A man’s arrest on Federal gun charges following an early morning stop and subsequent frisk in The Bronx last year by NYPD officers was lawful, a U.S. District Judge has ruled.
Judge Paul A. Engelmayer, of the Southern District of New York, July 15 dismissed contentions by Michael Hagood, a Brentwood resident, that officers violated his Fourth Amendment rights against unreasonable searches and seizures after they uncovered a loaded semi-automatic in his fanny pack following a brief scuffle.
Blue in Blood 'Hood
About 1 a.m. October 14 last fall, Mr. Hagood, then 39 years old, was standing on Webster Ave. in Morrisania in between parked cars speaking with two acquaintances.
Four NYPD officers patrolling the neighborhood, which has been beset by violent crime, most of it gang-related, spotted the trio, but zeroed in on Mr. Hagood, who was wearing a fanny pack wrapped tightly across his chest and, conspicuously in known Blood territory, a bright blue sweatshirt.
At least one of the cops, all four of whom were assigned to Police Service Area 7’s Public-Safety Team, thought he detected the outlines of a gun in the pack. The officers would later testify that as they passed by, Mr. Hagood seemed unnerved and appeared to freeze with a “deer-in-the-headlights” look.
That only increased their suspicion that he was carrying a firearm. They moved to stop and question him.
Although boxed in by parked cars and all four officers, Mr. Hagood turned to flee, the officers would later say, and while he initially struggled to get free of their grasp, he was soon subdued and handcuffed, but not before one of the officers felt what he believed to be a firearm inside the fanny pack.
Two Packs, One 'Nine'
Their suspicions were confirmed once they opened the pack: Inside they found two packs of cigarettes and a loaded Hi-Point semi-automatic 9mm pistol.
The suspect was taken to PSA 7 and, following questioning and a pat-down, the two other men were released.
Mr. Hagood, who served four and half years in state prison following a 2009 conviction on drug-possession charges, was also subsequently freed. But less than two months later, he was rearrested following a grand jury indictment on a Federal charge of being a felon in possession of a firearm.
'Screams for Suppression'
The defendant, through his attorney, would later contend that the officers had no right reason to search him or even to arrest him. The complaint, his attorney said during his Dec. 10 arraignment, “screams for a suppression hearing.”
Mr. Hagood and his attorney contended that the officers lacked reasonable suspicion to stop him, frisk him or pat down his pack. The lawyer further argued that even if they were justified in stopping his client, his de facto arrest when he was handcuffed lacked probable cause, and that therefore the officers’ search of his pack and recovery of the gun was the result of an unlawful seizure.
Judge Engelmayer, though, citing several precedents, including the 1968 case that gave its name to what would become known as a Terry stop, found the officers had acted within constitutional bounds when stopping and searching Mr. Hagood and then seizing the 9mm handgun.
The Judge said the officers were justified in seizing Mr. Hagood since they had a reasonable suspicion that he was engaged in illegal activity based on several factors, including that the fanny pack’s outline suggested it contained a gun and that he seemed nervous on seeing police roll by in their patrol car.
'More Than Just a Bulge'
The Judge also noted that where the arrest took place is known as a high-crime area punctuated by gang violence. That Mr. Hagood was wearing blue, a rival color in Blood territory, also suggested suspicion, he wrote.
“An observation of a generic ‘bulge’ under a suspect’s clothing is usually insufficient to supply reasonable suspicion that the item underneath is a form of contraband,” the Judge wrote, before citing precedent: “But where more is seen, the calculus changes, and observation of ‘an outline [of a firearm] can significantly contribute to a finding of reasonable suspicion’...Such is the case here.”
The NYPD did not respond to a request for comment regarding the ruling.
Judge Engelmayer, in outlining his reasons for why the so-called Terry stop was justified, alluded to a very recent case, also out of the Southern District, where a Judge suppressed discovery of a firearm by Yonkers police. In that case, police had cited the apparent weight of a fanny pack, rather than any outline.
Judge Goes for the Gun
To make the distinction, and “desirous of subjecting to proof” one officer’s judgment, Judge Engelmayer himself put on the fanny pack with the 9mm inside and found that the firearm “was easily—indeed, dramatically—visible.”
The Judge was therefore “firmly persuaded” that the gun’s outline was visible, that it was seen by the officer, “and that this observation and the consequent (and correct) perception that the pack housed a gun prompted the officer to immediately stop the patrol car to enable further investigation.”
That Mr. Hagood wore the fanny pack across his chest, as had other similarly charged defendants, rather than across his waist, and that he became agitated when the officers drove by. convinced Judge Engelmayer that the officers met the reasonable-suspicion threshold, he wrote.
He also noted that the officers’ “credibly testified” that their experience as cops, and especially their familiarity with the area’s propensity for violent gang activity, “reinforced their suspicion that Hagood possessed a firearm.”
That Time of Night
“Although the officers did not expressly testify that the time of night (1 a.m.) contributed to their suspicion, Officer Migliaccio did testify that he was able to observe Hagood more closely because there were ‘not a lot of cars on the road or obstructions,’ ” he wrote. “And case law supports that a late-night hour may support suspicion of wrongdoing.”
The Judge concluded that “the same facts” provided the officers with reasonable suspicion that justified their subsequent protective frisk, which led to the discovery of the weapon.
“That is because the crime which the evidence reasonably indicated Hagood was committing was gun possession,” he wrote.
The Judge found arguments from Mr. Hagood’s attorney that his arrest was unlawful because they lacked probable cause “unpersuasive” given, in part, that “assembled evidence” before he was handcuffed “gave the officers probable cause to conclude that Hagood possessed a firearm.”
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