On April 8, 2024, a Mapp/Huntley/Dunaway hearing was scheduled for this Court. After some discussion, the People withdrew statement notice, thus rendering the matter a Mapp/Dunaway hearing. The People called one witness, New York City Police Officer Charese Magwood, shield # 23816 of the 48th Precinct, to testify.

Based on all of the evidence and having assessed the witness's credibility, the Court makes the following findings of fact and reaches the following conclusions of law.

Police Officer Magwood testified that on January 21, 2023, she was working as a uniformed police officer in Sector Adam—2 of the 48th Precinct. Her partner that day was Police Officer West. Officer Magwood had been a police officer for two and one-half years, including six months of training at the New York City Police Academy. The officers were working a 7:05 a.m. to 3:40 p.m. shift. At approximately 2:40 p.m., the officers received a radio call of a black male in a brown leather jacket with a gun near 2414 Crotona Avenue. Officers Magwood and West proceeded to the area in their marked radio patrol car (RMP). Upon arriving on the 2400 block of Crotona Avenue, the officers exited their vehicle. PO Magwood spoke with a male civilian standing on the sidewalk, asking if he had seen anyone in the area with a gun. The man responded that he had not. Officers Magwood and West then continued up the block.^[FN1]

As the officers headed up the block, PO Magwood contacted the 911 dispatcher to confirm the description of the individual with the gun. Officer Magwood testified that the [*2]dispatcher repeated the description as a black male in a brown leather jacket with a gun. Walking further up the block, Officer Magwood stated, "Fuck, is that a gun?" She describes seeing a black man in a brown leather jacket with his right arm raised in the air and a gun in his hand. PO Magwood testified she drew her service weapon and yelled, "Drop it." She said the male dropped the gun to the floor (ground), at which time she and fellow officers ran towards the male, as a second patrol car had responded to the location.

Officer Magwood testified that while other officers stopped and arrested the Defendant and another black male who had been standing with the Defendant, she secured the weapon that she saw Mitchell drop to the ground. PO Magwood picked up the gun and placed it by or in a curbside tree well before checking to see if the other officers needed assistance with the arrests. Although several officers struggled to cuff Mitchell, they told Officer Magwood they did not need her help.^[FN2] PO Magwood then went to the officers who had the other male; they, too, stated they did not need assistance.^[FN3] Officer Magwood retrieved the weapon from where she placed it and secured it.

Officer Magwood identified the male with the gun as the Defendant, Paul Mitchell. The weapon she recovered from the ground was a 22-caliber Beretta. The People introduced a photograph of the gun as evidence, along with the body-worn camera footage of PO Magwood and the surveillance camera footage from the school on Crotona Avenue. The photograph displayed the gun and three cartridges.

The purpose of a Dunaway hearing is to determine whether there was probable cause for the police to make an arrest without a warrant (Dunaway v New York, 442 US 200 [1979]). It is the People's burden to prove that the Defendant's arrest was lawful.

Upon receiving a radio run of a man with a gun, PO Magwood and her partner were duty-bound to respond (People v Benjamin, 51 NY2d 267, 270 [1990]). "Even an anonymous telephone tip giving only a general description and the location of an individual with a gun permits a common law inquiry by the police," (People v Wallace, 89 AD3d 559 [1st Dept 2011]) (internal citations omitted). This common-law right to inquire is "activated by a founded suspicion that criminal activity is afoot" and entitles a police officer "to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" (People v De Bour, 40 NY2d 210, 223 [1976]; see People v Hollman, 79 NY2d 181, 191-192 [1992]).

After receiving the radio report, the officers arrived at the location. Although three people were in the area, only the defendant wore the clothing described in the radio run. Officer Magwood observed Paul Mitchell standing in the location indicated in the report, a public street with a firearm in plain view. The police radio transmission which provided detailed information regarding a man with a gun, the officers' quick response time, their observation of the Defendant at the specified location, of being the only person wearing clothing matching the description broadcast in the report with a gun in hand, elevated the street encounter from a common law [*3]right of inquiry to probable cause for arrest, bypassing reasonable suspicion. "[T]he level of police intrusion was an appropriate response to the observations and beliefs of the officers involved" (People v Leung, 68 NY2d 734, 736 [1986]; People v De Bour, supra at 223.)

