Opinion
08 Cr. 375 (RPP).
September 18, 2008
OPINION AND ORDER
Defendant Kyrone Doughty, charged with illegal possession of a firearm in violation of 18 U.S.C. § 922(g)(1), argues that he was unlawfully stopped and searched by the police on April 3, 2008. Defendant now moves to suppress the loaded handgun recovered by police officers from his person pursuant to that stop and search. For the reasons set forth below, Defendant's motion is granted.
Facts
These findings of fact are based on an evidentiary hearing held before this Court on July 18 and July 25, 2008. At the hearing, arresting officers Christopher Rodriguez and Steven Omisore and their supervisors, Detective Joseph Fitzgerald and Sergeant Stephen O'Hagan, testified.
On the evening of April 3, 2008, plainclothes police officers Rodriguez and Omisore, driving an unmarked Ford minivan with tinted side windows, were on patrol in a high-crime area of the Bronx. (Transcript of July 18, 2008 Hearing ("Tr. 07/18/08") at 9-11.) Officer Rodriguez, a special operations officer with four years of police experience, drove the van; Officer Omisore, a five year veteran of the police force, sat in the front passenger seat. (Tr. 07/18/08 at 8, 11, 65-67.) At approximately 10:00 p.m. that evening, the officers slowly drove east on East 169th in the direction of Union Avenue. (Id. at 9-11.)
The officers were assigned to patrol the area surrounding the Forest and McKinley housing projects, which had recently been beset by a number of robberies as well as two homicides. (Tr. 07/18/08 at 9.)
Although Officer Rodriguez had "made or participated in" 260 arrests during his four years as a police officer, the arrest of defendant here was only the officer's second arrest involving a handgun. (Tr. 07/18/08 at 8.)
Officer Rodriguez testified that he was driving five miles per hour (Tr. 07/18/05 at 11-12), while Officer Omisore believed that the van was traveling between ten and twenty miles per hour. (Id. at 67.)
As the officers passed through the intersection of 169th Street and Union Avenue, Officer Rodriguez noticed Defendant standing with two other individuals near the southeast corner of that intersection. (Tr. 07/18/08 at 12-13, 61, 76-77.) When the van drew closer to Defendant, coming to within two to three car lengths, Officer Rodriguez saw Defendant "shift his eyes . . . around, looking east and west," and he also stared straight into the unmarked police van. (Id. at 13-14, 56-57, 79.) This eye movement, according to Officer Rodriguez, indicated that Defendant was "very aware of what [was] going on," and that he was "looking for police officers or rivals." (Id. at 61-62.) Defendant's movements were further suspicious because, as Officer Omisore explicated, although Defendant was standing next to and speaking with two other persons, he was not making eye contact with them; rather, he was "looking around" in a "left-to-right motion." (Id. at 69.)
When Defendant stared at the officers' vehicle, Officer Rodriguez saw Defendant, whose left hand rested on the waistband area of his pants, swiftly slide that hand alongside his waist towards his "left side," thereby making an "adjust[ment]" to the area of his waistband. (Tr. 07/18/08 at 13-14, 55.) Officer Rodriguez concluded that this movement was "indicative of [Defendant] carrying a weapon." (Id. at 12-13.) The officer reached this conclusion because he carried his own firearm in his waistband holster, and he had to "adjust [his] firearm very frequently throughout the day." (Id. at 15-16, 61-62.)
The "trigger lock" detective, Detective Fitzgerald, testified that in his initial conversation with Officer Rodriguez after Defendant's arrest, the officer told the detective that he decided to stop Defendant because he observed Defendant "putting his hands on his waistband and moving an object," and because he "observed a bulge and [Defendant] moved the object to the side of his pants." (Tr. 07/18/05 at 97.) However, during the evidentiary hearing, Officer Rodriguez did not testify that he observed any type of bulge prior to stopping Defendant.
After observing this hand movement, Officer Rodriguez mentioned to Officer Omisore that he was "going to stop" Defendant. (Tr. 07/18/05 at 14.) He parked the van, got out, and with his shield displayed, approached Defendant and stated, "Police, I want to see your hands." (Id. at 14, 19.) Officer Omisore, who had also gotten out of the van and had walked over to Defendant, told Defendant, in a loud voice, "Please don't move, let me see your hands." (Id. at 70-71.)
