
    The People of the State of New York, Respondent, v Hezekiah Boodle, Appellant.
    Argued April 27, 1979;
    decided June 14, 1979
    
      POINTS OF COUNSEL
    
      Susan J. Penry-Williams and Robert E. De Right, Jr., for appellant.
    I. Appellant’s conviction cannot be sustained since it rests solely on evidence revealed as a direct consequence of an unlawful seizure. (People v Cantor, 36 NY2d 106; Brown v Illinois, 422 US 590; People v Martinez, 37 NY2d 662; People v Townes, 41 NY2d 97; People v Loria, 10 NY2d 368; Fletcher v Wainwright, 399 F2d 62; People v Baldwin, 25 NY2d 66; People v Butterly, 25 NY2d 159; Rios v United States, 364 US 253; People v Allende, 39 NY2d 474.) II. Appellant’s conviction, upon a plea of guilty, to possession of narcotics rests solely on evidence revealed by a search following an unlawful arrest and, therefore, must be reversed.
    
      Robert M. Morgenthau, District Attorney (Donna Krone and Robert M. Pitler of counsel), for respondent.
    Defendant was not illegally seized when he voluntarily entered a police car in order to discuss a homicide he may have witnessed. Even if defendant had been illegally seized, the discovery of the gun and heroin was not a direct result of that seizure, but was a product of defendant’s unforeseen and unreasonable act of discarding his loaded pistol. (People v De Bour, 40 NY2d 210; Miranda v Arizona, 384 US 436; Matter of Kwok T., 43 NY2d 213; People v Rodney P. [Anonymous], 21 NY2d 1; People v Mason, 59 AD2d 580; People v Cantor, 36 NY2d 106; Mapp v Ohio, 367 US 643; People v Martinez, 37 NY2d 662.)
   OPINION OF THE COURT

Wachtler, J.

The defendant was charged with criminal possession of a weapon in the third degree, a felony (Penal Law, § 265.02) and criminal possession of a controlled substance in the seventh degree, a misdemeanor (Penal Law, § 220.03). Claiming a violation of his constitutional rights the defendant sought to suppress evidence, a pistol and numerous packets of heroin. After a hearing Special Term denied the motion. The defendant subsequently pleaded guilty to the drug charge, and a jury convicted him of the weapon offense. The Appellate Division affirmed.

On the evening of August 25, 1975 John Capers and Harold Johnson, New York City detectives, were investigating a homicide which had occurred about one month earlier. The two plainclothes detectives, in an unmarked radio patrol car, met an informant at Eighth Avenue and 127th Street in Manhattan near the location of the crime under investigation. The informant told them that a man called "Heavy” wearing a gray jacket might have information concerning the homicide. Detective Capers then saw a man, whom he believed to be "Heavy”, standing and talking with another man. "Heavy”, the defendant in this case, did nothing to arouse even the slightest suspicion. As the police car approached, the defendant began walking south on Eighth Avenue. Capers stopped the car beside defendant on 125th Street and said to him, "Please step over to the car.” The detective then said that he wanted to speak to the defendant about the homicide and asked him to get into the rear seat of the car. It is not clear whether the officers identified themselves as such at this time. After the defendant complied, Capers began to drive away slowly. At that point Capers asked the defendant if he was "clean”; the defendant answered yes. Capers then warned the defendant: "Just keep your hands where I can see them.” When the car had reached the middle of the block between 124th and 125th Street, Capers, looking into the rear view mirror, saw the defendant reach down with his left hand. Braking the car, Capers turned his head and saw the defendant throw a black object out of the window, which Johnson, the other detective, immediately recognized as a gun. As soon as the vehicle came to a full stop Johnson retrieved the object, a loaded .32 caliber automatic revolver. The defendant was taken to the station house where a search revealed 13 glassine envelopes later found to contain heroin. The principle issue is whether the defendant produced the weapon as a direct result of illegal police action.

Initially, we note our agreement with the Appellate Division that the defendant was seized within the meaning of the State and Federal Constitutions (US Const, 4th Arndt; NY State Const, art I, § 12). While the defendant’s entering the police car may not have been coerced, the command to keep his hands exposed demonstrates that his freedom of movement was significantly restrained. In addition, when Capers without explanation began driving the car, he substantially infringed on the defendant’s liberty. "Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment” (People v Cantor, 36 NY2d 106, 111; People v Jennings, 45 NY2d 998; Terry v Ohio, 392 US 1, 16). Since prior to the seizure of the defendant the police wholly lacked evidence of probable cause linking him to criminal activity, the seizure was clearly unlawful.

