POLICE DID NOT HAVE REASONABLE SUSPICION DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY AT THE TIME OF THE STOP AND PURSUIT; THEREFORE THE WEAPON DISCARDED BY DEFENDANT SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined the police who stopped and pursued the defendant did not have reasonable suspicion of criminal activity at the outset. So the weapon discarded by the defendant should have been suppressed:

“Police pursuit is regarded as significantly impeding a person’s freedom of movement, thus requiring justification by reasonable suspicion that a crime has been, is being, or is about to be committed” … . By contrast, “mere surveillance need not be justified by reasonable suspicion” … .

Although the police actions began as permissible observation, while following defendant slowly in their car without turning on their lights or sirens … , observation gave way to pursuit when the officers turned on their lights and sirens to cross the street against traffic and pull up ahead of defendant. Even crediting one of the officer’s testimony that his intent was to get a better view and alert oncoming traffic, not to cut off, block, or alarm defendant, the objective impact of this maneuver was “intimidating” and communicated “an attempt to capture or . . . intrude upon [defendant’s] freedom of movement” … .

Because it is undisputed that the circumstances before this police activity were not sufficient to create reasonable suspicion, it was unlawful and could not be validated by any subsequently acquired suspicion … . When defendant discarded a handgun during the course of the illegal pursuit, he did not voluntarily abandon it and it should have been suppressed … . People v Collins, 2020 NY Slip Op 03852, First Dept 7-9-20