People v. Campbell , 554 N.Y.S.2d 103 ( 1990 )

—Order, Supreme Court, Bronx County (John Byrne, J.), entered February 9, 1989, which granted defendant’s motion to suppress physical evidence and statements, affirmed.

As defendant was walking along the street one afternoon with a plastic bag under her arm, she noticed an unmarked radio patrol car pull up alongside her. When she realized that the occupants of the vehicle were officers who had previously arrested her, her eyes widened, her mouth opened and her shoulders quickly shrugged back. She then turned and began walking in the opposite direction. Sergeant Ohrnberger got out of the patrol car and approached defendant who placed the bag she was carrying on the shelf of a nearby newstand. Ohrnberger testified that defendant then walked past him while Officer Majett stated that after she placed the bag on the newstand, defendant walked back towards both officers. Majett then told defendant to "[s]top here, Miss Campbell.” After Majett ordered defendant to stop, Ohrnberger retrieved the bag from the newstand and asked defendant if it belonged to her. When she did not respond, he opened the bag which contained a gun wrapped in a towel. Defendant was arrested and transported to the police station where she made a statement.

We agree with the Supreme Court that the police lacked a reasonable suspicion to detain defendant. "Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present (People v Cantor, [36 NY2d 106]; People v Rosemond, 26 NY2d 101)” (People v De Bour, 40 NY2d 210, 215). The fact that defendant appeared startled at the sight of the officers and began to walk away is "innocuous behavior [which] will not generate a founded or reasonable suspicion that a crime is at hand” (People v De Bour, supra, at 216; see also, People v Howard, 50 NY2d 583, cert denied 449 US 1023).

The officers’ testimony was conflicting as to defendant’s actions after placing the bag on the newsstand shelf and failed to meet the People’s burden of establishing her unequivocal intention to abandon the property such as to divest her of standing to contest the introduction of the gun (People v Howard, supra; People v Boodle, 47 NY2d 398, cert denied 444 US 969; People v Pacheco, 107 AD2d 473, appeal dismissed 67 NY2d 631).

Since the detention and arrest of defendant were illegal, the subsequent statement made by her at the precinct was properly suppressed as fruit of the poisonous tree (Wong Sun v United States, 371 US 471; People v Dodt, 61 NY2d 408). Concur—Carro, Milonas, Rosenberger and Ellerin, JJ.