The defendant is charged with Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law section 265.03 (1) (b), and other related charges. The defendant now moves to suppress evidence, namely a firearm and two statements. On June 7, 2022, this court conducted a combined Mapp/Huntley/Dunaway hearing. At the outset of the hearing, the People “conceded Huntley” as to the videotaped statement, but sought to litigate its voluntariness for use on cross-examination should the defendant elect to testify at trial (tr at 2-3). The sole witness presented at the hearing was Special Agent Adam Shultz of the Alcohol, Tobacco, Firearms and Explosives (ATF), who testified on behalf of the People. At the conclusion of the testimony, both sides were permitted to submit closing arguments in writing, which the court has reviewed and considered. The court makes the following findings of fact and conclusions of law: FINDINGS OF FACT Agent Shultz has been employed as a Special Agent by ATF for more than seven years, handling long and short-term investigations into firearm trafficking, violent crimes, and anything to do with arsenals or explosives (tr at 6). Prior to his employment with ATF, Agent Shultz spent four years as a Federal Air Marshall and nine years as a police officer, five with the New York City Police Department and four with the Arlington County Police Department (tr at 7-8). At each of these positions, Agent Shultz received firearms training (tr at 6-8). Over the course of his law enforcement career, he has participated in approximately 200-300 arrests involving the recovery of a firearm (tr at 8). Agent Shultz testified credibly that on August 21, 2018, he was working as part of a Joint Firearms Task Force conducting a long-term investigation of an individual named M.O. (tr at 8-10). M.O. had been involved in five transactions involving the sale of firearms to an undercover officer (tr at 11, 33). On August 21, 2018, Agent Shultz and the Task Force were conducting surveillance on Woodbine Street in Kings County to effect an arrest of M.O. (tr at 10). Agent Shultz had been informed by an undercover officer that earlier that morning M.O. sold the undercover officer a firearm inside that location (tr at 13). At approximately 4:40 p.m., Agent Shultz received radio communication that M.O. and another individual were exiting the location (tr at 12). Agent Shultz, who was in a vehicle half a block away, observed M.O. and the second individual, who he identified as the defendant herein, leave the location and walk towards Central Avenue where they met with two other individuals (tr at 13, 15, 36). The agent and other members of the Task Force approached in their vehicle, identified themselves and arrested M.O., at which point the defendant took off running towards Woodbine Street (tr at 16, 37). The agent chased after the defendant with his gun drawn (tr at 18, 38). Prior to the defendant fleeing, the agent had not noticed anything about the defendant (tr at 37). As the defendant fled, the agent testified that he observed him “holding his left hand on his left pocket trying to control a large object that was bouncing back and forth as he was running” (tr at 17). About half a block later, the defendant surrendered (tr at 18, 37-38). In response to the agent’s question about whether the defendant had anything that could hurt the agent or his partner, the defendant stated that he had a firearm in his pocket (tr at 19, 38). The firearm was recovered and the defendant was placed in handcuffs (tr at 20). The agent acknowledged that the defendant was not a subject or suspect in the Task Force’s investigation and that the agent had no knowledge or evidence that the defendant had participated in any weapons transactions or other criminal activity (tr at 35-37). After his apprehension, the defendant was transported to the 83rd Precinct (tr at 21). At the precinct, the defendant was taken to an interview room for debriefing (tr at 22). Present in the interview room were Agent Shultz, Detective Pina, and the defendant (tr at 23). The defendant was read his Miranda rights from a printed copy (tr at 23). When asked whether he would like to speak to the agent and detective, the defendant responded, “hell no” (tr at 48). Nevertheless, Agent Shultz and Detective Pina continued to speak to and question the defendant (tr at 23, 48-50). The debriefing of the defendant was recorded on video (tr at 24). A DVD recording of the debriefing was admitted into evidence without objection as People’s Exhibit 3 (tr at 25). CONCLUSIONS OF LAW The Dunaway Portion At a suppression hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v. Berrios, 28 NY2d 361, 367 [1971]; People v. Hernandez, 40 AD3d 777, 778 [2d Dept 2007]; People v. Thomas, 291 AD2d 462, 463 [2d Dept 2002]). In evaluating the police action, the court must determine whether it was justified at its inception and reasonably related in scope to the circumstances at the time (People v. DeBour, 40 NY2d 210, 215 [1976]). If the People satisfy their initial burden, the defendant “bears the ultimate burden of proving that the evidence should not be used