| People v Haynes |
| 2014 NY Slip Op 01462 [115 AD3d 676] |
| March 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Ludlow L. Haynes, Respondent. |
—[*1] White, Cirrito & Nally, LLP, Hempstead, N.Y. (Michael L. Cirrito and ChristopherM. Lynch of counsel), for respondent.
Appeal by the People from an order of the Supreme Court, Nassau County (Peck, J.),dated May 2, 2013, which, after a hearing, granted that branch of the defendant'somnibus motion which was to suppress physical evidence.
Ordered that the order is affirmed.
At approximately 4:40 p.m., in an area where "a couple of shootings" had occurred"a couple months prior," the defendant was observed by two plainclothes detectives whowere in an unmarked vehicle. The defendant, wearing a black hooded sweatshirt andblack sweatpants, was walking on the sidewalk in the same direction as the vehicle wastraveling. As the vehicle, which was moving at no more than 10 miles per hour, came upnext to the defendant, he turned and made eye contact with one of the detectives. Thedefendant looked away and "grabbed his waistband area" in such a way that it "[s]eemedas if he had a bulge or something heavy that he was holding on the outside of hisgarments." The detectives drove past the defendant, made a U-turn, and came up behindthe defendant, who had turned his back to them. As the detectives got out of the vehicleand approached the defendant, he ran. The detectives pursued him, and he discarded agun during the pursuit.
A suspect's "[f]light alone . . . even [his or her flight] in conjunctionwith equivocal circumstances that might justify a police request for information, isinsufficient to justify pursuit" (People v Holmes, 81 NY2d 1056, 1058 [1993];see People v Carmichael,92 AD3d 687, 688 [2012]). However, flight, "combined with other specificcircumstances indicating that the suspect may be engaged in criminal activity, couldprovide the predicate necessary to justify pursuit" (People v Holmes, 81 NY2d at1058).
Under the circumstances of this case, the defendant's "grabb[ing]" of his "waistbandarea" in such a way that it "[s]eemed" to the detectives that the defendant "had a bulge orsomething heavy that he was holding on the outside of his garments," did not constitutespecific circumstances indicative of criminal activity so as to establish the reasonablesuspicion that was necessary to [*2]lawfully pursue thedefendant, even when coupled with the defendant's having made eye contact with thedetectives and his flight from the detectives (see People v Cady, 103 AD3d 1155 [2013]; People v Carmichael, 92AD3d 687 [2012]; People vCadle, 71 AD3d 689 [2010]; People v Harris, 149 AD2d 730[1989]; cf. People v Byrd, 304 AD2d 490 [2003]). As the detectives' pursuit ofthe defendant was unlawful, and the defendant's disposal of the weapon during thepursuit was precipitated by the illegality and was not attenuated from it (see People v Carmichael, 92AD3d 687 [2012]; People vCadle, 71 AD3d 689 [2010]), the Supreme Court properly granted that branchof the defendant's omnibus motion which was to suppress the weapon. Skelos, J.P.,Chambers, Hall and Miller, JJ., concur.