Last week, Judge Morrison granted a motion to suppress a gun, holding that police didn’t have reasonable suspicion to seize or subsequently frisk a person stopped on the street in Brooklyn. United States v. Burvick, No. 23-CR-450 (NRM), 2025 WL 240976 (E.D.N.Y. Jan. 17, 2025). The lengthy opinion discusses and rejects some common police reasons for a stop and frisk, including, supposedly nervous behavior and “evasive” answers, “blading” the body (read the decision for the court’s dubious explanation of what the word “blading” means), and a heavy pocket.
The facts, in brief, are this: an anonymous* 911 caller said that someone had “threatened” people outside a building, saying he had a gun. Police arrived and saw a person matching the 911 caller’s (detailed) description around the corner from the building, calmly walking up to the front door of his house. When told to stop, he did; when asked if police could search him, he said yes, but when police said he could refuse, he changed his mind and refused; he answered questions for several minutes before officers frisked him and found a gun.
A careful analysis of when the seizure started.
The court carefully parsed the entire interaction between the person and police, which was all captured on body-camera, rejecting the defense argument that the person was seized as soon as he was directed to come talk to the officers, but determining that the “calculus quickly changed” as police questioned him. Some of the factors underlying the court’s decision are common – there were three uniformed officers with their weapons displayed, including one who had his hand on his gun the whole time – but the court focused on the fact that the officers quickly told the person he was a suspect, telling him about the 911 call and that he matched the description, and that the officers continued questioning him extensively, not just about basic information, but also asking to inspect his security license.
As the court explained, a reasonable person would “understand they were suspected of a crime, that their responses to the police were thus far unsatisfactory, and that they could not leave.”
* “It’s an anonymous caller?…Fuck” – the NYPD officer
Was the 911 caller actually anonymous? The caller said she was “anonymous;” the police viewed the call as anonymous; and, even after being told that they couldn’t “stop him” without her name, the caller, at most, gave what might have been a first name or a nickname. NYPD records listed no name for this caller. The defense argued she was anonymous; the government argued that she was “not fully anonymous.” The court chose different language, calling the accuser an “unknown caller” rather than an “anonymous” one. Whatever the language, the court found the call was insufficiently reliable to justify the seizure.
Notably, the court distinguished the Supreme Court case Navarette v. California – which found that 911 calls could be more reliable than other anonymous tips – because, unlike in Navarette, here, there was no “ongoing emergency.”
A heavy pocket isn’t the same as a bulge in the shape of a gun, it could be “medicine to treat or prevent pregnancy”
The court also found that the officer’s testimony that he thought the person’s pocket was “heavy” wasn’t enough to justify a frisk and distinguished this case from those where an officer claims to see the shape of a gun. In doing so, the court provided a number of more unusual examples (than the commonly used cellphone) of things that are “heavy” but “perfectly legal” that a person could “reasonably prefer to keep private,” explaining: “These might include, among other things, a handwritten journal; medicine to treat or prevent pregnancy, a sexually transmitted infection, or any other condition; or a paperback book whose title or contents are critical of the government.”
A question left for another day
The court didn’t reach the “novel question” raised by the defense about whether the Fourth Amendment requires probable cause or a warrant for officers to direct a person to leave the curtilage of their home to answer questions. Here, the person was past his front gate and on the way to his front door when police told him to come onto the sidewalk. Because the court already ruled for the defense on well-settled law, it is unsurprising that it didn’t decide how curtilage might impact the analysis. But — this is an argument to keep in mind for another case.
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