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STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, with a concurring memorandum, determined that defendant's motion to suppress the evidence seized from his person and his statement should have been granted in this street stop case. The majority reversed under a DeBour analysis. The concurring memorandum, although agreeing with the DeBour analysis, would have reversed because the People did not demonstrate the legality of the police conduct at the suppression hearing:

This encounter began as a level two intrusion, with the officer, while seated in the vehicle, stating “police” and asking the defendant to stop, then exiting his vehicle, walking onto the sidewalk, again stating “police” and asking the defendant to stop. Thereafter, the officer's pursuit of the defendant, by getting “closer to the defendant picking up with his pace,” constituted a level three intrusion under De Bour, requiring a reasonable suspicion that the defendant was involved in a felony or misdemeanor … . However, the circumstances, such as that the defendant had a nondescript bulge in his right jacket pocket, was leaning to the right side, and walked away from the officer without complying with the officer's requests for him to stop, did not support a reasonable suspicion of particularized criminal action. After all, “a bulging jacket pocket is hardly indicative of criminality. As [the Court of Appeals has] recognized, a pocket bulge, unlike a waistband bulge, could be caused by any number of innocuous objects'” (People v Holmes, 81 NY2d at 1058, quoting People v De Bour, 40 NY2d at 221), and “an individual has a right to be let alone' and refuse to respond to police inquiry” … . Since this level three intrusion was not justified, it cannot be validated by the officer's subsequent observation of the firearm … .

Moreover, under the circumstances of this case, the defendant's subsequent statement to law enforcement officers must be suppressed as the product of the unlawful police conduct … . People v Jones, 2018 NY Slip Op 06114, Second Dept 9-19-18

CRIMINAL LAW (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SEARCH AND SEIZURE  (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/STREET STOPS (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESS, MOTION TO   (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/DE BOUR (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

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