Opinion
Case No. 02-CR-1433 (FB)
October 3, 2003
ROSLYNN R. MAUSKOPF, ESQ., Thomas Fallati, Brooklyn, New York for Plaintiff
ROGER J. SCHWARTZ, ESQ., for defendant
MEMORANDUM ORDER
Defendant Nicholas Torres ("Torres'") has moved to suppress the gun that was found on his person by police officers during a stop and frisk patdown search. For the reasons that follow, Torres' motion is denied.
A hearing was held on Torres' suppression motion this past August 6th. At the hearing, the government presented testimony from the three police officers who were present at Torres' arrest. Based on the evidence put forward at that hearing, the Court makes the following findings of fact and conclusions of law. anti-crime unit were on a routine car patrol on Gates Avenue in Brooklyn when they spotted a group of men drinking what appeared to be alcohol while standing alongside two cars that were illegally parked on the sidewalk. The officers, who were in plainclothes, pulled their unmarked car alongside the men.
After stopping at the scene, the officers saw Torres put down what appeared to be a liquor bottle and then reach with both hands behind his back while retreating from them. In response to this, the officers left their vehicle and Officer Kurz ("Kurz") approached Torres. Torres' reaching behind his back in that manner led Kurz to believe that the defendant might be armed. See Hearing Transcript ("Tr."), at 25. Acting on that suspicion, Kurz proceeded to conduct a patdown search, which uncovered a pistol in the rear waistband of Torres' pants. Just prior to the patdown, Torres had placed his hands at his sides. See Tr., at 24.
The Court rejects Torres' contention that Officer Kurz effectuated a de facto arrest of Torres when conducting the patdown.
It has been established since the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968) that the Fourth Amendment permits investigatory stops when police officers have a reasonable suspicion supported by articulable facts that criminal activity may be afoot. A limited search for weapons is permissible where the police officer has a reasonable belief that the suspect poses a danger and may have a weapon within his reach. McCardle v. Haddad, 131 F.3d 43, 48 (2d Cir. 1997). The Court finds by the preponderance of the evidence that Kurz had such a reasonable belief.
Courts have consistently approved Terry stops and frisks when a defendant has placed his hands out of a police officer's line of vision. United States v. Rogers, 129 F.3d 76 (2d Cir. 1997) (Terry stop appropriate when defendant turned away as if to hide her left side while reaching down with her left hand toward the lower part of her coat); United States v. Baldwin, 1998 U.S. Dist. LEXIS 13505 (D. Conn. 1998), aff'd, 1999 U.S. App. LEXIS 23364 (2d Cir. 1999) (summary order) (upholding Terry stop when the defendant turned away from the police officers so that his hands were not visible); United States v. Martinez, 634 F. Supp. 1144 (S.D.N.Y. 1986) (upholding Terry stop after the defendant had started to retreat from the police and had reached for the back of his waistband). The sole distinction here — that Torres moved his hands from behind his back to his sides just prior to the patdown — does not make an analytical difference, as his initial actions gave the police a reasonable belief that he posed a danger since the suspected weapon would still be within his easy reach. See McCardle, 131 F.3d at 48.
Although the defendant has relied on the Second Circuit's recent decision in United States v. Casado, 303 F.3d 440 (2d Cir. 2002), that reliance is misplaced. In Casado the court held that an officer exceeded the permissible scope of a Terry stop when he reached into a suspect's pocket and emptied its contents without first conducting a patdown of the pocket. Id. at 447. In the present case, it is undisputed that Officer Kurz did conduct an initial patdown before removing the gun from Torres' waistband. Tr., at 22.
For these reasons, Torres' motion to suppresses denied.