19-4332
United States v. Patterson
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2021
No. 19-4332-cr
UNITED STATES OF AMERICA,
Appellant,
v.
JUSTIN PATTERSON,
Defendant-Appellee,
__________
On Appeal from the United States District Court
for the Southern District of New York
__________
ARGUED: AUGUST 23, 2021
DECIDED: FEBRUARY 4, 2022
__________
Before: RAGGI, LYNCH, and PARK, Circuit Judges.
________________
In this case, in which defendant Justin Patterson stands charged
with one count of being a felon in possession of a firearm, see 18 U.S.C.
§ 922(g)(1), the government appeals from an order of the United
States District Court for the Southern District of New York (Seibel, J.),
suppressing the charged firearm because it was seized in
circumstances amounting to an arrest not supported by probable
cause. The government argues that Patterson’s initial detention in a
motor vehicle was not an arrest but an investigatory stop supported
by the requisite reasonable suspicion and that circumstances
highlighted by the district court in finding an arrest—specifically,
police officers pointing firearms at, shouting toward, and blocking an
exit route for the motor vehicle being driven by Patterson—were
reasonable safety precautions given that the officers were
investigating a report of menacing with a firearm. We agree.
REVERSED AND REMANDED.
JAMES LIGTENBERG, Assistant United States
Attorney (Michael D. Maimin, Anna M.
Skotko, Assistant United States Attorneys,
on the brief), for Audrey Strauss, Acting
United States Attorney for the Southern
District of New York, New York, New York,
for Appellant.
YUANCHUNG LEE, Federal Defenders of New
York, Inc., New York, New York, for
Defendant-Appellee.
REENA RAGGI, Circuit Judge:
Defendant Justin Patterson stands charged in the United States
District Court for the Southern District of New York (Cathy Seibel, J.)
with one count of being a felon in possession of a firearm. See 18
2
U.S.C. §§ 922(g)(1) & 2. 1 The subject firearm, a loaded Makarov pistol,
was seized from the Chevrolet Camaro that Patterson was driving on
the night of January 30, 2019, in Cortlandt, New York. State and
county police had detained the vehicle at a gas station because it fit
the description of a car whose occupants had reportedly menaced a
woman with a firearm in a nearby supermarket parking lot. The
district court granted Patterson’s motion to suppress the firearm,
orally ruling on October 30, 2019, that (1) the degree of force used by
police in detaining Patterson’s vehicle and its occupants—
specifically, pointing firearms at, shouting orders toward, and
blocking an exit route for the vehicle—exceeded that permissible for
a reasonable investigatory stop and, thus, had to be viewed as a de
facto arrest; (2) the arrest was unlawful because, when first effected, it
was not supported by probable cause; and (3) thus, the firearm seized
from the car’s glove compartment after Patterson fled the scene had
to be suppressed as a fruit of the unlawful arrest.
The district court memorialized its suppression ruling in a
written order dated December 27, 2019, which the government now
appeals pursuant to 18 U.S.C. § 3731. The government argues that
Patterson’s initial detention in a motor vehicle was not an arrest but a
lawful investigatory stop because (1) it was supported by reasonable
suspicion pursuant to Terry v. Ohio, 392 U.S. 1 (1968); and (2) the police
actions found excessive by the district court were reasonable safety
1Although the indictment does not specify Patterson’s prior felony conviction, the
sworn complaint dated March 6, 2019, identifies a prior New York State conviction
for second-degree assault intending to cause physical injury with a deadly weapon
or dangerous instrument, an offense punishable by imprisonment of more than
one year. See N.Y. Penal Law § 120.05(2).
3
precautions given that officers were investigating a report of
menacing with a firearm. We agree with these arguments and further
conclude that other challenges to the firearm seizure are meritless as
a matter of law. Thus, we reverse the district court’s suppression
order, and we remand the case for further proceedings consistent
with this opinion.
BACKGROUND
As the district court observed, the facts relevant to Patterson’s
motion to suppress are largely undisputed, with many of the
pertinent events recorded on audiotapes or videotapes that are part
of the record. 2
I. The 911 Call for Help
At approximately 8:47 p.m. on January 30, 2019, a woman in
Cortlandt, New York—a town in Westchester County—dialed 911
and, identifying herself by name, address, and telephone number,
requested that police go to her home at 3469 Lexington Avenue. The
caller explained that two black men in a black Camaro had threatened
her with a gun at a nearby ShopRite parking lot and had gone to her
home in search of her son. 3
2As the district court also observed, the time stamps on some of the recordings
appear to be misaligned across law-enforcement agencies, sometimes by as much
as two minutes. This discrepancy, however, does not affect our analysis.
3In the recorded 911 call, the menacing victim was not clear as to whether the men
who had threatened her were already at her home or en route. Compare Joint
App’x, Disc Ex. 1 at 0:26 (stating that “there’s a car that was following me home
and I’m home and they’re looking for my son”), and id. at 0:38 (stating that men
4
II. The Police Radio Exchanges
Within minutes, at approximately 8:52 p.m., a New York State
Police radio dispatcher put out an announcement calling for officers
to respond to the 911 caller’s 3469 Lexington Avenue address. The
dispatcher stated that “a menacing [had] occurred in the ShopRite
parking lot” and that the suspects were “two black males” in “a black
Camaro” who had “displayed a handgun.” Joint App’x, Disc Ex. 2A
at 0:15–0:40. The dispatcher directed officers to “start over to 3469
Lexington” because the “two suspects are possibly en route” to that
location, and “they’re looking for [name of caller’s son] at that
location.” Id. at 0:08–0:12, 0:20–0:24, 0:39–0:42.
Moments later, a Westchester County Police dispatcher
contacted County Police Officer David DiRienzo, directing him to go
to 3469 Lexington Avenue to support State troopers investigating a
“menacing with a handgun at ShopRite.” Joint App’x, Disc Ex. 2C
were “over here on the complex where I live”), and id. at 2:08 (stating that she
“see[s] a black car” in her parking lot), with id. at 0:54 (stating that she believes men
“should be in the parking lot waiting”), and id. at 1:29 (stating that she “has to get
home” and is “on [her] way home”), and id. at 3:28 (confirming that she is en route
home and agreeing to follow operator’s instruction to delay going home to let
police arrive first). The district court’s reliance on the first set of statements in its
findings of fact makes no difference on this appeal because none of the officers
whose conduct is here at issue heard the 911 call, and, thus, as Patterson himself
acknowledges, the call’s contents cannot be imputed to them. See United States v.
Colon, 250 F.3d 130, 137–38 (2d Cir. 2001). What matters is the information the
responding officers thereafter received from police dispatchers and the actions the
officers took in response, which we now proceed to detail.
5
at 0:12–0:19. 4 The dispatcher stated that “the suspect vehicle”—
described as “a black Camaro” carrying “two black males”—was
believed to be “en route over” to the Lexington Avenue location. Id.
at 0:19–0:25. Confirming these instructions, DiRienzo radioed back,
“black Camaro, two black males, menacing with a handgun at the
ShopRite.” Id. at 0:25–0:30. A Westchester County dispatcher then
immediately instructed County Police Officer Adam Wirth to assist
DiRienzo, who was “heading over to 3469 Lexington Avenue for a
menacing with a handgun,” explaining that “wanted is a black
Camaro [and] two black males.” Joint App’x, Disc Ex. 2D at 0:37–0:45.
When DiRienzo arrived at 3469 Lexington Avenue, he saw two
State troopers speaking with a person whom he understood to be the
911 caller, but he observed no black Camaro at the scene. At
approximately 8:57 p.m., DiRienzo radioed that he was leaving 3469
Lexington Avenue and going to “canvass[] Route 6”—the main road
between the Cortlandt ShopRite and 3469 Lexington Avenue, where
the victim resided, a distance of approximately one mile—for “a black
two-door Camaro.” Joint App’x, Disc Ex. 2E at 0:13–0:20. At the
suppression hearing, DiRienzo testified that he headed toward the
ShopRite because that is where the reported menacing had occurred,
and he knew from experience that radio miscommunications can
occur when multiple locations are broadcast. Meanwhile, Wirth,
having heard DiRienzo’s communication, reported by radio that he
was already on Route 6.
4 Police radio communications in Westchester County, whether originating with
the New York State Police or the Westchester County Police Department, are
audible to officers of both departments.
6
Minutes later, at approximately 9:01 p.m., a State trooper
radioed an updated description of the suspect vehicle as a “black or
possibly dark gray . . . Challenger or a Camaro.” Joint App’x, Disc Ex.
2B at 0:05–0:12. 5 Although a State Police dispatcher repeated—with
some modification—that the suspect vehicle was “a dark colored or
dark gray Challenger or Camaro,” id. at 0:18–0:22, DiRienzo radioed
that he “copied” that the suspects were in “a dark gray or black
Camaro or Challenger,” Joint App’x, Disc Ex. 2G at 0:11–0:17, just as
the reporting trooper had stated.
At that point, Officer Wirth reported that he was then “behind
a black Camaro . . . going westbound” on Route 6. Id. at 0:22–0:30. At
the suppression hearing, Wirth testified that he had first spotted the
Camaro leaving the ShopRite parking lot and turning onto Route 6.6
He testified that he rarely saw Camaros or Challengers on local roads
during the winter and had seen no other such cars that night, when
5 As the government notes, the Chevrolet Camaro and Dodge Challenger are
“somewhat similar” looking cars. Appellant Br. at 4 n.2. And, as the district court
observed, a black car might appear gray in winter as a result of road spray from
materials put down to melt snow and minimize icing.
6Apparently, the Camaro had left and then returned to the ShopRite parking lot
sometime after the reported menacing to retrieve a cell phone that Patterson had
dropped in the ShopRite parking lot. Because the fact that the Camaro had left
and returned to the ShopRite was unknown to any officers at the time of their
challenged conduct on January 30, 2019, it does not factor into our consideration
of this appeal.
