United States v. Pankey

Full title: UNITED STATES OF AMERICA, v. LARRY PANKEY Defendant.

Court: United States District Court, S.D. New York

Date published: Jul 23, 2024

1:24-cr-122-MKV (S.D.N.Y. Jul. 23, 2024)

Opinion

1:24-cr-122-MKV

07-23-2024

UNITED STATES OF AMERICA, v. LARRY PANKEY Defendant.

MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE.

ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS AND MOTION TO DISMISS

MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE.

Defendant Larry Pankey is charged in this action with one count of being a felon in possession of a firearm, in violation of Title 18, United States Code, Section 922(g). [ECF No. 2] (the “Indictment”). Currently before the Court are two pre-trial motions filed by Defendant. First, Defendant has moved to suppress evidence of a firearm found after a warrantless search of his person on January 23, 2024. [ECF No. 17] (the “Suppression Motion”). Additionally, Defendant moved to dismiss the sole count against him, arguing that Title 18, United States Code, Section 922(g), violates the Second Amendment. [ECF No. 18] (the “Motion to Dismiss”). For the reasons set forth below, both motions are DENIED.

BACKGROUND

The facts are largely undisputed. As noted, Defendant is charged with one count of being a felon in possession of a firearm, in violation of Title 18, United States Code, Section 922(g), arising from a January 23, 2024 incident in which New York City Police Department (“NYPD”) officers responded to a 911 call made by a man calling on behalf of his female neighbor. See Defense Exhibit 1 to the Suppression Motion (the “911 Call Recording”). The caller informed the 911 dispatcher that his neighbor asked him to call the police because there was “some guy” in her apartment who was “bugging out” “on PCP” and had “a gun on him.” See 911 Call Recording.

The caller reported, in part, the following:

It's my neighbor, she says that, can I please call the cops, because she's with somebody in her house, some guy, and the guy is high . . . Apartment 3E . . . She came down and she told me, she was like can you please call the cops cause I'm with a friend there and he's bugging out, he's on PCP and he got a gun on him, so . . . She's playing it off cool with him over there but, you know, she told me to call. Apartment 3E He's high, he has a gun on him, put it to his head, to his own head, she said No, she's not injured, she's just playing it off and, so he won't get too crazy, she told me she got a little chance and she told me you call the cops....He's a black dude, he's black, African American.... She told me. I said which friend is there, and she said the black one, my black friend, he's bugging out, he's got a gun on him.

The 911 operator asked the caller to confirm that the man was under the influence of PCP, to which he answered, “Yes.” 911 Call Recording.

NYPD officers arrived at the apartment building at around 11:59 p.m., only minutes after the 911 call was placed. See Defense Exhibit 2 to the Suppression Motion (“NYPD Bodycam #1”); Defense Exhibit 3 to the Suppression Motion (“NYPD Bodycam #2”). Body camera footage shows that the first officers on the scene walked up the staircase to the third floor of the building, where Apartment 3E was located. Exhibit 2 (00:40-01:55). When they reached the third-floor landing, a woman was standing on the landing next to a closed door that led to the hallway where Apartment 3E was located. Exhibit 2 (01:55-02:00). As the officers approached the third-floor landing, the woman appears to have been speaking through the door to someone on the other side, stating, “Go. Go. Go downstairs.” Exhibit 2 (01:53-01:57).

One of the officers then asked the woman, “What happened?” Exhibit 2 (01:55-02:05). In response to the officer's question, the woman pointed to the door leading into the third-floor hallway and said, “He gotta go,” referring to someone on the other side of the door. Exhibit 2 (01:55-02:05). The officers then opened the door and entered the hallway where Apartment 3E was located. Id. The only person in the hallway was a black male, later identified as Defendant, who was wearing a jacket and a black baseball hat. Exhibit 3 (02:05-02:10). The Defendant immediately placed his hands in the air and then proceeded to lay down, chest first, on the ground. Exhibit 3 (02:05-02:10). The officers asked for identification twice, but the Defendant did not respond. Exhibit 3 (02:05-02:20). By that point, the woman had entered the hallway from the landing and stood in front of Apartment 3E. Exhibit 2 (02:20-02:25). One of the officers again asked, “What happened now?” Exhibit 2 (02:20-02:25). The woman responded by saying the Defendant just “needs to go.” Id. One of the officers then asked the woman, “Why'd you call a gun remover? Where?”¹ Id. (02:20-02:30). The woman's response is unintelligible. Id.

