United States District Court, S.D. New York
OPINION AND ORDER
J. PAUL OETKEN, District Judge.
Defendant Gregory Jackson moves to suppress two handguns found on his person and statements that he made to officers of the New York Police Department ("NYPD"). On June 26, 2015, this Court held an evidentiary hearing, at which NYPD officers Moises Contreras, Adam Malki, and Steven Ramunno, and defense investigator Glenn Almas testified. (Dkt. No. 17, Transcript ("Trans.").) For the reasons that follow, Jackson's motion is granted.
I. Summary of the Testimony
Shortly after 10:00 pm on February 8, 2015, Jackson walked into Joyce Kilmer Park in the Bronx. There, he encountered Contreras, Malki, and Ramunno, seated in a marked police van. Because the park was officially closed, the officers stopped Jackson to investigate. Shortly after stopping him, the officers frisked Jackson, and, upon discovering two handguns in Jackson's jacket, arrested him.
Contreras has been an NYPD officer for two and a half years. (Trans., at 4.) He is currently assigned to "Operation Impact, " where he is "designated a couple of blocks' radius, [and] basically just listen[s] to radio runs, address[es] quality-of-life conditions that may arise... [such as] [p]eople loitering, gathered in the corners, drinking beer in public perhaps, trespassing in the park" and the like. ( Id. at 5.)
He often patrols Joyce Kilmer Park after closing. ( Id. at 6.) If he sees someone in the park after closing, he "will approach and let them know that the park has been closed" and ask that they "please make their way out of the park." ( Id. ) He approaches everyone he sees in the park. ( Id. ) But he does not always issue summonses. Instead he "like[s] to see if [he] can determine a reason offhand why someone would be in the park." ( Id. ) "So, for example, " he testified, "if I see an elderly lady walking her dog in the park, that might be a reason. A couple sitting on the bench, that might be another reason." ( Id. ) Contreras testified that Joyce Kilmer Park "can be a high-crime area, " where "there's been... shots fired, " where "[n]arcotics takes place, " and where "[p]eople [have been] robbed." ( Id. at 7.) At the entrance to the park, there is a sign indicating that the park closes at 10:00 PM and that anyone in the park after 10:00 PM is trespassing. ( Id. at 12; Government's Exhibit 4.)
On February 8, 2015, Contreras was patrolling the park with Malki, his partner, and Ramunno, his training officer. ( Id. at 8.) The three were seated in the front of a police van. ( Id. ) Ramunno was driving, Contreras was in the front passenger seat, and Malki was in the rear middle seat, which, given the configuration of the van, put him "basically in the front seat." ( Id. at 37-38 (question from defense counsel answered "Yes.").)
Jackson entered the park near 164th Street and the Grand Concourse. ( Id. at 11.) When Contreras saw this, he "carefully observed [Jackson's] behavior upon entering, and... saw him proceed down the walkway." ( Id. at 17.) He was walking toward the van. ( Id. ) The officers started "slowly driving up toward" a fork in the park's pathway, in Jackson's direction. ( Id. ) "[T]hat's when he started walking... away from" the van. ( Id. at 17.) Contreras and Malki got out of the van and "called over for [Jackson's] attention." ( Id. at 18.) They exited on the passenger side of the van and walked around the front of the van to reach Jackson. ( Id. at 62.) They had to walk at a "moderate pace" to catch up to him. ( Id. at 61.) "Sir, " Contreras said, "are you aware that the park is closed right now?" ( Id. at 18.) Jackson responded that "he was just cutting through." ( Id. ) Contreras thought this "was a very quick response." ( Id. ) "[I]n my opinion, " Contreras testified, Jackson "seemed to be walking away from us and not really - his body was turned away from us, it wasn't really facing us and giving us, I guess, our attention in regard to the questions I was asking in terms of his reason for being there." ( Id. ) Jackson "seemed somewhat erratic, a little vibe of nervousness in terms of wanting to just give a quick answer and continue on his way down the path instead of addressing us." ( Id. at 19.)