against him” (Berrios, 28 NY2d at 367). In People v. DeBour (40 NY2d at 222-223) the Court of Appeals set forth a four-level analysis to evaluate street encounters with the police. The first level permits an officer to approach an individual to request information so long as the request is supported by “some objective credible reason for that interference not necessarily indicative of criminality” (id. at 223). The second level allows an officer to further inquire and “interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (id.). At the third level, officers may forcibly stop and detain an individual upon reasonable suspicion that the person has committed, is committing, or is about to commit a felony or misdemeanor. The fourth level permits officers to arrest a person upon probable cause that the person has committed a crime. Each progressive level authorizes a greater police intrusion and therefore requires escalating suspicion by the officer (People v. Hollman, 79 NY2d 181, 185 [1992]). The testimony before this court establishes that Agent Shultz approached the intersection of Woodbine Street and Central Avenue to effect the arrest of M.O., the target of a long-term investigation who had allegedly engaged in the sale of a firearm to an undercover officer earlier that morning. Agent Shultz and other members of the Task Force exited their vehicle, identified themselves, and arrested M.O., at which point the defendant took off running back towards Woodbine Street. The agent immediately chased after the defendant at gunpoint. Because “police pursuit of an individual ‘significantly impedes’ the person’s freedom of movement,” it is equivalent to a level three encounter under DeBour which must be accompanied by reasonable suspicion that a crime is being committed, has been committed, or is about to be committed (People v. Holmes, 81 NY2d 1056, 1057-1058 [1993], quoting People v. Martinez, 80 NY2d 444, 447 [1992]; see also People v. Furrs, 149 AD3d 1098, 1099 [2d Dept 2017]). Reasonable suspicion is defined as “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand” (People v. Cantor, 36 NY2d 106, 112-113 [1975]). It requires “specific and articulable facts” which support the intrusion (id. at 113). In examining police pursuit cases, the Court of Appeals has held that “flight, combined with specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” (Holmes, 81 NY2d at 1058). “Flight alone, however, or in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit” (id.; see also People v. Howard, 50 NY2d 583, 592 [1980]). In People v. Holmes, the Court found that police observations of a defendant standing with a group of men in a “known narcotics location” with an unidentified bulge in his jacket pocket, subsequently separating from the group and walking away when the patrol car approached, and then running from the police did not give rise to reasonable suspicion justifying pursuit of the defendant (81 NY2d at 1058). The Second Department has also consistently reversed trial courts and granted motions to suppress where the circumstances and information available to the police fail to establish the reasonable suspicion required to justify police pursuit. In People v. Clermont, the Second Department found that the detective’s experience and observation of the defendant making “constant adjustments” to his waistband while walking down the street with a man in a location “known for gang activity,” even when coupled with the defendant’s flight, “did not constitute specific circumstances indicative of criminal activity” which would support a finding of reasonable suspicion (133 AD3d 612, 614 [2d Dept 2015]). Similarly, in People v. Furrs, the Second Department found police observations of the defendant exiting a slow-moving vehicle while holding his waistband insufficient to establish reasonable suspicion justifying the police chasing the defendant after he ran (149 AD3d at 1100). The totality of the circumstances in the instant matter provides even less of a basis for the police pursuit than that in Holmes, Clermont and Furrs. Here, the defendant was not engaged in any criminal or suspicious activity. There was no testimony that, prior to pursuing the defendant, the agent had observed a bulge or “what appeared to be a gun” on the defendant’s person or that the defendant was observed engaging in conduct which was “indicative of gun possession” (Clermont, 133 AD3d at 614). To the contrary, the agent admitted that prior to the defendant fleeing, he had not noticed anything about the defendant. Under these facts, the agent’s conduct in pursuing the defendant was unjustified. The People argue that the circumstances herein are distinguishable from those in the cases cited above. They submit that “the defendant’s flight, coupled with his actions of holding onto his pants pocket, trying to control a large object bouncing back and forth as he was running, were escalating factors justifying Agent Schultz’ pursuit of the defendant as he fled” (People’s Mem of Law at 7). The People’s argument is unavailing. In describing the circumstances under which he pursued the defendant, the agent