1 The Government contends that “a review of the audio makes clear that the word is ‘over' rather than ‘remover.' ” Gov. Opp. at 3. But, as the Government concedes, the actual word is immaterial “as the question[s] makes clear that the officer was asking for more information about the location of the gun that was reported to 911.” Gov. Opp. at 3. Accordingly, the Court construes the transcript in favor of Defendant's interpretation, which contends the word is “remover.”

One of the officers then proceeded to turn back to Defendant lying on the ground and asked him, “Boss, do you have anything on you that you're not supposed to have?” Exhibit 2 (02:3002:50). Defendant did not respond. Id. The officer bent down closer to Defendant, who was still on the ground, tapped him on the shoulder, and repeated the question, “Answer me. Do you have anything on you that you're not supposed to have?” Id. The woman also told the Defendant to answer the officer's question. Id. The parties disagree on Defendant's subsequent response. Defense counsel urges Defendant “uttered a sound resembling the word no.” Def. Mem. at 4. The Government contends that the Defendant “mumbled unintelligibly, and eventually appears to have mumbled the answer, ‘I don't know.' ” Gov. Opp. at 3. Indeed, because of Defendant's apparent intoxication and slurred speech at the time, his precise response is not easy to decipher. However, after independent review, the Court finds that Defendant appears to have replied “I don't know” to the officer's question. Exhibit 2 (02:35-02:45). For a third time, the officer asked, “Do you have anything on you you're not supposed to have?” Id. (02:40-02:50). Defendant did not respond. Id. (02:40-02:55).

When the Defendant was non-responsive, the officer started frisking him while he laid on the ground. Exhibit 3 (02:45-03:00). In doing so, the officer began by briefly patting the exterior of Defendant's outerwear before lifting his jacket and sweatshirt, where the officer continued to pat over Defendant's shirt. Id. Defendant's skin was briefly exposed when the officer lifted his jacket and sweatshirt, but the officer immediately pulled Defendant's shirt back down before continuing the pat-down. Exhibit 2 (03:00-03:50). Approximately eleven seconds into the pat-down, the officer stopped the frisk. He proceeded to pull out his handcuffs, place them on Defendant, and tried to stand him up. Exhibit 2 (03:00-03:50). Before attempting to stand Defendant up, the officer warned, “I'm going to stand you up, don't do anything stupid.” Exhibit 3 (03:05-03:15). The officer then reached directly into Defendant's pocket (suggesting the officer felt something during the initial pat-down), pulled out a gun, and handed it to another officer standing nearby. Exhibit 2 (03:50-05:20). By this time, three additional officers had arrived on the scene. Id. As the officers continued to take Defendant into custody, the woman can be heard telling Defendant, “Go home and stay off. Stay off the f-ing speed, and don't come back to my door,” id. (05:40-05:55), to which Defendant responds, “Why wouldn't you let me in?” Id.

The officers then attempted to escort Defendant out of the apartment building. Id. Defendant, either due to extreme intoxication or defiance, was unable to walk. Exhibit 2 (04:1006:30). As a result, the officers had to physically lift Defendant into the apartment elevator to transport him to the first floor. Id. (06:00-06:20). Defendant remained face down in the elevator, seemingly unable to lift himself up. Exhibit 3 (06:25-07:30). The officers again had to physically lift Defendant to remove him from the elevator and carry him out of the apartment building's door. Id. (07:30-08:05).

Defendant now moves to suppress evidence of the firearm found after the frisk of his person [ECF No. 17] and separately moves to dismiss the sole count against him in this action, arguing that a felon-in-possession charge violates the Defendant's Second Amendment rights [ECF No. 18]. See also [ECF No. 19, Memorandum of Law in Support] (“Def. Mem.”); [ECF No. 20-1, Exhibits in Support of Motion to Suppress]. The Government filed a brief in opposition [ECF No. 21 (“Gov. Opp.”)], and Defendant filed a reply brief [ECF No. 22] (“Reply”). The Court notes that neither side offered sworn affidavits, requested to submit testimonial evidence, or requested an evidentiary hearing. Therefore, the uncontroverted record evidence, submitted exclusively by Defendant, consists of three exhibits: the relevant 911 call recording (Defense Exhibit 1 to the Suppression Motion), and two bodycam footage videos (Defense Exhibits 2 and 3 to the Suppression Motion).

