SIMMONS, JOHN R., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
74
KA 14-00793
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOHN R. SIMMONS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered June 18, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.
It is hereby ORDERED that the judgment so appealed from is
affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that Supreme Court erred
in refusing to suppress physical evidence, including a handgun, and
statements made by defendant to the police following his arrest. We
reject that contention.
At the suppression hearing, the arresting officer testified that
he had personal knowledge that the location of the arrest was a “very
dangerous street” in a high-crime area known for gang activity and
trafficking of crack cocaine. The day before defendant’s arrest,
there had been a report of an assault as well as a “shots fired call”
at that location, and the officer had made three recent arrests at
that location for gun possession.
On the evening of defendant’s arrest, the officer was patrolling
the area in a marked police vehicle. At approximately 10:00 p.m., the
officer observed defendant and five other men in the middle of the
street. As the police vehicle approached them, three men disbanded
from the group and began to walk away. The officer exited the vehicle
and defendant, who was wearing a T-shirt and shorts, walked past the
officer while looking down and holding the center of his waistband
underneath his T-shirt. The officer, who had made over 150 gun
arrests, and had “been involved in numerous gun arrests where
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KA 14-00793
individuals holding the center of their waistband [were] wearing a
belt [and had] a weapon,” found this to be “[s]uspicious activity.”
He thus walked “slowly” toward defendant and asked him to show his
hands. As defendant complied by lifting his hands to the side, his
shirt lifted and revealed “what appeared to be a buttstock or a handle
of a weapon.” The officer immediately grabbed the weapon and placed
defendant under arrest.
In People v De Bour (40 NY2d 210, 223), the Court of Appeals
provided a “graduated four-level test for evaluating street encounters
initiated by the police” (People v Moore, 6 NY3d 496, 498). Here,
there is no dispute that the officer’s command to “show your hands,”
in a public setting, with gun holstered, and without any physical
restraint on defendant’s freedom of movement, did not constitute a
seizure (see generally People v Bora, 83 NY2d 531, 534-536; People v
Hollman, 79 NY2d 181, 184-185; People v Hicks, 68 NY2d 234, 240).
Rather, defendant contends that the officer lacked the requisite
founded suspicion for a De Bour level two encounter.
Under De Bour, “level one permits a police officer to request
information from an individual and merely requires that the request be
supported by an objective, credible reason, not necessarily indicative
of criminality; level two, the common-law right of inquiry, permits a
somewhat greater intrusion and requires a founded suspicion that
criminal activity is afoot” (Moore, 6 NY3d at 498). In determining
whether the officer had the requisite “founded suspicion” for a level
two encounter, the suppression court must consider the totality of
circumstances (see People v Mercado, 120 AD3d 441, 442, affd 25 NY3d
936), and “must undertake a dual inquiry: ‘whether the officer’s
action was justified at its inception, and whether it was reasonably
related in scope to the circumstances which justified the interference
in the first place’ ” (People v William II, 98 NY2d 93, 98).
It is well settled that the “nature and location of the area
where a suspect is detained may be one of the factors considered in
determining whether, in a given case, the police acted reasonably”
(People v Bronston, 68 NY2d 880, 881; see People v Oden, 36 NY2d 382,
385). An officer’s experience and training may also be considered a
relevant factor in evaluating the weight to be given his or her
observations (see People v McRay, 51 NY2d 594, 601; People v Sylvain,
33 AD3d 330, 331, lv denied 7 NY3d 904).
Here, we conclude that the location of this encounter in a high-
crime area, the officer’s training and his experience in investigating
weapons possession crimes at this location, together with defendant’s
grabbing of his waistband with his hand concealed under his shirt,
provided the requisite founded suspicion for the officer to command
defendant to show his hands. Under the totality of the circumstances,
we conclude that it is of no consequence that the officer did not
observe a gun before commanding defendant to show his hands. Indeed,
defendant’s hand was concealed under his shirt while simultaneously
grabbing his waistband. The Court of Appeals has noted that “a
handgun is often carried in the waistband” (People v Benjamin, 51 NY2d
267, 271; see De Bour, 40 NY2d at 221), and that it would be “absurd
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KA 14-00793
to suggest that a police officer has to await the glint of steel
before he can act to preserve his safety” (Benjamin, 51 NY2d at 271).