stated, “what I testified to is that [the defendant] took off, fled on foot, and I was already pursuing him, he simultaneously touched the left side of his leg holding onto something that was rocking back and forth, he was trying to control it with his hand” (tr at 37). The agent further conceded that he did not observe anything about the defendant before the defendant took off on foot (id.). In evaluating the propriety of law enforcement conduct, the court must consider the totality of the circumstances and information available at the time of the intrusive action (see e.g. People v. Harris, 122 AD3d 942, 944 [2d Dept 2014]). Law enforcement may not justify a stop by a subsequently acquired suspicion resulting from the stop; rather, the action must be justified at its inception (DeBour, 40 NY2d at 215-216). Here, the agent’s observations of the defendant holding onto his pants pocket trying to control a large object came after the agent began his unlawful pursuit of the defendant. In any event, the defendant’s behavior as he ran was innocuous since an unidentifiable object in an individual’s pocket is susceptible to both innocent and culpable interpretations (see People v. Brannon, 16 NY3d 596, 602 [2011]; Harris, 122 AD3d at 944 [2d Dept 2014]). Unlawful police conduct cannot be validated by subsequent police observations (see People v. Jones, 164 AD3d 1363, 1366-1367 [2d Dept 2018]). In People v. Jones, an officer observed the defendant leaning over with a slight bulge in his pocket. The officer pulled over next to the defendant, identified himself and asked the defendant to “hold on.” The defendant picked up his pace and started walking faster. The officer then exited the vehicle “to talk to the defendant.” As he “got closer to the defendant picking up his pace,” the officer observed a firearm sticking out of the defendant’s jacket pocket. The Second Department held that the police intrusion was not justified. The court found that the circumstances — defendant’s nondescript bulge in his jacket pocket, his leaning to one side, and his walking away from the officer without complying with the request to stop — did not establish reasonable suspicion. It emphasized that “[s]ince this level three intrusion was not justified, it cannot be validated by the officer’s subsequent observation of the firearm” (id. at 1367). Where, as here, the indicia of criminal activity was observed after the agent began his pursuit of the defendant, it cannot justify the prior unlawful level three intrusion. The agent’s pursuit of the defendant required reasonable suspicion, which was not supported by the facts in this case. Accordingly, the firearm recovered from the defendant must be suppressed as the fruit of an unlawful search and seizure. The Huntley/Harris Portion Because the agent’s conduct in pursuing the defendant was unjustified, the statements made by the defendant to the police on the scene and at the precinct must be suppressed as the fruits of an impermissible intrusion (Jones, 164 AD3d at 1367; People v. Malave, 112 AD3d 651, 652 [2d Dept 2013]). That notwithstanding, the court is compelled to address the circumstances surrounding the taking of the defendant’s videotaped statement. The People, recognizing that the defendant’s videotaped statement was taken in violation of Miranda, conceded Huntley as to this statement, but sought to litigate its voluntariness to later use it “for impeachment purposes to attack the credibility of the defendant’s trial testimony” (Harris v. New York, 401 US 222 [1971]). It is manifest that a defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v. Arizona, 384 US 436 [1966]). “Both the elements of police custody and police interrogation must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda” (People v. Huffman, 41 NY2d 29, 33 [1976]). As evidenced by the record before the court, the law enforcement personnel herein were aware of their obligation to advise the defendant of his rights before speaking with him (tr at 50-51). At the start of the debriefing, Detective Pina is heard on the videotape advising the defendant that he was going to read him his Miranda rights and asks the defendant to “audibly say yes or no,” after which he states “It’s a formality” (see People’s Exhibit 3). The defendant was then read his Miranda rights by Detective Pina and acknowledged that he understood his rights by answering, “Yes sir” to the first five questions. In response to the last question — “Now that I’ve advised you of your rights, are you willing to answer questions?” — the defendant emphatically stated, “Hell no!” (see id.). The following exchange then occurs: Detective Pina: That’s it no questions at all…so… Defendant: Why did you take a deep breath when you said it? You didn’t have to uh… Detective Pina: I said it’s like, yo, ya, that’s it, I’m not gonna…you not going to answer what you don’t want but I’m still going to ask you normal shit like where you from? And the defendant responded. The detective and agent then continued to speak to the defendant for approximately 20 minutes. Here, the defendant made an “unequivocal and unqualified” assertion