S.D.N.Y.: Tossing gun in flight is abandonment even if the initial stop would have been unreasonable

Defendant’s tossing a gun in flight from the police is abandonment no matter how unreasonable the initial stop might have been. United States v. Jones, 2016 U.S. Dist. LEXIS 173592 (S.D.N.Y. Dec. 14, 2016):

Given the controlling precedent in this area, the Court must conclude, as the Second Circuit did in Swindle [United States v. Swindle, 407 F.3d 562 (2d Cir. 2005)], that:

[Defendant] was not seized until the police physically apprehended him, and therefore that the [gun] did not have to be suppressed as the fruit of a poisonous tree. Regardless of how unreasonable it was for the officers to order him to pull over, and regardless of how reasonable it was for [Defendant] to have felt restrained in the face of the flashing police strobe light, there was no immediate “physical force” applied or “submission to the assertion of authority.” Therefore, no seizure immediately occurred. The [gun] that [Defendant] abandoned before being apprehended w[as] thus not the product of a Fourth Amendment seizure.

Swindle, 407 F.3d at 572-73. Defendant’s motion to suppress evidence of the handgun is therefore denied.