New York Criminal Attorney Blog
Earlier this month, a state appellate court issued an opinion in a New York firearms case, reversing the lower court’s decision to grant the defendant’s motion to suppress. The case required the court to determine whether the police officers’ actions leading to the defendant’s tossing of the gun were justified.
The Facts of the Case
According to the appellate court’s recitation of the fact, police officers received a call describing a group of men, two of whom had “guns out.” The 911 caller told the dispatcher one of the men had on a tan-and-black coat, and another a black coat.
Officers responded to the scene to find two groups of men walking in opposite directions. One officer stopped a man in a tan-and-black coat, searched him, and found nothing. Officers then located the defendant, who was wearing a black coat. One officer followed the defendant, relaying his location over police radio.
Another officer heard the call, flipped on his emergency lights, and went looking for the defendant. Upon seeing the officer, the defendant began running down a nearby driveway. The officer watched as the defendant tossed an item over a fence. Officers caught up with the defendant, and later found a gun over the fence. Prosecutors charged the defendant with possession of a loaded gun.
In a pre-trial motion to suppress, the defendant argued that police officers illegally seized him by pursuing him with emergency lights engaged. Specifically, the defendant claimed that the officers lacked probable cause or reasonable suspicion to pursue him which is considered a seizure under New York Law. The trial court granted the defendant’s motion, and the prosecution appealed.
On appeal, the court rejected the defendant’s claim, reversing the lower court’s decision. The court explained that, although the arresting officer had his emergency lights on, at no point did he “engage in any particularized act toward defendant or restrict his freedom of movement.” The court then went on to explain that the officer was justified in responding to the scene with his emergency lights on, and, at the point when the defendant threw the gun, he had not been seized.
As we have discussed, the Debour case, which governs street encounters between the police and civilians, sets forth 4 different levels of intrusion each one requiring its own level of suspicion. In this case, although the trial judge ruled that the pursuit of the defendant required reasonable suspicion the appellate court ruled that the police conduct did not amount to a pursuit but rather an observation for which the police do not need reasonable suspicion.
Thus, the court held that by throwing the weapon, the defendant effectively abandoned any privacy right he had in the gun, meaning there was no reason to suppress it. In short, the defendant’s decision to throw the gun was not based on any illegal police conduct.
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