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Even If Initial Frisk of Defendant Was Unlawful, the Defendant’s Pushing the Officer and Running Away Justified the Defendant’s Arrest (for Harassment of the Officer) and Seizure of Drugs

The Fourth Department determined defendant’s motion to suppress evidence was properly denied.  Defendant was a passenger in a vehicle stopped by the police.  A police officer told defendant to get out of the vehicle and proceeded to frisk him.  The defendant then pushed the officer and ran away.  He was captured and drugs were subsequently found.  The Fourth Department determined that, even if the frisk was unlawful, the defendant’s pushing the officer and running away were not precipitated by the frisk:

Even assuming, arguendo, that the frisk was unlawful, we conclude that defendant’s act of pushing the frisking officer was not “spontaneous and precipitated by the illegality . . . [but] was a calculated act not provoked by the unlawful police activity and thus attenuated from it” … . We therefore conclude that there was probable cause for defendant’s subsequent arrest for harassment of the frisking officer … . Consequently, the drugs seized from defendant’s person and the backseat of the patrol car were discovered incident to a lawful arrest … . People v Fox, 2015 NY Slip Op 00034, 4th Dept 1-2-15

 

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