DISCUSSION

I. Motion to Dismiss

Under Federal Rule of Criminal Procedure 12(b), a court may dismiss an indictment for failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). “A defendant faces a high standard in seeking to dismiss an indictment, because an indictment need provide the defendant only a plain, concise, and definite written statement of the essential facts constituting the offense charged.” United States v. Smith, 985 F.Supp.2d 547, 561 (S.D.N.Y. 2014) (internal quotation marks omitted), aff'd sub nom. United States v. Halloran, 664 Fed.Appx. 23 (2d Cir. 2016). A court may address a constitutional attack on an indictment within the context of a Rule 12(b) motion, “because an indictment's defects can affect a defendant's substantive rights at trial.” Smith, 985 F.Supp.2d at 561-62 (quoting United States v Post, 950 F.Supp.2d 519, 528 (S.D.N.Y. 2013)); see also United States v. Coiro, 922 F.2d 1008, 1013 (2d Cir. 1991).

Defendant moves to dismiss the Indictment's single count charging him with being a felon in possession of a firearm, in violation of Title 18, United States Code, Section 922(g), arguing that both on its face and as applied to Defendant the statute violates the Second Amendment, as interpreted in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, __ U.S. __, 142 S.Ct. 2111 (2022) (“Bruen”). Def. Mem. at 13. Notwithstanding this contention, defense counsel expressly acknowledges that he is “aware” of this Court's recent decision in United States v. Rico Gonzalez, 2024 WL 96517 (S.D.N.Y. Jan. 9, 2024), in which the Court held that Section 922(g)(1) remains constitutional under both United States v. Bogle, 717 F.3d 281 (2d Cir. 2013) and Bruen, and as applied to defendants with prior felony drug sale convictions. Def. Mem. at 13. Defense counsel asserts that Defendant nevertheless submits his motion to dismiss “for preservation purposes.” Def. Mem. at 13. The Court notes that by its express terms Defendant's motion is intended to merely “preserve” the position that Section 922(g) is unconstitutional without actually setting forth any specific arguments to support the position. As such, the Court is unable to analyze or consider Defendant's position any further than its barebones assertion that the felon in possession statute is unconstitutional.

As the Court recognized in Gonzalez, the Second Amendment “confer[s] an individual right to keep and bear arms.” D.C. v. Heller, 554 U.S. 570, 595 (2008). However, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626. In Heller, the Supreme Court expressly cautioned that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27 (emphasis added). Such limitations, the Supreme Court noted, are “presumptively lawful.” Id. at 627 n.26. The constitutionality of such regulations was reiterated by the Supreme Court in the plurality decision in McDonald v. Chicago, 561 U.S. 742 (2010).

Relying on Heller and McDonald, the Second Circuit has explicitly held that Section 922(g)(1)-which prohibits a convicted felon from possessing a firearm in or affecting interstate commerce, see 18 U.S.C. § 922(g)(1)-does not violate the Second Amendment. United States v. Bogle, 717 F.3d 281, 281-82 (2d Cir. 2013) (per curiam). In doing so, the Second Circuit “join[ed] every other circuit to consider the issue in affirming that § 922(g)(1) is a constitutional restriction on the Second Amendment rights of convicted felons.” Id. And, where “the Second Circuit has spoken directly to the issue presented by [a] case,” “this Court is required to follow that decision unless and until it is overruled in a precedential opinion by the Second Circuit itself or unless a subsequent decision of the Supreme Court so undermines it that it will almost inevitably be overruled by the Second Circuit.” United States v. Diaz, 122 F.Supp.3d 165, 179 (S.D.N.Y. 2015) (internal quotation marks omitted), aff'd, 854 F.3d 197 (2d Cir. 2017); see also United States v. Peguero, 34 F.4th 143, 158 (2d Cir. 2022).

