The Second Department, over a dissent, determined the arresting officer, Schwizer, properly escalated the intrusiveness of his encounter with the defendant (under the DeBour criteria) based upon the actions of the defendant:
“On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” …, the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity … . 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 … . The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime … . The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime … .
“Encounters between citizens and the police in public places are of an endless variety with no two being precisely alike” … . Here, Schwizer properly exercised his common-law right of inquiry when he initially encountered the defendant, as the defendant matched the general description of a man with a gun at the subject location … .
At this stage in the encounter, absent reasonable suspicion of criminal activity, Schwizer could not forcibly detain the defendant … . However, during his common-law right of inquiry, Schwizer was permitted to ask the defendant to show or raise his hands as a self-protective measure … .
The defendant’s failure to comply with Schwizer’s request to show his hands, coupled with the nature of the report, and the presence of the defendant’s hands in his waist area, escalated the encounter and justified Schwizer’s conduct in grabbing the defendant’s hands as a self-protective measure … . Once Schwizer felt the firearm in the defendant’s waist area, he was furnished with reasonable suspicion … . People v Abdul-Mateen, 2015 NY Slip Op 02489, 2nd Dept 3-25-15