7
roads were slick, snow was on the ground, and traffic was generally
lighter than normal. 7
Upon hearing Wirth’s communication, DiRienzo promptly
drove to his fellow officer’s stated location and joined in following the
Camaro. Unable to see inside the Camaro to determine the number
or identity of the occupants, the officers, communicating by radio,
decided to stop the vehicle. Seeing the Camaro’s turn signal and
brake lights illuminate near a Mobil gasoline station, Wirth turned on
his vehicle’s flashing emergency lights to signal the Camaro’s
driver—subsequently identified as defendant Patterson—to pull
over. The driver did so, stopping at one of the station’s gas pumps at
approximately 9:02 p.m. The ensuing encounter was videotaped from
various angles by police cameras and the Mobil station’s security
cameras. 8
7 At the suppression hearing, the government introduced evidence indicating that
only 0.11%—approximately 1 in 1,000—of all cars registered in Westchester
County are black or gray Camaros or Challengers. While the government does
not contend that the officers were aware of this statistic at the time of the events at
issue, it maintains that the statistic supports the officers’ reported experience from
their patrols. Cf. Kansas v. Glover, 140 S. Ct. 1183, 1188 (2020) (recognizing that
“[e]mpirical studies [can] demonstrate what common experience readily reveals,”
there in context of drivers with revoked licenses operating motor vehicles).
8 At the suppression hearing, DiRienzo testified that the stopped Camaro
“[a]ppeared to be black, but I guess it was a dark gray.” Joint App’x at 49. The
district court also subsequently described the vehicle as “dark-colored, black or
dark gray.” Id. at 249. We cannot ourselves determine the car’s color from the
record evidence, but it makes no difference to our analysis on this appeal.
8
III. Detention of the Camaro and Its Occupants at the Mobil
Station
With the Camaro then stopped at a gas pump, Officer Wirth,
Officer DiRienzo, and State Police Trooper Coglitore, who had also
joined in following the Camaro, stopped their three vehicles—all now
displaying flashing lights—a short distance behind the Camaro,
effectively blocking the Route 6 entrance/exit point through which the
vehicle had just entered the station. The Camaro’s front-facing access
to the station’s Locust Avenue entrance/exit was unimpeded.
Almost immediately, the three officers exited their vehicles,
drew their firearms—handguns for DiRienzo and Wirth, an AR-15
rifle for Coglitore—and pointed them at the Camaro. 9 At the
suppression hearing, Wirth and DiRienzo testified that they drew and
raised their weapons because the crime under investigation was
menacing with a firearm, which by its nature presented a risk of the
Camaro’s occupants shooting an officer.
After brief consultation, Wirth and DiRienzo used their cars’
public address systems to order the Camaro’s still-unknown
occupants to get out of the vehicle with their hands up. DiRienzo
additionally told the occupants to roll down the car’s windows and to
9In the videotape, it appears that DiRienzo and Coglitore pointed their weapons
at the Camaro while Wirth held his gun at his side. Nevertheless, at the
suppression hearing, Wirth testified that he “point[ed his] gun in the direction of
the Camaro.” Joint App’x at 132. Thus, we defer to the district court’s finding that
all three of these officers pointed their firearms at the Camaro.
9
place the car keys on the roof. 10 After the occupants failed to respond
to any of these orders, Wirth—concerned that amplification might
have distorted his order—shouted toward the Camaro for the
occupants to exit the car with their hands up. DiRienzo testified that
the driver of the Camaro (i.e., Patterson), rather than follow these
instructions, appeared to reach around the car’s interior, including
behind the front seats and under the steering wheel, as if preparing
or hiding something, possibly a firearm.
Moments later—approximately one minute and fifteen seconds
after the Camaro was first stopped at the gas station—the passenger-
side occupant, a black man subsequently identified as Deshawn
Smalls, exited the car. Seconds later, the Camaro’s driver, Patterson,
also a black man, did likewise. Initially, the two men followed the
officers’ instructions for Smalls to walk to the front of the vehicle and
to place his hands on the car hood and for Patterson to walk to the
rear of the vehicle and to place his hands on the trunk. At about this
time, a second State trooper arrived at the scene, exited his vehicle,
and also pointed his firearm at the Camaro.
While the two State troopers stood armed guard, DiRienzo and
Wirth moved toward the Camaro. DiRienzo, who had now holstered
his weapon, attempted to handcuff Patterson, but Patterson broke
free and ran away. As DiRienzo and one of the troopers chased
Patterson, DiRienzo thought he saw something in Patterson’s hand.
DiRienzo fired his taser but missed Patterson, who proceeded to jump
10 The district court considered this direction somewhat inconsistent with the
officers’ orders to exit the car. For purposes of this appeal, we accept this
characterization.
10
a fence and hide in nearby woods before being apprehended some
fifteen minutes later.
While Patterson was on the run, Wirth holstered his firearm
and handcuffed Smalls, at which point the State trooper who
remained at the scene also holstered his weapon. Wirth then looked
into the Camaro, opened the glove compartment, and seized
therefrom the handgun that is the subject of the possession charge in
this case: a fully loaded, black Makarov pistol. 11 Following Patterson’s
capture, Smalls and Patterson were formally arrested, and the
Camaro was impounded by State Police who, pursuant to department
procedures, conducted an inventory search of its contents.
IV. District Court Proceedings
On April 2, 2019, a grand jury sitting in the Southern District of
New York indicted Patterson on a single count of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) & 2. On
August 1, 2019, Patterson moved to suppress all physical evidence
recovered from what he maintained was an illegal stop and search of
the Camaro, most particularly the Makarov pistol that is the subject
of the charged possession crime. On September 16 and October 1,
2019, the district court conducted a suppression hearing, at which
11A Makarov pistol is a semi-automatic weapon. See Seeking Information – Thomas
Crane Wales – Information on Makarov Pistol, Fed. Bureau of Investigation,
https://www.fbi.gov/wanted/seeking-info/thomas-crane-
wales/walesweapon.pdf/view (last visited Feb. 3, 2022) (describing Makarov as
“semi-automatic handgun,” which “Soviet Bloc countries manufactured . . .
through approximately 1968”); see also, e.g., United States v. Cerna, No. 08-CR-730,
2010 WL 5387694, at *4 (N.D. Cal. Dec. 22, 2010) (describing Makarov pistol as
semi-automatic weapon).
11
Officer Wirth, Officer DiRienzo, and State Investigator Peter Figiel,
who conducted the inventory search of the Camaro, all testified, and
at which various audio and video recordings of the events of January
30, 2019, were received in evidence.
In an oral ruling announced on October 30, 2019, the district
court granted Patterson’s motion to suppress. First considering
whether the initial detention of the Camaro and its passengers was an
investigatory stop or an arrest, the district court ruled the detention
was, from the start, an arrest because of the degree of force used:
“several officers with guns drawn, including an AR-15—and not just
drawn, but pointed—and the police scream[ing] at the occupants to
exit with hands up.” Joint App’x at 257. The district court
acknowledged that where “people [are] suspected of being armed,”
even investigatory stops may warrant some showing of force. Id.
at 259. Nevertheless, viewing the question as “essentially one of
degree,” the district court concluded that “the conduct here exceeded
that of a Terry stop” and was “indistinguishable from an arrest.” Id.
The district court then observed that such a de facto arrest would
be lawful only if supported by probable cause to think the occupants
of the Camaro had been or were engaged in criminal activity. See id.
It concluded that the officers lacked such probable cause when they
first detained the Camaro. The district court observed that
information then possessed by the officers—specifically, the
similarity of the make, model, and color of the detained car to that
reported by the menacing victim and relayed by dispatchers, as well
as the car’s sighting at or near the scene of the menacing shortly after
the initial dispatch—might have provided the reasonable suspicion
12
necessary to support an investigatory stop, see id. at 260, but that such
information was insufficient to establish the probable cause required
for an arrest, see id. at 262. 12 The court explained that what the
“officers had was the right kind of car in the general area within 10
minutes of dispatch,” which was not “sufficient to warrant a person
of reasonable caution in the belief” that the car’s occupants “ha[d]
committed the crime.” Id. The district court observed that, for all the
officers knew when they first detained the car, its occupants might
have been “an innocent teenage girl or an elderly grandfather.” Id. at
268. The court emphasized, however, that it did “not find any intent
to violate defendant’s constitutional rights on the part of the officers.”
Id. Rather, the officers “simply overdid it here given what
information they had.” Id.
Having thus identified an unlawful arrest, the district court
concluded that any items seized from the Camaro, including the
subject firearm, had to be suppressed as fruits of the illegal detention.
Insofar as the government urged otherwise by arguing that Patterson
abandoned the vehicle when he fled the scene or that the firearm
would inevitably have been discovered during an inventory search of
the Camaro, the district court rejected both arguments, finding
12Having found the detention of the Camaro and its occupants a de facto arrest, the
district court never expressly ruled as to whether the officers’ actions were
supported by reasonable suspicion, stating only that reasonable suspicion was a
“close question” that “might well come out in the government’s favor.” Id. at 260.
13
Patterson’s flight and the Camaro’s impoundment also to derive from
the illegal arrest. 13
Characterizing its suppression decision as “not an easy” one,
the district court stated that it did not “discourage” the government
from appealing its ruling. Id. at 269. Nevertheless, because
suppression significantly weakened the government’s case against
Patterson, the district court ordered his release on bail. After the court
memorialized its suppression ruling in a written order dated
December 27, 2019, the government filed this appeal.
