On June 23, 2022, the Second Circuit Court of Appeals decided the United States v. Hawkins[i], which serves as an excellent review of the law related to reasonable suspicion and the use of technology in developing reasonable suspicion. The relevant facts of White are as follows:

On October 20, 2019, at approximately 8:51 p.m., officers of the New York City Police Department received a ShotSpotter report of a gunshot fired from the roof level of a building on Reverend James A. Polite Avenue in the Bronx. Officers Stephen Bonczyk and Cynthia Lopez were the first to respond and arrived on the scene within approximately two minutes of receipt of the report. As Officers Bonczyk and Lopez exited their marked police vehicle, they observed Hawkins and Diaz exit a six-story residential building in the vicinity of where shots were reportedly fired and enter the outdoor vestibule separating the building from the sidewalk. The officers testified that, upon seeing Hawkins and Diaz, their “first priority was to get to the gate and make sure they cannot leave so [the officers] could talk to them and further investigate the shots fired activation.” App’x 54; see App’x 107-08. While approaching the location where they would ultimately meet the defendants (at or just inside the fenced-in vestibule’s gateway), the officers made two observations. First, the officers observed Diaz “turn[] his body slightly,” App’x 34, and Hawkins “slightly pivot” as he exited the building, App’x 82, and “hurry[]” through the vestibule, App’x 33. Second, Officer Bonczyk noticed that the defendants had their hands in their pockets and that Diaz’s hands created a “tension in his pockets and he was pulling his sweatshirt down below the center waistline.” App’x 37.

Officer Bonczyk asked the defendants to remove their hands from their pockets, which they did. Officer Bonczyk noticed that, when Diaz removed his hands from his pockets, there was, in his description, a “bulge” below the middle of Diaz’s waistband. App’x 40-41. Officer Bonczyk then asked for consent to search the defendants, which was declined. At this point, additional officers arrived on the scene, and Hawkins and Diaz were separated for questioning. While the defendants were being questioned, officers spoke with a witness who had been walking his dog. The witness said that he saw the defendants “coming down from the rooftop.” App’x 123.

Officer Bonczyk frisked Diaz and recovered a plastic bag from the lower front waistline of Diaz’s pants. In the plastic bag was an unloaded firearm. Around this time, officers recovered one spent casing from the rooftop. Both defendants were arrested. Hawkins was frisked pursuant to his arrest, but no weapons were recovered from his person at that time.  When Hawkins was searched again at the precinct, officers recovered a firearm from his person, and ballistics testing confirmed that the spent shell casing found on the rooftop matched the firearm found on Hawkins.[ii]

Hawkins and Diaz were subsequently charged with federal firearms violations.  They filed motions to suppress and argued that the initial detention and frisks were not supported by reasonable suspicion and as such, violated the Fourth Amendment.  Further, Hawkins argued that his arrest was not supported by probable cause.  The district court denied the motions and both pleaded guilty with the right to appeal.  Both filed appeals regarding the denial of their motions to suppress.

On appeal, the court of appeals examined three issues, which were as follows:

  1. Whether the officers had reasonable suspicion to detain Hawkins and Diaz?
  2. Whether the officers had a reasonable belief that Diaz was armed and dangerous, such that his frisk was reasonable?
  3. Whether the officers had probable cause to arrest Hawkins, even though they initially did not find a weapon on him?

Issue One:  Did the officers have reasonable suspicion to detain Hawkins and Diaz?

The court first discussed the legal principles relevant to this issue.  The court stated

To conduct a Terry stop—that is, a temporary detention of an individual—a police officer must have “reasonable suspicion” that the individual has engaged in or is about to engage in criminal activity. United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995). Reasonable suspicion is less than probable cause, Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and must be established by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion,” United States v. Padilla, 548 F.3d 179, 187 (2d Cir. 2008) (alteration omitted) (quoting Terry, 392 U.S. at 21). “[A]n inchoate and unparticularized suspicion or hunch” cannot support reasonable suspicion, although an officer is permitted to “draw on his own experience and specialized training to make inferences from and deductions about the cumulative information available to him that might well elude an untrained person.” Id. (internal quotation marks and alterations omitted). “[C]ontextual considerations,” such as “the fact that the stop occurred in a ‘high crime area,'” factor into a reasonable-suspicion analysis, and the officers’ assessment of an individual’s “nervous” or “evasive behavior” is “pertinent” in establishing reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). In deciding whether reasonable suspicion existed at the time of the intrusion, we consider the totality of the circumstances. See Navarette v. California, 572 U.S. 393, 397, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014).[iii]