Officer Omisore testified that upon approaching Defendant he told Defendant, "Please don't move, let me see your hands" (Tr. 07/15/08 at 70); however, he also testified that his initial words to Defendant were simply "Police, I want to see your hands." (Id. at 71).
In response, the two men standing next to Defendant "quickly" raised their hands. (Tr. 07/18/05 at 14.) Defendant, however, raised only his right hand (Id. at 14-15); he kept his left hand affixed to his waist. (Id. at 14, 71.) Defendant also shifted his body to the left so that Officer Rodriguez could no longer see the left side of Defendant's waist. (Id. at 14, 71-72.) Officer Rodriguez then repeated to Defendant that he wanted to "see [his] hands." (Id. at 15.) To this, Defendant responded, "What's the problem officer?" (Id. at 15.) While conversing with the officer, Defendant positioned himself behind one of the men he was standing next to so that the police could not see his left side. (Id. at 15.) Defendant also glanced "up and down the block," looking "like he wanted to flee." (Id. at 15). These actions increased Officer Rodriguez's suspicions that Defendant "might have a weapon." (Id. at 20.) Officer Rodriguez then moved closer to Defendant and once again asked that Defendant show him his hands. (Id. at 20).
Officer Omisore corroborated this testimony, explaining that based on his "training and experience," when he asks a suspect to show his hands, "hiding . . . hands or keeping them on the waist may indicate . . . holding" onto a weapon, "whether it be a gun [or] . . . knife." (Tr. 07/18/08 at 72).
Instead of complying with the officer's request, Defendant "tried to run." (Tr. 07/18/05 at 15, 73.) However Officer Omisore prevented Defendant from fleeing by grabbing his right hand. (Id. at 15, 72, 73.) Defendant attempted to pull away from Officer Omisore's grasp, and as he did so, he reached "toward his waistband" and tried to "remove an object from his waistband." (Id. at 20, 73.) Looking down at Defendant's waistband, Officer Rodriguez saw "what appeared to be" the handle of a firearm. (Id. at 20.) Officer Rodriguez yelled "gun, gun," and he unsheathed his own gun. (Id. at 20.) Hearing Officer Rodriguez yell "gun," Officer Omisore grabbed Defendant in a "bear hug" and threw him into a nearby doorway. (Id. at 20, 73.)
Officer Rodriguez reholstered his weapon and ran towards Officer Omisore, who was struggling with Defendant. (Tr. 07/18/05 at 21.) During this struggle, Defendant was "able to pull out" his gun. (Id. at 21.) Officer Rodriguez, however, grabbed Defendant's hand, and the gun fell to the ground where it was recovered by the police. (Id. at 21-22, 73; Government Exhibit 2A: [handgun].) The police then handcuffed Defendant and placed him under arrest. (Id. at 21; Tr. 07/25/08 at 3.)
The officers later determined that the handgun recovered from Defendant was loaded with five hollow-point bullets. (Tr. 07/18/05 at 21-22, 74; Government Exhibit 2B: [bullets].)
Discussion
It is well-settled that the Fourth Amendment's prohibition on "unreasonable searches and seizures" extends to "brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Cortez, 449 U.S. 411, 417 (1981); Terry v. Ohio, 392 U.S. 1, 16 (1968); United States v. Elmore, 482 F.3d 172, 178 (2d Cir. 2007). Put differently, the protections of the Fourth Amendment are invoked at the moment when a suspect is "seized" or stopped by the police, even when that seizure falls short of an arrest. Brendlin v. California, 127 S. Ct. 2400, 2405 (2007).
The test for determining at what point a police encounter with a suspect ripens into an investigative detention or into a seizure involves "taking into account all of the circumstances surrounding the encounter," and asking whether the "police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Kaupp v. Texas, 538 U.S. 626, 629 (2003); United States v. Mendenhall, 446 U.S. 544, 554 (1980) (person is "seized" within meaning of Fourth Amendment when, in view of all the circumstances, a "reasonable person would have believed that he was not free to leave"); Florida v. Bostick, 501 U.S. 429, 436 (1991) (test for determining whether a person is subjected to investigative stop is whether "a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter").
