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AN OFFICER MAY FOLLOW A SUSPECT IN A POLICE VEHICLE; THE OFFICER DID NOT GET OUT OF HIS VEHICLE AND CHASE THE DEFENDANT UNTIL HE SAW THE DEFENDANT DISCARD A WEAPON; THE SEIZURE OF THE WEAPON WAS NOT THE RESULT OF UNLAWFUL POLICE CONDUCT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant did not discard a weapon in response to unlawful police conduct. Therefore the weapon should not have been suppressed. In response to a 911 call a police officer in a car was observing the defendant. The officer pursued the defendant only after he saw the defendant discard a weapon:

As the … officer approached the scene, he observed defendant in a black coat walking westbound on the sidewalk. Upon seeing the third officer in his vehicle, defendant ran down a driveway. The … officer pulled into the driveway of that residence and, while still in the vehicle, observed defendant toss what appeared to be a long-barreled handgun over the fence while he ran. It was at that point that the third officer exited his vehicle and chased defendant, ultimately apprehending him. A loaded .22-caliber firearm was found on the ground in the backyard adjacent to the driveway.

… “[A]]n officer may use his or her vehicle to unobtrusively follow and observe an individual without elevating the encounter to a level three pursuit” … . A police-civilian encounter will escalate to a level three encounter, i.e., a forcible stop or seizure, “whenever an individual’s freedom of movement is significantly impeded . . . Illustrative is police action which restricts an individual’s freedom of movement by pursuing one who, for whatever reason, is fleeing to avoid police contact” … .

Here, the … officer had activated his emergency lights en route to the scene and before he encountered defendant. Upon observing defendant walking on the sidewalk, the third officer stopped his vehicle in a driveway. At no point did the third officer engage in any particularized act toward defendant or restrict his freedom of movement … . People v Moore, 2021 NY Slip Op 00927, Fourth Dept 2-11-21

 

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