approached the group from the front. Detective Vasquez stated that she did not hear Detective Canady say anything to the group and did not know what Detective Canady was planning to do when she approached the group from the front.
II. Conclusions of Law
Dunaway and Mapp hearings were conducted by the Court. Defendant was arrested for illegal possession of a firearm. Before this Court can determine the issues of probable cause to arrest defendant for this offense, the Court must first determine the legality of the initial stop and chase of defendant and the recovery of the firearm, as the arrest of defendant stems from that initial encounter.
A. Seizure of Defendant's Property
i. Standing
A Mapp hearing was conducted to determine whether evidence was unlawfully seized and should be suppressed. As a threshold matter, defendant has the initial burden to prove a legitimate expectation of privacy in the place or item searched to establish standing. Defendant is not required to testify to meet this burden and in fact, defendant may rely on the evidence presented by the People in their direct case.
People v. Rodriguez, 69 N.Y.2d 159 [1987]
People v. Gonzalez, 68 N.Y.2d 950, 1002 [1986].
The Court finds that defendant has standing to contest the recovery of the firearm that the People are alleging he discarded during a police chase.
ii. De Bour Analysis
In a Mapp hearing, the People have the initial burden of going forward with credible evidence tending to show the legality of the police conduct which led to the recovery of the property. In determining the admissibility of evidence seized from a defendant, the Court must consider the full extent of the conduct between the police officer and defendant during the time in which the evidence was seized. Here, the Court must first determine the propriety of the conduct between the officers and defendant during their initial contact on Livonia Avenue. This consideration is one that focuses on both fact and law. In People v. De Bour, 40 N.Y.2d 210 [1976], the Court of Appeals outlined the procedure in which Courts must consider the lawfulness of police-citizen encounters. The Court of Appeals established four levels of street encounters between police officers and citizens. Each level articulates the necessary circumstances to justify specific officer authority and action.
People v. Berrios, 28 N.Y.2d 361 [1971].
The first level is predicated on an objectively credible reason not indicative of criminality. Under level one, the encounter between the officer and the citizen must be brief and non-threatening. There should be no indication of harassment or intimidation by the officer. The interaction cannot cause the citizen to reasonably believe that they are suspected of a crime, no matter how calm and polite the officer's tone may be. Any request for information must be supported by an objective credible reason, not necessarily indicative of criminality.
People v. Hollman, 79 N.Y.2d 181 [1992].
Id.
Id.
Id.
Level two is the common law right of inquiry that is predicated on a founded suspicion of criminality. This level authorizes the officer to ask pointed questions that would reasonably lead a person to believe that he/she is suspected of a crime. At this level, the officer can request permission to search. Questions can be more extended and accusatory and focus on possible criminality.
Hollman at 185
Id. at 181.
Id.
Level three is predicated on a reasonable suspicion of criminal activity, permitting an officer to stop and frisk the individual if the officer is fearful of a weapon (Terry v. Ohio, 392 U.S. 1 [1968]). An officer has reasonable suspicion if there is a "quantum of knowledge sufficient to induce an ordinary prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v. Cantor, 36 N.Y.2d 106, 112-13 [1975]). In order to justify the intrusion, "the officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice."
See also People v. Dantzler, 208 A.D.3d 590, 591 [2022]; People v. Bowers, 148 A.D.3d 1043 [2017].
Cantor at 113.
Level four is predicated on probable cause that a crime has been, is being, or is going to be committed. Under level four, the officer has the authority to arrest the individual and conduct a full search incident to a lawful arrest.
De Bour at 223.