We next consider whether the unlawful seizure tainted the discovery of the weapon. The defendant argues that the gun was "fruit of the poisonous tree”, discovered as a direct result of the unlawful seizure. If this premise is correct then the gun was illegally seized and should have been suppressed. Furthermore, as illegally seized evidence, the gun could not have provided the predicate for the subsequent search at the station house which revealed packets of heroin. Hence, following this line of reasoning, the heroin should have been suppressed as well. .

The People contend that the defendant’s act of throwing the revolver from the car was unanticipated and unprovoked. According to the People, since the act was independent of the unlawful police conduct, the taint of the illegal detention was sufficiently dissipated to render the seizure of the gun constitutionally permissible. If this premise is accepted, then the subsequent arrest and search, revealing the heroin, were likewise valid. We hold that on this record the defendant’s act of throwing the revolver was not in direct and immediate response to the illegal detention, and that the revolver, disclosed as a result of defendant’s independent act, was not tainted by the prior illegality.

In reaching this determination, we first observe that here the weapon was produced and thrown to the street by the defendant himself. This factual context distinguishes the present case from those where a defendant takes no active role in revealing the seized evidence (People v Allende, 39 NY2d 474; People v Pepitone, 48 AD2d 135, affd 39 NY2d 907).

But the inquiry does not end there. As we have often said, if the evidence was revealed as a direct consequence of the unlawful police action, the evidence is tainted and must be suppressed on defendant’s motion (see, e.g., People v Butterly, 25 NY2d 159; Rios v United States, 364 US 253). This principle was followed in People v Baldwin (25 NY2d 66). There the defendant, when illegally arrested on a burglary charge, took a white envelope from his pocket and dropped it to the ground. The arresting officer seized the envelope in which two pills, containing a narcotic, were found. Arguing abandonment of the evidence, and the existence of probable cause to arrest, the People did not contend that the taint of the illegal arrest had been dissipated. We held in Baldwin, characterized by the defendant as a "dropsy” case, that the drugs should have been suppressed.

Similarly in People v Loria (10 NY2d 368) two police detectives and two Federal narcotics agents told the defendant and his sister that they would like to talk to them inside the sister’s apartment. One of them knocked on the front door. A moment later two slats of the Venetian blind covering the glass door parted and someone peered through; hasty footsteps were heard within the apartment. The police then threatened to kick the door down, and in response the defendant’s sister unlocked the door. Rushing in, the police saw the defendant’s brother-in-law pick up a green leather vanity case and drop it out the window. The vánity case was seized and found to contain three pounds of heroin. As in Baldwin the attempt to discard the evidence was a direct result of the precipitous and unlawful police action. Since the production of the evidence was a spontaneous, provoked reaction to the illegality, the evidence was tainted.

Our most recent case applying this principle is People v Cantor (36 NY2d 106, supra). In Cantor, after the defendant had parked his car in front of his house, a policeman in plainclothes, driving a private car, blocked the defendant’s car preventing forward movement. When the defendant exited his car, he saw three men in street clothes approaching him. Although police officers, they had not identified themselves as such. In response the defendant drew a gun to defend himself. As soon as one of the officers displayed his badge, the defendant returned the pistol to his back pocket, offering no further resistance. In Cantor we found that the police had seized the defendant, and that the seizure, unsupported by probable cause, was illegal. Holding that the pistol should have been suppressed, we stated: "The pistol was revealed as a direct consequence of the illegal nature of the stop” (People v Cantor, supra, at p 114). Not only did the defendant draw the gun as a direct result of the illegality, but the police, by confronting him in a threatening manner without identifying themselves, actively provoked his reaction of self-defense.

There are other cases, however, where after being unlawfully seized a defendant has, independent of the illegality, revealed evidence subsequently seized. In such cases any "connection between the lawless conduct of the police and the discovery of the challenged evidence * * * [is] 'so attenuated as to dissipate the taint’ ” (Wong Sun v United States, 371 US 471, 487, quoting Nardone v United States, 308 US 338, 341). So it was in People v Townes (41 NY2d 97) where the defendant, after having been illegally seized, drew, and attempted to fire, a pistol at a plainclothesman who had identified himself as a police officer. We held "that Townes’ free and independent action in pulling and attempting to fire the gun, taken after and in spite of, or perhaps because of, the plainclothesman’s identification of himself as a police officer”, dissipated the taint of the lawless police conduct (People v Townes, supra, at p 102; see People v Martinez, 37 NY2d 662).

