NY1: Lack of objective evidence of weapon made frisk unreasonable

Officers lack objective evidence that this 14 year old defendant had a weapon when he stopped to remove something from his waistband and put it in his backpack. Matter of Jaquan M., 2012 NY Slip Op 05334 (1st Dept. July 3, 2012)* (3-2):

Reasonable suspicion could not be formed in this case based strictly on the officers’ observation of appellant removing an object from his waistband, because they conceded that the object bore no obvious hallmarks of a weapon. Further, there were no other objective indicia of criminality because there were plausible, non-criminal reasons for appellant’s behavior. For example, the fact that the backpack sagged at the bottom could have been the result of any number of things which it would have been legal for appellant to possess. Nor did appellant’s actions in pacing back and forth and peering up and down the street and sidewalk, and then kneeling down to transfer something into the backpack exclude the reasonable possibility that he was engaged in innocent behavior. The fact that appellant was in a high-crime area and on his way to another high-crime area does not, without more, constitute a factor sufficient to create reasonable suspicion (Powell, 246 AD2d at 369-370). Nor do we believe that all of these factors, taken together, reasonably lead to the conclusion that appellant was in the process of committing a crime.

Even if the seizure of appellant was legal, we find that appellant’s denials that there was anything inside the bag did not justify an increase in the level of suspicion such that the police properly searched his bag. In the cases on which the presentment agency and the dissent rely in arguing that similar lies can create probable cause, People v Febus (11 AD3d 554 [2004] lv dismissed 7 NY3d 743 [2004]) and People v Scott-Heron, 11 AD3d 364 [2004], lv denied 4 NY2d 804 [2004]), the police had already developed strong reason to believe that the defendants had secreted drugs, and the defendants’ denials were found to have buttressed that belief. Here, as discussed above, the police had no basis to believe that there was a gun in appellant’s backpack, other than their hunch. Appellant’s denials were insufficient, on their own, to create probable cause.