Opinion
1819/2011.
Decided October 25, 2011.
Cyrus R. Vance, District Attorney, New York County, New York, NY, By A.D.A. Lisa Zito, for the People.
The Legal Aid Society, New York, NY, By Emily Paul, Esq., for the Defendant.
On September 29, 2011, this Court conducted a Dunaway/Mapp hearing. The People called one witness, Police Officer Stephen Hillman, whom this Court found to be credible. The defendant entered into evidence a surveillance videotape depicting two men walking down a street close in time and place to the location of the incident.
Findings of Fact
Police Officer Stephen Hillman has been assigned to the 25th Precinct in New York County since joining the New York City Police Department ("NYPD") five years ago. He has worked uniformed foot patrol, motor patrol and uniformed "conditions" patrol, which concentrates on quality of life issues within the precinct. For the past two years, Officer Hillman has been part of the 25th Precinct's anti-crime division, which focuses on crime prevention as opposed to the investigation of past crimes. Upon joining the Anti-Crime Unit, Officer Hillman underwent plainclothes training and participated in a three day course that emphasized crimes involving weapons. Officer Hillman described how, as an anti-crime officer, he learned to identify furtive movements and behaviors, which might be indicative of criminal behavior, such as hugging building walls to obscure parts of the body and abrupt changes in direction of travel upon the approach of police officers.
During his time with the NYPD, Officer Hillman has made over 150 arrests, approximately 20 of which have involved gun possession. Additionally, Officer Hillman has assisted in more than 30 arrests involving firearms. In the arrests involving firearms, the weapons were most often recovered from the defendants' waistbands. Based upon his professional training and experience, Officer Hillman was aware that firearms carried unsecured in a waistband are more likely to slide, shift, and move around than firearms carried in a holster. He has observed that people who conceal guns in their waistband tend to move their hands toward their waistbands to ensure the weapon is secure and to reposition the weapon as necessary.
The 25th Precinct extends from the East River to Fifth Avenue and from 115th Street to 142nd Street. Within the precinct's boundaries lies an area that runs from Lexington to 3rd Avenue and from 119th to 124th Street, which has been plagued by a high incidence of gang activity that has resulted in numerous arrests involving drugs, weapons, shootings, robberies and homicides. The exact location of this encounter, 122nd Street between Lexington Avenue and 3rd Avenue, is known to Officer Hillman as the border between two gangs, one located on 122nd Street and Lexington Avenue and the other down the block on 122nd Street and 3rd Avenue. The two gangs have engaged in recurring violent behavior. Officer Hillman testified that he has personally responded to violent gang related offenses in that specific area.
On March 29, 2011, Officer Hillman and fellow anti-crime officers Brian Cregan and Michael Whiteman were on patrol in an unmarked police vehicle, which had untinted windows. Officer Cregan was driving, Officer Whiteman was in the front passenger seat, and Officer Hillman was in the rear passenger seat behind Officer Whiteman. At approximately 10 p.m., while driving southbound on Lexington Avenue, Officer Cregan began to turn left, eastbound onto 122nd Street.
As the officers' vehicle waited to turn left onto 122nd Street, Officer Hillman observed the defendant with another man walking northbound on the east side of Lexington Avenue, toward their vehicle. The two men were approaching Officer Hillman's side of the vehicle as it was stopped waiting for pedestrian traffic to pass. The intersection was well lit by streetlights, residential building lights, as well as traffic lights and car lights from heavy vehicular traffic. Through his open, rear passenger window, Officer Hillman observed the defendant walking to the left of the other man, closer to the street than the building line. Officer Hillman was approximately five feet from the defendant when he made his first observation. The defendant looked at the officers and his facial expression immediately changed. He appeared stunned, like a "deer in headlights." The defendant's mouth and eyes widened and his hand moved quickly toward the right, front side of his waistband, which he proceeded to lift up.
In response to the defendant's reaction and hand movement, Officer Hillman started to exit his vehicle. As he did so, the defendant took a step back and to the right, stepping behind his companion, and again moved his hand toward his waistband. His hand was now partially obscured behind the other man. Seeing this, Officer Hillman identified himself as a police officer and ordered the defendant to put his hands up. The defendant initially complied, enabling Officer Hillman to grab hold of the defendants' hands and lift them above his head. Officer Hillman testified about the importance of getting control of the defendant's hands in this fashion, explaining it was for his own safety and for the safety of his fellow officers. Using his right hand to hold defendant's hands on top of his head, Officer Hillman moved his left hand toward defendant's waistband and attempted to initiate a pat down of that area. As Officer Hillman did this, the defendant broke free of Officer Hillman's grip and swatted Officer Hillman's hands away from his waistband, repeatedly stating that he had "I.D." This exchange was repeated with Officer Hillman attempting to lift defendant's hands back on top of his head and the defendant again breaking his hands from the officer's control and swatting the officer away.