DISCUSSION
On appeal of a grant of a motion to suppress evidence, we
review the district court’s findings of fact only for clear error, but we
review its conclusions of law, as well as its resolution of mixed
questions of law and fact, de novo. See, e.g., United States v. Alexander,
888 F.3d 628, 631 (2d Cir. 2018). Thus, among the questions
warranting de novo review are those pertaining to whether the facts,
as found by the district court, establish probable cause to support an
arrest or reasonable suspicion to support an investigatory stop, as
well as any force incident thereto. See, e.g., United States v. Fiseku, 915
F.3d 863, 869 (2d Cir. 2018); United States v. Santillan, 902 F.3d 49, 56
(2d Cir. 2018). Similarly, de novo review applies to the question of
whether the facts, as found by the district court or as undisputed,
establish probable cause to conduct a car search. See Walczyk v. Rio,
496 F.3d 139, 157 (2d Cir. 2007) (“[W]here there is no dispute as to
13Having so ruled, the district court did not consider whether the search was
supported by probable cause to think the car contained evidence of a crime, a
matter we discuss infra at 45–50.
14
what facts were relied on to demonstrate probable cause, the existence
of probable cause is a question of law for the court.”); United States v.
Gagnon, 373 F.3d 230, 235 (2d Cir. 2004) (“[T]he district court’s
ultimate determination of whether probable cause to search a vehicle
existed is reviewed de novo.”).
I. The Challenged Detention Was a Lawful Investigatory Stop,
Not an Unlawful Arrest
The district court ruled that (1) from the moment on January 30,
2019, when police ordered a dark-colored Camaro to stop at a Mobil
gas station, they effectively seized the car and its passengers, thereby
triggering Fourth Amendment protections; (2) because of the degree
of force used by police, the seizure was, from the outset, a de facto
arrest and not simply an investigatory stop; and (3) the arrest was
unlawful because it was not then supported by probable cause to
think that the as-yet-unseen occupants of the Camaro had committed
the gun-related menacing crime under investigation. The
government does not dispute that the Camaro and its passengers
were effectively seized. Nor does it argue that, at the outset—i.e.,
before the Camaro’s occupants exited the vehicle and thereby
confirmed that they fit the description of the menacing suspects,
before Patterson engaged in furtive actions inside the vehicle, and
before he attempted to flee the scene—there was probable cause to
arrest the Camaro’s passengers. Rather, in appealing the district
court’s suppression ruling, the government submits that the seizure
was not an unlawful arrest but a lawful investigatory stop because (1)
from the start, it was supported by reasonable suspicion of the
Camaro’s occupants’ involvement in armed criminal activity, and (2)
the degree of force used was reasonable in investigating a crime
15
involving the threatening use of a firearm. We agree with both
arguments.
A. The Seizure Was Supported from the Start by Reasonable
Suspicion of Criminal Activity
The Fourth Amendment safeguards “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const., amend. IV. While
“reasonableness”—the “touchstone” of Fourth Amendment analysis,
Pennsylvania v. Mimms, 434 U.S. 106, 108–09 (1977)—generally
requires that law enforcement authorities procure a warrant
supported by probable cause before seizing a person, neither a
warrant nor probable cause is “indispensable” to reasonableness for
every seizure. National Treasury Emps. Union v. Von Raab, 489 U.S. 656,
665 (1989). As pertinent here, a brief investigatory stop may
sometimes reasonably be conducted in the absence of a warrant and
even of the probable cause required for a lawful arrest. See Terry v.
Ohio, 392 U.S. at 20; United States v. Bailey, 743 F.3d 322, 331–32 (2d
Cir. 2014). In explaining that conclusion in Terry, the Supreme Court
observed that society’s interest in “effective crime prevention and
detection,” as well as in officer and public safety while pursuing
criminal investigations, can make it constitutionally reasonable “in
appropriate circumstances and in an appropriate manner” both
temporarily to detain a person and to pat him down for weapons,
“even though there is no probable cause to make an arrest.” Terry v.
Ohio, 392 U.S. at 22–23. We focus first on whether the “circumstances”
in this case made a Terry stop “appropriate.” Id. In the next section
of this opinion, we consider whether the “manner” in which the stop
here was conducted was “appropriate.” Id.
16
For circumstances to warrant an investigatory stop, law
enforcement officials must have a “reasonable basis to think that the
person to be detained ‘is committing or has committed a criminal
offense.’” United States v. Bailey, 743 F.3d at 332 (quoting Arizona v.
Johnson, 555 U.S. 323, 326 (2009)); see Terry v. Ohio, 392 U.S. at 21–22.
Like probable cause, reasonable suspicion is a “commonsense,
nontechnical conception[] . . . ‘not readily, or even usefully, reduced
to a neat set of legal rules.’” Ornelas v. United States, 517 U.S. 690, 695–
96 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Unlike the
“finely-tuned standards” for proof by a preponderance of the
evidence or beyond a reasonable doubt, probable cause and
reasonable suspicion are “fluid concepts,” which “take their
substantive content from the particular contexts in which the
standards are being assessed.” Id. at 696 (citation omitted). Thus,
neither probable cause nor reasonable suspicion requires the more-
likely-than-not showing demanded by the preponderance standard.
See Illinois v. Gates, 462 U.S. at 235; see generally United States v. Yannai,
791 F.3d 226, 242 (2d Cir. 2015) (defining preponderance standard as
“more likely than not”).
Moreover, reasonable suspicion demands even “less than is
necessary for probable cause.” Kansas v. Glover, 140 S. Ct. 1183, 1187–
88 (2020) (quoting Navarette v. California, 572 U.S. 393, 397 (2014))
(explaining that reasonable suspicion can be established with
information “different in quantity or content than that required to
establish probable cause” (citation omitted)). Probable cause to arrest
requires that the totality of facts and circumstances known to the
police permit a person of reasonable caution to conclude that there is
a “fair probability” that the person to be seized has committed or is
17
committing a crime. Illinois v. Gates, 462 U.S. at 238; accord Walczyk v.
Rio, 496 F.3d at 156. By contrast, while reasonable suspicion requires
more than a “hunch,” Terry v. Ohio, 392 U.S. at 27, it is satisfied as long
as authorities can point to “specific and articulable facts which, taken
together with rational inferences from those facts,” id. at 21, provide
a “particularized and objective basis for suspecting legal
wrongdoing,” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal
quotation marks omitted); accord United States v. Weaver, 9 F.4th 129,
140 (2d Cir. 2021) (en banc). As this court and the Supreme Court have
observed, the reasonable suspicion standard is “not high.” Richards
v. Wisconsin, 520 U.S. 385, 394 (1997); United States v. Weaver, 9 F.4th at
140. It does not require authorities to eliminate “all possible innocent
explanations” for conduct before deeming it suspicious. United States
v. Bailey, 743 F.3d at 333; accord United States v. Weaver, 9 F.4th at 140.
Rather, authorities need only have “facts sufficient to give rise to a
reasonable suspicion that criminal activity ‘may be afoot.’” United
States v. Bailey, 743 F.3d at 332 (quoting Terry v. Ohio, 392 U.S. at 30).
On this appeal, the parties sharply contest whether the
information known to officers at the time of the Camaro’s seizure on
January 30, 2019, gave rise to reasonable suspicion of criminal activity
by the vehicle’s occupants. Because the district court concluded that
the seizure was a de facto arrest requiring probable cause, it did not
conclusively rule on the question of reasonable suspicion. While
describing this question as “close,” the court observed that it “might
well come out in the government’s favor.” Joint App’x at 260. We do
not think the question is close. Rather, we think the circumstances at
the time of the seizure plainly supported reasonable suspicion to
think that the as-then-unseen occupants of the detained Camaro were
18
the persons who “may have, and might still be, engaged in [the
reported] criminal activity.” United States v. Bailey, 743 F.3d at 332.
This was sufficient to warrant stopping the Camaro to determine, in
the first instance, whether its passengers fit the description of the
reported assailants.
To explain, when police officers first detained the Camaro at
the Mobil gas station, they knew from dispatch reports that,
1. a person had been menaced with a firearm;
2. the menacing had occurred in the parking lot of the
ShopRite grocery store on Route 6 in Cortlandt;
3. the assailants were two black men;
4. at the time of the menacing, these men were driving a
black or dark gray Camaro (or Challenger);
5. the men were possibly en route to 3469 Lexington Avenue
in Cortlandt; and
6. the men were believed to be looking for a known
individual at that location.
Further, from personal experience, the officers then knew that,
7. Chevrolet Camaros and Dodge Challengers are similar
looking vehicles; and
8. these models of car were rarely seen on area roads.
Finally, from personal observations on the night of January 30, 2019,
officers knew that,
19
9. within minutes of the dispatch reports, State troopers had
spoken with the menacing victim at her 3469 Lexington
Avenue home;
10. no Camaro or Challenger was seen or located at the 3469
Lexington Avenue complex;
11. approximately ten minutes after the initial radio dispatch,
a county police officer reported seeing a black Camaro
exiting the ShopRite parking lot that had been the scene of
the reported menacing; and
12. it was not then possible for officers to see into the Camaro
to identify the number, sex, or race of the passengers.
At the outset, we note that this evidence easily supported
reasonable suspicion to think that an armed menacing crime had been
committed and that its perpetrators were pursuing criminal activity
against a named person. Indeed, such criminal activity was here
reported by an identified victim, which provided not simply
reasonable suspicion, but probable cause of commission. See, e.g.,
Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“When
information is received from a putative victim or an eyewitness,
probable cause exists unless the circumstances raise doubt as to the
person’s veracity.” (internal citation omitted)). Nor is a different
conclusion warranted because the 911 dispatcher’s knowledge of the
victim’s firsthand report could not be imputed to the investigating
officers. See United States v. Colon, 250 F.3d 130, 137–38 (2d Cir. 2001).
State troopers’ prompt confirmation of the report in an in-person
interview of the victim was so imputable. See id. at 135. In sum, the
reasonable suspicion of armed criminal activity here strongly
20
supported further investigation of persons who might have engaged
in such activity and, as a result, might well be armed and dangerous.
Cf. Oliveira v. Mayer, 23 F.3d 642, 647 (2d Cir. 1994) (citing “limited
evidence that there was a crime” and “absence of any indication the
plaintiffs were armed or dangerous” in finding stop a de facto arrest).
Patterson cannot urge otherwise by arguing that menacing is
treated only as a misdemeanor offense under New York law. See N.Y.
