        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1115
KA 13-00437
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROBERT L. INGRAM, DEFENDANT-RESPONDENT.


FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), dated November 30, 2012. The order granted that
part of the omnibus motion of defendant to suppress physical evidence
and his oral statements to the police.

     It is hereby ORDERED that the order so appealed from is affirmed.

     Memorandum: The People appeal from an order granting that part
of defendant’s omnibus motion to suppress physical evidence, i.e., a
handgun, and defendant’s oral statements to the police. The People
contend that the police had the requisite reasonable suspicion to
justify their pursuit of defendant, and that suppression of the
evidence and oral statements thereafter obtained from defendant is not
warranted. We reject that contention and, inasmuch as Supreme Court’s
suppression determination is supported by the record (see People v
Martinez, 105 AD3d 1458, 1459; see generally People v Prochilo, 41
NY2d 759, 761), we affirm the order.

     The testimony at the suppression hearing established that, on
March 25, 2012, a housing officer of the Buffalo Police Department
received a tip from an unnamed arrestee that there were two guns
“stashed behind” a house located at 118 Montana Avenue in the City of
Buffalo. The area in which the house was located was known to the
officer and his partner as a high-crime area. At approximately 4:40
p.m. on that date, the two officers drove their patrol vehicle to that
house to investigate the tip. Upon turning onto Montana Avenue, the
officers saw two men near the curb in front of house number 116 or
118, crossing the street toward house number 119. The officer driving
the patrol vehicle recognized one of the men as the victim of a recent
shooting, and he stopped the patrol vehicle to speak with him. That
man stopped to talk to the officer, but his companion—defendant—began
walking away “swiftly.” The second officer, curious as to why
                                 -2-                          1115
                                                         KA 13-00437

defendant was “going away so fast,” exited the patrol vehicle and
asked defendant his name. According to the testimony of the second
officer, defendant did not respond, but turned around, “grabbed the
right side of his jacket,” and “tried to pull something out of it.”
The second officer yelled at defendant, “don’t do it,” but defendant
continued to pull at his jacket pocket. The second officer drew his
pistol and pointed it at defendant, while continuing to yell, “don’t
do it.” Defendant then began to run away, although we note that the
second officer provided conflicting testimony whether defendant had
begun to run away before he yelled at defendant. The two officers
pursued defendant, ultimately apprehending him and recovering a loaded
handgun from his jacket pocket. Notably, the officers testified that
defendant and his companion were doing nothing illegal when they first
saw them, and that they became suspicious only because defendant and
his companion were in the vicinity of the house identified in the tip.
Furthermore, the first officer testified that, although defendant’s
jacket was “thin,” he did not see the outline of a weapon in
defendant’s jacket, and the second officer testified that he did not
see a bulge or the outline of a weapon in defendant’s jacket until
after he began to pursue defendant.

      The People contend that the court erred in determining that the
tip the officer received from the unnamed arrestee was unreliable.
According to the People, the record establishes that the tip was
reliable and the court therefore should have considered the tip as a
factor in support of a determination that the officers had the
requisite reasonable suspicion to justify their pursuit of defendant,
particularly inasmuch as defendant was standing near the house
identified in the tip (see generally People v De Bour, 40 NY2d 210,
222-223). We reject that contention. The People contend that the tip
was reliable because it was based upon the arrestee’s personal
knowledge and because “it is against the law to provide the police
with false information about a crime.” Even assuming, arguendo, that
the arrestee’s basis of knowledge was sufficient because he had
personally observed guns “stashed” behind house number 118, we
conclude that the People did not establish “that the specific
information given [by the arrestee was] reliable” (People v DiFalco,
80 NY2d 693, 697; see generally People v Johnson, 66 NY2d 398, 402-
402). The arrestee did not provide the officer with any information
about who placed the guns behind house number 118, the precise
location of the guns behind the house, or the type of guns. Moreover,
the officer previously had never met the arrestee or received reliable
information from him.