Contreras and Malki wanted to get Jackson's attention, ( id. ), so Contreras "calmly... put [his] hand on [Jackson's] shoulder...." ( Id. at 20.) Contreras testified further:
At that point, we asked if he had any identification, and I could see he seemed - upon being close to him, he seemed very nervous, his eyes were kind of darting away, not wanting really to face us, at which point I was in fear for my safety and my partner's safety, so I asked him if he had any weapons on him. His answer to that question was nonverbal, and he proceeded to lift up the shirt that he had, he lifted up his shirt, and kind of had his arms like this,  exposing his waistband, which I saw as a means of kind of deflecting our mindset towards him possibly having weapons, I would say towards lowering our guard in terms of here's my waistband, I'm being compliant with that. His arms were locked in.
Naturally that whole behavior of doing that was very odd to see because I've never - I mean, I've asked that question before to several people, they don't usually say nothing nonverbal and just do that motion.
So at that point, I felt that he may have indeed a weapon on him, and I proceeded to do a frisk of the left side of his jacket to ensure he didn't have a weapon, and that's when he, in fact, did have a weapon. ( Id. at 19-20.) As Contreras frisked Jackson's left side, Malki frisked his right. ( Id. at 23.) The guns ultimately turned out to be in the two "interior pockets [Jackson] had in his jacket." ( Id. at 24.)
At another point in the hearing - in response to the question "Did you notice anything about his jacket when [Jackson] lifted up his shirt?" - Contreras testified that "the jacket seemed weighted down somewhat, it wasn't kind of fluid. There was a slight bulge on my side as well [as] the left side." ( Id. at 22.) "The leather jacket was open" ( id. at 66.), and Contreras thought that Jackson was using his elbows to "not move his jacket, just keep it very close to his body." ( Id. at 22.) This was the "first time [Contreras] actually felt a gun on someone." ( Id. at 23.)
Malki has been an NYPD officer for two years. ( Id. at 83.) He too is assigned to Operation Impact, and his duties are similar to those of Contreras. ( Id. )
According to Malki, Jackson entered the park on 164th street and Grand Concourse avenue, and the officers "pulled the van towards him." ( Id. at 86.) When the van began to move, the officers "kind of met [Jackson] at the crossroads, so he kind of hesitated and tried to go right when we approached him." ( Id. at 87.) Jackson took a "stutter step" and exhibited "you know... I don't know, nervousness." ( Id. ) Jackson saw the officers and then "tried to go [to his right]... so [the officers] wouldn't speak to him." ( Id. ) He did not get very far. ( Id. ) "His eyes were darting from side to side. He was - his adrenaline was up." ( Id. )
The officers called Jackson over and got out of the van. ( Id. ) Contreras went around the front of the van and Malki went around the back. ( Id. at 88.) They asked Jackson if he knew that the park was closed. ( Id. ) He "wasn't really giving" the officers "a complete full answer." ( Id. ) The officers asked him if he had identification. ( Id. ) "He said yes." ( Id. ) They then "asked him if had anything on him that could hurt" them. ( Id. ) Malki testified that Jackson was "[v]ery - stuttering, eyes all over the place, a little nervous, you know.... I can't really put it into words. He was just very, very shaky and very, very nervous." ( Id. )
As the officers were speaking to Jackson, he was "backing up a little bit." ( Id. at 89.) This "rais[ed Malki's] suspicion level." ( Id. ) He "felt like, you know, [Jackson] could have - he was trying to figure out an escape route...." ( Id. ) When the officers asked him if he had anything that could hurt them, Jackson "proceed[ed] to lift up his shirt" so that Malki "could see his skin at that point." ( Id. at 89-90.) Jackson, still "[v]ery nervous, " said "I don't have nothing on me, Officer. I ain't got nothing.'" ( Id. at 90.) When he lifted his shirt, Jackson kept "his elbows really tight to his body like he was pressing something against himself." ( Id. ) This further increased Malki's suspicion ...