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The People &C v. Ernest Brannon

May 5, 2011

THE PEOPLE &C., RESPONDENT,
v.
ERNEST BRANNON, APPELLANT.
THE PEOPLE &C., RESPONDENT,
v.
JOSE FERNANDEZ, APPELLANT.



The opinion of the court was delivered by: Pigott, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In these appeals, we are asked to decide the level of knowledge a police officer must possess before, consistent with the principles articulated in People v DeBour (40 NY2d 210 [1976]), he or she has reasonable suspicion to believe an individual possesses a gravity knife, as opposed to other similar knives such as a pocketknife, and therefore is authorized to conduct a stop and frisk. The Penal Law identifies gravity knives*fn1 as per se weapons and criminalizes the mere possession of one (see Penal Law § 265.01 [1]). We hold that the detaining officer must have reason to believe that the object observed is indeed a gravity knife, based on his or her experience and training and/or observable, identifiable characteristics of the knife. An individual may not be detained merely because he or she is seen in possession of an object that appears to be a similar, but legal object, such as a pocketknife.

People v Ernest Brannon

On September 8, 2006, defendant was walking with a friend along West 122nd Street in Manhattan at approximately 6:00 p.m. Officer Kevin Blake and another officer, both in plain clothes, were on the same side of the street and dealing with children who were trying to manipulate the lock on a school yard gate. Blake testified that he observed the men and, in particular, noticed that defendant's behavior became "somewhat suspicious", evincing a desire to avoid walking near the officers. As defendant passed, Blake observed the hinged top of a knife in defendant's back pocket. He asked the men to stop twice before defendant complied. When defendant approached Blake, he saw the outline of a knife through the material of defendant's pocket. Upon questioning, defendant admitted that he had a knife in his pocket. Blake then frisked defendant and recovered the knife. Blake testified that upon inspection, he found that it was a gravity knife and arrested defendant.

Before trial, defendant moved to suppress the knife and a statement he made to the officer at the time of his arrest. At the suppression hearing, Blake testified that he had been an officer for four and a half years and had made approximately ten arrests of his own for possession of a gravity knife and participated in two dozen other arrests for the same crime. He had observed in defendant's pocket what he believed to be a knife. On further questioning, he described it as a "typical pocketknife".

Supreme Court denied the motion to suppress, finding that, under the circumstances, the stop and search was proper. Defendant pleaded guilty and then appealed his conviction, arguing that the gravity knife and his statement should have been suppressed as the fruits of an illegal search and seizure. The Appellate Division affirmed, holding that "the combination of defendant's suspiciously evasive conduct, the officer's observation that defendant was carrying what was at the least a large and possibly dangerous knife, and defendant's acknowledgment, in response to a proper common-law inquiry, that he had a knife, permitted the officer to conduct a self-protective frisk" (60 AD3d 498, 499 [1st Dept 2009]).

People v Jose Fernandez

On February 24, 2007, while walking on Ludlow Street in Manhattan at approximately 12:30 a.m., defendant was stopped by Officer Daniel Hoffman, who observed defendant walking on the sidewalk with a knife clipped to his front right pants pocket, the top or "head" of the knife protruding in plain view. Before any questioning, Hoffman approached defendant, retrieved the knife from defendant's front pocket and asked defendant if he had any other weapons. Defendant stated that he had another knife in his left jacket pocket. When questioned why he was carrying the knife, defendant answered it was for his protection. After retrieving both knives, Hoffman opened them, confirming they were gravity knives.

Defendant was charged with two counts of criminal possession of a weapon in the third degree. He thereafter moved to suppress the two knives recovered from him and statements he made to the police officer.

A suppression hearing was held at which Hoffman testified that he had been a police officer for four years and had made approximately 300 arrests involving gravity knives. In his career, he had examined around 200 gravity knives and described the difference between a gravity knife and other types of knives. He explained that gravity knives are often carried in such a way as to make them readily accessible. Hoffman testified that when he first saw the knife he believed it was a gravity knife because, based on his experience, this type of knife was typically carried with a clip on the outside of the pocket, and with the "head" of the knife "usually sticking up outside of the pocket."

Supreme Court denied the motion to suppress, finding that the officer had probable cause to recover the knife that he observed clipped to defendant's pocket. The court noted that the officer had concluded that the weapon was a gravity knife based on his experience, coupled with his observation of the clip and the "head" of the knife in plain view. The court also found that the officer lawfully reached into defendant's pocket to recover the second knife, once defendant stated that he had a second knife in his jacket pocket. The Appellate Division affirmed (60 AD3d 549 [1st Dept 2009]).

A Judge of this Court granted both defendants leave to appeal. We now reverse in Brannon and affirm in Fernandez.

Reasonable Suspicion Standard

These cases are governed by our holding in People v DeBour (40 NY2d 210 [1976]), requiring that before a police officer may stop and frisk a person in a public place, he must have "reasonable suspicion" that such person is committing, has committed or is about to commit a crime (id. at 223). We have defined reasonable suspicion as "the quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d 106, 112-113 [1957]). It may not rest on "equivocal or innocuous behavior" that is susceptible of an innocent as well as a culpable interpretation (People v Carrasquillo, 54 NY2d 248, 252 [1981]). A stop based on reasonable suspicion will be ...


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