Penal Law § 120.14. That point does not alter the fact that menacing
is criminally proscribed conduct. In any event, officers knew that the
menacing in this case had been committed with a gun. Thus, however
such potentially life-threatening conduct might be charged under
New York law, the victim’s firsthand report provided officers with
probable cause to investigate specific, armed criminal activity.
What the victim could not provide, and what officers did not
otherwise know when they first detained the Camaro at the Mobil gas
station, was the identity of the persons who had committed the
reported crime. Nevertheless, dispatch reports did provide them
with the number, sex, and race of the assailants and their mode of
transportation. Thus, officers knew to focus their investigation on
two black men driving a black or dark gray Camaro or Challenger.
Further, officers knew that the menacing had occurred in the
Cortlandt ShopRite parking lot and that the assailants were then
possibly en route to a particular Lexington Avenue address—about a
mile from the ShopRite—in search of an identified target. Within
minutes of the first radio dispatch, Officer DiRienzo reported seeing
no vehicle fitting the relevant description at the Lexington Avenue
address. Minutes later, however, Officer Wirth reported seeing such
21
a vehicle—specifically, a black Camaro, matching both the
dispatcher’s initial description and the trooper’s updated
description—exit the ShopRite parking lot and enter onto Route 6.
Because officers knew from experience that Camaros (and
Challengers) were not commonly seen on local roads, particularly in
winter, the spotting of a dark-colored Camaro at the scene of the
menacing crime within ten minutes of the first dispatch report
provided a reasonable basis (1) to suspect that its occupants “may
have” been the persons who had committed the reported crime,
United States v. Bailey, 743 F.3d at 332; and, thus, (2) to stop the vehicle
to investigate whether its occupants did, in fact, match the suspects’
reported description and whether they were armed and dangerous,
see id. at 333 (concluding that while “many men” might fit drug
dealer’s description, it was fact that suspects “fit that description and
had just left the very premises where [dealer] dealt drugs that
provided an articulable basis . . . to suspect that [they were] involved
in criminal activity” (emphasis in original)). 14
To be sure, such an investigatory stop might have revealed that
the Camaro’s occupants did not fit the description of the suspected
14United States v. Walker, 965 F.3d 180 (2d Cir. 2020), cited by Patterson, is not to
the contrary. There, we held that a photograph providing “little meaningful
identifying information . . . besides [the suspect’s] race” did not provide
reasonable suspicion for a Terry stop of the black defendant, two days after a
crime’s commission and at a location “near the crime scene” but otherwise
unrelated to the investigation. Id. at 183, 186–87. By contrast, the vehicle
identification here was meaningful, not only because officers rarely observed
Camaros on Westchester roads, especially during the winter, but also because the
stopped Camaro was spotted by police leaving the scene of the reported menacing
crime only minutes after the first dispatch and after an officer had confirmed that
no such vehicle was present at the complex where the victim resided.
22
assailants—e.g., they might have been the teenage girl or grandfather
hypothesized by the district court. See Joint App’x at 268. But even if
the possibility of innocent occupants precluded finding probable
cause to arrest the Camaro’s occupants before they exited the vehicle,
as the district court ruled, it did not preclude officers from having a
reasonable suspicion to stop the vehicle to investigate its occupants.
Just as reasonable suspicion does not require officers to eliminate “all
possible innocent explanations” for particular circumstances in order
to conclude that persons “may have” or “might still be . . . engaged in
criminal activity,” id. at 332–33, it does not require officers to assume
an innocent explanation where a suspicious one is reasonably
supported by specific, articulable facts. Indeed, the very purpose of a
Terry stop is to “confirm or dispel the reasonable suspicion that justifies
the stop in the first place.” Grice v. McVeigh, 873 F.3d 162, 167 (2d Cir.
2017) (emphasis added).
The conclusion that reasonable suspicion supported the vehicle
stop in this case finds support in our own precedent and that of sister
circuits. In United States v. Bold, in which the model and location of a
vehicle spotted by police matched an anonymous tip reporting armed
criminal activity, this court found reasonable suspicion supported a
stop of the vehicle to investigate as-yet-unseen occupants. 19 F.3d 99,
103 (2d Cir. 1994). 15 Similarly, in United States v. Roberts, the Eighth
Circuit identified reasonable suspicion to stop a “black Chrysler”
spotted in the vicinity of a shooting location because it matched the
15Indeed, a finding of reasonable suspicion is stronger here because the vehicle
description and crime location came not from an anonymous tipster but from the
identified crime victim herself. See supra at 20.
23
description of the shooter’s vehicle. 787 F.3d 1204, 1209–10 (8th Cir.
2015); see also United States v. Burgess, 759 F.3d 708, 711 (7th Cir. 2014)
(holding reasonable suspicion supported stop of vehicle matching
reported “black car” involved in criminal activity near certain
location because “officers had both a specific car color and a street
location to zero in on”); United States v. McCarthy, 77 F.3d 522, 530 n.8
(1st Cir. 1996) (identifying reasonable suspicion to stop vehicle
matching suspect’s reported “red Pontiac Sunbird” in area of alleged
crime).
In urging otherwise, Patterson argues that, “[i]n those cases, not
only did the description of the suspect’s car . . . match the defendant’s
car, but its location was also consistent with the likely location of the
suspect’s car given the timing and the location of its last sighting.”
Appellee Br. at 49 n.12. Patterson submits that the “likely location” of
the car here at issue was not the ShopRite parking lot, only one mile
from the Lexington Avenue address. Rather, he contends that the car
was likely some greater distance east or west of 3469 Lexington
Avenue, given that the victim had reported seeing the car there at
approximately 8:52 p.m., see supra at 5 & n.3, and DiRienzo effectively
confirmed the car’s departure some ten minutes later. Even accepting
Patterson’s characterization of the victim’s call, the argument fails to
persuade because the officers had not heard it. They knew only what
the dispatchers told them, which was that the vehicle used in the
menacing was “possibly en route” to the Lexington Avenue address.
Joint App’x, Disc Ex. 2A at 0:20–0:24. Thus, when, minutes after
hearing the dispatch report, DiRienzo went to that address and
advised that he saw no vehicle fitting the reported description, that
was all the investigating officers knew. They did not “kn[o]w” that
24
the car had “left” that address within the prior few minutes. Appellee
Br. at 48. In any event, within moments of DiRienzo’s report, Wirth
stated that he was following a black Camaro on Route 6. As Wirth
later testified, Camaros were infrequently seen on area roads, and he
had just seen this particular Camaro exiting the ShopRite parking lot,
i.e., the scene of the menacing crime. In the totality of these
circumstances, the sighting of a dark-colored Camaro exiting the
ShopRite parking lot soon after officers became aware of the reported
armed menacing crime provided a reasonable basis to suspect that the
car and its occupants may have been involved in that crime so as to
warrant an investigatory stop.
In challenging such a conclusion, Patterson argues that, when
police stopped the Camaro, they did not know how much time had
passed between the reported menacing and the dispatch
announcements they heard. In fact, circumstances made it reasonable
for the officers to infer that the menacing had recently occurred. First,
the very nature of the crime—threatening a person with a gun—is one
that a victim would likely report promptly. See generally Kansas v.
Glover, 140 S. Ct. at 1190 (stating that officers “may rely on
probabilities in the reasonable suspicion context”). Second, officers
were told that the two suspects were then “possibly en route” to a
specific location in search of an identified person. Joint App’x, Disc
Ex. 2A at 0:20–0:24, 0:39–0:42. This admitted a reasonable inference
not only that a menacing had recently occurred but also that criminal
activity against a sought person was then being pursued. The
prospect of an ongoing threat to an identified individual, known to
the menacing victim, further bolstered the inference that the victim
had reported the crime promptly after its commission. Third, almost
25
simultaneous dispatch requests for investigation by State and county
police officers suggested an urgency consistent with recent criminal
activity. In these circumstances, no reasonable police officer would
have had reason to think that the reported information was stale,
much less to doubt that prompt investigation of a dark-colored
Camaro seen leaving the scene of the menacing crime a short while
after the first dispatch report was warranted.
Nor is that conclusion undermined by the further fact,
emphasized by Patterson, that on leaving the ShopRite parking lot,
the Camaro traveled in a direction away from, rather than toward, the
reported Lexington Avenue location. The travel direction admits any
number of inferences, some innocent, some not. While it was possible
that the Camaro’s occupants were not heading toward Lexington
Avenue because they were not the menacing perpetrators, it was also
possible that they were the perpetrators but, being unfamiliar with
the area, had entered the highway in the wrong direction. Or it was
possible that they were first going to meet with an accomplice or to
stop at a convenient nearby gas station, or that they had decided not
to pursue their second target that evening. No matter. Reasonable
suspicion does not require officers to disprove every innocent
possibility before investigating suspicious circumstances. See United
States v. Weaver, 9 F.4th at 140; United States v. Bailey, 743 F.3d at 333.
Thus, we conclude as a matter of law that the totality of
circumstances known to the officers on January 30, 2019, provided
them with an articulable, reasonable basis to suspect that the Camaro
seen leaving the scene of a recent armed crime was the vehicle
reportedly driven by the persons engaged in recent and ongoing
26
criminal activity. And that reasonable suspicion was sufficient to
support a Terry stop to investigate the vehicle’s occupants’ connection
with the reported criminal activity.
B. The Manner in Which the Stop Was Conducted—
Specifically the Force Used—Was Reasonable to the Crime
Under Investigation
At the heart of this appeal is the district court’s determination
that the degree of force used in seizing the Camaro at the Mobil
station “overdid” what was appropriate for a Terry stop and,
therefore, was “indistinguishable from an arrest.” Joint App’x at 259,
268. For reasons we proceed to explain, we conclude that the force
used in this case—while undoubtedly strong—was reasonable to the
armed crime under investigation and appropriate at least until such
time as law enforcement authorities could determine whether the
Camaro’s occupants fit the description of the menacing assailants
and, if they did, could take measures to ensure that the men could not
employ a firearm reasonably suspected to be in their possession.