     We further conclude that the court properly determined that, when
the officers initially approached defendant, they had no more than an
“objective, credible reason” to request information (People v Moore, 6
NY3d 496, 498-499, citing De Bour, 40 NY2d at 223). The officers
acknowledged at the suppression hearing that there was nothing about
the behavior of defendant or his companion that the officers found
suspicious other than their proximity to house number 118. Although
there was some testimony that defendant was standing in front of house
number 118 when the officers first saw him, the court did not find
that testimony credible but, rather, credited other testimony that
                                 -3-                          1115
                                                         KA 13-00437

defendant was standing in front of house number 116. That credibility
determination is entitled to great deference (see Prochilo, 41 NY2d at
761; Martinez, 105 AD3d at 1459). Furthermore, the first officer
testified that he did not ask defendant’s companion from where he was
coming, nor did either officer testify that he saw the direction from
which defendant was coming, and thus there is no credible evidence in
the record supporting the claim that defendant was connected with the
guns allegedly “stashed behind” house number 118. Defendant’s
presence on the curb in the general vicinity of house number 116 was
“ ‘readily susceptible of an innocent interpretation,’ ” i.e., that
defendant was simply crossing the street (People v Riddick, 70 AD3d
1421, 1422, lv denied 14 NY3d 844), and “[t]he fact that defendant was
located in a high[-]crime area does not by itself justify the police
conduct where, as here, there were no other objective indicia of
criminality” (People v Stevenson, 273 AD2d 826, 827). We therefore
conclude that, at the time the officers approached defendant and his
companion, they were limited to a level one intrusion, i.e., a request
for information (see generally De Bour, 40 NY2d at 223). Thus, the
second officer’s request for defendant to give his name was
permissible.

     We reject the People’s contention that subsequent events gave
rise to a reasonable suspicion that defendant had committed or was
about to commit a crime, as was required to justify the police pursuit
of defendant when defendant did not respond to the officer’s question
(see People v Cady, 103 AD3d 1155, 1156; Riddick, 70 AD3d at 1422).
We have previously held that “ ‘the fact that defendant reached for
his waistband, absent any indication of a weapon such as the visible
outline of a gun or the audible click of the magazine of a weapon,
does not establish the requisite reasonable suspicion that defendant
had committed or was about to commit a crime’ ” (Cady, 103 AD3d at
1156; see Riddick, 70 AD3d at 1422-1423). Here, although defendant
was reaching for his jacket pocket as he walked or ran away from the
second officer, neither officer testified that he saw a bulge or the
outline of a weapon in defendant’s jacket. Rather, the second officer
believed that defendant had a gun only because, in his experience, if
an individual pulled vigorously at an object in his or her pocket, but
the object did not come out easily, that object usually was a weapon.
While we are mindful that an officer may rely on his or her knowledge
and experience in determining whether reasonable suspicion exists, we
respectfully disagree with our dissenting colleagues that the above
circumstances were sufficient to establish the requisite reasonable
suspicion “in the absence of other objective indicia of criminality”
(Cady, 103 AD3d at 1156 [internal quotation marks omitted]; see
Riddick, 70 AD3d at 1423). Here, before pursuing defendant, the
second officer knew only that defendant was walking across the street
in a high-crime area, in the general vicinity of a house where an
unnamed person of unestablished reliability claimed to have seen guns,
and that, when the police approached, defendant walked or ran away
while grabbing at his jacket pocket. We cannot conclude, based on the
totality of those circumstances, that the police were justified in
pursuing defendant (see People v Holmes, 81 NY2d 1056, 1058; Cady, 103
AD3d at 1155-1156; Riddick, 70 AD3d at 1421-1423).
                                  -4-                           1115
                                                           KA 13-00437

      We note that, although it appears from the dissent that there was
testimony at the suppression hearing that defendant took an
“aggressive fighter stance,” there was no such testimony. Rather,
that phrase was used only by defense counsel, when reading the second
officer’s testimony from the transcript of the felony hearing, in an
attempt to impeach the officer regarding when he drew his service
revolver. Thus, there was no evidence before the suppression court
that defendant took an “aggressive fighter stance” (see People v Hall,
208 AD2d 1044, 1046; People v Blanchard, 177 AD2d 854, 856, lv denied
79 NY2d 918; People v Gilman, 135 AD2d 951, 952-953, lv denied 71 NY2d
896).