Here, after leaving their unmarked vehicle, the two plainclothes police officers approached Defendant with their shields out and stated, "Police, show me your hands." (Tr. 07/15/08 at 14, 19, 71.) One of the officers told Defendant, "Please don't move, show me your hands." (Id. at 70.) Any reasonable person when confronted by these circumstances would have believed that these statements were commands, and would not have believed that he was then at liberty to simply walk away. Indeed, Defendant here did not walk away; rather he remained in position and made a response to the officers. Further, in its memorandum submitted subsequent to the evidentiary hearing held here, the Government does not dispute that the arresting officers instructions subjected Defendant to an investigatory stop and seizure. Accordingly, it is undisputed that Defendant was seized for Fourth Amendment purposes at the point when the police loudly directed him not to move and to show him his hands. See, e.g.,Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 1999) (police seizure occurred where officer directed that suspect come to him and show his hands); United States v. McCrae, 07 Cr. 772, 2008 U.S. Dist. LEXIS 2314, at *6-7 (E.D.N.Y. Jan. 11, 2008) (defendant was seized for Fourth Amendment purposes when police said "police, stop" and defendant stopped); United States v. McPhatter, 03 Cr. 911, 2004 U.S. Dist. LEXIS 2754, at *5 (E.D.N.Y. Feb. 24, 2004) ("police actions here constituted aTerry stop once Officer Anderson had left his vehicle, approached [the defendant], and asked him again for identification, and also whether he was drinking beer").
Although at the evidentiary hearing Officer Rodriguez testified that at the time he directed Defendant to show his hands, defendant was "free to leave" (Tr. 07/15/08 at 64), indicating that an investigative stop had not taken place, the applicable test for whether such a stop has occurred does not focus on the subjective intentions or beliefs of the officer. Rather, the test is objective, asking whether "police conduct would have communicated to a reasonable person that the person was not free to decline the officer's request or otherwise terminate the encounter." See Bostick, 501 U.S. at 436; California v. Hodari D., 499 U.S. 621 (1991) (question is what the "officer's words and actions would have conveyed to a reasonable person"). And here, as explained, Defendant was seized from the moment the officers approached him on the street and directed him not to move and to show his hands.
Such investigatory stops need not be supported by the same "probable cause" required to justify a warrantless arrest. It is well-settled that "the Fourth Amendment is satisfied if the officer's action [in stopping the suspect] is supported by reasonable suspicion to believe" that the suspect is engaged in "criminal activity." Arvizu, 534 U.S. at 273; United States v. Sokolow, 490 U.S. 1, 7 (1989) (even if officer "lacks probable cause" to arrest, he is allowed to stop and investigate a suspect when he has "reasonable suspicion" of criminal activity); Cortez, 449 U.S. at 417 ("an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity"); Terry, 392 U.S. at 38 (police officer has right to stop a person when he "reasonably suspects that such person has committed, is committing, or is about to commit a particular crime"); Elmore, 482 F.3d at 178 ("police may briefly detain an individual for questioning if they have a reasonable suspicion that criminal activity is afoot"). Accordingly, the initial issue presented by Defendant's motion to suppress is whether the police, at the time they approached Defendant and directed him to not to move and to show his hands, had a "reasonable suspicion" that he was in possession of a handgun.
In evaluating whether reasonable suspicion for a stop exists, courts must consider the "totality of the circumstances" in order to determine whether the officer has a "particularized and objective basis for suspecting wrongdoing." Arvizu, 534 U.S. at 273; United States v. McCargo, 464 F.3d 192, 197 (2d Cir. 2006);United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000). Moreover, whether reasonable suspicion exists is measured from the perspective of a trained and experienced law enforcement officer. Arvizu, 534 U.S. at 273-274; Bayless, 201 F.3d at 133. Indeed, in lieu of their unique functions, it is appropriate that officers be entitled to "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.'" Arvizu, 534 U.S. at 273-74 (quoting Cortez, 449 U.S. at 417-18); see also Ornelas v. United States, 517 U.S. 690, 699-700 (1996); United States v. Villegas, 928 F.2d 512, 517 (2d Cir. 1991). Additionally, the "reasonable suspicion standard" does not "rise to the level required for probable cause," and in fact, it "falls considerably short of satisfying a preponderance of the evidence standard." Arvizu, 534 U.S. at 274;see also Sokolow, 490 U.S. at 7 (1989); Elmore, 482 F.3d at 179.
