Detectives were on patrol in an unmarked vehicle in Jamaica when they observed the Defendant and another man walking down the street. The detectives observed the defendant make “constant adjustments to his waistband” just before stopping him. Pp. 2. The police stopped, identified themselves and the defendant took off running. While fleeing, the defendant threw a gun onto the street. The Appellate Division noted that the police articulation of what occurred did “not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight from the police.” Pp. 2 (citations omitted). The defendant was charged, indicted and later convicted of criminal possession of a weapon in the second and third degree. As is often the case, an omnibus motion was filed and the suppression of the firearm was denied by the Supreme Court.
Law: “In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed” (People v. Holmes, 81 NY2d 1056, 1058). Pp. 2 “Reasonable suspicion has been defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand.” Pp. 2 (citing People v. Martinez, 80 NY2d 444, 448 (internal quotation marks and brackets omitted)). “A suspect’s [f]light alone…even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” People v. Holmes, 81 NY2d at 1058 (citations omitted); see People v. Sierra, 83 NY2d 928, 929; People v. Carmichael, 92 AD3d 687, 688). However, flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit (People v. Holmes, 81 NY2d at 1058; see People v. Sierra, 83 NY2d at 929-930; see also People v. Martinez, 80 NY2d at 447).
Here, as stated above, there were not any specific circumstances indicative of criminal activity that would allow the police to pursue the defendant. New York follows the seminal case of DeBour which set out four specific levels of police inquiry. Here, “[a]t most, the police had only a common-law right to inquire under the second level of DeBour. The defendant had a right to refuse to respond to the police inquiry (see People v. Stevenson, 7 AD3d at 821), and his flight when the officers approached him did not, under the circumstances of this case, create a reasonable suspicion of criminal activity.(see People v. May, 81 NY2d 725, 728; cf. People v. Martinez, 80 NY2d at 448).” Pp. 3 (internal citations preserved).
In sum, the Appellate Division holds that, because the officers lacked reasonable suspicion to pursue the defendant, the chase was unlawful and the disposal was a product (fruit of the poisonous tree) of the illegality. The Appellate Division dismisses the indictment.
The case is People v. Clermont, available here (NY Law Journal)