     The People’s reliance on People v Bachiller (93 AD3d 1196, 1196-
1198, lv dismissed 19 NY3d 861) is misplaced. In that case, the
police were responding to a report of a possible stabbing when they
noticed the defendant in a “heated argument” with another man and then
saw the defendant chase that man through adjacent backyards (id. at
1196). The defendant conceded that “the report of a possible stabbing
coupled with the responding officer’s observations at the scene
furnished the police with the requisite ‘founded suspicion that
criminal activity [was] afoot’ sufficient to justify the common-law
right of inquiry” (id., quoting Moore, 6 NY3d at 498). Having
obtained the requisite founded suspicion, the police then observed the
defendant walk briskly away from them and “grab and hold onto an
object in his waistband area” (id. at 1197). In determining that
suppression was not warranted, we noted that the defendant “was not
simply reaching in the direction of his waistband. Rather, the two
officers as well as the initial responding officer, who was also
pursuing defendant, testified that defendant was clutching an object
that appeared to be a gun at his waistband” (id. at 1198 [emphasis
added]). Here, neither officer testified that he observed any
object—let alone an object that appeared to be a gun—in defendant’s
pocket before beginning to pursue defendant.

     All concur except SCUDDER, P.J., and PERADOTTO, J., who dissent and
vote to reverse in accordance with the following Memorandum: We
respectfully dissent. In our view, the two Buffalo Police Department
Housing Officers (officers) had the requisite reasonable suspicion to
pursue defendant. We would therefore reverse the order, deny that
part of the omnibus motion seeking suppression of physical evidence
and defendant’s oral statements to the police, and remit the matter
for further proceedings on the indictment.

     After he was indicted on a charge of criminal possession of a
weapon in the second degree (Penal Law § 265.03 [3]), defendant sought
suppression of the handgun that had been seized from his jacket pocket
on the ground that the officers lacked reasonable suspicion to pursue
him. At the suppression hearing, the officers testified that they had
received information from a person one of the officers had arrested
earlier in the day concerning “possible weapons stashed behind a
house” on Montana Avenue. The area around Montana Avenue was a high-
crime area where there had been numerous arrests for narcotics and gun
violence. Moreover, several people had been murdered in that area
during the year in which this incident took place. Upon approaching
                                 -5-                          1115
                                                         KA 13-00437

the area, the officers observed defendant and a second man standing on
a curb near the house in question. The man with defendant had
recently been the victim of a shooting, and the officers stopped their
patrol vehicle so the first officer could ask defendant’s companion if
he had any new information concerning that shooting. At that point,
defendant “glanced in [the officers’] direction, his eyes got very
big, and then he looked down and walked away . . . very swiftly.”
Defendant’s pace then escalated to a run. The second officer exited
the patrol vehicle “just to see why [defendant] was going away so
fast.” Defendant did not respond when asked for his name, but turned
toward the second officer in an “aggressive fighter stance,” grabbed
the right side of his jacket, and “vigorously” struggled to pull
something out of it. The second officer yelled at defendant, “don’t
do it,” because the officer “believed that [defendant] had a weapon
and he was trying to pull it out of his jacket.” The second officer
testified that his belief was based on having been “involved in
numerous weapons arrest[s] and most likely every single time when
they’re vigorously pulling something out of their coat[ and] it
doesn’t come out easily, it’s normally a weapon.” As defendant
continued trying to pull something out of his coat, the second officer
“pulled out [his] pistol, pointed it at [defendant], [and] told him
again, don’t do it.” When defendant started running, the officers
pursued him, caught him, and recovered a handgun from his coat pocket.

     “[I]t is well settled that the police may pursue a fleeing
defendant if they have a reasonable suspicion that [the] defendant has
committed or is about to commit a crime . . . Flight alone is
insufficient to justify pursuit because an individual has a right to
be let alone and refuse to respond to police inquiry . . . However, a
defendant’s flight in response to an approach by the police, combined
with other specific circumstances indicating that the suspect may be
engaged in criminal activity, may give rise to reasonable suspicion,
the necessary predicate for police pursuit” (People v Riddick, 70 AD3d
1421, 1422, lv denied 14 NY3d 844 [internal quotation marks omitted];
see People v Holmes, 81 NY2d 1056, 1058; People v Martinez, 80 NY2d
444, 446). “Reasonable suspicion represents that ‘quantum of
knowledge sufficient to induce an ordinarily prudent and cautious
[person] under the circumstances to believe criminal activity is at
hand’ ” (Martinez, 80 NY2d at 448).

