People v. Small

Summary

The New York Appellate Division, First Department held that police lacked sufficient suspicion to initiate a common-law inquiry and subsequently seize and frisk Trevon Small based on his crossing the street, passing an unidentified object, and an alleged shift of weight in his jacket pocket. The court granted suppression, reversed the judgment of conviction for attempted criminal possession of a weapon in the second degree, and dismissed the indictment.

Holdings

1. The totality of the circumstances did not provide a founded suspicion that criminality was afoot sufficient to justify a level-two common-law inquiry.
2. The officers were not justified in escalating the encounter to a level-three seizure or frisk based merely on defendant's turning his body and the officer's asserted observation of a shift of weight in his jacket pocket.
3. Because the gun and defendant's statements were inadmissible and no other admissible evidence could establish the crime, the judgment of conviction had to be vacated and the indictment dismissed.

Questions Presented

1. Whether the officers had the founded suspicion required for a level-two common-law inquiry based on defendant's street-crossing, repeated glances, and transfer of an unidentified object to a woman.
2. Whether the officers had reasonable suspicion that defendant was armed and dangerous sufficient to justify a level-three seizure, frisk, and search after defendant complied with the request to show his hands.
3. Whether suppression of the gun and statements required vacatur of the conviction and dismissal of the indictment.

Disposition

reversed