OPINION OF THE COURT
Dеfendant is charged with criminal possession of weapon. In an omnibus pretrial motion, the defendant sought suppression of the gun that is the subject of the charges. A hearing was held on November 13, 1991, and Police Officer Michael Clohessy testified. On December 9, 1991, pursuant to a request by this court, counsel submitted memoranda discussing the effect
FINDINGS OF FACT
Except as specifically noted, this court credits Police Officer Clohessy’s testimony. According to Police Officer Clohessy, on December 1, 1990, at about 2:30 a.m., he responded to a radio run that there was a large group of people fighting at 1411 Grand Concourse and a man with a knife. The man was said to be wearing a dark jacket with a white stripe. Although Clohessy testified the description said male hispanic, that was not included in the sprint report of the radio run and the court finds that Clohessy did not know that information. There was a description of another man wearing а red jacket. The officers went to the location, were there for fewer than five seconds and saw no one. Then another call came over the radio of an officer in trouble. The officers went to the second location, spent 2 or 3 minutes there and then returned to the first location.
When Clohessy returned, there were three people at 1411 Grand Concourse. No one was wearing a red jаcket and there was no one fighting. The defendant was wearing a jacket with light brown sleeves. Clohessy said he fit the description.
As the officers approached the three men, the defendant ran away. He ran north on the Grand Concourse to 171 Street and then west on 171 Street to Wythe Street and then north on Wythe to 172 Street an then west on 172 Street to Walton Avenue. Clohessy and Mullen followed the defendant in a chase lasting аbout 45 seconds. Mullen was about six steps behind the defendant. Clohessy saw the defendant reach for his waistband and then toss a gun under a car. While Mullen continued to run after defendant, Clohessy retrieved the gun. As defendant ran police cars came from everywhere blocking his route. He stopped and acted as if nothing was wrong and was arrested by Mullen. When Clohessy asked the defendant why he ran, he said he was on probatiоn and was scared.
CONCLUSIONS
The questions to be resolved in this case are set out in People v Torres (
This formulation of the relevant inquiry is derived from two Court of Appeals decisions, People v Boodle (
In Boodle (supra) the court held that the defendant was in custody when he entered a police car at an officer’s request, was told to keep his hands in view, and the officer proceeded to drive off in the car. The court found a seizure under the State and Federal Constitutions because the defendant’s liberty of movement had been substantially infringed by the police action. (47 NY2d, supra, at 401.) The court went on to find the seizure unlawful. The court then considered the second question: whether the defendant’s conduct of tossing a gun from the police car window was thе result of the unlawful police conduct. The court held that the defendant’s action was not the result of the police conduct. As the Court of Appeals opinion states, the analysis used to decide Boodle’s motion was not new. The two-step analysis had been applied where the defendant tossed away property after the police illegally arrested the defendant (People v Baldwin,
In Howard (supra) the Court of Appeals applied the Boodle analysis to instances in which an individual refused to stop as a result of illegal police action. Instead, the individual ran from the police and during the flight tossed away contraband or evidence. The Court of Appeals found in both the Federal and State Constitutions the right to remain silent and the right "to be let alone” when police officers apprоached to make inquiry. The court noted that few cases explicitly held there was a right to be let alone, "probably because few individuals feel they can walk away or refuse to answer”. (50 NY2d, supra, at 590.) To support the right, the court referred to a New York trial court decision, opinions from other States,
Combining the reasoning of Boodle (supra) with that of Howard (supra) has produced the two-pronged analysis of Torres (supra) that applies in this case. Here, the police approach to the defendant was without justification. When Clohessy arrived at the location specified in the anonymous radio run no one was present and none of the information he received in the radio run was confirmed. Clohеssy then left the scene to answer another call. When he returned, several people, including the defendant, were present. There was no fight, no one with a knife, and no one in a red jacket. Further, the jаcket defendant was wearing was not one with a white stripe, but one with light brown sleeves. The officers had no reason to believe that any criminal activity was afoot and, at most, had only a right to inquire. (See, People v De Bour,
The second question to be resolved is whether the tossing away of the gun was a spontaneous act resulting from the illegal police cоnduct or an independent act involving a calculated risk. Officer Clohessy described the chase as lasting about 45 seconds. The chase was for four blocks, and the gun was tossed at the end of the third block, after about 30 seconds. Everyone was running very quickly. Fifteen seconds after the defendant tossed the gun, he stopped running as police cars came from everywhere and he had no place to go.
The tossing of the gun in these circumstances was a spontaneous reaction to the unlawful police conduct. Everyone was running very quickly; defendant was followed close behind by
One further issue need be discussed, and that is whether California v Hodari D. (supra) has any impact on New York law. On April 23, 1991, the United States Supreme Court held that pursuit of a person by the police does not constitute a seizure of that person and that pursuit, even if unjustified under law, is not a violation of the Fourth Amendment. As a consequence, any property thrown away by a person can be seized as abandoned property. The wоrds of Justice Scalia set out the rationale of the decision: "Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be enсouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to сomply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command 'Stop!’ expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures.” (California v Hodari D., 499 US, supra, at —, 111 S Ct, supra, at 1551.)
The contrast between the Hodari D. analysis and the New York analysis previously described makes clear that a different approach to evaluating issues of flight and abandonment is taken by New York and the United States Supreme Court. Where one of two factors in evaluating the admissibility of evidence is the legality of the police approach to the person or of an order given by the police, New York does not assume the legality of police conduct, but rather puts the burden on the People to prove it. (People v Berrios,
The cases demonstrating this are numerous and the following list, as well as the cases previously cited, provide only a small sample of the most recent cases. (People v Martinez,
New York has declined to follow the United States Suprеme Court when it reduced a previously afforded level of constitutional protection. (E.g., People v Johnson,
Hodari D. (supra) is not binding on this court.
Notes
Two Appellate Division cases have cited Hodari D. (supra). People v Rivera (