For an investigatory stop to be conducted in an “appropriate
manner,” Terry v. Ohio, 392 U.S. at 22, the stop must be “limited to
the degree of intrusion necessary to confirm or dispel the reasonable
suspicion that justifies the stop in the first place,” Grice v. McVeigh,
873 F.3d at 167; see also United States v. Perea, 986 F.2d 633, 644 (2d Cir.
1993) (stating that permissible Terry stop may ripen into de facto arrest
requiring probable cause if officers “unreasonably used means of
detention that were more intrusive than necessary” for stop). Factors
generally relevant to that inquiry include the following:
27
(1) the length of time involved in the stop;
(2) its public or private setting; (3) the
number of participating law enforcement
officers; (4) the risk of danger presented by
the person stopped; and (5) the display or
use of physical force against the person
stopped, including firearms, handcuffs, and
leg irons.
United States v. Fiseku, 915 F.3d at 870 (citation omitted); see also Grice
v. McVeigh, 873 F.3d at 167 (identifying relevant factors as, “the
amount of force used by police, the need for such force, and the extent
to which the individual’s freedom of movement was restrained, and
in particular such factors as the number of agents involved, whether
the target of the stop was suspected of being armed, the duration of
the stop, and the physical treatment of the suspect, including whether
or not handcuffs were used” (internal citations omitted)).
The duration of the stop does not here support finding a de facto
arrest. Little more than one minute after stopping the Camaro,
officers were able to confirm that the number (two), sex (male), and
race (black) of the vehicle’s occupants matched the reported
description of the menacing perpetrators. That fact, together with the
color and model of the car and its sighting moments earlier at the
menacing crime scene, provided reasonable suspicion further to
investigate whether the occupants were involved in the reported
armed criminal activity. Within approximately two minutes of the
initial stop, Patterson fled, and within approximately five minutes,
officers confirmed the occupants’ possession of a firearm when they
located and seized the loaded Makarov pistol from the Camaro’s
glove compartment. An investigatory stop of this duration plainly
28
falls within the bounds this court has deemed reasonable. See, e.g.,
Grice v. McVeigh, 873 F.3d at 168 (upholding thirty-three minute
detention as reasonable stop); United States v. Tehrani, 49 F.3d 54, 61
(2d Cir. 1995) (“We decline to hold that a thirty minute detention
based on reasonable suspicion is, per se, too long.”).
But for a stop to be conducted in an appropriate manner, not
only must it be no longer in duration than necessary to confirm or
dispel officers’ reasonable suspicions; the stop must also employ “‘the
least intrusive means reasonably available’ to effect . . . legitimate
investigative purposes.” United States v. Newton, 369 F.3d 659, 674 (2d
Cir. 2004) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality
opinion)); accord United States v. Fiseku, 915 F.3d at 870. The pertinent
question in undertaking that assessment, however, “is not simply
whether some other alternative was available” to authorities as a
means for conducting the stop. United States v. Sharpe, 470 U.S. 675,
687 (1985). As the Supreme Court has recognized, “[a] creative judge
engaged in post hoc evaluation of police conduct can almost always
imagine some alternative means by which the objectives of the police
might have been accomplished.” Id. at 686–87. Rather, a court must
consider whether “police acted unreasonably in failing to recognize
[a less intrusive alternative] or to pursue it.” Id. at 687. This standard
affords “room for a range of reasonable police responses depending
on the circumstances.” United States v. Weaver, 9 F.4th at 140. Indeed,
this principle applies most particularly when police confront an
evolving and volatile situation. See United States v. Sharpe, 470 U.S. at
686 (instructing that courts assessing reasonableness of investigatory
stop “should take care to consider whether the police are acting in a
swiftly developing situation”); United States v. Weaver, 9 F.4th at 140–
29
41; cf. Graham v. Connor, 490 U.S. 386, 396–97 (1989) (stating, in
excessive force context, that “calculus of reasonableness must
embody allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving”).
Such a situation may arise when circumstances provide a
“reasonable basis” for an officer “to think that the person stopped
poses a present physical threat to the officer or others.” United States
v. Newton, 369 F.3d at 674. Then, “the Fourth Amendment permits the
officer to take ‘necessary measures . . . to neutralize the threat’ without
converting a reasonable stop into a de facto arrest.” Id. (quoting Terry
v. Ohio, 392 U.S. at 24). As the Supreme Court explained in Terry,
when circumstances warranting an investigative stop pose a risk of
danger, the court’s concern is
with more than the governmental interest in
investigating crime; in addition, there is the
more immediate interest of the police officer
in taking steps to assure himself that the
person with whom he is dealing is not
armed with a weapon that could
unexpectedly and fatally be used against
him. Certainly it would be unreasonable to
require that police officers take unnecessary
risks in the performance of their duties.
American criminals have a long tradition of
armed violence, and every year in this
country many law enforcement officers are
killed in the line of duty, and thousands
more are wounded. Virtually all of these
deaths and a substantial portion of the
injuries are inflicted with guns and knives.
30
Terry v. Ohio, 392 U.S. at 23–24. 16
This reasoning has informed numerous federal court decisions
upholding “a range of restraints incident to a stop, from the pat-down
at issue in Terry, to the drawing of firearms, to the use of handcuffs.”
United States v. Newton, 369 F.3d at 674 (internal citations omitted)
(collecting cases across circuits). 17 Indeed, such measures have been
16The harsh realities recognized in the last two quoted sentences remain an issue
a half-century later. The FBI reports that, in 2021, 73 officers were feloniously
killed in the line of duty, “a 58.7 percent increase compared to the 46 officers killed
in 2020 and the highest total since 2011”; 61 of those deaths were firearm-related,
an increase from the 41 firearm-related deaths in 2020. See Law Enforcement Officer
Deaths: 01/01/2021–12/31/2021, Fed. Bureau of Investigation (Jan. 1, 2022),
https://s3-us-gov-west-1.amazonaws.com/cg-d4b776d0-d898-4153-90c8-
8336f86bdfec/LEOKA_INFO.pdf.
17A trio of cases cited by the district court in which such restraint measures were
found to manifest arrest are not analogous. In United States v. Ceballos, officers
conducting a stop drew their guns without a reasonable basis to suspect that the
detained individual was armed and dangerous. 654 F.2d 177, 183–84 (2d Cir.
1981). But as the Eighth Circuit correctly recognized, Ceballos “does not establish
a per se rule that a display of weapons, even combined with blocking, transforms
a stop into an arrest.” United States v. Jones, 759 F.2d 633, 639 (8th Cir. 1985). What
rendered the force in Ceballos unreasonable for an investigatory stop was the
officers’ inability to articulate “facts which they had viewed as creating the need
for a greater show of force than usually associated with a Terry stop.” Id. By
contrast, here, the victim’s report of a recent armed crime provided officers with a
factual basis to suspect that the car’s occupants were armed and dangerous.
In United States v. Levy, the issue was whether a search occurred before or after an
arrest, for which the defendant conceded probable cause. 731 F.2d 997, 1000 (2d
Cir. 1984). Against this backdrop, this court held that a district court’s finding that
that the stop—in which a DEA agent drew his weapon, showed his badge, ordered
the detainee to freeze, and forced the detainee to “stand spread-eagle against a
wall”—constituted an arrest before the “formal words of arrest” had been spoken
was “not clearly erroneous.” Id. at 1000–01. Finally, in United States v. Moreno, the
government conceded that the circumstances constituted an arrest—requiring a
31
found reasonable “not ‘to discover evidence of crime,’ but to help law
enforcement ascertain whether a suspect has a weapon ‘which might
be used to harm the officer or others nearby.’” United States v. Weaver,
9 F.4th at 140 (quoting Minnesota v. Dickerson, 508 U.S. 366, 373 (1993)).
To be sure, these precedents do not categorically approve the use of
forceful restraints in every investigatory stop. We have continued to
stress that handcuffing and drawing weapons remain “hallmark[s] of
a formal arrest,” not a Terry stop. United States v. Bailey, 743 F.3d at
340 (citation omitted); see also United States v. Vargas, 369 F.3d 98, 102
(2d Cir. 2004) (noting that “[u]nder ordinary circumstances, drawing
weapons and using handcuffs are not part of a Terry stop” (alteration
in original) (citation omitted)). Thus, to conclude that the use of such
intrusive measures incident to an investigatory stop did not
transform the stop into an arrest requires a court’s “careful
consideration of the circumstances.” United States v. Bailey, 743 F.3d
at 339–40. Compare, e.g., id. at 340–41 (holding handcuffing incident
to investigatory stop not reasonable where detainees had been
removed from car and pat down demonstrated them to be unarmed),
with United States v. Newton, 369 F.3d at 675 (holding it reasonable
during investigatory stop to handcuff detainee, who had threatened
to kill mother, until gun believed to be on premises was located and
secured).
showing of probable cause—and not merely a frisk. 897 F.2d 26, 31 (2d Cir. 1990),
abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990). Thus, in
neither Levy nor Moreno did the government attempt to demonstrate reasonable
suspicion that the detainee was armed and dangerous so as to justify a heightened
use of force during an investigatory stop.
32
In applying these principles here, we are mindful that when
police ordered the Camaro to stop at the Mobil gas station, they were
investigating a report of menacing with a gun by persons still looking
for an identified target. The very nature of that criminal activity
provided officers with an articulable, reasonable basis to suspect that
the Camaro’s occupants might be armed and dangerous. This court
has repeatedly acknowledged that certain crimes, notably drug
trafficking, present a sufficient risk of violence to give rise generally
to a “genuine need of law enforcement agents to protect themselves
from the deadly threat [such crimes] may pose.” United States v.