The Court simply cannot find that the Supreme Court's holding in Bruen “so undermines” Bogle that “it will almost inevitably be overruled by the Second Circuit.” Diaz, 122 F.Supp.3d at 179, aff'd, 854 F.3d 197. Although the majority opinion in Bruen did not address directly its impact on felon in possession laws, the decision did stress the consistency of the Court's holding with both Heller and McDonald, two cases which explicitly had acknowledged the constitutionality of regulations affecting felons. See Bruen, 597 U.S. at 10, 19, 24, 31 (“We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.”); United States v. King, 634 F.Supp.3d 76, 83 (S.D.N.Y. 2022) (“[T]he Bruen majority opinion makes abundantly clear that Heller and McDonald stand as controlling precedents.”). The Bruen majority also repeatedly referred to the Second Amendment's protections as extending to “lawabiding” citizens-not felons. Bruen, 597 U.S. at 9, 15, 26, 29-31, 38, 60, 70-71.

Moreover, both concurring opinions in Bruen, as well as the dissent, expressly recognized that the majority Bruen opinion did not disturb the holdings in Heller or McDonald. See id. at 8081 (Kavanaugh, J., concurring) (“ ‘[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons' ”) (quoting Heller, 554 U.S. at 626); Bruen, 597 U.S. at 72 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun . . . Nor have we disturbed anything that we said in Heller or McDonald[], about restrictions that may be imposed on the possession or carrying of guns.”); id. at 129 (Breyer, J., dissenting). Thus, “six of the nine Justices authored or joined separate opinions which . . . noted that Bruen does not disrupt or abrogate Heller and McDonald's endorsements of felon-in-possession laws.” United States v. Hampton, No. S2 21 CR. 766, 2023 WL 3934546, at *12 (S.D.N.Y. June 9, 2023). As a result, “nothing in Bruen casts doubt on the enduring constitutionality of felon-in-possession prohibitions as articulated in Heller and McDonald and relied on by the Second Circuit in Bogle.” Gonzalez, 2024 WL 96517, at *4. To that end, Bogle's holding remains binding upon this Court and Section 922(g)(1) is constitutional on its face.²

2 Every court in this District that has considered whether Bogle survives Bruen has reached the same conclusion. See e.g., King, 634 F.Supp.3d at 83; United States v. D'Angelo, No. 23 CR. 327, 2023 WL 9056404, at *4-5 (S.D.N.Y. Dec. 31, 2023); United States v. Cabrera, No. 23-CR-209 (VEC), 2023 WL 8812532, at *3 (S.D.N.Y. Dec. 20, 2023); United States v. Craft, No. 23 CR. 00178 (PMH), 2023 WL 6215326, at *3 (S.D.N.Y. Sept. 25, 2023); United States v. Ford, No. 23 CR. 107 (LGS), 2023 WL 7131742, at *2 (S.D.N.Y. Oct. 30, 2023); United States v. Davila, No. 23 CR. 292 (JSR), 2023 WL 5361799, at *2 (S.D.N.Y Aug. 22, 2023); Hampton, 2023 WL 3934546, at *12-*13; United States v. Barnes, No. 22 CR. 43 (JPO), 2023 WL 2268129, at *2 (S.D.N.Y. Feb. 28, 2023).

To the extent Defendant argues Section 922(g) is unconstitutional as applied to him, his argument also fails. Although the Second Circuit has not addressed whether Section 922(g)(1) is subject to as-applied challenges, see Craft, 2023 WL 6215326, at *3, other circuits have found Section 922(g)(1) constitutional in all of its applications, foreclosing as-applied challenges. See United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023); Vincent v. Garland, 80 F.4th 1197, 1202 (10th Cir. 2023) (finding with respect to Section 922(g)(1) “no basis to draw constitutional distinctions based on the type of felony involved”). Even assuming, arguendo, that Section 922(g)(1) were open to an as-applied challenge, Defendant's as-applied challenge fails because he concededly has at least “three prior New York state felony drug sale convictions”-felonies, bringing his conduct squarely within the purview of the statute. 18 U.S.C. § 922(g)(1); see Def. Mem. at 5; see also King, 634 F.Supp.3d at 83.

For all of these reasons, Defendant's motion to dismiss is denied.

II. Motion to Suppress

Defendant separately moves to suppress evidence of the gun found pursuant to the January 23, 2024 frisk of his person, arguing that (1) officers lacked probable cause to arrest him for a crime prior to the search and, (2) alternatively, because the search exceeded the permissible scope of a pat-down frisk under Terry v. Ohio, 392 U.S. 1 (1968). Def. Mem. at 5.