The testimony in this case established only an objective credible reason to approach defendant to request information. Specifically, Detective Canady and Detective Vasquez both testified that on September 5, 2020, at approximately 11:20 p.m., they, along with their other partners, while riding in an unmarked vehicle, observed a group of individuals behaving "disorderly," in that they were loud and yelling while walking down the street. The detectives each stated defendant was amongst the group and was dressed in a grey sweatsuit. They testified that they both observed a heavy bulge in the groin area of defendant's pants. Although Detective Vasquez testified, on cross examination, that she observed the bulge in defendant's pants to take on the appearance of an "L" with every step he took, this testimony is inconsistent with the rest of her testimony. On direct examination Detective Vasquez testified only that before exiting the vehicle she observed defendant to have an irregular shaped object in his groin area that protruded with each step. On cross-examination, she testified that she observed a bulge in defendant's groin area but that she could not, at that time, tell that the item was a gun. Still, at another point in the cross-examination, Detective Vasquez testified that the bulge in defendant's groin area protruded with each step, taking on an L-shape. Upon even further questioning on cross-examination, Detective Vasquez testified that the bulge appeared to have an L-shape and be heavy, and that at the time she believed it to be a gun, in direct contrast to what she had testified to moments before. Notably, at no point prior to exiting the vehicle does Detective Vasquez inform her partners that she observed a gun shaped bulge in defendant's pants. Furthermore, the actions taken by Detectives Canady and Vasquez are inconsistent with Detective Vasquez's testimony that she observed a gun shaped bulge on defendant, for presumably, had she seen such a bulge the detectives would have approached defendant directly and physically detained and frisked him. Also of note, the People, in their argument do not claim that the detectives had seen an L-shaped bulge prior to approaching the group or that they had reasonable suspicion at the time of the approach. Specifically, the People stated, "both Detective Canady and Detective Vasquez testified that when they looked over they also observed a bulge both the officers were able to approach the group under level one". The People went on to clarify, "[Detective Candy] was approached by this one individual who lifted up his shirt and asked to be searched. And as she was doing that, that's when she observed the L-shaped object in the defendant's groin area of his gray sweatsuit". Thus, the People's own argument does not rely on Detective Vasquez's statement that she observed, from the police vehicle, a bulge in defendant's pants that took on more of an L-shape with every step defendant took. Thus, the Court cannot rely on this portion of Detective Vasquez's testimony, elicited during cross-examination, and instead relies on the testimony she provided during direct-examination (that she observed an irregular shaped object), which is consistent with both Detective Canady's testimony and the actions taken by both detectives.
May 1, 2024 tr at 82, lines 14-22.
Id. at 84, lines 21-25.
Detective Vasquez testified that she exited the vehicle and positioned herself behind the group, approximately eight to ten car lengths away. The police vehicle, being driven by Officer Ardolino, then drove up ahead of the group at which point Detective Canady exited the vehicle and began to approach the group from the front so that she could investigating why the group was being disorderly as well as the bulge in defendant's pants. As Detective Canady approached, a member of the group walked up to her with his shirt lifted, and stated, "you can check me." While Detective Canady frisked that individual, defendant walked closer, and Detective Canady observed the bulge in his pants to have the appearance of the outline of a gun. Detective Canady then approached defendant who began to run, and while running, reached into his sweatpants and threw a gun onto the ground.
The detectives' observations of a group being loud and yelling, late at night, with one member of the group having an unidentifiable bulge in his pants, rises to level one under the De Bour framework detailed above. The detectives had an objectively credible reason to approach and request information. Under this level however, the detectives could not forcibly stop or detain any member of the group.
See People v. Holmes, 81 N.Y.2d 1056 [1993] [internal citations omitted] ("While the police may have had an objective credible reason to approach defendant to request information-having observed him in a 'known narcotics location' with an unidentified bulge in the pocket of his jacket-those circumstances, taken together with defendant's flight, could not justify the significantly greater intrusion of police pursuit. Defendant was merely observed in the daytime, talking with a group of men on a New York City street. Given the unfortunate reality of crime in today's society, many areas of New York City, at one time or another, have probably been described by the police as 'high crime neighborhoods' or 'narcotics-prone locations.' Moreover, a bulging jacket pocket is hardly indicative of criminality. As we have recognized, a pocket bulge, unlike a waistband bulge, 'could be caused by any number of innocuous objects'").
Detective Canady began chasing defendant after she got close enough to notice that the bulge in his pants looked like a firearm. While the observation of a bulge in the shape of a firearm would give rise to a level-three detention, pursuit, or frisk under the De Bour framework , the question then is whether Detectives' Canady and Vasquez's initial approach was lawful or whether the circumstances surrounding the initial approach constituted a detention.
See People v. Hewitt, 247 A.D.2d 552 [1998].
Detective Canady testified that as she approached, neither she nor any other officer made physical contact with defendant, issued any verbal commands, or displayed a firearm. However, while the detectives may not have physically detained defendant, this Court must consider whether the detectives' conduct, given the totality of the circumstances, was a constructive detention. "Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment. This is true whether a person submits to the authority of the badge or whether he succumbs to force."
People v. Cantor, 36 N.Y.2d 106, 111 [1975] [internal citations omitted].
In determining whether a seizure has occurred during a street encounter between police and a citizen, New York courts apply a "reasonable person" test; "The test is whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom." This determination involves considering all the facts and weighing their individual significance, including, "was the officer's gun drawn, was the individual prevented from moving, how many verbal commands were given, what was the content and tone of the commands, how many officers were involved and where the encounter took place."
People v. Bora, 83 N.Y.2d 531, 535 [1994].
Id. at 535-36.
