United States v. Weaver

Decision Date16 August 2021
Docket NumberNo. 18-1697-cr,August Term 2020,18-1697-cr
Citation9 F.4th 129
Parties UNITED STATES of America, Appellee, v. Calvin WEAVER, Defendant-Appellant
CourtU.S. Court of Appeals — Second Circuit

Carina H. Schoenberger, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

James P. Egan, Assistant Federal Public Defender, Syracuse, NY, for Defendant-Appellant.

Alexandra A.E. Shapiro, Erin M. James, Shapiro Arato Bach LLP, New York, NY; Richard D. Willstatter, National Association of Criminal Defense Lawyers, White Plains, NY; Timothy P. Murphy, New York State Association of Criminal Defense Lawyers, Buffalo, NY, for National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and New York Council of Defense Lawyers, Amici Curiae in support of Defendant-Appellant.

Jenn Rolnick Borchetta, The Bronx Defenders, Bronx, NY; Jin Hee Lee, Ashok Chandran, Mahogane Reed, NAACP Legal Defense and Educational Fund, Inc., New York, NY and Washington, D.C.; Christopher T. Dunn, New York Civil Liberties Union Foundation, New York, NY; Darius Charney, The Center for Constitutional Rights, New York, NY; Corey Stoughton, Steve Wasserman, The Legal Aid Society, New York, NY; Jonathan Moore, Luna Droubi, Beldock Levine & Hoffman LLP, New York, NY, for Stop-and-Frisk Class Counsel, Amici Curiae in support of Defendant-Appellant.

Before: Livingston, Chief Judge, Calabresi, Cabranes, Pooler, Chin, Lohier, Carney, Sullivan, Bianco, Park, Nardini, Menashi, Circuit Judges.*

Nardini, Circuit Judge, filed the majority opinion, in which Livingston, Chief Judge, Cabranes, Sullivan, Bianco, Park, and Menashi, Circuit Judges, joined in full.

Lohier, Circuit Judge, filed an opinion concurring in the result, joined by Carney, Circuit Judge, except as to Part III.B.

Pooler, Circuit Judge, joined by Calabresi and Chin, Circuit Judges, filed a dissenting opinion.

Calabresi, Circuit Judge, joined by Pooler and Chin, Circuit Judges, filed a dissenting opinion.

Chin, Circuit Judge, joined by Calabresi and Pooler, Circuit Judges, filed a dissenting opinion.

William J. Nardini, Circuit Judge:

This case presents what is, in some respects, a familiar question: whether a police officer's pat-down search of a suspect for weapons was reasonable under the Fourth Amendment. In concluding that the search here was reasonable, we break no new legal ground but rather reiterate well-settled constitutional principles and reject novel arguments to the contrary.

The defendant, Calvin Weaver, was frisked during a traffic stop in a neighborhood known for gun violence. The officer who frisked him, Officer Jason Tom, had just seen Weaver staring at the officers’ unmarked police car and then visibly hitching up his pants as he got into a sedan. Later, officers encountered the sedan and pulled it over for a traffic violation. As Officer Tom approached the sedan, he saw Weaver slouched down in his seat, shifting and squirming, and using both hands to push down on his pelvic area, as if to conceal something. When ordered to stand outside the sedan with his hands on the trunk, Weaver pressed his pelvis toward the car. During a pat-down, officers discovered that Weaver had a loaded semi-automatic pistol and baggies of cocaine hidden in his pants.

Weaver appealed his conviction for being a felon in possession of a firearm, entered in the United States District Court for the Northern District of New York (Glenn T. Suddaby, C.J .), on the grounds that the district court erroneously denied his motion to suppress the gun and drugs found during the search. In support, Weaver advanced several legally novel contentions. Specifically, he argued that in assessing whether reasonable suspicion existed, we are limited to analyzing his conduct before Officer Tom ordered him out of the car. He claimed that the order marked the moment the search began, both because Weaver would have reasonably thought he was being searched at that point, and because Officer Tom subjectively intended to search him when he gave the order. Weaver further contended that the facts known to the officers did not provide them with reasonable suspicion that he had a weapon, as required by the Fourth Amendment in light of Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A divided panel of our Court agreed with Weaver's arguments and reversed the district court's denial of his motion to suppress the firearm and drug evidence.