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Generally, a “warrantless arrest is unreasonable under the Fourth Amendment unless the arresting officer has probable cause to believe a crime has been or is being committed.” United States v. Delossantos, 536 F.3d 155, 158 (2d Cir. 2008). However, in a long line of case law beginning with Terry v. Ohio, 392 U.S. 1 (1968) (“Terry”), the Supreme Court has held that the Fourth Amendment permits a warrantless investigative stop “when a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Navarette v. California, 572 U.S. 393, 396 (2014).

“ ‘Terry requires that a police officer have only reasonable suspicion that criminal activity may be afoot to justify an investigatory stop. Reasonable suspicion requires considerably less of a showing than probable cause.' ” Goldberg v. Town of Glastonbury, 453 Fed.Appx. 40, 41 (2d Cir. 2011) (quoting United States v. McCargo, 464 F.3d 192, 197 (2d Cir. 2006)). “In reviewing the reasonableness of a Terry stop, [the court] ask[s] whether there was a ‘particularized and objective basis' for suspicion of legal wrongdoing under the ‘totality of the circumstances.' ” United States v. Simmons, 560 F.3d 98, 103 (2d Cir.2009) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). While a reasonable suspicion requires more than a hunch, Terry, 392 U.S. at 27, “[t]he standard is ‘not high.' ” United States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014) (quoting Richards v. Wisconsin, 520 U.S. 385, 394 (1997)). In fact, it is “rather lenient,” United States v. Santana, 485 F.2d 365, 368 (2d Cir. 1973), and “falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274.

Moreover, in Terry, the Supreme Court held that the Fourth Amendment permits not only an investigative stop (i.e., a Terry stop), but also “permit[s] a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime” (i.e., a Terry pat-down frisk). 392 U.S. at 27. To support an accompanying pat-down frisk after a Terry stop, there must be a reasonable basis to think “that the person stopped is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 326 (2009). “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27.

Here, Defendant does not appear to argue that the NYPD officers lacked reasonable suspicion to conduct a Terry stop and investigation of Defendant. In all events, the Court finds that the officers did, in fact, have a reasonable suspicion “criminal activity may be afoot” and that Defendant might be “armed and dangerous.” Terry, 392 U.S. at 27, 30. The 911 caller reported that the woman who lived at Apartment 3E had asked him to call the police because a man in her apartment was “bugging out, he's on PCP and he got a gun on him . . . He's high, he has a gun on him, put it to his head, to his own head, she said....[H]e's bugging out, he's got a gun on him.”³ See 911 Call Recording. Although the Supreme Court has held that “an anonymous tip can demonstrate sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop,” Navarette, 572 U.S. at 396, here, the 911 caller provided his name, his phone number, and his location. See 911 Call Recording. When the officers arrived on scene mere minutes after the 911 call was made, Defendant was the only man in the hallway of the third floor and in the immediate vicinity of Apartment 3E, and matched the general description provided by the 911 caller.⁴ United States v. McCargo, 464 F.3d 192 (2d Cir. 2006) (reasonable suspicion justified “because of [defendant's] close physical and temporally proximity to the crime scene”). Moreover, Defendant's answers to the officers' questions were evasive. He blatantly ignored two requests for identification and failed to clearly respond to repeated questions about whether he had anything on him he was not supposed to have. United States v. Weaver, 9 F.4th 129, 148 (2d Cir. 2021) (“[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”). Finally, Defendant's unintelligible mumblings and limited mobility throughout the arrest corroborated the 911 caller's report that the person with the gun was high on PCP, an extremely dangerous hallucinogenic drug known for causing erratic behavior. See United States v. Williams, 526 Fed.Appx. 29, 32 (2d Cir. 2013) (defendant's apparent intoxication among the factors providing reasonable suspicion for Terry stop).

3 The Court notes that in Defendant's briefing, he emphasizes that the dispatch call did not come in as a domestic incident, but rather as a “straight 10-10,” which is the radio code for “possible crime.” Id. (09:40-09:50).

4 Additionally, in response to the officer's question asking, “what happened,” the woman pointed to the door leading into the third-floor hallway and said, “He gotta go.” Exhibit 2 (01:55-02:05). And as noted, Defendant was the only individual on the other side of that door. When the woman eventually entered the hallway from the landing and stood in front of Apartment 3E, she again told the officers standing next to Defendant that he “needs to go,” indicating the Defendant was the man outside of her apartment with the gun. Exhibit 2 (02:20-02:25).