We recognize that a founded suspicion may not rest upon innocuous
behavior that is susceptible of an innocent as well as a culpable
interpretation (see generally People v Brannon, 16 NY3d 596, 602).
Viewed in isolation by an untrained observer, defendant’s actions
might not appear to be suspicious but, “when viewed collectively and
in the light of the officer’s expertise,” we conclude that the officer
had a founded suspicion of criminal activity warranting a level two
inquiry (People v Wilson, 52 AD3d 239, 240, lv denied 11 NY3d 743; see
generally People v Pines, 281 AD2d 311, 311-312, affd 99 NY2d 525;
De Bour, 40 NY2d at 220-221; People v Hernandez, 3 AD3d 325, 325, lv
denied 2 NY3d 741).
All concur except LINDLEY, J., who dissents and votes to reverse
in accordance with the following memorandum: I respectfully dissent.
While I agree with the majority that the officer’s request to have
defendant show his hands was a level two encounter under People v
De Bour (40 NY2d 210, 223), thus requiring the officer to have “a
founded suspicion that criminal activity is afoot” (People v Moore, 6
NY3d 496, 498; see Matter of Shakir J., 119 AD3d 792, 794, lv
denied 24 NY3d 916; People v Fernandez, 87 AD3d 474, 475), I disagree
with the majority that the officer in this case had such a founded
suspicion. Therefore, I would reverse the judgment, vacate
defendant’s plea, grant those parts of his omnibus motion seeking to
suppress tangible property and statements, dismiss the indictment, and
remit the matter to Supreme Court for proceedings pursuant to CPL
470.45.
As the majority points out, the nature and location of the area
as well as the officer’s experience and training may be considered in
determining whether the officer acted reasonably (see People v
Bronston, 68 NY2d 880, 881; People v McRay, 51 NY2d 594, 601).
Nevertheless, “[t]he fact that defendant was located in a high[-]crime
area does not by itself justify the police conduct where . . . there
were no other objective indicia of criminality” (People v Stevenson,
273 AD2d 826, 827; see People v Ingram, 114 AD3d 1290, 1293, appeal
dismissed 24 NY3d 1201), because “innocuous behavior alone will not
generate a founded . . . suspicion that a crime is at hand” (De Bour,
40 NY2d at 216; see People v Mobley, 120 AD3d 916, 918).
This case puts before us one very simple question, to wit, does
grabbing one’s waistband alone, without any other evidence that there
is an object in that waistband, constitute innocuous behavior or
evidence of criminality? I answer that question in the negative.
Although “[i]t is quite apparent to an experienced police officer, and
indeed it may almost be considered common knowledge, that a handgun is
often carried in the waistband” (People v Benjamin, 51 NY2d 267, 271),
the cases in which evidence of criminality has been found involve
situations where the officers testified that the defendants were
grabbing or cupping an object in the waistband (see e.g. People v
Pines, 281 AD2d 311, 311-312, affd 99 NY2d 525; People v Corona, 142
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KA 14-00793
AD3d 889, 889, lv denied 28 NY3d 1144; People v Feliz, 45 AD3d 437,
437, lv denied 9 NY3d 1033), or situations where the officers
testified that they personally observed an actual bulge in the
waistband (see e.g. De Bour, 40 NY2d at 221; People v Gerard, 94 AD3d
592, 592-593; People v Crisler, 81 AD3d 1308, 1309, lv denied 17 NY3d
793; People v Stevenson, 7 AD3d 820, 820-821). Here, there was no
such testimony (cf. People v Robbins, 83 NY2d 928, 930).
Inasmuch as the Court of Appeals has held that grabbing one’s
waistband, without more, “provide[s] . . . no information regarding
criminal activity” (id.), I conclude that the officer did not have the
requisite founded suspicion of criminality necessary to order
defendant to show his hands. Moreover, there was no testimony from
the sole officer to testify at the suppression hearing that he had any
fear for his safety.
I thus conclude that “ ‘the handgun seized by the police should
have been suppressed . . . , and the statements made by defendant to
the police following the unlawful seizure should have been suppressed
as fruit of the poisonous tree’ ” (Mobley, 120 AD3d at 919).
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court