Officer Did Not Have Reasonable Suspicion Defendant Posed a Danger—Pat-Down Search Triggered by a Bulge In Defendant’s Waistband Was Not Justified Under the DeBour Test

The Second Department determined the arresting officer did not have reasonable suspicion that defendant posed a threat to his safety when he patted defendant down and retrieved a weapon from defendant’s waistband.  Defendant, who was first observed merely standing and smoking a cigarette, had walked away from the police, turned his back to them and made a motion as if shoving something into his front waistband.  The officer, seeing the bulge in defendant’s waistband, immediately patted the defendant down:

In People v De Bour (40 NY2d 210), the Court of Appeals established a “graduated four-level test for evaluating street encounters initiated by the police” … . The first level 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 … . The second level, known as the “common-law right of inquiry,” requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion short of a forcible seizure … . The third level permits a seizure, meaning that a police officer may forcibly stop and detain an individual, based upon a reasonable suspicion that an individual is committing, has committed, or is about to commit, a crime … . Finally, the fourth level authorizes an arrest based on probable cause to believe that a person has committed a felony or misdemeanor … .

Here, those branches of the defendant’s omnibus motion which were to suppress the gun and his statements should have been granted. Assuming that Officer Castillo was justified in conducting a common-law inquiry, he lacked reasonable suspicion to believe that the defendant posed a threat to his safety when he conducted a pat-down search of the bulge in his waistband … . The police were not responding to a report of a crime involving a weapon and, at most, suspected the defendant of being involved in the burglary of an abandoned house … . In addition, “[a]n unidentifiable bulge which is readily susceptible of an innocent as well as a guilty explanation’ is not sufficient to justify a pat-down search” … . The waistband bulge as described by Officer Castillo only permitted him to ask the defendant if he was carrying a weapon based on a founded suspicion that criminality was afoot … . Moreover, Officer Castillo did not testify that the defendant, upon turning to face the officers, reached for or had his hand on the bulge, or made any threatening or menacing gesture … . Under the totality of the circumstances, Officer Castillo was not justified in searching the defendant’s waistband bulge as a minimally intrusive self-protective measure. Accordingly, the hearing court should have granted those branches of the defendant’s omnibus motion which were to suppress the physical evidence and his subsequent statements to law enforcement officials. Since, in the absence of the suppressed evidence, there is insufficient evidence to prove the defendant’s guilt, the indictment must be dismissed … . People v Harris, 2014 NY Slip Op 08351, 2nd Dept 11-26-14