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Decisions

Second Department Dismisses Indictment in Gun Case

03/07/2018

Appellant, Samuel White, was a passenger in a car that was pulled over for speeding.  There were two people in the front of the car, and appellant was in the rear passenger seat.  After being asked for his papers, the driver reached for his waistband, causing an officer to fear that the driver could be concealing a weapon.  The driver and the other person in the front of the car were removed from the car and patted down, but no guns were found.

Appellant was “acting very nervous” and leaning forward “with his arms tucked in tight to his waistband."  An officer directed him to get out of the car, he complied immediately, and the officer asked, “[W]hat do you have[?]”  Appellant responded, “I have a piece,” and a gun was recovered from his waistband.  Counsel's motion to suppress the gun was denied, and appellant was subsequently convicted of criminal possession of a weapon in the second degree and sentenced to 16 years to life in prison.  

The Second Department held that it was improper for a police officer to have asked appellant, “[W]hat do you have[?]”  The court explained that the officer's question, which was another way of asking if appellant had a weapon, could only be asked at “level two” of the Debour analysis, but the police did not have “a founded suspicion that criminality [was] afoot.”  Accordingly, the Second Department suppressed the gun and dismissed the indictment.

Benjamin S. Litman briefed and argued the case.