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THE OFFICER WHO STOPPED THE CAR IN WHICH DEFENDANT WAS A PASSENGER AFTER HEARING GUN SHOTS DID NOT HAVE THE REASONABLE SUSPICION NEEDED FOR THE SEIZURE OF A VEHICLE; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the indictment, determined the police did not have reasonable suspicion justifying the stop of the car in which defendant was a passenger. The seized evidence should have been suppressed. The officer who stopped the car had heard gunshots, drove in the direction of the shots, passed two intersecting streets, and then saw defendant’s car moving slowly:

Considering the “totality of the circumstances” here … , we conclude that the People failed to establish the legality of the police conduct … . As noted, the People established that the police stopped the vehicle less than two minutes after hearing the shots fired, the incident occurred in the early morning hours, the police did not see any pedestrian or vehicular traffic other than the subject vehicle after the shots were fired, and the vehicle was found in proximity to the location of the shots fired. The police, however, were not given a description of the vehicle involved or even informed whether there was a vehicle involved … , the officer did not give any testimony regarding whether he saw any pedestrian or vehicle traffic before hearing the shots fired … , and the vehicle was not fleeing from the area where shots were fired … . Rather, the subject vehicle was simply a vehicle that was in the general vicinity of the area where shots were heard … . As the officer correctly recognized, the police had a founded suspicion that criminal activity was afoot to justify a common-law right to inquire … , but they did not have the required reasonable suspicion to justify the seizure of the vehicle. People v Fitts, 2020 NY Slip Op 06654, Fourth Dept 11-13-20

 

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