| People v Davenport |
| 2012 NY Slip Op 00976 [92 AD3d 689] |
| February 7, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v MarteseDavenport, Respondent. |
—[*1] Lynn W. L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for respondent.
Appeal by the People from an order of the Supreme Court, Kings County (Mangano, Jr., J.),dated July 23, 2010, which granted the defendant's motion to suppress physical evidence and astatement made by the defendant to law enforcement officials.
Ordered that the order is reversed, on the law and the facts, the motion is denied, and thematter is remitted to the Supreme Court, Kings County, for further proceedings on theindictment.
At approximately 3:10 a.m. on September 7, 2009, police officers received a radio call that amale had been shot at a specific location in Brooklyn. The police arrived at the scene less thanone minute later. Although many people were in the area, the attention of one of the policeofficers was drawn to the defendant, who was within 15 feet of him, because the defendant waswalking quickly towards him with his right hand on his waistband, his head "on a swivel," hiseyes "darting" around, and evincing a nervous appearance. Upon making eye contact with thepolice officer, who was wearing an "NYPD" jacket with a shield insignia over the left chestidentifying him as a police officer, the defendant took a step backwards. The police officer puthis hands on the defendant's chest and waistband and felt what he believed to be the handle of afirearm. At that point, the defendant said, "It's not me. I don't have anything on me." The policeofficer placed the defendant against a building and recovered a loaded firearm from thedefendant's waistband.
After a suppression hearing, the Supreme Court granted the defendant's motion to suppressthe physical evidence and his statement, finding that the police officer lacked reasonablesuspicion to stop and frisk the defendant. The People appeal. We reverse.
"Where a police officer has reasonable suspicion that a particular person was involved in afelony or misdemeanor, the officer is authorized to forcibly stop and detain that person"(People v Hollman, 79 NY2d 181, 185 [1992]). As the Court of Appeals held inPeople v Martinez (80 NY2d 444, 447 [1992]), "the police may forcibly stop or pursue anindividual if they have information which, although not yielding the probable cause necessary tojustify an arrest, provides them with a reasonable [*2]suspicionthat a crime has been, is being, or is about to be committed." "Reasonable suspicion is thequantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under thecircumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d 106,112-113 [1975]; see People v Martinez, 80 NY2d at 448). "The requisite knowledge mustbe more than subjective; it should have at least some demonstrable roots. Mere 'hunch' or 'gutreaction' will not do" (People v Sobotker, 43 NY2d 559, 564 [1978]). "All that isrequired is that the stop be not the product of mere whim, caprice, or idle curiosity," and that it be"based upon 'specific and articulable facts which, taken together with rational inferences fromthose facts, reasonably warrant [the] intrusion' " (People v Ingle, 36 NY2d 413, 420[1975], quoting Terry v Ohio, 392 US 1, 21 [1968]). Additionally, in order to justify afrisk of a suspect's outer clothing, a police officer must have " 'knowledge of some fact orcircumstance that supports a reasonable suspicion that the suspect is armed or poses a threat tosafety' " (People v Caicedo, 69AD3d 954, 954 [2010], quoting People v Batista, 88 NY2d 650, 654 [1996]; seePeople v De Bour, 40 NY2d 210, 223 [1976]; CPL 140.50 [1], [3]).
The facts adduced at the suppression hearing demonstrated that there was a radio call that aman had just been shot in the relevant geographic area, and, upon arriving at that area less thanone minute later, a police officer observed the defendant's nervous demeanor, hand positioned onhis waistband, and his slow retreat from the police officer upon making eye contact with him.Additionally, the police officer was aware that the waistband is a "telltale hiding place for a gun"(People v Montague, 175 AD2d 54, 56 [1991]; see People v Benjamin, 51 NY2d267, 271 [1980]). Considering the totality of the circumstances, there was reasonable suspicion tojustify the limited intrusion which produced the loaded firearm (see People v Benjamin,51 NY2d at 269-271; see also People v Montague, 175 AD2d at 56). A police officerneed not "await the glint of steel before he can act to preserve his safety" (People vBenjamin, 51 NY2d at 271).
The Supreme Court did not address whether the defendant's statement made at the time of hisarrest was lawfully obtained. However, the defendant's only basis for seeking suppression of thisstatement was that the statement was a product of an unlawful stop and frisk. Since this Courthas determined that the stop and frisk were not unlawful, there is no basis to suppress hisstatement.
Accordingly, the order granting the defendant's motion must be reversed, the motion denied,and the matter remitted to the Supreme Court, Kings County, for further proceedings on theindictment. Angiolillo, J.P., Florio, Chambers and Hall, JJ., concur.