| People v Nunez |
| 2013 NY Slip Op 07753 [111 AD3d 854] |
| November 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Claudio Nunez, Respondent. |
—[*1] Steven Banks, New York, N.Y. (Paul Wiener of counsel), for respondent.
Appeals by the People (1) from an order of the Supreme Court, Queens County(Holder, J.), dated October 20, 2011, which, after a hearing, granted the defendant'smotion to suppress physical evidence, and (2), as limited by their brief, from so much ofan order of the same court dated January 6, 2012, as, upon reargument, adhered to theoriginal determination.
Ordered that the appeal from the order dated October 20, 2011, is dismissed, as thatorder was superseded by the order dated January 6, 2012, made upon reargument; and itis further,
Ordered that the order dated January 6, 2012, is affirmed insofar as appealed from.
At a suppression hearing, a police detective testified that his team had receivedinformation from a confidential informant that a drug transaction was going to take placein the vicinity of 21st Street and Astoria Boulevard in Queens later that day. Theinformant described the subject as a male Hispanic, who was approximately five feetseven inches to five feet eight inches tall, and in his thirties. Upon arriving at thatlocation, the detective saw the defendant sitting inside a restaurant alone. As he walkedtoward the restaurant, the detective saw the defendant go out the side exit and walk downthe block. He followed the defendant, who started picking up his pace as he looked overhis shoulder. The defendant then started running. The detective identified himself as apolice officer and started chasing the defendant. During the chase, the detective saw thedefendant throw a small object to the ground. The defendant then entered a house using akey. The detective followed the defendant and saw him enter an apartment in the house.After the rest of the detective's team arrived, they knocked on the apartment doornumerous times. The door was opened by another man, who slammed the door shut whenthe detectives identified themselves. The detectives then broke the door open and pushedtheir way inside. After an incident with the man's pit bull, and the resulting arrest of theman, the detective saw the defendant, who was in the back room, throw two knapsacksout the window and jump out the window after them. The bags were recovered andcontained marijuana and heroin. A search warrant was obtained for the apartment, wheremore drugs [*2]were found. The small object thrown bythe defendant during the chase was also recovered and contained cocaine.
After the hearing, in an order dated October 20, 2011, the Supreme Court granted thedefendant's motion to suppress the physical evidence. Upon the People's motion for leaveto reargue the motion, the Supreme Court granted reargument and, upon reargument,adhered to the original determination. The People appeal.
The Supreme Court properly, upon reargument, adhered to its prior determinationgranting the suppression motion. "Police pursuit of an individual 'significantly impede[s]'the person's freedom of movement and thus must be justified by reasonable suspicionthat a crime has been, is being, or is about to be committed" (People v Holmes,81 NY2d 1056, 1057-1058 [1993], quoting People v Martinez, 80 NY2d 444,447 [1992]). Flight, combined with other specific circumstances indicating that thesuspect may be engaged in criminal activity, could provide the predicate necessary tojustify pursuit (see People v Matienzo, 81 NY2d 778 [1993]; People vMartinez, 80 NY2d 444 [1992]; People v Leung, 68 NY2d 734 [1986])."Flight alone, however, or even in conjunction with equivocal circumstances that mightjustify a police request for information, is insufficient to justify pursuit because anindividual has a right to be let alone and refuse to respond to police inquiry" (Peoplev Holmes, 81 NY2d at 1058 [internal quotation marks and citations omitted]; seePeople v May, 81 NY2d 725, 728 [1992]; People v Beckett, 88 AD3d 898 [2011]).
Here, there were no specific circumstances indicating that the defendant might beengaged in criminal activity. The fact that the defendant matched the extremely vaguedescription given by the informant of someone who would conduct a drug transactionsomewhere in the vicinity, sometime later that day, was not sufficiently indicative ofcriminal activity (see People vBeckett, 88 AD3d 898 [2011]). At most, the circumstances provided anobjective reason, not necessarily indicative of any criminality, justifying a level onerequest for information (see People v De Bour, 40 NY2d 210, 223 [1976]; People v Cady, 103 AD3d1155 [2013]). Therefore, the defendant's flight did not justify the detective's pursuit(see People v Holmes, 81 NY2d 1056 [1993]; People v May, 81 NY2d at727-728; People vCarmichael, 92 AD3d 687 [2012]). The defendant's action of throwing a smallobject during the chase was precipitated by the unlawful pursuit and not attenuated fromit and, thus, that evidence was properly suppressed (see People v Carmichael, 92 AD3d 687 [2012]; People v Cadle, 71 AD3d689 [2010]; People vLopez, 67 AD3d 708 [2009]).
Moreover, the detective compounded the unlawful pursuit by entering the apartmentwithout consent or probable cause and exigent circumstances (see generally Payton vNew York, 445 US 573 [1980]). While retreat into one's home cannot thwart anotherwise proper arrest set in motion in a public place, probable cause for the arrest isrequired (see United States v Santana, 427 US 38, 42 [1976]; People vThomas, 164 AD2d 874 [1990]). When the detective entered the apartment, he didnot have probable cause to believe that the defendant had committed a crime.Accordingly, all of the physical evidence was properly suppressed. Angiolillo, J.P.,Dickerson, Austin and Hinds-Radix, JJ., concur.