Alexander, 907 F.2d 269, 273 (2d Cir. 1990). Even if no such conclusion
categorically applies to menacing as proscribed by New York law, it
does apply here, where the particular menacing crime under
investigation was reported to have been committed with a gun. See
United States v. Oates, 560 F.2d 45, 62 (2d Cir. 1977) (stating that
officer’s belief “that the suspect may be armed and dangerous can be
predicated on the nature of the criminal activity involved”). In these
circumstances, which support reasonable suspicion to think the
menacing assailants were armed and not hesitant to use firearms in
their possession, it was entirely appropriate for officers, in conducting
an investigatory stop of the Camaro, to take reasonable measures to
protect themselves and bystanders while they ascertained whether
the vehicle’s occupants fit the reported description of the armed
assailants and ensured that the occupants could not use any firearm
to cause harm.
The genuine need for such protection at the outset of the stop
was only reinforced by the fact that the persons to be investigated
were still inside the Camaro. As this court and the Supreme Court
33
have recognized, vehicle stops, particularly those investigating
criminal activity, are “especially fraught with danger,” both for police
officers and individuals. United States v. Weaver, 9 F.4th at 143
(quoting Michigan v. Long, 463 U.S. 1032, 1047 (1983)). That danger is
often best “minimized if the officers exercise unquestioned command
of the situation.” Id. (internal alterations and citation omitted); see also
United States v. Alexander, 907 F.2d at 273 (citing Michigan v. Long, 463
U.S. at 1047–49) (recognizing car stops as “especially hazardous and
support[ing] the need for added safeguards”).
The police measures taken here to exercise unquestioned
command of a situation in which potentially armed suspects were still
inside a stopped vehicle included: (1) having three (and eventually
four) officers at the scene; (2) blocking the vehicle’s rear exit from the
gas station; (3) using a loudspeaker or shouted voice to order suspects
to exit the vehicle; and (4) pointing police firearms, including an AR-
15 semi-automatic rifle, at the stopped vehicle. In the circumstances
here, we easily conclude that the first three measures, considered
collectively, were not so excessive as to convert the challenged stop
into a de facto arrest.
First, having police officers outnumber suspects—here only
modestly—is a reasonable protective measure when conducting an
investigatory stop, particularly of persons reasonably suspected to be
armed and dangerous. See United States v. Newton, 369 F.3d at 675
(rejecting argument that involvement of six officers in Terry stop of
single suspect threatening to kill mother manifested de facto arrest);
United States v. Garcia, 339 F.3d 116, 119 (2d Cir. 2003) (same in case in
which ten officers (as found by district court) participated in Terry
34
stop of two suspects); United States v. Alexander, 907 F.2d at 272–73
(same in case in which three officers participated in Terry stop of two
suspects in vehicle).
Second, while completely blocking in a suspect vehicle can
contribute to a finding of de facto arrest, see United States v. Marin, 669
F.2d 73, 81 (2d Cir. 1982); United States v. Ceballos, 654 F.2d 177, 184
(2d Cir. 1981), such action is not necessarily determinative, see United
States v. Perea, 986 F.2d at 644 (stating that use of police vehicles to
impede mobility of suspect’s car “does not necessarily mean that,
instead of a Terry stop, there was a de facto arrest”); see also, e.g., United
States v. Garcia, 339 F.3d at 119. 18 Importantly, here, police did not
completely block the Camaro; the officers’ vehicles were all parked
behind the Camaro and, thus, did not obstruct the Mobil station’s
Locust Avenue entrance/exit, which the Camaro could have accessed
18 In any event, when in Marin, this court found a de facto arrest where law
enforcement officers completely boxed in a car and, at gunpoint, pulled occupants
out of the vehicle, we there identified no factual basis to suspect that these persons
were armed and dangerous. United States v. Marin, 669 F.2d at 81–82. This case is
not analogous because, here, police had a reasonable basis to think the Camaro
occupants were armed and dangerous. Moreover, officers did not completely box
in the suspects’ car, and they pointed police weapons from a distance while
ordering the car’s occupants to exit under their own power.
In Ceballos, this court observed that the mobility of a motor vehicle did not justify
the tactics used because the suspect could have been stopped on the street before
he entered his car. See United States v. Ceballos, 654 F.2d at 184; see also United States
v. Jones, 759 F.2d at 639 (distinguishing Ceballos, in which “[t]he police tactics could
not be grounded in the dangers of approaching an automobile when it appeared
that the suspect could have been stopped on the street before he entered his car”).
No similar conclusion obtains here because when police first spotted the Camaro,
the car and its occupants were already mobile. Moreover, reports indicated that
the suspects might have been en route to locating a potential victim, circumstances
making it reasonable promptly to stop the Camaro.
35
simply by driving forward. See United States v. Nargi, 732 F.2d 1102,
1107 (2d Cir. 1984) (distinguishing Marin and Ceballos, in which
officers blocked suspect’s car in front and rear, “preventing any
movement”).
Third, the use of loudspeakers and then a shouted voice to
direct the Camaro’s occupants to exit the vehicle with their hands up
might well have been intimidating to the average person, powerfully
signaling no simple request but, rather, an unqualified order.
Nevertheless, the use of such high-volume means was a reasonable
protective action because it allowed officers to maintain some
distance between themselves and persons, still inside a vehicle,
reasonably suspected of being armed and dangerous. In such
circumstances, we cannot conclude that a lower-volume alternative—
such as going up to the Camaro, tapping on the window, and, in a
regular speaking voice, asking potentially armed occupants to exit—
was a viable alternative that police officers should have recognized
and employed to conduct a lawful investigatory stop under the
Fourth Amendment. 19
But these three actions were hardly the only force used. They
must be considered together with a fourth, and most forceful, action
taken by police from the inception of the Camaro’s detention:
pointing firearms at the vehicle. Like handcuffing, such a display of
deadly force is usually associated with an arrest. See United States v.
19Circumstances may bear differently in the Fifth Amendment context than in the
Fourth Amendment context. See United States v. Newton, 369 F.3d at 673–75
(explaining that Fifth Amendment custody determination considers how
circumstances appear to person being restrained while Fourth Amendment
reasonableness determination considers how circumstances appear to officer).
36
Vargas, 369 F.3d at 102. Nevertheless, as this court has long
recognized, a police display of firearms does not invariably denote
arrest. See, e.g., United States v. Garcia, 339 F.3d at 119 (“We have
previously rejected the argument that a Terry stop necessarily
becomes an arrest if the police ‘used their cars to block [defendant’s]
vehicle’ and ‘approached [the] stopped car with guns drawn in order
to protect themselves and bystanders.’” (alterations in original)
(quoting United States v. Perea, 986 F.2d at 644)); United States v. Nargi,
732 F.2d at 1106 (“A display of guns by the police, however, does not
automatically convert a stop into an arrest.”); United States v. Harley,
682 F.2d 398, 401 (2d Cir. 1982) (holding officer not “precluded from
displaying a weapon unless he has probable cause to make an arrest”
and that “[i]t would be a sad day for law enforcement officers if a per
se rule to the contrary were now adopted”). Such force can be a
reasonable protective measure for an investigatory stop when there is
a basis for thinking that suspects are armed and dangerous. 20 This is
such a case.
To explain, we must reiterate observations already made.
Officers stopped the Camaro because it fit the description of the
vehicle used during a recent armed crime and had just been spotted
20Our sister circuits have similarly so ruled. See, e.g., United States v. Trullo, 809
F.2d 108, 113 (1st Cir. 1987); United States v. Johnson, 592 F.3d 442, 447–48 (3d Cir.
2010); United States v. Bull, 565 F.2d 869, 870 (4th Cir. 1977); United States v.
Maslanka, 501 F.2d 208, 213 & n.10 (5th Cir. 1974); United States v. Lane, 909 F.2d
895, 899 (6th Cir. 1990); United States v. Chaidez, 919 F.2d 1193, 1198–99 (7th Cir.
1990); United States v. Jones, 759 F.2d at 640–41 [8th Cir.]; United States v. Greene, 783
F.2d 1364, 1367–68 (9th Cir. 1986); United States v. Merritt, 695 F.2d 1263, 1272–74
(10th Cir. 1982); United States v. Roper, 702 F.2d 984, 987–88 (11th Cir. 1983); United
States v. White, 648 F.2d 29, 34–35 (D.C. Cir. 1981).
37
leaving the scene of that crime. The purpose of the stop was to
determine whether the vehicle’s as-yet-unseen occupants fit the
description of the crime’s perpetrators and, if they did, to investigate
further their possible involvement in that crime. Given that the crime
under investigation involved the use of a firearm, such an inquiry was
necessarily fraught with danger for investigating officers. Moreover,
the danger was compounded because, at the inception of the stop,
occupants were still inside the vehicle and, thus, could not readily be
prevented from accessing or using the firearm then reasonably
suspected to be in their possession. In these circumstances, safe
pursuit of the investigation prompting the stop permitted officers,
first, to have the occupants exit the vehicle and, then, if they fit the
description of the menacing assailants, to take appropriate further
measures to ensure that they could not access any weapons.
While ordering occupants out of a vehicle can be a “reasonable
step[] to ensure safety” during a lawful stop, United States v. Weaver,
9 F.4th at 143, the process itself may pose a risk of danger to the
officers where, as here, occupants were reasonably suspected of being
in possession of a gun, which they could have fired at officers as they
exited the Camaro, see Terry v. Ohio, 392 U.S. at 23–24 (acknowledging
frequency with which armed criminals kill or wound police officers
in line of duty); see also supra n.16. A reasonable suspicion that the
Camaro’s occupants might do so here was heightened by the
assailants’ reported willingness to use a gun during the menacing
crime. Further heightening that suspicion was the occupants’ delay
in responding to police directions to exit or put their hands outside
the vehicle while officers observed Patterson appear to reach for
something in the car. A police officer is not required to assume that
38
such furtive action had an innocent explanation, see United States v.
Weaver, 9 F.4th at 140, nor is he required to assume that a suspect
willing to brandish a weapon would hesitate to fire it. As this court
has observed, the law does not “impose on law enforcement
personnel the [H]obson’s choice of keeping their guns holstered when
to do so increases the risk that they will be shot.” United States v.
