2015 WL 3990514
E.D.N.Y.2015Background
- On June 6, 2014, two uniformed NYPD officers on foot patrol observed Clive Davis walking on a Brooklyn sidewalk holding a green glass bottle; the officers saw him toss the bottle into a sidewalk planter.
- Officers attempted to stop Davis; he continued walking and made physical contact with Officer Fink.
- Officers observed a large bulge at Davis’s waistband; Baldofsky lifted Davis’s shirt, saw a handgun, removed it, and Fink restrained Davis.
- After handcuffing, officers searched Davis and recovered a loaded magazine with 25 rounds.
- Davis moved to suppress the firearm and magazine, arguing the seizure and search were warrantless and unconstitutional; the government argued probable cause to arrest (littering and open-container) and, alternatively, reasonable suspicion supporting a Terry stop and protective pat-down.
- The Court credited the officers’ testimony, found probable cause to arrest for littering (and reasonable suspicion to stop and pat down), and denied the motion to suppress.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of arrest/search-incident-to-arrest | Gov.: Officers had probable cause to arrest for littering and open-container; search incident to that arrest justified recovery of gun and magazine | Davis: Officers lacked probable cause; search was pretextual and unlawful | Denied suppression: probable cause existed for littering; gun discovery was tied to safety and justified search incident to arrest |
| Validity of investigatory stop | Gov.: Even absent probable cause, officers had reasonable suspicion to stop for littering/open-container | Davis: No reasonable articulable suspicion; lighting and distance made officers’ observations unreliable | Court: Officers had reasonable suspicion to stop based on observing bottle toss and conduct |
| Protective pat-down for weapons | Gov.: Officers observed bulge and metallic feel sound; reasonable to frisk | Davis: Pat-down was a comprehensive, warrantless search beyond Terry | Court: Bulge and tactile indication supported frisk; lifting shirt and removing weapon was permitted for officer safety |
| Bootstrapping concern (search producing basis for arrest) | Davis: Search produced evidence that then justified arrest — improper bootstrapping | Gov.: Officers intended to stop/investigate independently; discovery of gun did not impermissibly create arrest authority | Court: No improper bootstrapping here; officers had independent grounds to stop and officer-safety rationale justified search; discovery of gun gave further probable cause |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (2014) (limits on searches incident to arrest and need to tether searches to Chimel rationales)
- Chimel v. California, 395 U.S. 752 (1969) (scope of searches incident to arrest justified by officer safety and evidence preservation)
- Terry v. Ohio, 392 U.S. 1 (1968) (reasonable-suspicion standard for stops and limited protective frisks)
- Rawlings v. Kentucky, 448 U.S. 98 (1980) (search contemporaneous to arrest can be valid even if formal arrest immediately follows)
- Atwater v. Lago Vista, 532 U.S. 318 (2001) (probable cause supports arrest for minor offenses observed in officer’s presence)
- Devenpeck v. Alford, 543 U.S. 146 (2004) (validity of arrest judged by probable cause for conduct, not by officer’s stated reason)
- Bailey v. United States, 743 F.3d 322 (2d Cir. 2014) (framework for assessing reasonable suspicion, scope, and duration of investigative stops)