     While each individual act of defendant was insufficient on its
own to provide the officers with the reasonable suspicion necessary to
pursue and to detain him forcibly, we note that the Court of Appeals
has recognized that it is the combination of flight and “other
specific circumstances indicating that [a] suspect may be engaged in
criminal activity” that may give rise to reasonable suspicion (People
v Sierra, 83 NY2d 928, 929; see People v Cady, 103 AD3d 1155, 1156).
“In determining whether a police officer has reasonable suspicion to
justify his [or her] actions, ‘the emphasis should not be narrowly
focused on . . . any . . . single factor, but [rather should be] on an
evaluation of the totality of circumstances, which takes into account
the realities of everyday life unfolding before a trained officer’ ”
(People v Stephens, 47 AD3d 586, 589, lv denied 10 NY3d 940).
                                 -6-                          1115
                                                         KA 13-00437

     We agree with the majority that “ ‘[t]he [suppression] court’s
determination is entitled to great deference and will not be disturbed
where it is supported by the record’ ” (People v Martinez, 105 AD3d
1458, 1459; see People v Howington, 96 AD3d 1440, 1441; People v
Davis, 48 AD3d 1120, 1122, lv denied 10 NY3d 957), but we find it
disturbing that Supreme Court failed to consider the testimony of the
second officer that, based on his prior experience, when someone is
vigorously trying to pull an object out of a coat pocket and the
object does not come out easily, that object is “normally a weapon.”
It is well settled that the police “are allowed to ‘draw on their own
experience and specialized training to make inferences from and
deductions about the cumulative information available to them that
might well elude an untrained person’ ” (People v Hall, 10 NY3d 303,
311, cert denied 555 US 938; see People v Brown, 151 AD2d 199, 203, lv
denied 75 NY2d 768). Although we have consistently held that the mere
fact that a person reaches for his waistband, “absent any indication
of a weapon such as the visible outline of a gun or the audible click
of the magazine of a weapon, does not establish the requisite
reasonable suspicion that defendant ha[s] committed or [is] about to
commit a crime” (Riddick, 70 AD3d at 1422-1423; see Sierra, 83 NY3d at
929-930; Cady, 103 AD3d at 1156), we conclude that here, based on the
experience of the second officer, there was an indication of a weapon,
i.e., defendant took an “aggressive fighter stance” and was
“vigorously” struggling to remove something from his coat pocket.
Moreover, the facts in Riddick, a case relied on by the majority, are
distinguishable. In that case, the officers were in an unmarked car
and were on a routine patrol. There was no specific tip concerning
weapons, and there was no evidence that the defendant knew that the
officers were police officers when he walked away from their unmarked
van. While the defendant in Riddick made a “gesture” toward his
waistband, there was no testimony that the gesture was aggressive or
vigorous or that such a gesture was indicative of a weapon (id. at
1422-1424). Although a coat pocket may not be as common a location
for a weapon, we conclude that the second officer’s experience with
weapons in coat pockets should have been considered by the court (see
People v Benjamin, 51 NY2d 267, 271; People v Bachiller, 93 AD3d 1196,
1198, lv dismissed 19 NY3d 861). Indeed, in People v Pines (281 AD2d
311, 311-312, affd 99 NY2d 525), the defendant, who was walking in the
street with a companion, noticed the officers’ unmarked but
recognizable vehicle, after which “his eyes bulged out” (id. at 311).
As the officers approached, the “defendant ‘bunched up’ his bubble
jacket on the right side, at the waist area, with his hand cupped
underneath it’ ” (id. at 312). The officer in Pines stated that the
defendant’s action “remind[ed him] of how he himself, when off-duty,
sometimes adjusted his gun in a similar manner” (id.). The Appellate
Court relied upon that testimony in holding that the pursuit was
justified (id.). In both Pines and the instant case, the
knowledgeable and experienced officer observed conduct by the
defendant that was indicative of a weapon.

     In addition, the officers in this case had received a tip from an
arrestee, i.e., an identified citizen informant, that there were guns
stashed in the area where they observed defendant and his companion.
                                 -7-                          1115
                                                         KA 13-00437

While we agree with the majority that there was no information
establishing the reliability of the tip, such information may still be
relied upon in a De Bour analysis. “Regardless of whether . . . the
citizen-informant’s basis of knowledge was sufficiently established .
. . , the combination of his report to the police and the officers’
observations . . . provided the requisite reasonable suspicion”
(Matter of Shallany S., 11 AD3d 414, 414; see People v Gresty, 237
AD2d 931, 932).

     We therefore conclude that, based on the combination of the tip,
the high-crime location, the presence of a recent shooting victim,
defendant’s initial behavior and his conduct indicative of a weapon,
the officers had the requisite reasonable suspicion for the pursuit.




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