Harley, 682 F.2d at 402 (internal alterations and quotation marks
omitted). Thus, to “exercise unquestioned command” of such a
volatile situation, United States v. Weaver, 9 F.4th at 143 (citation
omitted), it was reasonable for officers to position themselves and
their own firearms so as both to dissuade occupants from using any
firearms in their possession and to allow officers promptly to
respond, if necessary, to any life-threatening action by the car’s
occupants as they exited the vehicle. Aiming their weapons at the
Camaro was a reasonable way to ensure readiness to “neutralize the
threat of harm if it materialized.” Terry v. Ohio, 392 U.S. at 30; accord
United States v. Newton, 369 F.3d at 674 (quoting this language from
Terry in recognizing range of restraints, including “drawing of
firearms,” as permissible to neutralize threat “without converting a
reasonable stop into a de facto arrest”); United States v. Alexander, 907
F.2d at 273 (holding it reasonable for officers conducting Terry stop to
unholster firearms when conducting investigatory stop of persons
suspected of recent drug transaction).
Moreover, it does not appear that the officers unreasonably
failed to recognize and employ less forceful, but equally effective,
alternative means of protecting themselves and bystanders at the
initiation of the detention. See United States v. Sharpe, 470 U.S. at 687–
88. The district court did not identify such an alternative, and
39
Patterson fails to prescribe one even on appeal. Cf. United States v.
Gori, 230 F.3d 44, 55 (2d Cir. 2000) (observing, in rejecting Terry stop
challenge, that dissenter “fail[ed] to prescribe what the police should
have done within the proper parameters of the Constitution”). Oral
commands—even at high volume—would not provide such
protection, particularly where, as here, oral exit commands went
ignored for approximately one minute, during which time one officer
saw the Camaro’s driver (Patterson) handling something in the car
that could have been a gun. And, of course, until occupants exited
the vehicle, there was no possibility of police safely frisking them to
ensure that they were unarmed, much less of handcuffing them. Nor
would it have been reasonable for officers to have followed the
Camaro and waited until its occupants exited the vehicle of their own
volition before initiating an investigatory stop. Facts known to the
officers supported a reasonable belief that the Camaro’s occupants
posed an ongoing, armed threat to a known individual, which
warranted swift intervening action by police. In any event, wherever
officers initiated an investigatory stop, because the occupants fit the
description of the menacing assailants, police would have had
heightened reason to suspect that they were armed and dangerous.
Thus, when the occupants exited the vehicle at the Mobil
station, police suspicions that they might be armed and dangerous
were reinforced. 21 At that point, frisking might have ensured that the
two men had no guns on their persons, see United States v. Bailey, 743
21 Had the vehicle’s occupants not fit the description of the menacing assailants,
e.g., had they been the teenager or grandfather hypothesized by the district court,
see Joint App’x at 268, there would no longer have been reasonable suspicion for
the stop, much less for officers to use forceful means to conduct it.
40
F.3d at 340 (holding that once frisk revealed suspected drug trafficker
unarmed, handcuffing was unnecessary to conduct stop safely and,
thus, transformed detention into arrest), and handcuffing might have
prevented them gaining access to the as-yet-unlocated handgun
reasonably—and it turned out, correctly—suspected still to be in their
possession, see United States v. Newton, 369 F.3d at 675 (holding
handcuffing while police searched for firearm thought to be on
premises less intimidating and dangerous than holding suspect at
gunpoint). But to take either of these actions, officers had to walk
from their own vehicles to the Camaro, exposing themselves, even if
only briefly, to the risk of being shot. In these circumstances, it was
reasonable for State troopers standing several feet away to keep their
weapons aimed at the Camaro and its occupants at least until their
fellow officers—who had lowered, then holstered their own
handguns—safely reached the Camaro and secured its occupants. 22
Here, however, officers were not then able to secure Patterson
because, undeterred by the troopers’ aimed weapons, he fled the
scene. Thus, with officers unable to frisk or cuff Patterson, reasonable
suspicion to think that he was armed and dangerous continued
through his apprehension and arrest, particularly as DiRienzo
testified that Patterson appeared to have had something in his hand
as he fled.
To the extent Patterson suggests that the officers crossed the
line from stop to arrest by pointing rather than simply unholstering
22As noted supra at 11, after Officer DiRienzo and one State trooper chased
Patterson, the State trooper remaining at the scene with Officer Wirth did, in fact,
secure his weapon as soon as Wirth successfully handcuffed Smalls.
41
or otherwise displaying their guns, we are not persuaded. For
unholstering or otherwise displaying a firearm to be a reasonable
protective measure in the execution of an investigatory stop, the
suspected risk of danger must already be significant, if not life-
threatening. Thus, in cases of such danger, this court appears, to date,
not to have drawn any categorical, bright lines distinguishing among
unholstering, displaying, and pointing a firearm.23 For example, in
United States v. Garcia, when we affirmed a district court ruling that a
Terry stop was not transformed into a de facto arrest by officers having
their “guns drawn and aimed,” No. 01-CR-35, 2001 WL 1297791, at *6
(S.D.N.Y. Oct. 25, 2001) (emphasis added), we stated simply that the
officers “drew their guns,” making no mention of the finding that
they were aimed, 339 F.3d at 119. See also, e.g., United States v. Perea,
986 F.2d at 636, 644–45 (concluding that Terry stop was not de facto
arrest at inception merely because officers “approached a stopped car
with guns drawn,” where court noted defendant’s testimony that
officer “pointed a revolver at him”). But see United States v. Jackson,
652 F.2d 244, 249 (2d Cir. 1981) (upholding as reasonable
investigatory stop in which officer drew weapon, noting that nothing
in record indicates he “ever pointed it” at suspect). 24
23Indeed, hindsight efforts to distinguish between a drawn gun and a pointed one
could invite litigation by protractor, with parties disputing whether a gun was
held at a sufficiently downward angle to qualify as “drawn” or raised sufficiently
to qualify as “pointed.”
24For several decades, circuit courts have upheld as reasonable Terry stops during
which police pointed guns at persons reasonably suspected of being armed and
dangerous. See, e.g., Foote v. Dunagan, 33 F.3d 445, 447–48 (4th Cir. 1994); United
States v. Sanders, 994 F.2d 200, 204–05 (5th Cir. 1993); Houston v. Clark Cnty. Sheriff
42
We do not foreclose the possibility that, in certain
circumstances, whether a police firearm was drawn or pointed may
inform the reasonableness of a stop. But the critical question remains
the same: Can the officer “point to specific and articulable facts
which, taken together with rational inferences from those facts, . . .
warrant a man of reasonable caution in the belief that” the officer’s
conduct in “neutraliz[ing] the threat of physical harm” was
appropriate based on “the facts available to the officer at the moment
of the seizure”? Terry v. Ohio, 392 U.S. at 21–22, 24 (internal quotation
marks omitted). Here, the fact that the crime under investigation had
been committed with a gun supported officers’ reasonable suspicion
to think the Camaro’s occupants—reasonably suspected of being the
crime’s perpetrators—might be armed and dangerous. This suspicion
warranted initially aiming firearms at the vehicle to safeguard officers
Deputy John Does 1–5, 174 F.3d 809, 812, 814–15 (6th Cir. 1999); United States v.
Serna-Barreto, 842 F.2d 965, 967–68 (7th Cir. 1988); United States v. Seelye, 815 F.2d
48, 50 (8th Cir. 1987); United States v. Taylor, 716 F.2d 701, 708 (9th Cir. 1983); United
States v. Merritt, 695 F.2d at 1272–74 [10th Cir.]; Courson v. McMillian, 939 F.2d 1479,
1492–93 (11th Cir. 1991); United States v. Clark, 24 F.3d 299, 303–04 (D.C. Cir. 1994).
We note that Clark postdates the D.C. Circuit’s decision in United States v. White, in
which the court stated that a “reasonable person would indeed distinguish
between the implications of policemen approaching with guns at their side and
policemen approaching with guns leveled at the subjects.” 648 F.2d at 34 n.27. As
we stated supra n.19, a reasonable person’s perception may well bear on custody
inquiries under the Fifth Amendment.
Other courts have deemed Terry stops conducted at “gunpoint” reasonable
without specifying whether officers’ guns were drawn or actually aimed at
suspects. See, e.g., United States v. Pontoo, 666 F.3d 20, 30–31 (1st Cir. 2011) (noting
that “Terry stop appropriately may involve . . . effecting a stop at gunpoint”);
United States v. Torres, 961 F.3d 618, 623 (3d Cir.) (highlighting absence of “per se
rule that pointing guns at people . . . constitutes an arrest” (citation omitted)), cert.
denied, 141 S. Ct. 936 (2020).
43
and bystanders while occupants exited. Moreover, officers’ suspicion
would reasonably have increased as the occupants failed promptly to
obey police exit orders; engaged in furtive behavior in the car; and,
on exiting, confirmed that they fit the description of the sought
menacing assailants. In these circumstances, it was reasonable for
officers to frisk and handcuff the occupants to ensure that they could
not access the firearm reasonably thought to be in their possession.
That endeavor, however, was itself sufficiently fraught with danger
to preclude a court from holding it unreasonable for other officers to
continue to cover their colleagues with pointed firearms rather than
with guns only displayed.
Nor is a different conclusion warranted because one of the guns
so aimed was an AR-15 rifle. This court has previously upheld as
reasonable incident to a Terry stop police use of weapons of similar
caliber to the AR-15. See United States v. Nargi, 732 F.2d at 1106–07
(deeming police use of shotgun reasonable during Terry stop).
In sum, we conclude that, in the circumstances of this case, the
high degree of force used by police in detaining a Camaro and its
occupants on January 30, 2019, was reasonable for purposes of safely
conducting an investigatory stop—at least until the occupants exited
the vehicle, were seen to fit the description of the sought armed
assailants, and were appropriately restrained to prevent them from
accessing any weapons. Thus, the use of force in this case did not
transform that stop into an unlawful de facto arrest warranting
suppression of evidence seized from the Camaro, including a loaded
Makarov pistol.