of his right to remain silent (cf. People v. Richardson, 195 AD3d 949, 950 [2d Dept 2021] [defendant did not unequivocally invoke the right to remain silent until he stated, "this conversation is over"]). Once invoked, the right to remain silent must be “scrupulously honored” (People v. Ferro, 63 NY2d 316, 322 [1984]). As established by the United States Supreme Court in Miranda v. Arizona, Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked (384 US 436, 473-474 [1966]). Of course, recognizing that Miranda does not create “a per se proscription of indefinite duration” upon the further questioning of a suspect who has invoked the right to remain silent, the United States Supreme Court later concluded that the admissibility of statements obtained after an unequivocal assertion of the right to remain silent rests on whether the defendant’s ” ‘right to cut off questioning’ was ‘scrupulously honored’ ” (Michigan v. Mosley, 423 US 96, 102-104 [1975]). Among the factors a court must consider in deciding whether a defendant’s right to remain silent was scrupulously honored are: whether the interrogation immediately ceases, whether there was any pressure or coaxing by the officers to persuade the suspect to change his mind and talk, the amount of time that elapsed between the invocation and the subsequent interrogation, and whether the subsequent questioning was preceded by a fresh set of Miranda warnings (Mosley, 423 US at 104-105). In Michigan v. Mosley, the defendant, after being provided Miranda warnings, indicated that he did not want to discuss the robberies that he was charged with. The detective immediately ceased the interrogation and did not try to resume the questioning or otherwise persuade the defendant to change his mind. Two hours later, the defendant, after being re-Mirandized, was questioned at another location by another officer about an unrelated holdup murder. The United States Supreme Court found that that the police had scrupulously honored the defendant’s request to remain silent. In contrast, here, the police conduct showed a complete disregard of the defendant’s assertion of this right. Unlike the interviewing detective in Mosley, the detective here did not immediately cease questioning, but instead continued to engage the defendant. Detective Pina specifically stated that he was “still” going to ask what he referred to as “normal” questions and that the defendant could not answer what he did not want to answer. Moreover, here, there was not a significant passage of time between the invocation of the right to remain silent and the second interrogation. Here, there was no lapse between the defendant’s assertion of his right to remain silent and the detective’s subsequent interrogation. After the defendant first invoked his right to remain silent at 02:28:15, the detective continued to engage the defendant and a mere eight seconds later, at 02:28:23, the detective proceeded to question the defendant. The court further notes that notwithstanding the detective’s declaration that he was going to ask the defendant about “normal” things, at 02:31:58, less than four minutes after the defendant asserted his right to remain silent, the detective asked, “Do you want to talk about how you got the gun?” The defendant answers, “Nah” and the very next question is, “Is that why you’re here?” At least twice after this exchange, at 02:32:51 and 02:38:30 respectively, the detective and the agent acknowledge that the defendant doesn’t want to talk about “this,” but continue to coax the defendant to speak by asking whether he had any useful information or whether he wanted to talk about something else. The agent even asks the defendant if he’d like his phone number and the defendant responds, “No, I’m alright.” Finally, unlike in Mosley, the questioning of the defendant after his invocation of the right to remain silent was not preceded by a fresh set of Miranda warnings. When asked on cross-examination why he persisted in questioning the defendant after he invoked his right to remain silent, the agent’s answers included: that he was not the one who initiated the conversation for that second portion; that he was having “general conversation” with the defendant; that the information being elicited did not pertain to the crime itself; and that he did not feel like he violated the defendant’s rights (tr at 49-50). The police conduct at issue here is the very “coercive pressure of the custodial setting” that the Miranda rule is designed to counteract (Ferro, 63 NY2d at 322). Unlike in Mosley, this is a case “where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind” (cf. Mosley, 423 US at 106). CONCLUSION Because the police conduct in pursuing the defendant was not justified, the firearm recovered must be suppressed. The defendant’s statements must likewise be suppressed as “fruit of the poisonous tree.” Accordingly, the defendant’s motion to suppress evidence, namely the firearm, the statement attributed to him on the scene, and the videotaped statement made at the precinct, is granted. This constitutes the Decision and Order of the court. Dated: July 15, 2022