The court of appeals then examined the facts relevant to the issue of reasonable suspicion.  First, the court that the officers received a report from the “ShotSpotter” system that there was a single gunshot in the vicinity of a rooftop of a location familiar to officers, in a high-crime area.  The officers later testified that the ShotSpotter is usually “accurate to the block” and even more accurate regarding elevation.[iv]  The court of appeals noted that the district court did not err crediting the officer’s reasonable reliance on the ShotSpotter.[v]  Second, the officers observed Diaz and Hawkins in the vestibule of a building in the immediate vicinity of the ShotSpotter report.  Third, the officer’s observed Hawkins and Diaz exiting the building in the approximate amount of time it would have taken to descend six flights of stairs, as this was a six story building.  Fourth, the officers observed Hawkins and Diaz both engage in body movements that they perceived as evasive.  Fifth, Officer Bonczyk observed that Diaz and Hawkins had their hands in their pockets and that this created tension in Diaz’s waistband area.  The court of appeals, based on the totality of the circumstances described, then held

These “specific and articulable facts” and the corresponding “rational inferences” that the defendants may have been involved with the reported shooting “reasonably warrant[ed]” the initial stop.[vi]

Thus, the court held that the officers had reasonable suspicion to justify the initial detention of Hawkins and Diaz.

Issue Two:  Did the officers have a reasonable belief that Diaz was armed and dangerous, such that his frisk was reasonable?

A frisk is reasonable when an officer has a reasonable belief that a particular person who is lawfully detained is armed and dangerous.[vii]

For the reasons discussed regarding the first issue, officer had reasonable suspicion to detain Diaz regarding a shots fired call.  Officer Boncyzyk saw a bulge in the area of Diaz’s waistband when he removed his hands from his pockets.  Additionally, another officer told Officer Boncyzyk that a witness “heard a gunshot” and identified Diaz and Hawkins as person’s he observed come from the rooftop. Thus, the officer had a reasonable belief that Diaz was armed and dangerous.

The court held that based on the above facts the frisk, and subsequent seizure of the gun, was reasonable under the Fourth Amendment.

Issue Three:  Did the officers have probable cause to arrest Hawkins, even though they initially did not find a weapon on his person?

The court noted the legal principles related to arrests and probable cause.  The court stated

[A]n arrest requires the heightened standard of probable cause. “Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested.” United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990) (citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)). Probable cause is satisfied by “the kind of fair probability on which reasonable and prudent people … act.” Florida v. Harris, 568 U.S. 237, 244, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (2013)[viii]

The court then noted the facts relevant to the issue of whether there was probable cause to arrest Hawkins and transport him to the police station.  It was at the station where another search was conducted and officers located a firearm on Hawkins’ person.  First, the court noted all facts that supported Hawkins’ initial detention.  Second, the court noted that his companion Diaz had gun on his person.  Third, the police perceived that Hawkins was acting evasively when he exited the building.  Fourth, Hawkins admitted that he accompanied Diaz in the building.  Fifth, a witness stated he had heard a gunshot and saw Diaz and Hawkins come from the rooftop.  Sixth, a shell casing was found on the rooftop.

Based on the above facts, the court of appeals held that the district court did not err in holding that the officers had probable cause to arrest Hawkins.  As such, the subsequent search at the police station was reasonable.

Therefore, the court of appeals affirmed the denial of the motions to suppress with respect to both Diaz and Hawkins.

_________________________________________

Citations

[i] No. 21-836, 21-848 (2nd Cir. Decided June 23, 2022)

[ii] Id. at 2-4; Fn. 1

[iii] Id. at 5-6 (emphasis added)

[iv] Id. at Fn. 2

[v] Id.

[vi] Id. at 7-8

[vii] see Terry v. Ohio, 392 U.S. 1 (1968)

[viii] Hawkins at 6-7 (emphasis added)

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