Opinion
Ind. No. 1130/20
12-13-2021
The PEOPLE of the State of New York v. Jaquan THOMPSON, Defendant.
For the People: A.D.A’.s Jena Tiernan and Bonnie Seok For the Defendant, The Legal Aid Society by Anyika Nance, Esq.
For the People: A.D.A’.s Jena Tiernan and Bonnie Seok
For the Defendant, The Legal Aid Society by Anyika Nance, Esq.
Steven M. Statsinger, J.
Defendant moves to suppress a firearm recovered from his backpack during a street encounter with the police. The motion to suppress is DENIED.
FINDINGS OF FACT
The Court conducted a hearing on defendant's motion on November 30, 2021, at which the prosecution called one witness, Sergeant Bryan Carney, currently assigned to the 25th Precinct. Defendant was not present for the hearing.
After a Parker hearing, conducted immediately before the suppression hearing, the Court concluded that the People had "satisfied their burden of establishing that Defendant's absence from court [was] voluntary and [that] he [had] waived his right to be present." Hearing Transcript ("H") 15.
Sergeant Carney has been a police office for approximately 13 years, and has participated in approximately 300 arrests, including about fifty involving firearms. H 15, 18.
At approximately 10:44 p.m. on September 8, 2020, Carney and his partner were in a marked police vehicle when they received a radio run reporting that an individual had been shot on Lexington Avenue between East 122nd and East 123rd Streets, in New York County. H. 19-20. The radio run specified that there was "[B]lack male wearing a white t-shirt" with a bookbag who was in possession of a gun. H. 20.
About 30 seconds after the radio call, Carney arrived at that location. H. 20. After an investigation, he determined that no one had been shot in that area. H. 20. At the same time, however, a woman approached the area where Carney was standing and angrily accused the defendant, who was standing nearby, of threatening her with a gun. H. 21. Defendant, a Black male, was wearing a white t-shirt and a backpack. H. 21. Although there were other Black males in the area wearing white t-shirts, and one other individual wearing a backpack, defendant was the only person wearing both. H. 38, 42.
Contemporaneous body-cam video, admitted into evidence as People's Exhibits 2 and 3, fully corroborated the Sergeant's account of this accusation and his description of the defendant. H. 28-29.
As defendant began to walk away, Carney instructed other officers to stop him and prevent him from leaving. H. 22. Those officers followed the defendant for approximately 30 feet, then stopped him on the corner of East 123rd Street and Lexinington Avenue. H. 22. Defendant was fully cooperative. H 40. Carney approached, and while standing about three feet from the defendant, removed the defendant's backpack, opened it, looked inside, and recovered a semiautomatic handgun. H. 23. He then instructed the other officers to handcuff the defendant and take him into custody. H. 23.
Body-cam footage also corroborated the Sergeant's account of his removal and search of the backpack. H. 29.
CONCLUSIONS OF LAW
The Court fully credits the testimony of Sergeant Carney. His demeanor on the witness stand was forthright and credible, and key aspects of his testimony were corroborated by body-cam video. Based on the Sergeant's testimony, the Court finds that the stop of the defendant was "lawful in its inception," People v. DeBour, 40 NY2d 210, 221 (1976), because it was based on reasonable suspicion. The Court further concludes that objectively reasonable safety concerns justified the search of defendant's backpack.
1. The Stop Was Supported by Reasonable Suspicion
The Court is treating the stop of the defendant as a "level three" encounter under the framework set out in DeBour . When the police stopped the defendant they had "a reasonable suspicion that [the defendant had] committed, [was] committing or [was] about to commit a felony or misdemeanor."Id. at 223. Thus, the "forcible stop and detention," id. , of the defendant was lawful, even though the defendant was not, at that point, under arrest.
Reasonable suspicion is "that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [officer] under the circumstances to believe [that] criminal activity is at hand." People v. William II , 98 NY2d 93, 98 (2002). Here, that standard is amply met. Defendant met the description contained in a radio run reporting a man with a gun, and was the only person in the immediate vicinity who did so. In addition, in Sergeant Carney's presence, an individual accused the defendant of threatening her with a gun. The accuser's angry and agitated demeanor gave Carney no reason to doubt the veracity of that accusation. These "specific and articulable facts ... reasonably prompted," People v. Brannon , 16 NY3d 506, 602 (2011), the stop of the defendant, since they gave rise to a reasonable suspicion that the defendant did, in fact, possess a gun.
The body-cam video reveals that the accuser was "verified"; that is, that her identity was known to the police.
2. The Search of the Backpack Was Also Lawful
The Court also finds that the search of the defendant's backpack was lawful, even though the search was not incident to a full-blown arrest. In certain circumstances, a search more intrusive than a mere pat-down is authorized during a "level three" encounter. For example, in Brannon's companion case, People v. Fernandez , the Court of Appeals upheld the forcible removal of a knife from the defendant's pocket, based only on reasonable suspicion. Id. at 602. In People v. Herrera , 76 AD3d 891, 893-94 (1st Dept. 2010), the court approved of the removal of knife from a the pocket of a defendant in a "level three" stop: "Given his reasonable suspicion that defendant was carrying an illegal weapon, the detective acted properly in securing the suspicious object by immediately removing it from defendant's pocket." See also People v. Martin , 88 AD3d 473, 474 (1st Dept. 2011) (officer justified in forcing open defendant's hand based on reasonable suspicion that it contained drugs).
The People rely primarily on safety considerations to justify the search of defendant's backpack, specifically the fact that the bag - which Sergeant Carney believed to contain a gun - was within the unhandcuffed defendant's grabbable area. The Court agrees. See, e.g., People v. Williams , 122 AD3d 502, 503-04 (1st Dept. 2014) (search of defendant's bag justified by "exigent circumstances," including "the presence of the bag in the grabbable area of the unhandcuffed defendant, the violent nature of the crime, and specific reason to believe that the bag contained a weapon.") While it is true that Sergeant Carney did not specifically testify that he searched the defendant's backpack out of concern for his safety, there were nevertheless "objectively reasonable" grounds to for him to fear for his safety: "While an officer need not affirmatively testify as to safety concerns to establish exigency, such apprehension must be objectively reasonable." People v. Jimenez , 22 NY3d 717, 723 (2014).
Sergeant Carney's suspicion that the defendant had a gun in his backpack, and hence within his grab space, was objectively reasonable. Carney had, only moments before, responded to a radio run describing a man with a gun, and defendant was the only person in the area who met that description. Moreover, he personally witnessed the defendant being accused of pointing a gun at someone else. "[W]here reliable information or facts available to the police officer link the individual to a weapon, the belief of danger to himself and others is real and reasonable and an immediate search is justifiable." People v. Moore , 32 NY2d 67, 70 (1973). The search of defendant's backpack was accordingly lawful, and his motion to suppress the gun is denied.
CONCLUSION
For the foregoing reasons, defendant's motion to suppress is denied.
This opinion constitutes the Decision and Order of the Court.