Here, upon observing the group, Detective Vasquez positioned herself behind the group. Detective Canady, who notably previously spent four years with the United States Marine Corps, positioned herself in front of the group, and began to approach, with Detective Vasquez approaching from the rear. Both detectives were dressed in uniform. The Court finds that this military-esq pincer movement constitutes a constructive detention, as a reasonable person in that position would have found the detectives' conduct a significant limitation on their freedom.
Detective Vasquez testified that she positioned herself behind the group "for tactical reasons in case any enforcement was to be made on the group and anyone did then attempt to flee from the enforcement" that she would be able to apprehend the person. Detective Vasquez further testified that she was positioned behind the group so that if enforcement was to be taken, she would be at an advantage. Although Detective Vasquez testified that the group, including defendant, were not being stopped and that her positioning was a precautionary measure, approaching defendant from both sides to stop him from potentially fleeing fails the reasonable person test and thus constitutes a detention.
May 1, 2024, hearing tr. at 8, lines 24-25.
Although "[a]n officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous," the main question is whether "the protective measures taken by the officer were reasonable under the circumstances." An officers right to take protective action derives from his reasonable belief, based upon the totality of the circumstances, that a suspect is armed and dangerous. Here, there was no evidence that at the time of the detectives' approach there was a reasonable belief that defendant or any other member of the group was armed or dangerous. Both detectives testified only that the group was loud, and that defendant appeared to have an undefinable bulge in his groin. This is not enough to form a reasonable belief that defendant was armed.
People v. Finlayson, 76 A.D.2d 670, 678-79 [1980].
Id. at 680.
To detain defendant the officers must have had a reasonable suspicion that he had committed, was committing, or was about to commit a felony or misdemeanor. Nothing in the hearing testimony suggests that prior to approaching the group, the detectives observed any evidence of criminality. The detectives testified that the group was being "disorderly," however, they went on to explain that the group was loud and yelling; they were not making or attempting to make any physical contact with each other or anyone else, not exhibiting any threatening behavior, and not damaging or attempting to damage any property. Lacking from the detectives' testimony is any indication that there was a concern for public safety arising from the group's allegedly disorderly behavior, or any annoyance or alarm caused to any person. Their behavior did not rise to the level of criminality or even rise to the level of a summonable offense. The officers did not have reasonable suspicion to stop and detain defendant.
DeBour at 223.
The question now becomes whether the firearm recovered must be suppressed due to the unlawful police stop or whether the abandonment of the firearm was sufficiently attenuated. The New York Court of Appeals has held "that if the evidence is discovered as a direct consequence of the unlawful police conduct, then it must be suppressed. The test to be applied is whether defendant's action was spontaneous and precipitated by the illegality or whether it was a calculated act not provoked by the unlawful police activity and thus attenuated from it." The Court here finds that defendant's abandonment of the firearm was not sufficiently attenuated from the unlawful police stop. The evidence in the record shows that defendant, upon finding himself unlawfully caged in by the two detectives, and subsequently chased by Detective Canady, reacted spontaneously, when he discarded the firearm while fleeing. Defendant's abandonment was a direct consequence of the improper police detention.
People v. Wilkerson, 64 N.Y.2d 749, 750 [1984] [internal citations omitted].
See People v. Nunez, 111 A.D.3d 854, 856 [2013] [internal citations omitted], ("Here, there were no specific circumstances indicating that the defendant might be engaged in criminal activity At most, the circumstances provided an objective reason, not necessarily indicative of any criminality, justifying a level one request for information. Therefore, the defendant's flight did not justify the detective's pursuit. The defendant's action of throwing a small object during the chase was precipitated by the unlawful pursuit and not attenuated from it, and thus, that evidence was properly suppressed."
Because the detective's constructive detention of defendant was unlawful, the fruits of that detention, including defendant's subsequent flight and abandonment of a firearm, must be suppressed.
B. Probable Cause for Arrest of Defendant
While a defendant has the ultimate burden of proving the illegality of police conduct, the People have the initial burden to introduce evidence that credibly establishes either a lawful rationale for the conduct of the police, or some other basis for averting suppression. (People v. Berrios, 28 N.Y.2d 361, 367 [1971]). Additionally, the People have the burden to establish that the police had probable cause to arrest defendant (People v. Wise, 46 N.Y.2d 321[1978]). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to believe that a defendant has committed an offense (People v. Oqden, 36 N.Y.2d 382 [1975]).
Based upon the analysis above, the initial approach and stop of defendant, which led defendant to flee and abandon a firearm, was unlawful. Thus, there was no probable cause to arrest defendant, as the arrest was based on property recovered due to unlawful police conduct.
Defendant's motion to suppress the firearm is granted in its entirety. This constitutes the Opinion, Decision, and Order of this Court.