United States v. Weaver

• Decision Date: 15 September 2020
• Docket Number: Docket No. 18-1697,August Term, 2019
• Parties: UNITED STATES of America, Appellee, v. Calvin WEAVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

975 F.3d 94

UNITED STATES of America, Appellee,

v.Calvin WEAVER, Defendant-Appellant.

Docket No. 18-1697

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: September 26, 2019

Decided: September 15, 2020

JAMES P. EGAN, Assistant Federal Defender, for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Syracuse, NY, for Defendant-Appellant.

CARINA H. SCHOENBERGER, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

Before: LIVINGSTON, Chief Judge, CALABRESI and POOLER, Circuit Judges.

Judge Calabresi concurs in a separate opinion.

Chief Judge Livingston dissents in a separate opinion.

POOLER, Circuit Judge:

Calvin Weaver appeals from the December 20, 2017 order of the United States District Court for the Northern District of New York (Suddaby, C.J. ) denying his motion to suppress a firearm that police officers discovered in the course of a pat-down frisk of Weaver's person conducted during a traffic stop.

It is well established that the Fourth Amendment permits the police "a narrowly drawn authority" to conduct "a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, however, the police lacked an "articulable and objectively reasonable belief," Michigan v. Long, 463 U.S. 1032, 1051, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), that Weaver was "armed and presently dangerous to the officers or others," Terry , 392 U.S. at 24, 88 S.Ct. 1868.

At most, the officers had reason to believe that Weaver possessed something illicit. But the Constitution requires more: it requires the officers have reason to believe this something was dangerous. Accordingly, we REVERSE the district court's denial of Weaver's motion to suppress and REMAND for further proceedings consistent with this opinion.

BACKGROUND

At approximately 5 p.m. on Monday, February 15, 2016, Officers Quonce, Tom, and Staub of the Syracuse Police Department ("SPD") observed Weaver walking along a street curb while they were driving in an unmarked police vehicle with tinted windows on the westside of Syracuse, a high-crime area. As the officers drove past, Weaver "stared into [their] vehicle, continued to stare, as [they] approached, as [they] passed, and continued to stare as [they] proceeded past him." App'x at 150-51. According to Officer Quonce, Weaver stared for "probably a few seconds but it seemed longer than typically one would look at a vehicle." App'x at 95.

The officers then saw Weaver walk towards a gray sedan and "adjust[ ] his waistband." App'x at 151. Officer Tom described this adjustment as "just a subtle tug of his waistband, like an upward tug motion," explaining that "his pants were lower than waist level and it was kind of a tugging upward like adjusting. ..." App'x at 152. Weaver sat down in the front passenger seat, and the car drove away.

The officers drove on but encountered the gray sedan again driving on Davis Street. After the car stopped at a stop sign at the intersection of Davis Street and Delaware Street, the driver turned on his right indicator light to signal a turn. This constituted a traffic infraction, as New York Vehicle and Traffic Law requires that all vehicles signal 100 feet prior to a turn. New York Veh. & Traf. Law § 1163(b). The gray sedan turned onto Delaware Street and then quickly turned onto South Geddes Street. The officers followed the sedan onto South Geddes Street, turned on the police vehicle's emergency lights, and pulled the sedan over to the right side of the road.

When the gray sedan stopped, the officers observed that the rear passenger's driver's side door quickly opened up into traffic. The officers "believed that the rear passenger was about to flee from the vehicle." App'x at 103. When Officer Quonce instructed that party to stay in the vehicle, however, the rear passenger closed his door and remained in the car. That passenger also complied with police orders directing him to hold his arms in front of him and to put his hands on his head.

Officer Tom observed Weaver sitting in the front passenger seat. As Officer Tom approached the gray sedan, he testified that "from my vantage point I can see into the cabin of the vehicle clearly, I see the front passenger with both hands kind of pushing down on his pelvic area and squirming kinda in the seat left and right, shifting his hips." App'x at 158. Officer Tom stated that Weaver used two hands to make a "[d]ownward motion, trying to push something down." App'x at 159.