Turning to the case before us, we conclude that defendant, in seeking to rid himself of the weapon, did not respond directly to the illegal police action. The encounter with the police began on the street, and continued when the defendant entered the police car which Detective Capers began to drive away. Rather than a spontaneous reaction to a sudden and unexpected confrontation with the police, the defendant’s attempt to discard the revolver was an independent act involving a calculated risk.

The distinction between a spontaneous as opposed to a calculated act is not foreign to our law (People v Edwards, 47 NY2d 493). This very consideration has been critical in deciding the admissibility of hearsay declarations (People v O’Neall, 47 NY2d 952; People v Caviness, 38 NY2d 227; People v Marks, 6 NY2d 67). In People v Gilbert (199 NY 10, 24) we said: "While the time for reflection is not measured in minutes or seconds it is measured by facts. The time must be long enough to make a choice, as the result of thought and reflection, and to act upon the choice thus made.” Depending on the circumstances, only a brief period of time will render a declaration unspontaneous (Handel v New York R. T. Corp., 252 App Div 142, affd 277 NY 548; People v Hall, 260 App Div 421). Applying like reasoning, we conclude that although the time was brief, the defendant had had time enough to reflect and formulate a strategy for ridding himself of the incriminating evidence.

It is most important also that the police illegality lacked the "quality of purposefulness” to uncover incriminating evidence (Brown v Illinois, 422 US 590, 605). In the present case the police had no knowledge that the defendant was carrying a weapon. Indeed, had they suspected that he had a loaded pistol they surely would have searched him immediately. Not designed to uncover the weapon or any other evidence, the illegal police action lacked the element of purposeful exploitation which would taint the discovery of the weapon.

One of the main purposes of the exclusionary rule is to deter lawless police activity (People v McGrath, 46 NY2d 12, 31; Mapp v Ohio, 367 US 643, 648). In a case such as this where the police conduct, although illegal, neither provoked the defendant into revealing the evidence seized nor was designed to lead to the discovery of any evidence, the purpose of the exclusionary rule would not be served by granting the motion to suppress (see Brown v Illinois, 422 US 590, 605, supra).

Accordingly, the order of the Appellate Division should be affirmed.

Fuchsberg, J.

(dissenting). No court is pleased with the prospect that the "criminal is to go free because the constable has blundered” (People v De Fore, 242 NY 13, 21 [Cardozo, Ch. J.]). But that sentiment must yield to the fundamental precept of our jurisprudence that even the guiltiest of men is entitled to the fullest protection of the laws (Brewer v Williams, 430 US 387, 406). To that end, it needs no repeating that the general rule is that evidence produced by illegal police action should not be admitted in evidence, the purpose being "to deter — to compel respect for the constitutional guarantee in the only effectively available way — by removing the incentive to disregard it” (Elkins v United States, 364 US 206, 217; People v Allende, 39 NY2d 474, 477). For the reasons which follow, we would hold that the product of the illegal arrest should have been suppressed and the case dismissed.

We start with the premise, found by the Appellate Division and undisputed by this court, that, at a time when he had done "nothing to arouse even the slightest suspicion”, the defendant was unlawfully seized by the police in violation of the Fourth Amendment. And, as the majority opinion itself points out, the actions of the police in moving him by car and in ordering him to keep his hands exposed were an integral part of this unwarranted arrest. It also agrees that, if the defendant’s act of discarding and thereby revealing his possession of a gun was a direct consequence of his unlawful arrest, the evidence is tainted and must be suppressed.

Resolution of this case turns then on the question of whether the discovery of the weapon was "induced” by the illegal arrest (see People v Munger, 37 AD2d 950, app dsmd 33 NY2d 576) or whether the connection between the two events was so attenuated as to dissipate the taint (Wong Sun v United States, 371 US 471, 487, quoting Nardone v United States, 308 US 338, 341). Put another way, was there any break in the chain of events which would purge the illegality? (Cf. People v Chapple, 38 NY2d 112; People v Stephen J. B., 23 NY2d 611, 615; Brown v Illinois, 422 US 590). There is none to be found.

The rapid sequence of events here — the order to get into the car, the removal from the scene, the command to keep his hands where they could be seen, the attempt to dispose of the weapon — leads inexorably to only one conclusion: the defendant, no longer in control of his freedom or privacy, reacted spontaneously to rid himself of the weapon which he obviously believed he no longer had the power to keep to himself. There is no other rational explanation. He did not disgorge the gun to oppose or attack or escape from the police (see People v Townes, 41 NY2d 97); its discard put it beyond use for such purposes. Moreover, police inquiry as to whether the defendant was "clean”, followed in rapid fire order by instructions as to the placement of his hands and by an announcement that he was being taken to the nearest police station, not only contributed to the detention but were also of a nature to induce a reflexive apprehension that, if the defendant did not rid himself of the weapon, more serious consequences of the illegal arrest were imminent.