Officer Cregan came to Officer Hillman's assistance and frisked the defendant's waistband area while Officer Hillman held onto defendant's hands. Officer Cregan called out: "He has a gun. He has a gun," whereupon the defendant flailed his hands suddenly causing Officer Cregan to fall to the ground. Officer Whiteman pulled out his mace and sprayed the defendant, while Officer Hillman tried to maintain his hold on the defendant by grasping onto his clothing. The defendant broke free of the Officer's hold by slipping out of two layers of clothing, a sweatshirt and a vest he was wearing over it. The defendant then fled eastbound on 122nd Street.
After running approximately 10 to 15 feet toward 3rd Avenue, Officer Hillman observed the defendant remove an object from his waistband with his right hand and toss it to the sidewalk. Officer Hillman and other police officers caught up to the defendant as he was crossing to the east side of 3rd Avenue. The object that the defendant had tossed to the sidewalk was recovered by Officer Cregan. It was an operable .9 mm pistol, loaded with one round in the chamber and five rounds in the magazine.
Conclusions of Law
At a Dunaway/ Mapp hearing, when a defendant challenges the legality of a stop, frisk, search or seizure, the initial burden is on the People to go forward with evidence to demonstrate the legality of the police conduct. People v. Dodt, 61 NY2d 408, 415 (1984); People v. Berrios, 28 NY2d 361 (1971); People v. Malinsky, 15 NY2d 86 (1965). Once the People have met their initial burden, the defendant bears the ultimate burden of establishing the illegality of the conduct by a fair preponderance of the evidence. Berrios, supra, at 367. Here, the Court finds that the People have met their burden of demonstrating the legality of the police conduct.
In People v. Benjamin, 51 NY2d 267, 270 (1980), the Court of Appeals held that a police officer may not conduct a stop and frisk unless he possesses reasonable suspicion to believe that a particular person is committing or about to a commit a crime. In Benjamin, two plainclothes officers were on motor patrol when they received a radio run indicating that men with guns were at a specified street location. The source of the information was not known to the officers nor established at the suppression hearing. Upon arriving at the location, the officers observed 30 people gathered on the sidewalk. As they walked to within 10 feet of the group of people, the defendant stepped back while reaching beneath his jacket with both hands toward his rear waistband. One of the officers immediately ordered the defendant to keep his hands in view and proceeded to conduct a pat down search of the defendant, revealing a loaded weapon.
The Benjamin Court found that the radio run, indicating the presence of men armed with guns at a specified location, coupled with the officer's observations of the defendant's movements at that same location shortly thereafter, provided reasonable suspicion to justify a frisk. Benjamin recognizedthat the defendant's movement of his hands to his waistband was an action which was indicative of the potential presence of a weapon hidden under defendant's clothing.
"It 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. It is equally apparent that law-abiding persons do not normally step back while reaching to the rear of the waistband, with both hands, to where such a weapon might be carried. Although such action may be consistent with innocuous or innocent behavior, it would be unrealistic to require [the officer], who had been told that gunmen might be present, to assume the risk that the defendant's conduct was in fact innocuous or innocent. Such an assumption would be at odds with his reasonably acquired belief that he was in danger and his constitutionally authorized action (Terry v Ohio, supra). It would indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety." Id. at 271. (Emphasis added).
Clearly, the Court of Appeals in Benjamin recognized the realities and complexity of street encounters in New York City.
Here, defendant argues that in the absence of a radio run indicating criminal activity, or other additional criteria, Officer Hillman's observations were insufficient to support a stop and frisk of the defendant. The People maintain that the officer's knowledge, training and observations of the defendant in this high crime area, known for gun and gang violence, provided the necessary reasonable suspicion to support a frisk. This Court concludes that under the totality of the circumstances the frisk of the defendant was legally justified.
Officer Hillman is an experienced police officer assigned to the 25th Precinct's Anti-Crime Unit. He observed the defendant and his companion at 10:00 o'clock at night in a particularly high crime area of the precinct — indeed, on a specific corner known to the officer to be the site of prior, significant gang activity involving violent crimes such as shootings, homicides and robberies. As a member of the Anti-Crime Unit, Officer Hillman had received specialized training in recognizing the presence of concealed, illegal handguns, which specifically included the furtive behaviors engaged in by persons attempting to conceal such weapons.
