OPINION OF THE COURT
Conflicting testimony was given at the suppression hearing as to the events surrounding the defendant’s arrest at about 4:40 a.m. on March 15, 1975.
Police Officer John Crowe testified on behalf of the prosecution. Crowe and his partner, both in uniform, were cruising in an unmarked vehicle in the vicinity of 145th Street and Seventh Avenue in Manhattan. From a distance of about 50 feet, he saw three individuals walking north on Seventh Avenue toward the Lugus Bar, which was located on the southwest corner. The officer noticed that the door to that bar was locked but that patrons were in the process of leaving that establishment. Crowe testified that one of the three individuals on Seventh Avenue "was holding a paper bag with a black pipe object protruding from the head of the paper bag”. It was protruding about two to four inches from the top of the bag. He believed that the "pipe object” was a shotgun or a rifle.
After briefly conversing with each other, the three individuals ran south on Seventh Avenue and turned west on 144th Street. Crowe immediately radioed for assistance. In recent weeks, several bars had been robbed at closing time by a band of three men. Crowe believed that these three individuals might be those same perpetrators. The officer lost sight of the three individuals for about three to five seconds after they turned into 144th Street.
When the officer turned the corner, the individual (Miller) carrying the bag was no longer in sight. A second individual (Laurie) was trying "to get into a door of a store”. This second individual, as well as his parked car, was searched. No weapon was found and no charges were brought against this second individual. The defendant was crouched against the gate of the store; his hands were on the gate. Crowe, with his gun drawn, identified himself as an officer and told the defendant to "freeze”. The officer then frisked the defendant and re
Bertram Laurie, a civil engineer with the New York City-Board of Water Supply, testified for the defense. Laurie had been drinking intermittently with Edward Miller since about 8:00 p.m. on March 14, 1975. They had been to several neighborhood bars during that period. Although Laurie had seen the defendant several times earlier in the evening, he only began to drink with him in the Lugus Bar about one hour before closing.
Laurie, Miller and the defendant left the bar shortly after 4:00 a.m. Miller was carrying a brown bag whose contents had the smell of chicken. There was no black pipe protruding from the bag. The defendant left with a drink in his hand. The three men walked briskly south on Seventh Avenue. They had not seen a police car as they left the Lugus Bar.
Once on 144th Street, Miller disappeared into the building numbered "203” where he had a date. Laurie noted that Miller resided on that same street in building numbered "226”. Later that evening, Miller reappeared and accompanied Laurie to the station house to inquire about the defendant’s status. Laurie himself had gone to 144th Street because his car was parked there. He and the defendant were standing in the middle of the sidewalk when a marked cruiser approached from Eighth Avenue and an unmarked vehicle approached from Seventh Avenue. The officers searched both of their persons and recovered a revolver from the defendant’s jacket.
The court at the suppression hearing believed Crowe’s testimony that he saw what appeared to be the barrel of a shotgun or rifle. When the individual (Miller) with the bag vanished, the court found that the officer had the right to stop and frisk the remaining individuals, the defendant and Laurie.
The minimum requirement for a lawful detentive stop is a founded suspicion that criminal activity is afoot. (People v Cantor, 36 NY2d 106, 114.) Various arguments can be advanced to challenge Crowe’s testimony that he reasonably suspected that he had come upon the holdup team operating in the subject area. First of all, it may be fairly argued that, if Crowe had the acuteness of vision to perceive a two inch "black pipe” at a distance of 50 feet, he should have also seen the glass of whiskey in defendant’s hand. Secondly, it may be reasonably contended that the three individuals were not
The foregoing arguments, plausible as they might be, must give way to the fact that Crowe did radio for assistance. This act on his part would suggest that he reasonably suspected that one of the individuals had what appeared to be a rifle or shotgun. At that juncture and in the absence of further investigation at a closer range, Crowe merely had the right to stop and make inquiry of the individual carrying the suspected weapon. (People v Trapier, 47 AD2d 481.)
Crediting Crowe’s testimony, the defendant ran around the corner. That activity, although somewhat unusual at 4:40 a.m., is not criminal in nature. Moreover, upon turning the corner, the officer did not find the defendant either fleeing, burglarizing the store or otherwise engaging in criminal conduct. The defendant, with a glass of whiskey in his immediate presence, was leaning against a gate. Under Crowe’s own narrative of the events, his description of the defendant was hardly that of a robber in flight but rather that of a patron on his way home after a long evening. Officer Crowe, with gun drawn, approached and frisked the defendant without making any preliminary inquiries. As was noted above, the frisk revealed the presence of a loaded revolver in the defendant’s jacket.
A person, otherwise acting innocently, may not be arrested merely because he was in the company of other individuals who had engaged in criminal activity. (People v Martin, 32 NY2d 123, 125.) The officer never established that Miller was in possession of a rifle or a shotgun. Even if the officer had established some criminal activity on Miller’s part, that fact would not justify the defendant’s precipitous arrest at gunpoint (People v Martin, supra). Similarly, we have held that the fact a particular defendant was standing alongside a man who was alleged to possess a gun did not provide a reasonable basis to suspect that such defendant committed or was about to commit a crime (People v Trapier, supra, p 483). Since the gun found on the defendant was seized after an unlawful arrest, it should have been suppressed.
Even if it be conceded that Officer Crowe had a right to stop the defendant under CPL 140.50, he should have first demanded an explanation from the defendant for his conduct
Accordingly, the judgment of the Supreme Court, New York County (Martin Evans, J., at the suppression hearings; Lang, J., at plea and sentence), rendered September 10, 1976, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, should be reversed, on the law, the plea should be vacated, the motion to suppress should be granted and the indictment should be dismissed.