But while deference is granted to the observing officer in determining whether reasonable suspicion exists, "reasonable suspicion is an objective standard," and it requires "some minimal level of objective suspicion." Bayless, 201 F.3d at 133;United States v. Glover, 957 F.2d 1004, 1010 (2d Cir. 1992); see also Sokolow, 490 U.S. at 7. Indeed, an "inchoate suspicion or mere hunch will not suffice." Bayless, 201 F.3d at 133; Glover, 957 F.2d at 1009. Further, it is critical that the district court must not "merely defer to the police officer's judgment" of whether reasonable suspicion existed. Bayless, 201 F.3d at 133. Rather, "the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge." Terry, 392 U.S. at 21.
The Government points to four factors which, it contends, provided the officers with "reasonable suspicion" to suspect that Defendant was engaged in criminal activity: "(1) the time of night, (2) [Defendant's] presence in a high crime area, (3) [his] apparent adjustment of a gun in his waistband, and (4) [his] demeanor upon being approached by the police." (Government's Memorandum in Opposition to Defendant's Motion to Suppress ("Gov't Memo") at 7.) Each of these factors will be considered in turn, and then considered together to determine if the totality of circumstances showed that the arresting officer had a reasonable suspicion to stop Defendant.
First, the police spotted Defendant on the street at 10:00 p.m. (Tr. 07/15/08 at 11.) This is not a clearly unreasonable time for a law-abiding citizen to walk outside and engage in legitimate activity, and indeed, the evidence at the suppression hearing demonstrated that, since a nearby store was still open for business. (Tr. 07/15/08 at 60.) See generally Sams v. State, 265 Ga. 534, 535 (Ga. 1995) (insufficient grounds to suspect defendant where he was "walking in a residential area at 9:30 at night when people are commonly in the area"). Accordingly, this particular time of night provided slight support for a reasonable police officer's suspicions to be raised. But cf. United States v. Landry, 903 F.2d 334 (5th Cir. 1990) (grounds to question passenger in truck parked at 11:30 p.m. "in front of a business that was closed for the night"); United States v. Simmons, 05 Cr. 1288, 2007 U.S. Dist. LEXIS 4376, at *8-9 (S.D.N.Y. 2007) (defendant's presence in apartment building lobby at 4:30 a.m. supported finding of reasonable suspicion); United States v. McPhatter, 2004 U.S. Dist. LEXIS 2754, at *2, 6 (suspicions raised because suspect was on street at 1 a.m.).
Next, a suspect's presence in a "high crime area" can certainly raise an officer's suspicions of criminality. See Illinois v. Wardlow, 528 U.S. 119, 124-26 (2000) (law enforcement officers can take into account relevant characteristics of a location, such as whether it is a high crime area, in determining whether aTerry stop is warranted); United States v. Muhammad, 463 F.3d 115, 123 (2d Cir. 2006) (presence in high-crime area contributes to finding of reasonable suspicion). Here, Officer Rodriguez testified that he "was assigned to [the] Forest and McKinley" public housing buildings because, in that "area," there had been a "pattern of robberies" as well as "two homicides in those developments." (Tr. 07/15/08 at 9.) Defendant, however, was not stopped in or adjacent to those housing developments, which comprised the "high crime" area specified by the officer. Rather, an examination of relevant maps indicates that he was stopped more than three blocks away. (Government's Ex. 1A [map]). Of course, crime can and does spill over from public housing projects into nearby neighborhoods. Hence, although Defendant's distance from the "high crime" target area served to reduce the reasonableness of suspicions of criminality developed by the observing police officer, the Court must take into account that this area of the arrest was within the area that the officers were assigned to patrol.
The Government also points to Defendant's allegedly suspicious "demeanor" as the police approached him in an unmarked van. Specifically, the officers observed Defendant "suspiciously peering from left to right and staring at the unmarked police vehicle." This eye movement indicated to the police that Defendant, who was "not making eye contact with the two individuals with whom he appeared to be engaged in conversation," was instead "looking for police officers or rivals." (Tr. 07/15/08 at 61-62). But as the police described at the hearing, their vehicle, which was a minivan with tinted windows, was slowly patrolling the streets of the Bronx. Any such slow moving car, and particularly a minivan with tinted windows, would have attracted a pedestrian's attention. In a similar vein, Defendant's other "suspicious" eye movements, which included not making eye contact with his two companions and looking both ways down the street, can also hardly be described as behavior so outside the civilian norm that an objectively reasonable police officer would have found them indicative of criminal activity. Indeed, an ordinary person looks from side to side before jay walking. Accordingly, this factor is not as strong as the Government would have it.
