People v. Terry

Feb 5, 1993
Versions:190 A.D.2d 1064
594 N.Y.S.2d 1013
1993 N.Y. App. Div. LEXIS 1299

— Judgment unanimously affirmed. Memorandum: Supreme Court properly refused to suppress evidence of a plastic bag and its contents. An anonymous 911 telephone call reported that a Black male wearing a blue and red sweat suit was selling drugs or guns at a specific *1065street address. That call and the responding officer’s observation of a person matching that description at that address provided the officer with a founded suspicion of criminal activity sufficient to justify exercise of the common-law right of inquiry (see, People v Stewart, 41 NY2d 65, 69; People v La Pene, 40 NY2d 210, 221; People v Atwood, 105 AD2d 1055). Defendant’s immediate flight upon seeing the officer approach and the officer’s observation that defendant was carrying a plastic bag in his hand heightened the level of suspicion to a reasonable suspicion that defendant was, or had been, engaged in criminal activity and justified the officer’s pursuit of defendant (see, People v Martinez, 80 NY2d 444; People v Leung, 68 NY2d 734; People v Johnson, 186 AD2d 420; People v Anderson, 185 AD2d 355, lv denied 80 NY2d 926). Because defendant discarded the plastic bag during a lawful pursuit, subsequent retrieval of it by the police did not violate defendant’s constitutional rights (see, People v Martinez, supra; People v Leung, supra, at 736; People v Dukes, 184 AD2d 522, lv denied 80 NY2d 929). Moreover, defendant’s attempt to divest himself of incriminating evidence by tossing the plastic bag under a parked car during that lawful pursuit was an independent act involving a calculated risk and constituted an abandonment of the bag and its contents (see, People v Hall, 152 AD2d 905, affd 75 NY2d 826; People v Anderson, supra; People v Dukes, supra; People v Rivers, 176 AD2d 902, lv denied 79 NY2d 863; People v Rivera, 175 AD2d 78, lv denied 78 NY2d 1129). (Appeal from Judgment of Supreme Court, Monroe County, Doyle, J. — Criminal Possession Controlled Substance, 4th Degree.) Present — Green, J. P., Pine, Balio, Davis and Doerr, JJ.