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THE MAJORITY CONCLUDED THE GUN SHOTS AND THE 911 CALL STATING FOUR BLACK KIDS, ONE WITH A GUN, WERE WALKING AROUND JUSTIFIED APPROACHING DEFENDANT ON THE STREET AND JUSTIFIED PURSUING HIM AND SEARCHING HIM WHEN HE RAN; TWO DISSENTERS NOTED THAT THE DEFENDANT DID NOT MATCH THE 911 CALLER’S DESCRIPTION AND ARGUED HIS FLIGHT ALONE DID NOT JUSTIFY PURSUIT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police lawfully approached the defendant on the street, lawfully pursued him when he ran, and lawfully searched him, recovering a handgun. The police had heard gun shots and were aware of a 911 call indicating four Black kids were walking around and one had a gun. The dissenters argued that the police were justified in approaching the defendant but that defendant’s flight did not justify the pursuit and search:

… [T]he officers, when they encountered defendant on the street, had a “founded suspicion that criminal activity [was] afoot” … , thereby justifying a common-law approach and inquiry of all four men … . Contrary to defendant’s contention, we conclude that his flight when lawfully approached by the police justified the ensuing pursuit, especially considering the unorthodox manner in which he was running, which, again, was observed before the officers gave chase … . At that point, it was reasonable for the officers to suspect that defendant possessed a firearm or was otherwise involved in the shooting that occurred minutes earlier less than a block away. * * *

From the dissent:

… [D]efendant did not match the description provided by the 911 caller of the person the caller said had a gun … . Although defendant was observed walking in the general vicinity of the reported gun shots, that observation does not provide the “requisite reasonable suspicion,” i.e., “in the absence of other objective indicia of criminality that would justify pursuit” … . People v Watkins, 2023 NY Slip Op 05804, Fourth Dept 11-17-23

Practice Point: The majority held the police properly approached the defendant on the street based upon hearing gunshots and a 911 call stating four Black kids, one with a gun, were walking around. The majority further held that defendant’s flight justified pursuit and a search of defendant’s person. Two dissenters noted that the defendant did not match the 911 caller’s description and argued his flight alone did not justify the pursuit.

 

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