| People v Bachiller |
| 2012 NY Slip Op 01923 [93 AD3d 1196] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Javier Bachiller,Respondent. |
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Appeal from an order of the Onondaga County Court (William D. Walsh, J.), dated February15, 2011. The order granted the motion of defendant to suppress certain physical evidence.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, thatpart of the omnibus motion to suppress physical evidence is denied, and the matter is remitted toOnondaga County Court for further proceedings on the indictment.
Memorandum: The People appeal from an order granting that part of defendant's omnibusmotion to suppress physical evidence, i.e., a handgun. We agree with the People that reversal isrequired.
The testimony at the suppression hearing established that an officer responded to a report of apossible stabbing in the City of Syracuse and observed approximately 100 people in the streetleaving a house party. In addition to some "minor disturbances," there was also "yelling." Thearea in which the reported stabbing occurred had been the scene of numerous violent crimes anda recent homicide. After the responding officer exited his patrol car, his attention was drawn to aheated argument between defendant and another man. The other man turned and ran throughadjacent backyards, and defendant chased him.
As defendant correctly concedes, the report of a possible stabbing coupled with theresponding officer's observations at the scene furnished the police with the requisite "foundedsuspicion that criminal activity [was] afoot" sufficient to justify the common-law right of inquiry(People v Moore, 6 NY3d 496,498 [2006]; see People v De Bour, 40 NY2d 210, 223 [1976]). "This right authorized thepolice to ask questions of defendant—and to follow defendant while attempting to engagehim—but not to seize him in order to do so" (Moore, 6 NY3d at 500).
The issue before us thus is whether the police thereafter obtained the requisite reasonablesuspicion to justify their pursuit of defendant (see generally People v Sierra, 83 NY2d928, 929 [1994]; People v Martinez, 80 NY2d 444, 446 [1992]; People v Riddick, 70 AD3d 1421,1422 [2010], lv denied 14 [*2]NY3d 844 [2010]). "Flightalone, . . . or even in conjunction with equivocal circumstances that might justify apolice request for information . . . , is insufficient to justify pursuit because anindividual has a right 'to be let alone' and refuse to respond to police inquiry" (People vHolmes, 81 NY2d 1056, 1058 [1993]; see Riddick, 70 AD3d at 1422). However, "adefendant's flight in response to an approach by the police, combined with other specificcircumstances indicating that the suspect may be engaged in criminal activity, may give riseto reasonable suspicion" (Sierra, 83 NY2d at 929 [emphasis added]; see Holmes,81 NY2d at 1058; Riddick, 70 AD3d at 1422). In determining whether a pursuit wasjustified by reasonable suspicion," 'the emphasis should not be narrowly focused on . . . any . . . singlefactor, but [rather] on an evaluation of the totality of circumstances, which takes into account therealities of everyday life unfolding before a trained officer' " (People v Stephens, 47 AD3d 586, 589 [2008], lv denied 10NY3d 940 [2008]).
Here, the responding officer and two other officers patrolled the area searching for defendantand the other man in order to investigate whether they were involved in the alleged stabbing or inother criminal activity. The initial responding officer drove around the surrounding area until hesaw defendant. When defendant observed the patrol car, he "immediately turned and began towalk in a brisk manner . . . in the opposite direction [from which] he was heading."The responding officer then radioed the two other officers and notified them of defendant'slocation and direction of travel. Shortly thereafter, the two officers observed defendant movingtoward them at a fast pace. When defendant saw the officers, he stopped, turned, and ran in theopposite direction. While defendant was running, the two officers observed him grab and holdonto an object in his waistband area with his left hand. Both officers testified that they believedthat defendant was grabbing a gun concealed in his waistband. One of the officers yelled to theother that he believed defendant had a gun, and both officers drew their service weapons andpursued defendant as he fled. Defendant did not respond to the officers' repeated requests to stopand show his hands. As defendant was running, he discarded a handgun, which the police laterrecovered.
We agree with the People that defendant's flight from the police, coupled with his actions ingrabbing an object at his waistband, gave rise to a reasonable suspicion sufficient to justify theirpursuit of defendant (see Moore, 6 NY3d at 500-501; People v Zeigler, 61 AD3d1398, 1398-1399 [2009], lv denied 13 NY3d 864 [2009]; see also People v Pines,99 NY2d 525 [2002]; People vCrisler, 81 AD3d 1308, 1309 [2011], lv denied 17 NY3d 793 [2011];Stephens, 47 AD3d at 587-589). Although defendant contends that the police did not knowwhat he was holding in his left hand, "[i]t is quite apparent to an experienced police officer, andindeed it may almost be considered common knowledge, that a handgun is often carried in thewaistband" (People v Benjamin, 51 NY2d 267, 271 [1980]; see Zeigler, 61 AD3dat 1399; see also Holmes, 81 NY2d at 1058). Courts have long held that the police neednot "await the glint of steel" before acting to preserve their safety (Benjamin, 51 NY2d at271; see People v Stokes, 262 AD2d 975, 976 [1999], lv denied 93 NY2d 1028[1999]). Notably, defendant was not simply reaching in the direction of his waistband. Rather,the two officers as well as the initial responding officer, who was also pursuing defendant,testified that defendant was clutching an object that appeared to be a gun at his waistband, andthe court "fully credit[ed]" their testimony.
Thus, under the circumstances presented here, we conclude that the court erred in grantingthat part of defendant's omnibus motion seeking suppression of the physical evidence seized bythe police. Present—Smith, J.P., Fahey, Lindley and Martoche, JJ.