When the officers' vehicle turned the corner, Officer Hillman was only a few feet from the defendant. He had a clear and unobstructed view of defendant's face through his open car window. The defendant looked directly at Hillman and, as if realizing he was face to face with the police, reacted by widening his eyes and mouth in a startled expression. He also reacted to seeing Hillman by immediately moving his hand toward his waistband and making a quick adjustment by pulling up his pants. The defendant's visibly nervous response to the apparent presence of the police in a specific location known to the officer as a high gun area, combined with the defendant's knee-jerk attention to his waistband area upon seeing the police indicated to Hillman the potential presence of a weapon concealed in the defendant's waistband. The totality of these circumstances justified, at least, a common-law right of inquiry. People v. Brown , 28 AD3d 201 (1st Dept), lv denied 7 NY3d 753 (2006); Matter of Jamaal C. , 19 AD3d 144 (1st Dept 2005); People v. Feliz , 45 AD3d 437 (1st Dept 2007), lv denied 9 NY3d 1033 (2008); People v. Hernandez , 3 AD3d 325 (1st Dept), lv denied 2 NY3d 741 (2004). Accordingly, Officer Hillman acted permissibly in leaving his vehicle to investigate.
Contrary to defendant's contentions, this court found credible Officer Hillman's testimony that the defendant reacted in the described nervous fashion upon seeing the plainclothes officers in their unmarked car, with two officers in the front, and Officer Hillman in the back of the vehicle. It is an unfortunate fact that those who engage in criminal activities on the streets often become familiar with the makes and models of unmarked cars used by police officers that patrol their neighborhood. Moreover, defendant had the same, clear, unobstructed view of Officer Hillman, that the officer had of the defendant.
As Officer Hillman started to exit his vehicle, the defendant made yet another quick hand movement toward his waistband, now shielding his movements behind his companion, all while standing only a few feet from Hillman. Given these added circumstances, at this point reasonable suspicion existed to believe that the defendant was in criminal possession of a weapon. As such, the officer acted permissibly in ordering the defendant to raise his hands. People v. Green , 80 AD3d 1004 , 1005 (3d Dept 2011).
Officer Hillman's act of grabbing the defendant's hands and attempting to secure them above his head while seeking to conduct a frisk was permissible conduct, designed to ensure his own safety and that of the other officers and the public. People v. Nelson , 67 AD3d 486 (1st Dept 2009); People v. Brown, 277 AD2d 107 (1st Dept 2000), lv denied 96 NY2d 756 (2001); People v. Pettis, 195 AD2d 421 (1st Dept 1993); People v. Yates, 176 AD2d 442 (1st Dept), appeal denied 79 NY2d 834 (1991); People v. Moyaho , 12 AD3d 692 (2d Dept 2004), lv denied 4 NY3d 766 (2005).
This Court credits the officer's testimony that he focused his frisk on the area of the defendant's waistband, which the defendant had repeatedly touched and reached for, even as the officer approached him. The need for quick action when the officer was in such close proximity to the defendant cannot be minimized. As in Benjamin, 51 NY2d at 271, supra, Officer Hillman was not required to "await the glint of steel before he [could] act to preserve his safety".
The defendant introduced a videotape into evidence, which depicts two men walking on 122nd Street at about 10:00 p.m. on the date in question. Although the poor resolution of the tape makes it impossible to determine if the defendant is one of the two men depicted, for purposes of this discussion the Court accepts that it is. Since the tape does not show the interaction between the defendant and the police officers, and does not even depict the intersection where that encounter took place, this Court finds that the videotape does not undermine any of Officer Hillman's testimony. To the contrary, it corroborates several details asserted by Officer Hillman, namely that the defendant and a companion were on Lexington Avenue walking northbound at approximately 10:00 p.m., that defendant was closer to the street than the building line, that the lighting was good, and that the defendant was wearing clothing similar in appearance to what Officer Hillman had described.
With respect to the recovery of the gun in question, this Court finds that the defendant voluntarily discarded the weapon as he fled from the police. His abandonment of the weapon was not the product of an unlawful police pursuit or any other unlawful police action. Accordingly, the gun was properly recovered. People v. Martinez, 80 NY2d 444 (1992).
Conclusion
Defendant's Dunaway/Mapp motion to suppress the physical evidence recovered is denied.
This constitutes the Decision and Order of the Court.