OPINION OF THE COURT
PAULA J. HEPNER, J. In accordance with sections 330.2, 332.1 (7) and 332.2 of the Family Court Act the respondent moved to suppress physical evidence, pursuant to
Mapp v Ohio (367 US 643 [1961]), on the grounds that the stop, seizure, search and arrest of the respondent were without probable cause. After oral argument the court granted the respondent's motion for a
Mapp hearing.
Findings of Fact
At 10:34 P.M. on August 10, 2001 Police Officer Anna McHenry was on patrol with her partner, Police Officer Taylor, when they received a radio run stating that one of two males walking down Church Avenue had a gun. In the radio run the two males were described—one wearing a white tee shirt and the other wearing a grey tee shirt. Each of them was said to have his hair in braids. The source of the information in the radio run was not identified. Officer McHenry and her partner drove down Church Avenue toward East 42. On the passenger side of the patrol car at the corner of East 43 Officer McHenry observed two black males walking toward her. One wore a white tee shirt and the other wore a grey tee shirt. Both of the males had their hair in braids. Officer Taylor drove the front tires of the patrol car up onto the curb to block the crosswalk in front of the two males. As they did, Officer McHenry saw the male in the white tee shirt put his hand to his waist and act like he was pushing something down inside. The male in the grey tee shirt was walking away. Officer McHenry and her partner got out of the police car. Although they knew they were approaching an individual who might be armed, their guns were not drawn. Officer McHenry "grabbed" the male in the grey tee shirt and her partner "grabbed" the male in the white tee shirt. Each individual was placed up against the car. Officer Taylor patted down the male in the white tee shirt while Officer McHenry held the male in the grey tee shirt and watched. Officer Taylor yelled out, "Gun" and retrieved a gun from the respondent's waistband.
Conclusions of Law
The respondent contends he is entitled to suppression of the physical evidence because the police officers lacked reasonable suspicion that he had committed, was committing or was about to commit a crime, much less probable cause to arrest him. Because the police did not have probable cause to arrest the respondent (supra) and People v Benjamin (51 NY2d 267, 270 [1980]), seemingly still good law in the wake of J.L., the permissible level of police intrusion can escalate as "factors rapidly developing or observed at the scene" are encountered. (People v William II, 279 AD2d 648 [3d Dept 2001].) Upon seeing the gestures made by the male in the white tee shirt, the permissible level of police intrusion under De Bour rose to reasonable suspicion with the right to forcibly stop and detain a person and the right to conduct a limited pat-down frisk since the report already created a suspicion that the person was armed and the gesture observed was consistent with that possibility. While the movement Officer McHenry described could be viewed as "equivocal or innocuous behavior," and is "susceptible of an innocent as well as culpable interpretation," when considered in conjunction with the radio call, the court finds the police action was justified at its inception and was reasonably related in scope to the circumstances which rendered its initiation permissible. Accordingly, the presentment agency has met its burden of going forward to demonstrate probable cause for the respondent's arrest and detention and the property the presentment agency seeks to introduce was acquired in a legal manner. The respondent has not demonstrated, by a preponderance of the evidence, that his constitutional rights were violated. The motion to suppress the property is denied. [1] The Court of Appeals identified four levels of police intrusion and set forth the factors to justify each: (a) approach to request information/some objective credible reason for the interference; (b) common-law right to inquire (short of forcible seizure)/founded suspicion that criminal activity is afoot; (c) forcible stop and detention (and limited pat-down frisk if there is a suspicion that the person is armed)/reasonable suspicion that a particular person has committed, is committing or is about to commit a crime; and (d) arrest/probable cause to believe the person committed a crime. [2] The police in Salaman received a report of "a black male with a gun at South Fifth Avenue and West Third Street in the City of Mount Vernon wearing a long beige overcoat and a maroon sweatshirt with a hood on it." (Id.) The officer found 25 people at the location specified but only the defendant matched the description given. The officer approached the individual, "ordered him to put his hands on the hood of the car and conducted a pat down of defendant's outer clothing" where he found a gun. (Id.) [3] In Alabama v White (supra at 332), the anonymous tip contained information predicting the suspect's future actions which, upon continued police observation, proved to be accurate. Because the tip contained "[k]nowledge about [the suspect's] future movements indicat[ing] some familiarity with that person's affairs" (J.L. at 271), the Supreme Court said it became "reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine." (Id. at 270.) In Adams v Williams (supra at 146), the tip came from an informant who was known to the police officer personally and had provided information to him in the past.