THE MAJORITY HELD THE DEFENDANT’S ACTIONS INSIDE THE STOPPED VEHICLE RAISED A REASONABLE SUSPICION DEFENDANT WAS ARMED, JUSTIFYING A PAT DOWN SEARCH; THE DISSENT ARGUED THE DEFENDANT’S ACTIONS WERE EQUIVOCAL AND INNOCUOUS (FOURTH DEPT).

The Fourth Department, over a dissent, determined the police officer’s observations of defendant inside the stopped vehicle were sufficient to raise a reasonable suspicion the defendant was armed, which justified the pat down search. The dissent argued that the proof presented at the suppression hearing did not meet the “reasonable suspicion” standard.

Although the dissent suggests otherwise, the fact that the officer’s view of defendant was obscured to some extent when defendant was partially concealed inside the vehicle and was observed surreptitiously reaching toward his waistband constitutes a “circumstance that supports a reasonable suspicion that [defendant was] armed or pose[d] a threat to [officer] safety” … .

From the dissent:

“Reasonable suspicion ‘may not rest on equivocal or “innocuous behavior” that is susceptible of an innocent as well as a culpable interpretation’ ” … . Inasmuch as defendant’s nervousness and movements were susceptible of an innocent interpretation, particularly in light of his status as the vehicle’s only black occupant, and inasmuch as defendant was, according to the officer’s testimony, “fully compliant” with the officers’ instruction to exit the vehicle, I agree with defendant that his conduct while in the vehicle was insufficient to establish reasonable suspicion necessary for law enforcement to conduct a pat frisk of his person … . People v Ginty, 2022 NY Slip Op 02899, Fourth Dept 4-29-22

Practice Point: Although only the dissent felt this analysis applied here, a person’s “equivocal” or “innocuous” behavior, like nervousness or shaking, does not support a “reasonable suspicion” that a person is armed.