Having agreed to rehear Weaver's appeal en banc , we now vacate the panel opinion, reject Weaver's novel legal contentions, as adopted by the panel majority, and write to confirm several fundamental principles of Fourth Amendment jurisprudence. First, a police officer's verbal directives to a suspect do not transform a stop into a search when they do not amount to a physical trespass or intrusion into an area subject to a reasonable expectation of privacy, irrespective of any reasonable belief by a suspect as to whether a search is occurring. Second, a police officer's subjective intent bears no weight in determining when that officer's interaction with the suspect constitutes a search. Third, in evaluating whether an officer has reasonable suspicion that a suspect is armed, courts must look to the totality of the circumstances confronting the officer, as viewed objectively by a reasonable and cautious officer on the scene. When the circumstances give rise to reasonable suspicion that a suspect has a weapon, an officer need not rule out alternative explanations—whether innocent or otherwise—for a suspect's behavior before deciding to conduct a pat-down for his safety.

We therefore VACATE the panel decision and AFFIRM the judgment of the district court.


This case concerns the constitutionality of a February 15, 2016, pat-down of the defendant, Calvin Weaver, through which officers of the Syracuse Police Department ("SPD") found a loaded pistol and cocaine. A federal grand jury in the Northern District of New York returned an indictment charging Weaver with one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), one count of possessing a firearm with an obliterated serial number, 18 U.S.C. § 922(k), and one count of simple possession of a controlled substance, 21 U.S.C. § 844(a). Weaver moved to suppress the firearm and cocaine underlying the charges, arguing that they were discovered during an unconstitutional search. The district court held a suppression hearing on November 30, 2017, and denied Weaver's motion soon thereafter. On January 8, 2018, Weaver pleaded guilty to all three counts in the indictment. In the plea agreement, Weaver reserved his right to appeal the district court's denial of his motion to suppress. Weaver then appealed.

A. Evidence at the Suppression Hearing

At the suppression hearing, the district court heard testimony from SPD Officer Jason Tom, as well as a second officer on the scene, Detective Gordon Quonce.1 Neither Weaver nor the third officer involved in the traffic stop, Detective Greg Staub, testified. The court received five exhibits into evidence, including a map and photographs of the intersection where the search occurred, a photograph of the gun recovered from Weaver's pants, and a portion of the SPD's general rules and procedures manual.

The evidence presented at the hearing revealed the following: On February 15, 2016, Officer Tom and Detectives Quonce and Staub, all members of the SPD's gang violence task force, were in an unmarked police car with tinted windows patrolling a Syracuse neighborhood known as the Near West Side. At the time, Officer Tom had over six years of experience in the SPD and knew the Near West Side well; he had responded to homicides there, processed multiple homicide scenes in the area, and he knew of the neighborhood's high rate of shootings, homicides, and stabbings. Detective Quonce, a member of the SPD for eight years, was also familiar with the Near West Side; he described it as "an open air drug market" with a "high volume of shots fired [and] gun-related crimes." App'x at 93–94.

Officer Tom testified that near dusk, around 5:00 p.m., the officers noticed a man, later identified as Weaver, walking alone "along the curb line" of Merriman Avenue. App'x at 150. The officers watched Weaver stare into the officers’ car as they drove toward him, as they passed him, and as they drove away. Detective Quonce similarly testified that Weaver first came to the officers’ attention because "as [they] were driving, he appeared to be staring at [their] vehicle. ... longer than typically one would look at a vehicle," and he continued to stare as he stood at the passenger side of a gray sedan. App'x at 94–95. From the officers’ sideview mirror, Officer Tom saw Weaver give an "upward tug" to his waistband before getting in the sedan. App'x at 152. The gray car drove off with Weaver.

Later, Detective Quonce saw the gray sedan again—this time, failing to timely signal before making a turn—and decided to pull the car over.2 Three men were in the car: the driver, a back-seat passenger, and a front-seat passenger—Weaver. When the sedan came to a stop, the rear driver's side door quickly swung open into traffic, causing Detective Quonce to fear that "the rear passenger was about to flee from the vehicle." App'x at 103. Officer Tom ordered the man to stay in the vehicle, and the man complied, closing the door behind him. The officers walked toward the car, with Detective Quonce on the driver's side and Officer Tom on the passenger's side.

During the traffic stop, Officer Tom recognized Weaver as the man who had previously watched the officers’ car on Merriman Avenue. Officer Tom testified that he quickly grew suspicious of Weaver's unusual movements: "As I'm approaching the vehicle, from my vantage point I can see into the cabin of the vehicle...

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