Good Guess on Gun Was Not Enough for Pursuit, Panel Rules

, New York Law Journal

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a revolver, an evidence bag and a pair of handcuffs

A Buffalo police officer who correctly guessed that a man was pulling a weapon out of his pocket had no right to pursue the suspect because he had neither seen the gun nor its outline in the man's jacket, a divided appellate panel has ruled.

The Appellate Division, Fourth Department, holding in People v. Ingram,13-00437, is the latest in a spate of recent rulings in which courts have broadly interpreted a 1976 landmark opinion, People v. DeBour, 40 NY2d 210, which outlined four levels of police-citizen encounters and the standards for escalating levels of intrusion.

"The jurisprudence in this state for the last 40 years has been that the officer need not see a glint of steel before he can take action against a gun-toting thug," said Erie County District Attorney Frank Sedita III. "Apparently, that jurisprudence is changing."

Ingram involved a housing officer who received a tip that there were two guns stashed behind a house in the city's crime-ridden East Side. When police went to investigate, they encountered two men. One, known to police as a recent shooting victim, spoke to the officers. The other, defendant Robert Ingram, walked away briskly, prompting an officer to ask his name.

Ingram did not respond verbally, but turned toward the officers and grabbed at his jacket as if he was attempting to pull something out of the pocket. One of the officers pulled out his pistol, repeatedly yelling at the suspect, "Don't do it." The suspect fled and was quickly caught with a loaded handgun in his pocket.

Acting Erie County Judge Russell Buscaglia (See Profile) suppressed the evidence on DeBour grounds in a decision narrowly affirmed by the Fourth Department.

The 3-2 majority said that since the police conceded that neither the defendant nor his companion were doing anything illegal when they first saw them, the officers were limited under DeBour to requesting basic information. Justices Edward Carni (See Profile), Rose Sconiers (See Profile) and Gerald Whalen (See Profile) agreed that the defendant, after he was asked his name, did nothing to justify further intrusion by police.

"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," the majority said.

The majority said neither officer saw a bulge or the outline of a weapon in the 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," the court said.

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    This kind of leftwing coddling of criminals by its judiciary is, at least in part, why the crumbling former Empire State is plainly doomed -- no matter how many millions it spends on ad campaigns to convince out-of-state businesses and residents to relocate there.

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