ALTHOUGH DEFENDANT’S GRABBING AT HIS WAISTBAND AND RUNNING DID NOT PROVIDE REASONABLE SUSPICION, THE MAJORITY HELD DEFENDANT’S STOPPING HIS CAR IN THE STREET AND AGGRESSIVELY APPROACHING A WOMAN IN ANOTHER CAR PROVIDED REASONABLE SUSPICION; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined the police had reasonable suspicion defendant was about to commit a crime when he grabbed at his waistband and ran. The police saw the defendant stop his car in the street and aggressively approach another car on foot. When the police told him to stop, he ran. The majority agreed with the dissent that defendant’s grabbing at his waistband did not provide reasonable suspicion he had a weapon. Rather the police saw enough to have reasonable suspicion the defendant was about to commit a crime when he aggressively approached the other car:

We agree with defendant that his arm movements directed at his waistband and his flight would not, without more, justify police pursuit. As the court determined, however, it was reasonable for the officers to suspect that defendant was about to commit a crime because he approached the woman in an aggressive manner with clenched fists while yelling at her. The officers thus properly ordered defendant to stop and could have lawfully frisked him had he not run away. Because the stop was supported by reasonable suspicion, we conclude that the subsequent pursuit was also supported by reasonable suspicion, especially considering that, immediately following the stop, defendant turned his back to the officers, grabbed at his waistband, and then fled on foot, leaving his vehicle in the middle of the street with its driver’s door open.

From the dissent:

… [D[efendant’s digging at his waistband, flight, and leaving his car in the street “do not provide additional specific circumstances indicating that defendant was engaged in criminal activity” … . While defendant’s actions, “viewed as a whole, [may have been] suspicious, . . . there is nothing in this record to establish that the officers had a reasonable suspicion” that defendant had committed, was committing, or was about to commit a crime … . People v Cleveland, 2023 NY Slip Op 03597, Fourth Dept 6-30-23

Practice Point: Both the majority and the dissent agreed that defendant’s grabbing at his waistband and running did not provide the police with reasonable suspicion. The majority found that defendant’s stopping his car in the street and aggressively approaching a woman in another car with clenched fists provided the police with reasonable suspicion and justified pursuit. The dissent disagreed.