Rather, the focus of Defendant's argument is only that the officer's accompanying pat-down, which revealed the gun, “exceeded the permissible scope of a pat-down frisk under Terry.” Def. Mem. at 5. In so arguing, Defendant relies on certain case law which he contends indicates that “[t]he search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.” Def. Mem. at 5 (quoting Sibron v. New York, 392 U.S. 40, 65 (1968)) (emphasis added); see also United States v. Casado, 303 F.3d 440, 448 (2d Cir. 2002) (“[T]he patting of the suspect's outer clothing is precisely the form of search that the Supreme Court identified as reasonable in Terry.”) (emphasis added); United States v. McDow, 206 F.Supp.3d 829, 850 (S.D.N.Y. 2016) (holding the permissible scope of such a frisk “[consists of] a carefully limited search of the outer clothing . . . in an attempt to discover weapons.”) (emphasis added). Defendant argues that, even assuming officers had reasonable suspicion to believe he had committed a crime and was armed and dangerous, they violated his Fourth Amendment rights when, instead of only patting down his outer clothing, “they immediately lifted up his outer garments and chose to feel around underneath his clothing, including unzipping his jacket.” Def. Mem. at 10-11 (citing Exhibit 3 (02:50:03:30)).

First, the Court notes that Defendant's portrayal of the pat-down is belied by the submitted bodycam footage, which the Court has carefully scrutinized. The officer did not “immediately lift[] up [Defendant's] outer garments . . . unzipping his jacket.” Instead, the officer began the frisk by briefly patting the exterior of the Defendant's outerwear before thereafter lifting his coat and sweatshirt, where the officer continued to pat over Defendant's shirt. Exhibit 2 (03:00-03:50). While Defendant's skin was briefly exposed when the officer lifted his coat and sweatshirt, the officer immediately pulled Defendant's shirt back down before continuing his pat-down. Id. Apparently feeling something during the iterative pat-down, the officer stopped the frisk, and proceeded to pull out his handcuffs, place them on the Defendant, and stand him up. Exhibit 2 (03:00-03:50). At that point, once the Defendant was secured, the officer then reached into his pocket, pulled out a gun-which it seems the officer had felt during the pat-down-and handed it to another officer standing nearby. Id. (03:50-05:20). Contrary to Defendant's account, the officer unzipped Defendant's jacket only after placing Defendant under arrest and handcuffing him. Exhibit 3 (03:05-03:25).

Second, to the extent that Defendant argues that the officer's act of lifting Defendant's coat and sweatshirt exceeded the proper scope of a Terry search, neither the Supreme Court nor the Second Circuit has ever held that a Terry frisk is limited only to a pat-down of exterior clothing. Indeed, neither Supreme Court nor the Second Circuit has definitively ruled on all the permissible iterations of a Terry pat-down, including an “under-the-coat” search. In fact, the Second Circuit has held that “Terry made room for a range of reasonable police responses depending on the circumstances,” because “on-the-beat police officers” require “the tools they need to do their jobs safely and respond to quickly evolving situations.” United States v Weaver, 9 F.4th 129, 139-40 (2d Cir. 2021) (en banc) (emphasis added). Moreover, the Second Circuit has recognized “the general principle that a patdown is not the only type of search authorized by Terry, and that there are circumstances in which a patdown is not required.” Casado, 303 F.3d at 449 (citing United States v. Terry, 718 F.Supp. 1181, 1183 (S.D.N.Y. 1989), aff'd, 927 F.2d 593 (2d Cir. 1991) (holding as constitutional a Terry frisk in which an officer, instead of patting, opened a woman's outer jacket, and then, upon observing a bulge, reached under her sweatshirt to remove a bag)).