44
II. The Search of the Camaro Was Otherwise Lawful
Having concluded that the evidence seized in this case was not
the fruit of an unlawful arrest, we consider whether suppression was
nevertheless warranted on other grounds, specifically, a lack of
probable cause to support a search of the vehicle’s interior. The
district court did not consider this question. Although we generally
refrain from addressing issues not decided in the first instance by the
district court, this rule is prudential, and we have broad discretion to
consider issues that were briefed and argued in the district court, even
if not decided there. See Baker v. Dorfman, 239 F.3d 415, 420–21 (2d
Cir. 2000). In United States v. Gomez, we opted not to exercise our
discretion where the record left us “with insufficient factual findings
upon which to base a conclusion concerning reasonable suspicion.”
877 F.3d 76, 93 (2d Cir. 2017). By contrast, here, the relevant facts
known to the officers when they searched the Camaro’s interior are
undisputed. In such circumstances, the question of probable cause is
a matter of law that we can decide. See id. at 92 (stating that appellate
court more likely to reach issue not addressed by district court where
“issue is purely legal and there is no need for additional fact-finding”
(internal quotation marks omitted)); Walczyk v. Rio, 496 F.3d at 157 (“It
has long been recognized that, where there is no dispute as to what
facts were relied on to demonstrate probable cause, the existence of
probable cause is a question of law for the court.”); see also, e.g., United
States v. Wallace, 937 F.3d 130, 137 n.2 (2d Cir. 2019) (exercising
discretion to consider whether traffic stop was unconstitutionally
prolonged, question unaddressed by district court but requiring no
additional fact-finding and, thus, presenting only questions of law).
45
At the outset, we note that while the Fourth Amendment
generally requires police to obtain a warrant before conducting a
search, an “automobile exception” to this rule permits police “to
conduct a warrantless search of a readily mobile motor vehicle if
probable cause exists to believe the vehicle contains contraband or
other evidence of a crime.” United States v. Gagnon, 373 F.3d at 235
(quoting United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004)); accord
United States v. Jones, 893 F.3d 66, 70 (2d Cir. 2018). When stopped at
the Mobil gas station, the Camaro was a readily mobile motor vehicle
with access to the station’s Locust Avenue exit. Thus, the lawfulness
of the car search depends on whether it was supported by probable
cause.
While more demanding than reasonable suspicion, “[p]robable
cause is not a high bar.” District of Columbia v. Wesby, 138 S. Ct. 577,
586 (2018) (internal quotation marks omitted). It requires that “the
facts and circumstances within the officers’ knowledge and of which
they had reasonably trustworthy information are sufficient . . . to
warrant a man of reasonable caution in the belief that evidence of a
crime will be found in the place to be searched.” United States v. Jones,
893 F.3d at 71 (internal alterations and quotation marks omitted). To
find probable cause, officers are not required “to rule out . . . innocent
explanation[s] for suspicious facts.” District of Columbia v. Wesby, 138
S. Ct. at 588. As the Supreme Court in Wesby explained, “the relevant
inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but
the degree of suspicion that attaches to particular types of
noncriminal acts.” Id. (internal quotation marks omitted).
46
When officers here searched the interior of the Camaro, they
knew all the facts detailed supra at 19–20, which, as we have already
explained, supported reasonable suspicion to think that the Camaro’s
occupants may have committed one armed crime and been pursuing
another. By the time of the search, investigating officers also knew
that,
1. occupants of the Camaro did not immediately respond to
police exit orders;
2. during that period of delay, the driver (Patterson)
appeared to reach behind the back seat and under the
steering wheel;
3. when the occupants finally exited the car, officers could
see that they fit the described number (two), sex (male),
and race (black) of the menacing assailants; and
4. when police attempted to handcuff the occupants, the
passenger-side occupant submitted, but Patterson fled the
scene, with what appeared to be an object in his hand.
Considering the totality of facts, we conclude that, at the time
of the Camaro search, officers had probable cause to think that
evidence of criminal activity would be found in the vehicle. See, e.g.,
United States v. McKenzie, 13 F.4th 223, 236 (2d Cir. 2021) (stating that
probable cause determined by reference to totality of circumstances).
First, officers knew from the victim that, while in a ShopRite
parking lot, she had been threatened with a firearm to reveal the
location of an identified target sought by her assailants. Further,
officers knew that, at the time of the armed menacing, the assailants
47
were driving a black or dark gray Camaro or Challenger. This
information supports probable cause to think that, if that particular
vehicle could be located, evidence of criminal activity would be found
therein, not only materials confirming gun possession or use, such as
ammunition, holsters, or even firearms themselves, but also physical
materials or electronic devices linking the car’s operators to the
menacing victim or target, or revealing a motive for seeking the
target. The basis to think such evidence would be found in the vehicle
was only bolstered by facts admitting a reasonable inference that the
menacing crime had recently occurred and that the perpetrators were
then pursuing another victim. See supra at 25–26. Such circumstances
made it improbable that the perpetrators would already have
removed or otherwise disposed of incriminating evidence.
Second, officers knew that Camaros and Challengers were car
models infrequently seen on local roads, particularly in winter. They
also knew that the persons using such a vehicle during the recent
menacing had been described as two black men. Thus, when,
approximately ten minutes after first receiving a dispatch report of
the armed crime, Officer Wirth spotted what he perceived to be a
black Camaro leaving the ShopRite parking lot that was the scene of
the crime, and when the occupants of that car turned out to be two
black men, officers had probable cause to think that the vehicle was,
in fact, the one driven by the menacing assailants and, thus, that it
contained evidence of criminal activity. 25 This conclusion was
25As these facts indicate, it was not the occupants’ race alone that supported
probable cause to think that the car they were driving was the one used during the
reported armed crime. Rather, it was that fact together with the (1) number and
48
reinforced by the fact that, shortly before Wirth spotted the Camaro,
Officer DiRienzo reported seeing no such vehicle at the victim’s
residence, a location where officers thought it might have gone in
search of the identified target.
Third, further supporting probable cause to think that
incriminating evidence would be found in the stopped Camaro were
Patterson’s furtive actions upon being ordered to exit the vehicle. Our
recent observation in United States v. Weaver that “[u]nusual, evasive,
or furtive behavior, especially in the presence of law enforcement, is
often a critical factor in the reasonable suspicion analysis,” 9 F.4th at
147, applies equally to the probable cause analysis, see District of
Columbia v. Wesby, 138 S. Ct. at 587 (identifying “furtive actions” as
factor contributing to probable cause); United States v. Moreno, 701
F.3d 64, 74 (2d Cir. 2012) (deeming “deliberately furtive actions”
proper factor in probable cause analysis (quoting Sibron v. New York,
392 U.S. 40, 66–67 (1968))). Rather than promptly follow officers’ exit
orders, Patterson remained in the vehicle, where he appeared to be
reaching for something behind the back seat and under the steering
wheel. Such conduct made it probable that the “something” was
either a weapon that Patterson was looking to access or conceal or
some other incriminating evidence. Finally, when Patterson did exit
the car, rather than submit to handcuffing, he fled the scene. “We
have long recognized flight as an appropriate factor supporting a
(2) sex of the occupants in a vehicle (3) whose color and model fit the description
of the suspect car, (4) which model was infrequently seen on local roadways, and
(5) which vehicle was spotted exiting the parking lot that had earlier been the scene
of the crime. Further, as we explain in text, still other facts pertaining to
Patterson’s conduct also supported probable cause.
49
finding of probable cause to search a vehicle after it is stopped.”
United States v. Babilonia, 854 F.3d 163, 179 (2d Cir. 2017). The
Supreme Court agrees. See District of Columbia v. Wesby, 138 S. Ct. at
587 (identifying “flight” as factor contributing to probable cause).
Nor is a different conclusion warranted because Patterson
appeared to have something in his hand as he fled. While the item in
question may have been a gun, that was by no means a certainty. In
any event, police were not required to eliminate that possibility in
order to conclude that the totality of circumstances established a
probability that one or more firearms, ammunition, or items
confirming gun possession would be found in the Camaro, as well as
other evidence incriminating the car’s occupants in the reported
armed criminal activity under investigation. See generally id. at 588.
In sum, the totality of information possessed by police officers
prior to searching the interior of the Camaro was sufficient to
establish probable cause to think that incriminating evidence would
be found therein. Thus, the search was lawful under the automobile
exception to the warrant requirement and provides no ground for
suppressing seized evidence such as the loaded Makarov pistol.
Having so found, we need not consider the government’s alternative
inevitable-discovery argument.
CONCLUSION
To summarize, we hold,
(1) Evidence seized from a Camaro being driven by
Patterson on January 30, 2019, including a Makarov
pistol, should not have been suppressed as the fruit of an
50
unlawful de facto arrest because the detention of the
vehicle and its occupants was, from its inception, a
lawful investigatory stop.
(2) The investigatory stop was lawful because:
(a) it was supported by reasonable suspicion to think that
the car and its occupants had participated in a
recently reported armed crime and were pursuing
further criminal activity; and
(b) the high degree of force used in carrying out the
stop—four officers, impeding rear but not front
movement of the Camaro, issuing exit orders at high
volume, and pointing firearms at the vehicle—was
supported by reasonable suspicion to think the
vehicle’s occupants were armed and dangerous,
particularly before the occupants were sufficiently
restrained to prevent them gaining access to one or
more firearms then reasonably suspected to be in
their possession.
(3) The search of the Camaro’s interior was lawful under the
automobile exception to the warrant requirement
because the vehicle was mobile, and the search was
supported by probable cause.
Accordingly, the December 27, 2019 order memorializing the
district court’s October 30, 2019 oral ruling suppressing evidence
seized from the Camaro is REVERSED, and this case is REMANDED
for further proceedings consistent with this opinion.
51