This is an appeal from a judgment of the Supreme Court, Kings County, rendered April 30, 1976, convicting defendant-appellant, after a plea of guilty, of the crime of attempted criminal possession of a weapon in the third degree, a class E felony (Penal Law, §§ 110.00, 265.02), and sentencing him to a term of imprisonment with a minimum of 1 Vi years and a maximum of 3 years.
The only issue on this appeal is whether the initial stop of the defendant constituted an illegal deprivation of his liberty requiring a suppression of the physical evidence seized from his person. We hold that it was and that, therefore, the judgment appealed from should be reversed and the indictment dismissed.
The only witness at the suppression hearing was the arresting officer, Patrolman Louis De Marco. In substance he testified that at about 3 or 3:30 P.M., on September 15, 1975, he observed two males in conversation in front of 180 Reid Avenue, Brooklyn, New York. One of the men stepped into the hallway and the other one stayed outside. The area has been classified as "drug-prone”. The one who entered the hallway was a Black male wearing a dark leather jacket. When the witness approached the building, the man in the hallway ran up the staircase. The officer followed and chased him up to the roof. However, he was unable to find him.
The officer then returned to the street, got back into the police car and left. Approximately 20 minutes later, when he returned to the same location, the officer observed a Black male wearing a black leather coat involved in a conversation
De Marco then called the man once in order to get him to stop. He yelled "Hey you”. The person in question continued walking. Then De Marco called again saying: "You with the black leather jacket.” He still received no response from the individual in question, who continued walking.
After the latter made a right-hand turn onto Madison Street, De Marco saw him walk up a couple of steps at 710 Madison Street. He grabbed the man’s right arm and a Luger dropped from his coat. After the Luger fell to the ground, De Marco placed defendant against the wall and then placed him under arrest. A search of his person revealed another gun and two envelopes of "vegetable matter”.
On cross-examination, De Marco admitted that he never ordered defendant to halt and that he asked the defendant no questions before he grabbed his arm. De Marco was never asked whether, nor did he testify that, the man he chased up the roof was the same person that he later followed and arrested.
In denying defendant’s motion to suppress, the Justice presiding at the hearing concluded (1) that De Marco had reasonable suspicion to make an investigation; (2) that, as a matter of law, defendant was not deprived of his liberty when he was grabbed by the arm; (3) that the search and arrest were contemporaneous; and (4) that therefore "there was probable cause for the search preceding the arrest.” We disagree.
That the defendant was "seized” within the meaning of the Fourth Amendment may not be gainsaid (see Terry v Ohio, 392 US 1, 16; People v Cantor, 36 NY2d 106). People v De Bour (40 NY2d 210), upon which the People rely, is distinguishable for, as Judge Wachtler there pointed out (p 221), "the officer never touched him [the defendant] until after he saw the pistol butt protruding from the belt.” In this case, as in People v Cantor (supra, p 114), the physical evidence should have been suppressed, since it was "revealed as a direct consequence of the illegal nature of the stop.” In People v Stewart (41 NY2d 65, 69) the Court of Appeals said: "Before a police officer 'places a hand on the person of a citizen in -----------
In this case the police action was not justified in its inception, nor was it reasonably related in scope to the circumstances which rendered its initiation reasonable (see People v De Bour, supra).
When the defendant was quietly walking down the street his movements were neither furtive nor suspicious; no tell-tale bulge was seen; the police officer asked him no questions; and the situation "was not one fraught with tension or hostility” (see People v La Pene, 40 NY2d 210, 226).
Since the weapon and the other physical evidence thus came to light as a direct result of the unlawful nature of the police conduct, which was based upon the officer’s vague hunch of wrongdoing by the defendant (see Terry v Ohio, 392 US 1, supra; Wong Sun v United States, 371 US 471, 473), and was not justified in its inception, its suppression should have been ordered and the indictment should be dismissed (cf. People v Townes, 41 NY2d 97).