Published on:

Court Decides Fourth Amendment Issue


On February 26, 2001, Detective McSherry, Sergeant MC and Police Officer F., assigned to anticrime patrol in an unmarked Chevrolet Blazer and traveling northbound on Valentine Avenue in 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 MS and Sergeant MC, both in plain clothes, sat in the front of the vehicle. Sergeant MC was the driver. Officer F., in uniform, was a passenger in the rear of the vehicle.

A New York Criminal Lawyer said that, while they were stopped, Detective MS observed three young males, one of whom was appellant, crossing the street in front of their vehicle. MS 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, “walking 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 MS and Officer F. rolled down their windows “to gauge their reaction.” Appellant “turned, looked at their car, looked right at MS,” “panicked” and “took off running southbound on Valentine.” The other two young men remained standing where they were.

With that, Officer F exited the police vehicle and gave chase while Sergeant MC and Detective MS 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 MS shouted, “stop police.” Appellant stopped and “put his hands up,” whereupon MS exited the vehicle and apprehended him. Sergeant MC handed Detective MS a 9 millimeter silver semiautomatic handgun that he had recovered from the sidewalk within 10 feet or so of where appellant stopped. Officer F. gave MS 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.

A Brooklyn Criminal Lawyer said that, 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. A Bronx Criminal Lawyer said that, 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.

The issue in this case 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 Court in deciding the case cited People v De Bour, 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”, 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/frisk), based on a reasonable suspicion that a particular person has committed, is committing or is about to commit 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. More recently, in Illinois v Wardlow (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 crime investigation, did, in fact, furnish a reasonable suspicion that drug crime was afoot and therefore provided justification to chase him. In so finding, the Court recognized that headlong flight wherever it occurs is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.

Further, the Court held, “the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior”. 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”.

Here, when appellant first noticed the police officers on patrol in a high crime area, he appeared startled; thereafter, his pace quickened and he separated himself from his companions to walk over to a building near an alley where he made a motion with his hand as if he were discarding something. When the police vehicle pulled alongside appellant, who had rejoined his companions, he looked at the officers, panicked and fled, leaving his companions behind.

Appellant’s initial conduct, in acting startled upon observing the police officers, the quickened pace and subsequent separation from his companions, apparently to discard something, gave rise to more than a mere objective credible reason to request information. It afforded a founded suspicion that criminal activity was afoot, giving rise to the common-law right of inquiry.

Appellant’s subsequent flight on the officers’ approach and the additional suspicion it engendered gave rise to reasonable suspicion and justified the officers’ pursuit of appellant and their stop and detention of him.

Thus, the recovery of the gun and magazine and bullets discarded during the police pursuit of appellant were not the product of an illegal seizure and were properly received as evidence against him.

Accordingly, the order of disposition of the Family Court, Bronx County, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crime of criminal possession of a weapon in the third degree, and placed him on probation for a period of 12 months, is affirmed.

Police pursuit of a person does not constitute a seizure. If you are involved in this kind of situation, or have been charged with theft, drug possession or sex crimes, you need to seek the advice of a Bronx Criminal Attorney in order to know the legal remedies available for your case. Bronx Drug Crime Attorney at Stephen Bilkis and Associates can help you. Call us, for free legal advice.

Contact Information