This brings us to the final factor, and the obvious reason why the police stopped Defendant: his adjustment of his waistband in a manner which, according to the officer, made it likely that he had a gun. Specifically, Officer Rodriguez saw defendant slide his hand along his waist toward the left side of his body and make an adjustment in the waistband area. The officer found this movement indicative of criminality because it resembled his own motions in adjusting his firearm while dressed in plainclothes. It is true that the waistband area is an area of the body where illegal guns are often carried, and police officers must be observant of hand motions in this area for their own protection.See, e.g., People v. Muller, 278 A.D.2d 423 (N.Y.App.Div. 1st Dept. 1994) (common police knowledge as to practice of carrying guns in waistband); People v. Montague, 175 A.D.2d 54 (N.Y.App. Div. 1st Dept. 1991) ("We can hardly ignore what is probably apparent to every police officer, that a waistband is the telltale hiding place for a gun").
But Officer Rodriguez's impression of how he looked adjusting his weapon, without more, is insufficient grounds to provide "reasonable suspicion" of criminal activity. He did not testify that he relied on his professional experience as a police officer or on any particular training in the police academy or subsequently to identify Defendant's movement as consistent with movement of a person carrying a gun in the waistband. See Arvizu, 534 U.S. at 273-74 (in determining whether reasonable suspicion exists, Court stressed importance of allowing officers to draw upon "their own experience and specialized training"). Further, there are a myriad of innocent explanations for Defendant's conduct. He could have been simply hitching up his pants or tucking in his shirt. And the fact that neither officer saw a bulge — a telltale signs of weapons possession — makes it less likely that his suspicion was that of an objectively reasonable police officer. Cf. United States v. Scott, 250 Fed. Appx. 534, 535 (4th Cir. 2006) (explaining how a bulge or visible object underneath clothing provides reasonable suspicion); United States v. Roundtree, 596 F.2d 672, 674 (5th Cir. 1979) (reasonable suspicion established where defendant had bulge on inside of his calf which he was seen "adjusting"). Thus, this factor too would not, standing alone, sufficiently elevate a reasonable officer's suspicions to the level where the officer is permitted to stop and detain the suspect for questioning.
A court must, of course, consider the "totality of the circumstances" presented in order to determine whether an officer has reasonable suspicion to effect a Terry stop. Arvizu, 534 U.S. at 273-74; Villegas, 928 F.2d at 516. And further, even if each individual factor cited by the police is entirely innocuous, the totality of the presented circumstances could heighten an objectively reasonable police officer's suspicions to the point where he is allowed to briefly stop and detain a suspect. Terry, 392 U.S. at 22 (objective basis for suspicion where "series of acts, each of them perhaps innocent" if viewed separately, "but which taken together warrant further investigation"). But even considering the aforementioned factors in sum, an objectively reasonable suspicion that Defendant was engaged in criminal activity has not been shown to exist at the time of this stop.
Admittedly, this is a close call. But to hold otherwise would be to eviscerate any objective criteria from the concept of "reasonable suspicion" and replace it with an entirely subjective standard predicated entirely upon the conclusions of the individual officer. Simply put, such a subjective basis for effecting a Terry stop is not what the Fourth Amendment demands.INS v. Delgado, 466 U.S. 210, 217 (1984) (Fourth Amendment requires "some minimal level of objective justification" for making an investigative stop); see also Sokolow, 490 U.S. at 7 (officer "must be able to articulate something more than an inchoate and unparticularized suspicion or hunch"); Bayless, 201 F.3d at 133 ("reasonable suspicion is an objective standard"). Accordingly, this Court concludes that the police did not have "reasonable suspicion" to stop and detain Defendant on the evening of April 3, 2008.
This is not to say that the police should not have been suspicious of Defendant's behavior at all. In fact, under the aforementioned circumstances the police, both of whom were credible witnesses, were well-entitled, under the New York State and Federal constitutions, to approach Defendant on the street and ask him questions. See Mendenhall, 446 U.S. at 553-54 (protections of the Fourth Amendment do not come into play until a suspect has been "seized" by the police); People v. DeBour, 40 N.Y.2d 210, 223 (1976) (police can approach suspect and request explanatory information if they have a "founded suspicion that criminal activity is afoot"). But that was not what happened here. Rather, by directing Defendant not to move and to show his hands, the police officers effected a Terry stop, which can be justified only if the police have reasonable suspicion that Defendant was committing a crime, which the prosecution has not shown.