Here, the officers responded to a 911 call that relayed concern by the woman whom Defendant was confronting that Defendant was “bugged out” on PCP and explicitly referenced fear that Defendant would commit violence with a gun that he possessed. See 911 Call Recording. When the officers saw the Defendant, he was wearing a jacket and sweatshirt and on his own volition, laid entirely face down on the ground. The Court notes that-it is likely-Defendant purposefully laid face down (notably, without first being asked to do so by the officers) in order to specifically shield the gun from the officer's reach. Nevertheless, before proceeding to any sort of “under-the-coat” frisk, the officer began by briefly patting the exterior of the Defendant's outerwear and then proceeded to lift his jacket and sweatshirt and continue to pat over Defendant's shirt. Exhibit 3 (02:45-03:00). Having been called to the scene to respond to a threatening person with a gun, and presumedly because Defendant was wearing multiple layers and lying with his frontside entirely shielded by the ground-which could likely hinder the officer from reasonably frisking for the presence of a gun-the officer reached underneath Defendant's outer layer of clothing. Id. The entire pat-down lasted only seconds before the officer evidently felt a weapon and handcuffed Defendant. Exhibit 2 (03:00-03:50). The officer did not, for example, rummage through Defendant's pockets. Instead, the officer lifted Defendant's outer coat-only after patting the exterior of his outerwear-so that he could reach his hands between that outer coat and his shirt, enabling him to conduct an effective pat down of a suspect whom they had been told was brandishing a gun, was wearing multiple layers of winter clothing, and was deliberately lying on his stomach. Other courts within this Circuit have upheld similar, if not more invasive, frisks under Terry. See e.g., United States v. Terry, 718 F.Supp. 1181, 1183 (S.D.N.Y. 1989) aff'd, 927 F.2d 593 (2d Cir. 1991); United States v. Suggs, No. 3:20-CR-00150 (KAD), 2021 WL 1601120, at *6 (D. Conn. Apr. 23, 2021) (affirming reasonableness of officers reaching into defendant's pocket without first patting him down at all); United States v. Colon, 97 Cr. 449 (LMM), 1998 WL 122595, at *4 (S.D.N.Y. Mar. 19, 1998) (affirming reasonableness of search under defendant's coat without first patting down defendant).⁵

5 These decisions are also consistent with decisions by other Circuits affirming the reasonableness of a Terry search that goes beyond a pat down only of outer clothing. See e.g., United States v. Thompson, 597 F.2d 187, 191 (9th Cir. 1979) (reaching into defendant's “bulky” coat pocket upheld as limited intrusion under Terry); United States v. Hill, 545 F.2d 1191, 1193 (9th Cir. 1976) (officer's lifting of suspect's shirt upheld despite lack of preliminary pat-down when officer had seen a bulge which he suspected to be caused by a weapon); United States v. Samuels, 131 Fed.Appx. 859, 861 (3d Cir. 2005) (holding that firearm was lawfully discovered where officers reached directly for “bulge” in defendant's waist during a Terry stop in which the defendant failed to comply with officers' demands to keep his hands raised, as the officers' “limited intrusion” was “designed to address their immediate concerns regarding a possible threat to their safety,” and rejecting defendant's argument that Terry required the officers to first conduct a pat-down); United States v. Aquino, 674 F.3d 918, 926-27 (8th Cir. 2012) (citing Casado for the proposition that “[t]here are situations where concern for an officer's safety may justify by-passing a pat down during an investigatory detention”).

Ultimately, the “sole” question for the Court is whether the Terry frisk was “confined in scope to an intrusion reasonably calculated to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry, 392 U.S. at 29. Terry simply held that a pat-down of outer clothing under the facts of that case was one type of search authorized by Terry. Id. (“The sole justification of the search in the present situation is the protection of the police officer and others nearby . . . [t]he scope of the search in this case presents no serious problem in light of these standards.”) (emphasis added). While general exploratory searches are indeed precluded under Terry, the Court is unaware of any Supreme Court or Second Circuit precedent mandating a conclusion that the pat-down of a suspect's outer clothing, followed by a brief “under-the-coat” frisk-after receiving a 911 call reporting that Defendant was brandishing a firearm in a residential apartment complex, and while such Defendant is wearing substantially layered clothing, deliberately lying face down, and high on PCP-is unreasonable under Terry. To hold otherwise would completely frustrate the “sole justification” of a Terry search-“the protection of the police officer and others nearby.” Id.

The Court finds that the intrusiveness of the officer's pat-down was measured, proceeded in an iterative manner as warranted by the circumstances, and no greater than the totality of the circumstances required and was “reasonably calculated to discover” the gun that the officers had been alerted the Defendant was holding. Terry, 392 U.S. at 29. The Court has considered all of Defendant's arguments raised in connection with his Suppression Motion and has concluded that none warrants the suppression of evidence or a hearing.

CONCLUSION

For the foregoing reasons, Defendant's motions to suppress and to dismiss the sole count against him are DENIED. The Clerk of Court is respectfully requested to terminate docket entry numbers 17 and 18.

SO ORDERED.