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Concededly, no description was furnished with that radio message

This is an Appeal by defendant from a judgment of the Supreme Court convicting him of attempted criminal possession of a weapon in the third degree, upon his guilty plea, and imposing sentence. The appeal brings up for review the denial of defendant’s motion, to suppress physical evidence and an incriminating statement.

A Queens County Criminal attorney said that in On May 1981, a police officer received a radio run of a “burglary in progress possible man with a gun” Upon reaching that address in his marked patrol car, he observed defendant in the driveway, gesturing with his hands and arguing with a man on the stoop about 10 feet away. According to the officer, the defendant appeared a little “restricted” and “self-conscious in his motioning”. The officer stepped between the two men and asked them to quiet down. Defendant brushed into the officer, and the officer pushed him back.

Thereupon, the officer patted the defendant down, because he was allegedly concerned with his physical safety. In his direct testimony, the officer testified that during the pat down, he felt the shape of a gun, but on cross-examination he testified that he only felt the shape of a holster. He then unzippered defendant’s jacket, and saw an empty shoulder holster. He removed the holster, placed the defendant against the wall under the guard of another police officer and proceeded to search the area.

In the nearby shrubbery he found a gun. He thereupon placed defendant under arrest for possession of a gun and transported him to the precinct, where, shortly thereafter, defendant gave an incriminating statement after receiving and waiving his Miranda rights.

The defendant called his girlfriend’s sister as a witness in his behalf. She testified that she was conversing with defendant in front of her house, when a patrol car pulled up. One of the officers told defendant “to go to the side and stay over there”. The officer then patted defendant down, opened his coat, turned him around, and removed the coat. She saw that defendant was wearing an empty shoulder holster. The officer directed his brother officers, who were also on the scene, to “look for the gun”. Several minutes later, an officer came from the side of the bushes, with a gun in his hand. He told defendant “if this fits, you’re arrested”. The officer put the gun into defendant’s holster and “that was it”.

It is beyond cavil that a police officer who possesses a reasonable suspicion that a particular person has committed, is committing, or is about to commit, a felony or misdemeanor, may forcibly stop and detain that person temporarily for questioning. As a corollary to the police officer’s right to temporarily detain for questioning, the officer may conduct a frisk of the person if he reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed. Reasonable suspicion that a violation of law has been or is about to be committed “must be more than subjective; it should have at least some demonstrable roots. Mere ‘hunch’ or ‘gut reaction’ will not do”.

Even viewing the evidence adduced at the suppression hearing in the light most favorable to the People, it is clear that the officer herein did not possess the requisite predicate to forcibly detain and frisk the criminal defendant. The officer received a radio run concerning a burglary and a man with a gun. Concededly, no description was furnished with that radio message. Upon the officer’s arrival at the scene of the alleged burglary several minutes later, defendant was found standing in the driveway of the subject premises arguing with a man on the stoop, which was unlikely behavior for a burglar. The officer did not conduct any preliminary questioning of defendant, or the man on the stoop, but instead, forcibly detained and frisked defendant based on the vague assertion that defendant appeared somewhat restricted and self-conscious in his hand movements and the fact that defendant brushed into him while arguing with the man on the stoop. Under these circumstances, the frisk was improper, and the evidence seized as a result thereof, i.e., the holster, must be suppressed. Moreover, since the holster, which should have been suppressed, was the only item of evidence connecting defendant to the gun, it follows that the police did not have probable cause to arrest defendant for possession of a gun, and the defendant’s subsequent statement to the police must also be suppressed as the fruit of the poisonous tree.

However, that part of the defendant’s motion to suppress the gun found by the police during the search of some bushes was properly denied since defendant did not demonstrate any expectation of privacy in that area, and the discovery of the gun was not the direct fruit of unlawful police activity.

Accordingly, the matter is remitted to Criminal Term so that the People may have the opportunity of establishing defendant’s guilt of criminal possession of a weapon by evidence other than, and independent of, the holster and statement which we have ordered suppressed.

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