Spontaneity and immediacy of a reaction contraindicate deliberation or planning. There simply is not time for either. And, such a reaction is sure to be at least as predictable as one that was actually planned. Furthermore, it is bound to meet any test of foreseeability or proximate cause. Aside from its spontaneity, the reaction here was certainly immediate. Indeed, it was as immediate as immediate can be. Eighth Avenue blocks in Manhattan are only 200 feet long. The police car had transported the defendant less than half a block between the point at which he entered the vehicle and the. place where it was brought to a halt after the police saw the weapon being discarded. Even a slow-moving automobile will take only seconds to traverse under 100 feet. Indeed, if the car here had been proceeding at a speed of but 10 miles per hour, the reaction and braking time that elapsed between the observation of the movement of the defendant’s hand and the time the vehicle actually stopped would alone have had to eat up a fifth of that distance. The remaining space of somewhat less than 80 feet would be covered in no more than five seconds, less than the time it takes to write this phrase.

In short, the interval between the warning about the hands and the discard of the weapon could have been no more than a twinkling of time. Together with the directness of its connection to the illegality, it admitted of no possible attenuation. For all practical purposes, on the uncontradicted facts, spontaneity and attenuation had merged.

It is in the face of these facts that, as a reason for denying suppression, the majority offers the argument that, since the police had no prior knowledge that the defendant was carrying a weapon and the unlawful arrest was not designed to accomplish that end, "the purpose of the exclusionary rule would not be served by suppressing the seized evidence”. With all due respect, by no means can I accept that proposition. The arrest was both deliberate and unlawful. It was just the kind of conduct the exclusionary rule was intended to deter. If the sanction does not operate to confiscate the avails, whether they were the particular ones sought by the offending officers or not, the rule would be no more than a paper tiger. For it was not the defendant’s almost inevitable response, but the illegal police conduct, against which the rule was directed.

Nor does the majority’s contention withstand analysis when measured by other doctrine we have enunciated. Only recently, we held that an arrest, as a major intrusion into an individual’s privacy, subsumes the right to search the person as well (People v De Santis, 46 NY2d 82). And, not too long ago, we reiterated that an unlawful search will not lead to suppression if it is inevitable that the police would have discovered the evidence by lawful means (People v Fitzpatrick, 32 NY2d 499; People v Payton, 45 NY2d 300; People v Riddick, 45 NY2d 300). Similarly, once the defendant here was seized, it was to be expected that in due course he would have been "patted down” or searched more fully as a matter of routine, if only to secure the arresting officers from danger. This inevitably would have disclosed the weapon. In that event, because of the illegality of the arrest, it would have to have been suppressed. Yet, there would have been no more or less of a police "design” in the discovery of the weapon in those circumstances than there was in the ones that actually unfolded here. In either instance, had the defendant’s liberty not been curtailed, the police would never have been in a position to discover the weapon (cf. People v Spinelli, 35 NY2d 77).

In sum, the "discovery” of the gun was clearly a direct and immediate product of the illegal arrest and, therefore, should be suppressed (cf. People v Baldwin, 25 NY2d 66, citing Fletcher v Wainwright, 399 F2d 62; People v Loria, 10 NY2d 368).

Chief Judge Cooke and Judges Gabrielli and Jones concur with Judge Wachtler; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Judge Jasen concurs.

Order affirmed. 
      
       By amendment this offense is now denominated "Criminal possession of a controlled substance in the eighth degree” (L 1978, ch 772, § 4, eff Sept. 1, 1978).
     
      
      . Looking at it from a different perspective, but to the same goal, it has been said that "good police work is something far different from catching the criminal at any price. It is equally important that the police, as guardians of the law, fulfill .their responsibility to obey its commands scrupulously. For 'in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves’ ” (Brewer v Williams, 430 US 387, 407 [Marshall, J., concurring], supra, quoting Spano v New York, 360 US 315, 320-321).
     
      
      . According to figures based on tests performed by the US Bureau of Public Roads, under normal road conditions a motor vehicle proceeding as slowly as 10 miles per hour travels 15 feet per second. The minimum stopping distance of a vehicle traveling at that speed is 19 feet, including 11 feet covered during reaction time and 8 feet after the brakes are fully applied (Sportsmanlike Driving, published for the American Automobile Association by Webster Division of the McGraw-Hill Book Co. [6th ed, 1970], p 61, table 6-1).
     