The facts here are similar to those found in the recent Eastern District of New York case of United States v. McCrae, U.S. Dist. LEXIS 2314, at *2, in which Judge Gleeson ruled that the police officer had seized the defendant without reasonable suspicion when he ordered the defendant to stop walking away after the officer spied the defendant "move his hand as if moving an object from the center of his stomach to the left side of his waistband." Id. at *2-3. See also People v. Stevenson, 7 A.D.3d 820 (N.Y.App.Div. 2d Dept. 2004) (no reasonable suspicion even though defendant had bulge in center of waistband and he "adjust[ed] his clothing around the bulge several times").
The Government relies upon cases in its memorandum which lend little credence to its claim that the officer here had reasonable suspicion to suspect Defendant of committing a crime. (Govt. Memo at 6.) In United States v. Manuel, 64 Fed. Appx. 823 (2d Cir. 2003), the police had received an anonymous call reporting that men bearing guns had congregated on a particular "high crime" street corner in Buffalo, New York. Upon reporting to the scene, the police found no one, but shortly thereafter, the defendant arrived, and in his front pocket, he had bulge. The police subsequently stopped and frisked the defendant. Reasonable suspicion existed in Manuel because of the call concerning the presence of guns and because the police subsequently observed a suspicious bulge in the defendant's pants' pocket, which was directly indicative of a firearm. Conversely here, there had been no reports of firearms to the police and there was no suspicious bulge; merely adjusting a waistband is not directly indicative of a firearm. Likewise, in United States v. Lucas, 68 Fed. Appx. 265, 266-67 (2d Cir. 2003), not only did the police observe the defendant "mess around with his waistband," but they also saw him reveal what appeared to be a "revolver [or] handgun." This provided the police with reasonable suspicion. Here, the police did not observe anything appearing to be a gun until after Defendant had been stopped.
The final case cited by the Government, United States v. Padilla, 06 Cr 824, 2007 U.S. Dist. LEXIS 47443 (E.D.N.Y. Jun. 29, 2007) is more on point, but it is not directly applicable because it appears to rest on its particular set of facts, only some of which are recounted in the court's decision. In Padilla, the police officer saw the defendant, accompanied by two other men, enter and then quickly exit a wooded high-crime area late at night. Id. at *3-4. The area was "poorly lit," and the way in which the defendant and the "two men were walking single file and then met in the park was suspicious." Id. Further, the defendant "made a gesture in which he appeared to be adjusting a heavy object such as a gun in his waistband." Id. Initially, the Government's reliance on Padilla is misplaced because the scarcity of facts in the opinion makes any direct comparison difficult. Regardless, on the face of the facts presented in thePadilla opinion, there was certainly a higher basis for a finding of reasonable suspicion there then is provided by the facts here. Accordingly, the case law relied upon by the Government lends little support for the legality of the stop here.
Despite the unlawfulness of the initial stop by the police, it is clear that once Defendant was stopped, he provided the officers with reason to believe that he was armed and dangerous. Indeed, Defendant, who was suspected of carrying a firearm on the left-hand side of his waist, ignored police commands and kept his left-hand glued to his waist; he turned his body so that the police could not see his left-side; he even attempted to flee. Thus, had the officers not instructed Defendant not to move and to show his hands, but rather had simply subjected the three men to investigative questioning, it is likely that events would have occurred so that the search of Defendant and the recovery of the gun would have been lawful. Terry, 392 U.S. at 27; United States v. Colon, 250 F.3d 130, 134 (2d Cir. 2001) (an officer is permitted to frisk or search a suspect for weapons if 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). However, because a subsequent frisk or search for weapons can be lawful only if the forcible stop that preceded the search was lawful, the gun recovered from Defendant must be suppressed. Adams v. Williams, 407 U.S. 143, 146 (1972) (noting that frisk can be lawful only if initial stop is lawful); United States v. Swindle, 407 F.3d 562, 568 (2d Cir. 2005) ("[A]n illegal stop cannot be made legal by incriminating behavior that comes after the suspect is stopped").
Thus, this Court finds that the stop of Defendant was in violation of the Fourth Amendment and that any evidence seized as a result of that stop must be suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963).
Conclusion
For the reasons stated above, Defendant's motion to suppress is granted.
IT IS SO ORDERED.