The Fourth Department, reversing County Court, determined the arresting officer did not have cause to frisk the defendant, which revealed a weapon. The motion to suppress the weapon should have been granted. The officer had responded to a call about a shooting at a bar which described the suspect as a male Hispanic. The officer found a bullet fragment and some blood in a parking lot and he approached a group of people who were about 10 to 25 feet away. One person in the group appeared to the officer to be a male Hispanic. Someone in the group said they didn’t hear or see anything. The officer then frisked the defendant, who is black, not Hispanic:
… [T]he police had an objective, credible reason to approach the group of five people in the parking lot and to request information in light of the report of a shooting at or near that location at some unidentified earlier time. Thus, we conclude that the police encounter was lawful at its inception… . The People correctly concede, however, that the officer’s encounter with defendant constituted a level three forcible detention under the four-tiered De Bour framework …, and thus required “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” … .
We conclude that, “[b]ecause of the lack of correspondence between defendant’s appearance and the description of the suspected [shooter that was] transmitted to the officer[] . . . , the officer[] had no basis for concluding that the reported crime had been committed by defendant” … . “Nor can the [frisk of defendant] and seizure of the gun be justified as having been in the interests of the officer[‘s] safety, since there was no testimony that the officer[] believed defendant to be carrying a weapon” … ,and the People presented no other evidence establishing that the officer had reason to fear for his safety … . People v Roberts, 2018 NY Slip Op 00725, Fourth Dept 2-2-18
CRIMINAL LAW (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SEARCH AND SEIZURE (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/STREET STOPS (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))