The opinion of the court was delivered by: John Gleeson, District Judge
Defendant Anthony McCrae, charged with illegal possession of a firearm, moves to suppress the fruits of an investigative detention as unconstitutionally obtained. For the reasons set forth below, the motion is granted.
On September 16, 2007, Police Officer Kaz Daughtry, a relatively junior officer employed by the New York City Police Department, was performing quality of life patrol in the 73rd Precinct in Brooklyn in plainclothes in an unmarked car with two other police officers, one of whom was in uniform. At approximately 3:00 AM, Daughtry observed a group of ten to fifteen individuals (males and females) standing in the playground outside of 265 Livonia Avenue, which is part of the Tilden Houses, a public housing project under the jurisdiction of the New York City Housing Authority. Daughtry knew the location to have a history of robberies and drug sales, and had made an arrest for possession of a firearm approximately 50 to 80 feet away several weeks earlier.
Daughtry stated that the individuals he observed on September 16, 2007 were talking loudly and at least one of them was using marijuana. As Daughtry pulled up, he observed McCrae shake hands with several members of the group and walk away. It is unclear from the officer's testimony whether McCrae began shaking hands before or after becoming aware of the officers, but it was Daughtry's impression that McCrae left at the sight of the officers. McCrae walked at a normal pace directly away from the police car. Daughtry exited the car and walked towards McCrae, who continued at the same pace away from him.
Daughtry testified that when he was approximately 30 feet behind McCrae,*fn2 he observed McCrae, who was still walking away, move his hand as if moving an object from the center of his stomach to the left side of his waistband. Daughtry stated that he believed McCrae was moving a firearm from the center of his waistband to the side of the waistband, even though from his vantage point 30 feet behind McCrae he could not see a firearm. Daughtry based his conclusion on the fact that he himself has made similar movements when adjusting his own firearm when he was in plainclothes. He also observed other officers in plainclothes make similar movements on approximately five other occasions.
Daughtry claimed that his methodology of observing police officer movements and watching civilians to see if they made such movements was described in an article he was provided at the Police Academy. The article recounts the experience of a police officer who made numerous arrests for firearms based on observing telltale signs he learned from watching criminals and other police officers. See Erik Eckholm, Who's Got A Gun? Clues Are In the Body Language, N.Y. Times, May 26, 1992. Daughtry stated that he attempted to emulate the methodology used by the police officer in the article. When I asked about the rate of return yielded by this technique, he said that he tested the technique over a three-day period in which he made 30 to 50 stops based on telltale movements he identified using the methodology described in the article. Of these 30 to 50 stops, only one individual had a firearm. In response to further questioning by counsel for the government, Daughtry claimed that none of the 30 to 50 people he had stopped using this methodology had made the distinctive movement of their hand from the center to the left of their waistband that he observed McCrae make.
Daughtry claimed that he believed based on his observations that McCrae had a gun and was preparing for a "fight or flight" response. Suppression Hr'g Tr. 13. Daughtry did not testify that he drew his firearm and did not indicate whether either of the two other officers he was on patrol with ever exited their vehicle or assisted him. Daughtry said "police, stop," and McCrae immediately stopped and turned around while Daughtry approached to within arm's reach. When McCrae turned, Daughtry observed for the first time a bulge under McCrae's oversized black T-shirt. He believed that this bulge was the butt of a pistol with the barrel pointed down and the stock protruding forward.
McCrae stated that he was armed and claimed that he was a bail bondsman licensed to carry a firearm.*fn3 Daughtry retrieved the pistol and arrested him.
The Fourth Amendment forbids the government from violating "[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. It does not "proscribe all searches and seizures, but only those that are unreasonable." Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 619 (1989). A warrantless search or seizure is "per se unreasonable" unless it falls within "one of the few established and well-delineated exceptions" to the warrant requirement. United States v. Streifel, 665 F.2d 414, 419-20 (2d Cir. 1981). One such exception is the exception for temporary investigative detention and protective pat-down searches in street encounters, known colloquially as the "stop and frisk" exception. Id. at 420 (citing Terry v. Ohio, 392 U.S. 1 (1968)).
The government concedes that McCrae was seized for Fourth Amendment purposes when Daughtry said "police, stop" and McCrae stopped. See, e.g., Kaupp v. Texas, 538 U.S. 626, 629 (2003) ("A seizure of the person within the meaning of the Fourth Amendment occurs when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991) (quotation marks omitted))). Whether the stop is justified depends on whether Daughtry, prior to saying "police, stop," had reasonable suspicion that McCrae was committing a crime.*fn4
See, e.g., United States v. Arvizu, 534 U.S. 266, 273 (2002) ("[T]he Fourth Amendment is satisfied if the officer's action [i.e., brief investigatory detention] is supported by reasonable suspicion to believe that criminal activity may be afoot." (internal quotation marks omitted)); see also Adams v. Williams, 407 U.S. 143, 146 (1972) (noting that frisk can only be lawful if forcible stop is lawful). In determining whether reasonable suspicion exists, I am obliged to consider the "totality of the circumstances" in order to determine whether the officer has "a particularized and objective basis for suspecting wrongdoing." Arvizu, 534 U.S. at 274 (internal quotation marks omitted).
The government argues that McCrae's presence in a high-crime area and departure upon seeing the officers raised Daughtry's level of suspicion. Gov.'s Mem. Opp. Mot. Suppress 11-12. While flight upon seeing police officers can give rise to reasonable suspicion if it occurs in a high-crime area, see Illinois v. Wardlow, 528 U.S. 119, 124 (2000) ("Headlong flight . . . is the consummate act of evasion"), it is clear, and I find, that McCrae's behavior fell well short of this threshold, cf. id. at 125 ("'[R]efusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.'" (quoting Bostick, 501 U.S. at ...