Officer Tom asked Weaver to show him his hands, and Weaver complied. Weaver also told Officer Tom, "I don't got nothin’." App'x at 159. Officer Tom instructed Weaver to put his hands on his head, and he again complied. Officer Tom then asked Weaver if he possessed identification and "visually inspected his right pocket." App'x at 160. Concluding that "it didn't appear that there was any bulges in his pocket," Officer Tom asked Weaver "to slowly use his right hand to remove his ID from his pocket." App'x at 160. Weaver complied and handed Officer Tom a New York State benefit card.

Officer Tom ordered Weaver to step out of the car and place his hands on the trunk with his legs spread apart. Weaver also complied with this order. Officer Tom testified that Weaver "was very close to the rear quarter panel of the vehicle," so he "asked him to take a step back." App'x at 162. Weaver "took a small step back, and then [Officer Tom] began to pat his waistband area." App'x at 162. When Officer Tom patted Weaver's waist area, Weaver "immediately stepped forward and pressed his pelvic area against the quarter panel of the vehicle." App'x at 162. This prevented Officer Tom "from doing an effective pat frisk of [Weaver's] waist area," so he asked Weaver "to take a step back and he did but again he said it was slippery." App'x at 163. Officer Tom then pulled Weaver "the distance where [Officer Tom] wanted him to be at so [he could] effectively do a pat frisk," and Weaver "took a step back, his hands remain[ing] on the rear of the vehicle." App'x at 164. As Officer Tom began to pat frisk Weaver a third time, Weaver "again thrust his pelvic area against the rear quarter panel of the vehicle." App'x at 164. Officer Tom then placed Weaver in handcuffs, pulled him away from the vehicle, and conducted a pat frisk of his waist and front pockets.

Officer Tom felt nothing suspicious at Weaver's waist, but he felt a "slight small bulge" in Weaver's front pocket. App'x at 165. Believing this bulge to be a narcotic, Officer Tom reached into Weaver's pocket and pulled out a white powdery substance that field tested as cocaine. Officer Tom continued the pat frisk, from Weaver's right leg from the top down, and then back up his right leg before transitioning to the groin area, left leg upper groin area, and left leg. At that point, Officer Tom "felt something hard," which he believed was a barrel of a firearm. App'x at 166-67.

Officers Tom and Quonce placed the driver and remaining passenger in handcuffs while Detective Staub secured Weaver. Detective Staub then motioned Officer Quonce towards the front groin area of the pants Weaver had on. When Officer Quonce conducted a pat-down frisk of the outside of Weaver's clothing of that area, he felt the barrel and handle of a gun through Weaver's pants. Officer Quonce unzipped Weaver's pants and saw that Weaver had "long john underwear on underneath [his pants] with ... a button on the fly," so Officer Quonce "unbuttoned the fly and ... removed the handgun." App'x at 110. The officers found live ammunition in the handgun's magazine.

On August 31, 2017, Weaver was charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), one count of possession of a firearm with a removed serial number in violation of 18 U.S.C. § 922(k), and one count of simple possession of a controlled substance in violation of 21 U.S.C. § 844(a).¹ Weaver moved to suppress the firearm as the fruit of an unconstitutional search, arguing that the police lacked reasonable suspicion to conduct a pat-down frisk of his person during the traffic stop.

The district court denied Weaver's motion to suppress after a hearing. The district court held in relevant part that the officers had reasonable suspicion to conduct a pat-down frisk based on Weaver's actions in (1) watching the police vehicle as it drove past him; (2) pulling up on the waistband of his pants while walking; (3) slouching down in his seat, pushing in a downward motion on his pelvic area with both hands, and squirming or shifting his hips left to right; (4) telling Officer Tom that he "don't got nothing"; and (5) trying to prevent the officers from frisking his waist area, though it held that reasonable suspicion was present even absent this last fact. The court also considered that the search occurred in a high-crime area and another passenger in the car had swung his door open immediately when the police stopped the car.

Weaver subsequently entered a guilty plea to the three charges pursuant to a conditional plea agreement that allowed him to appeal the district court's denial of suppression. App'x at 232. Weaver was sentenced principally to 87 months’ imprisonment and three years’ supervised release.

Weaver timely appealed.

DISCUSSION

"On review of a challenged suppression order, we examine the district court's findings of fact for clear error, reviewing de novo questions of law and mixed questions of law and fact, including the existence of reasonable suspicion to stop or extend a stop." United States v. Santillan , 902 F.3d 49, 56 (2d Cir. 2018). We look at the totality of the circumstances from the view of a reasonable and...