In re McC.

304 A.D.2d 68, 757 N.Y.S.2d 259, 2003 N.Y. App. Div. LEXIS 3225
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 25, 2003
StatusPublished
Cited by11 cases

This text of 304 A.D.2d 68 (In re McC.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re McC., 304 A.D.2d 68, 757 N.Y.S.2d 259, 2003 N.Y. App. Div. LEXIS 3225 (N.Y. Ct. App. 2003).

Opinion

OPINION OF THE COURT

Sullivan, J.

The issue on this appeal from appellant’s adjudication as a juvenile delinquent for having committed an act which, if committed by an adult, would have constituted criminal possession of a weapon in the third degree, is whether the police officers who pursued appellant had a reasonable suspicion of criminal activity to justify the chase during which appellant discarded the gun and magazine that are the subject of the underlying charge.

The following facts were adduced at the suppression hearing. On February 26, 2001, at approximately 10:05 p.m., Detective McSherry, Sergeant McCooey and Police Officer Finlay, assigned to anticrime patrol in an unmarked Chevrolet Blazer and traveling northbound on Valentine Avenue in the Bronx, were stopped at a red light at the intersection of Valentine Avenue and 184th Street, a high crime area. The Chevrolet Blazer was the first in line at the red light. Detective McSherry and Sergeant McCooey, both in plain clothes, sat in the front of the vehicle. Sergeant McCooey was the driver. Officer Finlay, in uniform, was a passenger in the rear of the vehicle.

While they were stopped, Detective McSherry observed three young males, one of whom was appellant, crossing the street in front of their vehicle. McSherry testified that as the trio passed in front of the Blazer, they looked inside. One of the three “did a double take” and all of them “appeared to become startled.” Although the three males stayed together, their pace quickened. When they reached the other side of the street, walking southbound on the sidewalk, appellant separated from the group and, “walk[ing] closer to the building than the other two” “made a gesture like he’s putting something down by the building, by a doorway in the building which would lead to an alley.” As the detective explained, “He made a motion with his hand which looked to me he was casting something away, putting something down.” Appellant then joined the other two young men, who were walking southbound on Valentine Avenue.

The police vehicle then made a U-turn and pulled up alongside the three boys. Detective McSherry and Officer Fin-lay rolled down their windows “to [gauge] their reaction.” [70]*70Appellant “turned, looked at [their] car, [l]ooked right at [McSherry],” “panicked” and “took off running southbound on Valentine.” The other two young men remained standing where they were.

With that, Officer Finlay exited the police vehicle and gave chase while Sergeant McCooey and Detective McSherry drove alongside appellant. After running “a couple of feet, [appellant] dropped a black metal object to the ground.” After another 10 or 15 feet, appellant threw a silver object, which appeared to be a firearm, to the ground. When appellant continued running, Detective McSherry shouted, “stop police.” Appellant stopped and “put his hands up,” whereupon McSherry exited the vehicle and apprehended him. Sergeant McCooey handed Detective McSherry a 9 millimeter silver semiautomatic handgun that he had recovered from the sidewalk within 10 feet or so of where appellant stopped. Officer Finlay gave McSherry a black 9 millimeter magazine loaded with 22 rounds and two loose rounds. One of the officers checked the alleyway where appellant had earlier stopped, but found nothing.

After reviewing written summations, Family Court denied suppression, crediting the testimony of the testifying police officers and finding that their actions justified a founded suspicion of possible criminal activity that gave rise to a right of inquiry. Before such right could be exercised, the court held, the officers’ suspicion was heightened by appellant’s flight, thus justifying their pursuit, which led to the recovery of the gun, magazine and bullets. After a fact-finding hearing, Family Court found that appellant had committed the act of criminal possession of a weapon in the third degree and adjudicated him a juvenile delinquent, placing him on probation for a period of 12 months. Appellant appeals, limiting his contentions to the suppression issue. We affirm.

In People v De Bour (40 NY2d 210, 223 [1976]), the Court of Appeals set forth “a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity” (People v Hollman, 79 NY2d 181, 184 [1992]), listing the various steps of justifiable intrusion: (a) an approach to request information based on some objective credible reason, not necessarily indicative of criminality, for the interference; (b) the common-law right to inquire (short of forcible seizure), based on a founded suspicion that criminal activity is afoot; (c) a forcible stop and detention (and limited pat-down/ffisk), based on a reasonable suspicion that a particular person has committed, is committing or is about to [71]*71commit a crime; and (d) an arrest, based on probable cause to believe the person committed a crime.

It is clear that a police pursuit of a person does not constitute a seizure under the Fourth Amendment and thus any items discarded by the person being pursued during a chase are not subject to suppression as the fruit of an illegal search (California v Hodari D., 499 US 621 [1991]). More recently, in Illinois v Wardlow (528 US 119 [2000]), the Supreme Court found that an individual’s presence next to a building in a high crime area, holding an opaque bag, together with his unprovoked flight on seeing the police, who were converging on the area as part of a drug investigation, did, in fact, furnish a reasonable suspicion that crime was afoot and therefore provided justification to chase him. In so finding, the Court recognized that “[hjeadlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such” (id. at 124). Further, the Court held, “the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior” (id. at 125). While the Court recognized that a refusal to cooperate alone does not justify a detention or seizure, it noted that “unprovoked flight is simply not a mere refusal to cooperate”; rather, it is the antithesis of “going about one’s business” (id.).

New York, however, continues to follow the rule set forth in People v Howard (50 NY2d 583, 592 [1980], cert denied 449 US 1023 [1980]) that a police pursuit constitutes a “limited detention” that requires reasonable suspicion as justification therefor (People v Holmes, 181 AD2d 27 [1992], affd 81 NY2d 1056 [1993]). As the Court of Appeals emphasized in Holmes, “Flight alone * * * or even in conjunction with equivocal circumstances that might justify a police request for information [citations omitted], is insufficient to justify pursuit because an individual has a right ‘to be let alone’ and refuse to respond to police inquiry [citation omitted]” (id. at 1058). The Court did, however, hold that “[f]light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” (id.).

In People v Martinez (80 NY2d 444 [1992]), the Court of Appeals specifically addressed “the factual basis necessary to justify police officers’ pursuit and detention of a fleeing individual” (id. at 445-446). The Court stated that “the police may pursue a fleeing defendant if they have a reasonable suspicion [72]

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Bluebook (online)
304 A.D.2d 68, 757 N.Y.S.2d 259, 2003 N.Y. App. Div. LEXIS 3225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcc-nyappdiv-2003.