that, as a convicted felon, he would be sent back to prison if he
were caught carrying a handgun. See Tr. at 108. I conclude it
was this knowledge, rather than the fear of being robbed, that
motivated Stone to flee when Officer Denver first addressed him.
Finally, some aspects of Stone's testimony simply strain
credulity. Specifically, Stone testified that he never, ever
adjusted his pocket as he walked, id. at 105, 107; that he did
not hear the officers get out of the car, even after testifying
the car was within five feet of him when the officers stepped out
from it into the lot, id. at 115; and that he first realized
that Officer Denver and Detective Martin were police officers
when they subdued him at the fence. Id. at 85. None of these
assertions have the ring of truth.*fn10
The defendant seeks to suppress the seized handgun, claiming
that the stop violated the Fourth Amendment to the United States
Constitution. The Government contends that Officer Denver and
Detective Martin conducted a lawful investigative stop when they
seized the defendant at the fence and that this stop was based
upon reasonable suspicion that Stone was engaged in criminal
A. Requisite Elements of a Lawful Investigative Stop
The Second Circuit Court of Appeals has identified three levels
of interaction that may take place between law enforcement
officers and private citizens. These include: consensual
encounters; investigative detentions; and arrests. See United
States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995). The Government
contends that the defendant was subjected to a lawful
investigative detention when the officers seized him at the
fence; the defendant disagrees.
It is settled law that a police officer may initiate a
consensual encounter with a private citizen in a public forum,
for any reason, without violating the Fourth Amendment. See
United States v. Hooper, 935 F.2d 484, 490 (2d Cir. 1991).*fn11
Citizens thus approached remain free not to answer an officer's
questions, however, and cannot be detained for their failure to
respond. Id. The test for determining when a consensual
encounter has become impermissibly coercive is "whether a
reasonable person would have felt free to decline the officers'
requests or otherwise terminate the encounter." Florida v.
Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389
Investigative detentions, so-called Terry stops, may be
employed on more limited grounds. Police officers can make
investigative stops only when they have "reasonable suspicion"
that criminal activity is underway. See Terry v. Ohio,
392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v.
Gomez, 633 F.2d 999, 1004 (2d Cir. 1980). According to this
standard, a detaining officer must be "`aware of specific
articulable facts, together with rational inferences from those
facts, that reasonably warrant suspicion' that a suspect is
engaged in criminal activity." United States v. Jackson,
652 F.2d 244, 248 (2d Cir. 1981) (quoting United States v.
Brignoni-Ponce, 422 U.S. 873,
884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)); see also United
States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1
(1989) (officer "must be able to articulate something more than
inchoate and unparticularized suspicion or `hunch'"). The
reasonableness of an officer's suspicion must be tested against
the backdrop of the totality of circumstances surrounding a
challenged stop. See Alabama v. White, 496 U.S. 325, 330, 110
S.Ct. 2412, 110 L.Ed.2d 301 (1990); United States v. Salazar,
945 F.2d 47, 50 (2d Cir. 1991).
B. The Seizure Was Lawful Because It Was Based Upon Reasonable
The Government cites several articulable factors as sufficient
to give rise to a reasonable suspicion that Stone was engaged in
or about to be engaged in criminal activity. These factors
include the officers' observation that Stone was carrying
something heavy in his pocket; that he touched this object
repeatedly as he walked; that he fled after Officer Denver
identified himself as a police officer; and that he clutched an
object in his pocket as he ran away. See Govt. Mem. at 5. I am
persuaded that these factors, especially the fact that the
defendant fled without reason, are indeed sufficient to justify
an investigative stop and, where reasonable for the detaining
officers' protection, a cursory sweep for weapons.