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Minimal descriptions were provided of two persons

A New York Criminal Lawyer said that, in the early morning hours of December 1, 1990, two police officers received a radio report, based on anonymously provided information, that there had been a fight at 1411 Grand Concourse and that one of those present at the site of the altercation had a knife. Minimal descriptions were provided of two persons: one of them reportedly wore a red jacket and the other a dark jacket with a white stripe.

A New York Criminal Possession of a Weapon Lawyer said that, shortly after arriving at 1411 Grand Concourse, the responding officers were called to the aid of another officer at a different location. Upon their return a few minutes later to the scene of the incident described in the radio run, the officers observed three men none of whom wore items of clothing remotely resembling those mentioned over the radio. No one was seen with a knife and there was no sign of any disturbance. Nevertheless, the officers approached the men and, as they did so, one of the men, the defendant, ran away. The officers pursued him on foot and were assisted by several police cars. Less than a minute after the initiation of the chase, the defendant discarded a gun. Seconds later he was apprehended and eventually charged with criminal possession of a weapon in the third degree.

A New York Gun Crime Lawyer said that, ruling upon the defendant’s ensuing motion to suppress the gun, the motion court held that the police action had not been justified since the officers had, at most, a predicate for inquiry, one insufficient to sustain the significantly greater intrusion constituted by the officers’ pursuit of the defendant. The court also found that the defendant’s discard of the gun some thirty seconds into the chase had been a spontaneous reaction to the illegal police conduct. The suppression motion was accordingly granted.

The issue in this case is whether the court erred in granting defendant’s motion to suppress the evidence against him.

There can be no doubt that the motion court’s determination to suppress was compelled by clear and well-established law governing police-citizen encounters. It is undisputed that upon arriving at the scene of the anonymously reported incident, the police observed nothing indicative of criminal activity, much less of the particular activity or persons described to them over the radio. As they approached the defendant, then, the police had absolutely no reason to believe that he or the other men with whom he was standing had been involved in the commission of any gun crime. Under the circumstances, the officers’ decision to pursue the defendant can have been based upon nothing more than the fact that he apparently chose to avoid them. The defendant, however, like any other citizen, “had a right to refuse to respond to police inquiry and his flight when the officers approached could not, in and of it, create a reasonable suspicion of criminal activity”. This being the case, it is clear beyond peradventure that there existed no predicate for the pursuit of the defendant.

Police pursuit, of course, constitutes a significant interference with the pursued person’s freedom of movement akin to that occurring in the case of a detentive stop and, accordingly, is only permitted upon such grounds as would render a detentive stop legal. Those grounds should, at least in theory, hardly be a matter for judicial debate, for it has long been established both as a matter of constitutional and statutory law that no one may be subjected to a detentive stop unless there exist at a minimum circumstances which would in an ordinarily cautious person justify a reasonable suspicion that the person to be detained had committed, was committing, or was about to commit a, circumstances which in the present case were simply not present. As noted, apart from the defendant’s flight, the police had not the slightest indication that he had committed any illegal act, and as the Court of Appeals has so recently reaffirmed, flight alone cannot, as a matter of law, constitute a sufficient basis for a detentive stop or for the functionally equivalent intrusion constituted by pursuit.

Contrary to what the court understands to be the relevant contention of the dissent, the very lately reiterated law governing this case is not at all unclear, and when that law is applied to the facts as found by the motion court, the result we now affirm could not be more obviously required. It is a result which, it may be noted, would follow even under the “broader principles” articulated to which the dissent urges that we “return.” For those broad principles require both that police action be justified at its inception and that the action be “reasonably related in scope to the circumstances which rendered its initiation permissible”. Regardless of whether the police action here at issue was justified at its inception, it is plain that the subsequent pursuit of the defendant was not reasonably related in scope to the circumstances upon which it was premised. The police had, at most, some basis to approach the defendant for information; they had no reason to suspect him of criminal involvement and, accordingly, no basis to pursue or detain him.

