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OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, over an extensive dissent, in a comprehensive street stop (DeBour) analysis too detailed to fairly summarize here, determined the police officer did not have a reasonable suspicion that criminal activity was afoot when he asked defendant, a passenger in a car, “what do you have.” Defendant replied that he had a “piece” and he was convicted of possession of a weapon:

There was nothing improper about the police officers’ direction that the defendant and the two other occupants exit the vehicle. “In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” … . However, the scope of that authority is limited to guarding against “the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements” … . …

In the context of a traffic stop, the Court of Appeals has made clear that “a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot” …, thereby squarely placing this type of inquiry within De Bour level two. Moreover, mere nervousness does not provide the requisite indication of criminality … .

Here, the circumstances described by Officer Weibert at the suppression hearing did not establish “a founded suspicion that criminality [was] afoot” … . Significantly, there was no testimony of a bulge at the defendant’s waistband … , or any indication that the defendant was reaching for, grabbing at, or adjusting his waistband … . To the contrary, Officer Weibert denied that the defendant made any furtive gesture or reached for anything; he testified only that the defendant was acting nervous, shaking his knees and legs up and down, and leaning forward in his seat with his hands in his lap and his arms tightly at his side. People v White, 2018 NY Slip Op 01492, Second Dept 3-7-18

CRIMINAL EVIDENCE (STREET STOPS, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, STREET STOPS, SUPPRESSION, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/STREET STOPS (CRIMINAL LAW, SUPPRESSION, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESSION (CRIMINAL LAW, STREET STOPS,  OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/DE BOUR (CRIMINAL LAW, STREET STOPS, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

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