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Gun Found Wedged Under a Rock After an Illegal Police Pursuit Was Not “Abandoned,” Suppression of Gun Was Proper

The Fourth Department determined that all the fruits of an illegal pursuit and arrest of the defendant were properly suppressed. Defendant crossed a street, causing a car to stop abruptly to avoid hitting him. The police pursued defendant, intending to arrest him for disorderly conduct. The police noticed defendant was carrying a bulky object held in his shirt. After capturing the defendant, the police found a gun wedged under a rock. The People conceded that the pursuit of defendant was unlawful because his crossing the street did not constitute disorderly conduct. The only question on appeal was whether the gun was abandoned, and therefore not subject to suppression. The court explained the relevant test for abandoned property in this context:

It is well established that property seized as a result of an unlawful pursuit must be suppressed, unless that property was abandoned … . “Property which has in fact been abandoned is outside the protection of the constitutional provisions . . . There is a presumption against the waiver of constitutional rights . . . [and, thus,] [t]he proof supporting abandonment should reasonably beget the exclusive inference of . . . throwing away’ ” … . “The test to be applied is whether defendant’s action . . . was spontaneous and precipitated by the illegality or whether it was a calculated act not provoked by the unlawful police activity and was thus attenuated from it” … . Here, the court properly concluded that defendant’s action was spontaneous and precipitated by the unlawful pursuit by the police … . The court thus properly determined that the People failed to establish that defendant had abandoned the gun and, consequently, properly suppressed the gun. People v Mueses, 2015 NY Slip Op 07088, 4th Dept 10-2-15

 

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