Obviously, the broad principles of De Bour do not stand for the proposition apparently embraced by the dissent that whenever police officers may approach a person they may pursue him or her simply because their inquiry is avoided. Rather, what De Bour stands for in its general and, indeed, specific, sense is that police action must be justified from its inception, and at any subsequent juncture, by a sufficient factual predicate, even when the police conduct involved does not amount to a seizure within the meaning of the Fourth Amendment. Indeed, as should have been evident from the decision itself and, in any case, has since been made explicit, the principle concern in De Bour was to assure that all phases of police-citizen encounters would be subject to judicial scrutiny, not just those involving the extreme limitation of personal freedom occurring in the case of a formal seizure. It has not yet been a year since the Court of Appeals unanimously reaffirmed De Bour, observing in the course of doing so that the decision “reflected our judgment that encounters that fall short of Fourth Amendment seizures still implicate the privacy interests of all citizens and that the spirit underlying those words required the adoption of a State common-law method to protect the individual from arbitrary or intimidating police conduct”. Unfortunately, De Bour’s central and recently reiterated concern that individual privacy not be unduly compromised by official overreaching at any point in police-civilian encounters, even at the most preliminary informational stage, simply cannot be reconciled with the approach advocated by the dissenter. The dissenter states that “where an officer has a justifiable, and thereby I mean articulable and credible, reason for approaching a civilian, to request information, investigate the report of a crime or investigate suspicious behavior, the civilian’s flight in the face of a nonthreatening approach by a police officer is the escalating factor which justifies the officer’s pursuit.” This is not at all different from saying that when an officer may for whatever reason approach a person he may also pursue and detain that person. This does not represent a “return” to the “general principles” of De Bour but a completely new and conflicting rule, the proposal of which must from a jurisprudential perspective be regarded as remarkable, coming as it does within months of the Court of Appeals re-affirmance of De Bour and virtually on the heels of the Court of Appeals restatement in the clearest possible terms that nothing less than a founded suspicion of a person’s involvement in criminal activity will justify police pursuit.

The suggestion that longstanding and recently unanimously reaffirmed law be rejected is not simply extraordinary from a precedential standpoint, but profoundly troublesome from a legal one, since the proposed new rule is, to say the least, of doubtful constitutional validity. The dissenter’s notion that the police may pursue and seize whomever they may approach, would necessarily validate seizures in situations such as the one at bar in which although there is perhaps some basis for inquiry, there exists no reason to suspect a particular person of crime, indeed, in which it has not even been reliably ascertained that any crime has been committed. To permit the seizure of a person, simply because that person asserts his or her undoubted right to be left alone is not merely violative of this state’s common law, but its statutes, its constitution, and, indeed, the Federal Constitution. Under all of these authorities the absolute minimum predicate required to support the seizure of a civilian is a reasonable suspicion that the person to be seized has committed or is about to commit a crime; it is not, as the dissenter would hold, invariably sufficient that police inquiry however legitimate has been avoided.

In light of the most recent explication of these precedents, there can no longer be any doubt as to their continued vitality or precise significance; nor there be any excuse for failing at least to attempt to apply them in a consistent and evenhanded way, especially where, as here, the result they require is unmistakably clear. Far from promoting consistency, the result and consequent holding urged by the dissent would only give new life to precisely the sort of vagaries responsible for the inconsistency it finds so troubling. Contrary to the impression the dissent would convey, it is not because courts have been too assiduous in their analysis of police-civilian encounters that cases in the subject area of the law have grown difficult to reconcile, but rather because the analysis which the law has required has been occasionally eschewed in favor of the sort of appeal made by the dissent to amorphous and ultimately highly subjective notions of what would be reasonable police conduct under given circumstances. Doubtless, from the standpoint of effective law enforcement, the frustration of legitimate police inquiry will always seem unreasonable and, to use the dissent’s adjective, impractical. From the standpoint of the interests lying at the heart of the Fourth and Fifth Amendments, however, limitations upon the power of the state through its police to pursue even appropriate inquiry are not only reasonable but necessary. The very basic right of an individual to remain free of governmental intrusion and coercion would amount to very little if the police were permitted to stop, detain and question someone simply because they had some justifiable desire for additional information. What the dissent quite evidently fails to appreciate is that there is a fundamental difference between the right of an officer to inquire and the right of an officer to pursue and seize. The former may be premised on what the officer under the circumstances may legitimately seek to know, while the latter must be premised upon what the officer does know, namely that there are reasons to suspect a particular individual of criminal involvement. Although an officer is entitled to inquire, he is not in our system of justice entitled to a response and may not pursue or seize a person simply because a response to his inquiry has not been forthcoming.

Accordingly the order of the Supreme Court, Bronx Count, granting the defendant’s motion to suppress physical evidence, should be affirmed.

If you are involved in a similar case, and your constitutional right has been violated, seek the assistance of a New York Arrest Attorney and New York Criminal Attorney at Stephen Bilkis and Associates in order to defend your case. Call us.

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