The defense asserts that Officer Magwood violated Mitchell's federal and state constitutional rights because she did not have probable cause to arrest Paul Mitchell. Furthermore, the defense alleges that Officer Magwood was uncertain if Mitchell did anything illegal, as evidenced by her statement, "F*ck, is that a gun?" as she and Officer West first observed Mitchell on Crotona Avenue. The defense maintains that Officer Magwood's exclamation indicated that the officer was unsure of what, if anything, Mitchell held in his hand, even suggesting that what Officer Magwood observed was not a gun but a cellular telephone. Thus, the defense argues that not only was the stop illegal, but so was the arrest.

The defense's reliance on United States v Homer, 2024 WL 417103 (Feb 5, 2024, EDNY) asserting that PO Magwood lacked probable cause to arrest Paul Mitchell is misplaced. In Homer, the Defendant was charged as a felon in possession after his arrest for gun possession.^[FN4] Judge Nicholas G. Garaufis held that the officers lacked probable for the arrest as there was insufficient evidence to conclude that Homer did not possess a valid New York license to carry a firearm, citing New York State Rifle & Pistol Ass'n, Inc. v Bruen, 597 US 1 (2022). Whereas other than displaying a lack of "firearm discipline," Homer had tucked the gun into his pants pocket, he did nothing "suspicious or indicative of criminality."^[FN5]

Unlike the Defendant in Homer, Mitchell publicly displayed the weapon. "When a police officer witnesses criminal activity, that officer's observations 'form the basis for probable cause to arrest'" (People v Adams, 2022 NY Slip Op 50658[U], *2 [Sup Ct, Queens County 2022]). In this case, Officer Magwood witnessed the Defendant waving a firearm. When he brandished the weapon, Mitchell was next to the parking lot of Crotona International High School, a New York City Department of Education public school. The defendant's actions constituted a myriad of offenses, including Reckless Endangerment in the First Degree, Penal Law § 120.25;^[FN6] Reckless Endangerment in the Second Degree, Penal Law § 120.20,^[FN7] or Criminal Possession of a Firearm, Rifle or Shotgun in a Sensitive Location, Penal Law § 265.01-e.^[FN8] [*4]Officer Magwood's observations of Paul Mitchell waving the gun in the air, in plain view, were more than sufficient to support a reasonable belief that he had committed an offense. Accordingly, PO Magwood had probable cause to arrest Paul Mitchell.

"This is not a case where the defendant was arrested for a nonviolent offense and showed no signs of being armed" (Adams, 2022 NY Slip Op 50658[U], *5.) Mitchell had a weapon that he only relinquished when Officer Magwood ordered him to do so. The firearm and the magazine were properly recovered pursuant to a lawful arrest. "Law enforcement officers may properly seize an item in "plain view" without a warrant if (i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent (see also Horton v California, 496 US 128, 136-137 [1990]). Here, Officer Magwood was on a public street when she observed the Defendant waving a gun in the air. Even if the weapon was licensed, the activity of waving it in the air was not. Thus, Officer Magwood was within her right to seize the gun, an item of incriminating nature.

Finally, as noted in United States v (Jonathan) Torres, 2024 WL 1251186, *9 (SDNY March 22, 2024), "there is nothing in Bruen that alters the well-established law in this Circuit that the possession of a firearm provides probable cause to arrest." Judge John G. Koeltl held that although Bruen struck down one aspect of New York's licensing scheme, "that does not mean that a person who possesses a firearm without any claim of lawful, licensed possession, and conceals the firearm and acts in a suspicious manner, has not provided probable cause to arrest." id. It follows that a person who possesses a firearm without any claim of lawful, licensed possession and waves it in the air in plain view of a law enforcement officer has no right to avoid arrest. Accordingly, the Defendant's motion to suppress the physical evidence is denied.

This constitutes the decision and order of the Court.