U.S. v. Irizarry
| Decision Date | 30 August 2007 |
| Docket Number | No. 07-CR-313 (JBW).,07-CR-313 (JBW). |
| Parties | UNITED STATES of America, v. John IRIZARRY. |
| Court | U.S. District Court — Eastern District of New York |
Tanisha Simon, U.S. Attorneys Office, Brooklyn, NY, for United States of America.
Defendant moves to suppress a handgun seized at the time of his arrest. Suppression is required because the arresting officer seized him without reasonable suspicion of criminal activity and arrested him without probable `cause. He was stopped because a police officer observed clipped to his jeans an instrument supplied by his employer for cutting and installing sheet rock. It is used by thousands of other workers in the carpet, sheet rock, window screen and other trades. To deny suppression would transform thousands of honest mechanics into criminals, subject to arrest at the whim of any police officer.
On March 9, 2007, at approximately 11:55 a.m., New York City Police Department (NYPD) officer Brendan R. McCabe, a 16-year veteran of the force, was on foot patrol in uniform at the Broadway Junction subway station in Brooklyn, New York. He observed defendant walk passed him in the station with an instrument jutting out of his right front pocket. See Photograph 1, below.
Officer McCabe testified that he recognized the instrument to be a cutting tool in the form of a gravity knife. (Tr. June at 36). He stopped defendant and said, "you know you're not allowed to carry that knife." (Id. at 5, 11).
The defendant immediately informed the officer that he was employed at a U-Haul facility and that he used the instrument for cutting sheet rock as directed by his employer. (Id. at 17). Officer McCabe then asked him for identification, which was immediately supplied.
Defendant was arrested. The officer searched him and recovered a loaded pistol from his jacket pocket. (Id. at 10). There had been no reason to believe defendant had the gun until he was searched.
Defendant testified that he purchased the tool two years ago using a U-Haul credit card that was given to him by his employer to buy supplies and tools. He had not altered the instrument in any way. (Id.at 30). The instrument was a Husky Sure-Grip Folding Knife ("Husky"), described on its packaging as a "Folding Lock-Back Utility Knife". See Photograph 2, below.
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The instrument is colored silver, about three and one half inches long when in its closed position, and about 6 inches in its open position, with a one inch cutting edge. (Tr. June at 7-8); see also Photographs 3 and 4, below.
Derek Mobley, an assistant store manager for Home Depot (a major national retail distributor of tools and supplies with a listing on the New York Stock Exchange), the company which sells the tool, testified. He is familiar with, and has received training from the Home Depot on, all products that are sold in his department, including the Husky. Mr. Mobley stated that the instrument is sold to contractors for such things as cutting sheet rock, carpeting and window screens. (Tr. August at 8).
The Husky is a top selling product at Home Depot. (Id. at 9). Its New York State stores sold 67,341 Huskies in fiscal year. 2006 for a total of $587,540.00; from January 2007 through July 2007 it has sold 36,441 Huskies for $294,116.00. See Court Exhibit 6.
James Furgal, was qualified as an expert in the area of cutting instrument design. (Tr. August at 19). He has had his own large factory for the production of knives, scissors and other tools. (Id. at 17-18. He has served as president of a national association of such manufacturers. (Id. at 18-19). He testified that Husky is a home Depot brand; that identical or nearly identical instruments are sold under a variety of brand names, including Sheffield; and they are sold by other major retailers. (Tr. August at 22-23). The manufacturer of the instrument sold under the Sheffield brand name indicated in a letter submitted to the court that it sold 1,765,091 similar folding lock-back utility knives nationally in 2006. See Court Exhibit 7.
Defendant's Husky is capable of being opened by an adept person with the use of sufficient centrifugal force. Officer McCabe demonstrated this after three strenuous attempts to open the Husky using one hand and centrifugal force. (Tr. June at 19). He had seen knives which opened more readily through the use of such force. (Id. at 18). Mr. Mobley testified that he was trained by Home Depot that the Husky should be opened with two hands. (Tr. August at 8).
According to Mr. Furgal, the term gravity knife has referred to a knife that has a lever or button that release a lock so that the blade can be released by force of gravity or centrifugal force. The gravity knife was originally designed for use by paratroopers in World War II in case they become injured during a jump and needed to extricate themselves from their parachutes; gravity knives enabled them to open the knife with one free hand. American paratroopers were provided the equivalent, a switchblade. (Id. at 27). He noted that a folding lock-back utility cutting instrument such as the Husky is designed so that it can be opened with one hand or two. For two-handed operation there is a trigger at the back of the instrument that should be depressed with one hand, and the other hand should then be used to pull the instrument open. (Id. at 8). For one handed operation the instrument includes an opening stud at the base of the blade so that a person can open the instrument with one hand using the thumb. Id.; see Photograph 5, below.
The Husky, he declared, is not designed to open by use of centrifugal force; it is constructed so that it has a bias to close in order to ensure safety when the instrument is not in use. It is possible that such an instrument could be opened by sufficient centrifugal force because if there was too much resistance, or "bias" toward closing, the instrument could not be opened with one hand. (Id. at 21).
New York Penal Law section 265.01, Criminal Possession of a Weapon in the Fourth Degree, covers gravity knives, the term the government contends covers the cutting instrument defendant was carrying. It reads a person is guilty of criminal possession of a weapon in the fourth degree when he possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane, sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wristbrace type slingshot or slungshot, shirken or "Kung Fu star."
Emphasis added.
Section 265.00 defines a gravity knife as "any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device." "Centrifugal Force" is "the apparent force that is felt by an object moving in a curved path that acts outwardly away from the center of rotation." Merriam-Webster's Collegiate Dictionary (11th ed.2005).
In 1909, the New York State legislature revised the Penal Code to create a comprehensive body of laws which comprised the new penal law. It sought to disarm criminals as a primary means of crime prevention, defining a handful of items as "per se" weapons. Under section 1897 of the 1909 New York Penal Law the legislature declared carrying a "slungshot, billy, sandclub or metal knuckles" a felony without requiring any criminal intent on the part of the individual in possession of the item. New York State Statutes, Article 172 § 1897 (1909). By 1930, the list of "per se" weapons included the possession of "a blackjack, slungshot, billy, sand club, sandbag, metal knuckles and bludgeon." New York State Statutes, Article 172, § 1897(1) (1930). Possession of a variety of knives under this same provision was only criminalized if possessed with the intent to use them unlawfully. Id.
In 1954 New York made selling or possessing a "switchblade" a misdemeanor. A switchblade was defined as "any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife...." Act of Mar. 26, 1954, ch. 268, 1954 N.Y. Laws. An exception was carved out of the statute: possession of a switchblade knife was lawful if it was necessary for "purposes of business, trade or profession, or for use while hunting, trapping and fishing ..." with a license. Id. Governor Thomas Dewey's memorandum on the bill justified the law stating, New York State Legislative Annual, p. 385 (1954). Two years later the law was amended, making it unlawful to possess a switchblade even if it was necessary for the possessor's employment. New York State Legislative Annual, p. 21 (1956). The legislative commentary explained that although the 1954 statute "has not been without effect, enforcement is made difficult by" the professional provision, and the defense "goes far towards vitiating the statute." Id. The bill passed because of the "continued hazard" that switchblade knives presented, and the view that they served no "legitimate and necessary purpose." Id. at 22.
Following the passage of the switchblade law, judges and law enforcement officials in New York'...
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