17-392 United States v. Rodriguez UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do no t have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must ci te either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on the 19 th day of March, two thousand eighteen. Present: ROBERT A. KATZMANN, Chief Judge , DENNY CHIN, Circuit Judge , ALISON J. NATHAN, District Judge

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________________________________________________ UNITED STATES OF AMERICA, Appellee , v. No. 17-392 DERRICK RODRIGUEZ, Defendant-Appellant.

____________________________________________ For Appellee: J ASON R ICHMAN (Margaret Garnett, on the brief ), Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

* Judge Alison J. Nathan, United States District Court for the Southern District of New York, sitting by designation.2 For Defendant-Appellant: J EFFREY P ITTELL , Maher & Pittell, LLP, Great Neck, NY. Appeal from the United States District C ourt for the Southern Di strict of New York (Hellerstein, J. ). ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED

. Defendant-Appellant Derrick Rodriguez appeal s from a judgment entered January 26, 2017 by the United States District Court for the S outhern District of Ne w York (Hellerstein, J. ). We assume the parties’ familiarity with the unde rlying facts, procedural history, and issues on appeal. Rodriguez’ sole argument on appeal is that the district court erre d by denying his motion to suppress evidence uncovered du ring an allegedly unlawful stop- and-frisk and his post-arrest statements made to law enforcement. The relevant facts begin one year pr ior to the stop-and-frisk at issue. On July 4, 2014, officers Matthew Ga le and John Kontouris of the New York Police Department (“NYPD”) received a radio call reporting a man with a gun. Officer Gale apprehended the individual, arrest ed him, and retrieved the firear m. The individual, Rodriguez, subsequently pleaded guilty to attempted crimin al possession of a weapon in violation of New York law. Because of his felony conviction, R odriguez was barred from subsequently possessing a firearm pursuant to Title 18, United States Code, Section 922(g)(1). Approximately one year later, at aro und 3:30am on August 22, 2015, officers Gale and Kontouris responded to a radio call of a loud grou p fighting in the vicinity of 870 Hunts Point Avenue in the Hunts Point neighborhood of the Br onx. Upon arriving on the scene, the officers recognized some of the individuals as memb ers of the Hunts Point Family gang (“HPF”)— including Rodriguez. The offi cers knew Rodriguez was a member of the HPF based on their3 review of precinct “set books” and their arrest of him the pr evious year. App. 18-21. HPF is a criminal gang involved in drug sales and vi olent crimes in the Hunts Point area. The officers did not observe Rodriguez s houting, acting disorderly, or committing any type of unlawful activity at the time. Shortly thereafter, however, a marked police van arrived, and Rodriguez began to walk away from the area with approximately four other individuals. It was then that the officers observed Rodriguez moving in a suspicious manner, with his arm continuously “pinned to his left side, not swi nging freely with the rest of his body and [he] appeared to be . . . holding something ag ainst his midsection w ith his left hand.” Id. at 22-23. Based on their training and expe rience, the officers suspected that Rodriguez possessed a firearm. The officers subsequent ly approached him on foot. Rodriguez appeared to recognize the offi cers, became visibly nervous, lowered his shoulders, and moved his right hand so that both of his hands were against his midsection, as if to protect his waistband area. The officers grabbe d Rodriguez as he attempted to walk between them, and officer Gale patted Rodriguez down in the area around his waistband. Officer Gale found a loaded Walther P22 semiautomatic ha ndgun, and Rodriguez was placed under arrest. Rodriguez was read his Miranda rights, orally waived them, and then stated, in sum and substance, that he had possessed the recovered firearm for approximately two months, that he had it for his own protection, and that he was a member of HPF, the gang that the officers previously understood him to be affiliate d with. Presentence Report (“PSR”) ¶ 20. Rodriguez subsequently filed a motion to s uppress the evidence sei zed upon his arrest and his post-arrest statements because the offi cers allegedly lacked reasonable suspicion to justify the investigatory stop. The district court held an evid entiary hearing during which officers Gale and Kontouris testified, and at the request of the court, both officers pantomimed the4 manner in which Rodriguez walked, and how he covered his waistband with both hands upon recognizing the officers. Officer Ga le further testified that while the object held by Rodriguez “could have been a lot of things,” he usually did not “see people carryi ng smartphones or wallets in that position or with that movement of th e body.” App. 42. Instead, th is was a “good indicator of a potentially armed suspect” based on officer Gale’s experience and training. Id. at 23. The district court denied Rodr iguez’ motion from the bench and issued an order on June 6, 2016 confirming its bench ruling. Th e order identified f our factors supporting its finding that the officers had reasonable suspicion based on the “totality of the circumstances” that Rodriguez was engaged in unlawful activity: (1) The officers were responding to a ra dio call about a “possible fight or argument” at 3:30 AM in a “high crime area”; (2) The officers observed Rodriguez “w alking away when a police van arrived”; (3) The manner in which Rodriguez walked indicated that he was “holding an object”; and (4) Rodriguez tried to pass between th e officers, “this time holding the object in and below his waistband with both hands.” Id. at 10-11. Rodriguez subsequent ly pled guilty to possessing a firearm after having been previously convicted of a felony, in violation of Title 18, United States Code, Section 922(g)(1). As part of his plea agreement, Rodriguez preserve d his right to appeal th e district court’s order denying his motion to suppress. The district court senten ced Rodriguez to 20 months’ imprisonment, Rodriguez timely appealed, and he now argues that the district court erred by denying his Fourth Amendment challenge. Pursuant to the Supreme Court’s decision in Terry v. Ohio , 392 U.S. 1 (1968), police may stop someone if they have “reasonable suspic ion supported by articulabl e facts that criminal activity ‘may be afoot.’” United States v. Sokolow , 490 U.S. 1, 7 (1989). We “look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and5 objective basis’ for su specting legal wrongdoing

. ” United States v. Arvizu , 534 U.S. 266, 273 (2002) (quoting United States v. Cortez , 449 U.S. 411, 417-18 (1981)). The question of whether the police had reasonable suspicion to conduct a search is “mixed question of law and fact” that is reviewed de novo

. United States v. Reyes , 353 F.3d 148, 151 (2d Cir. 2003). We review a district court’s factual fi ndings related to a motion to suppress for clear error. Ornelas v. United
States , 517 U.S. 690, 699 (1996). Although there is disagreement over whether, when a suppression motion is denied, facts are to be construed in the government’s favor, compare United States v. Schaffer , 851 F.3d 166, 169 (2d Cir. 2017) (expl aining that in reviewing the denial of a motion to suppress, “we view the evidence in the light most favorable to the government”), with United States v. Bershchansky , 788 F.3d 102, 109 (2d Cir. 2015) (“[w]e think the better approach is to review the distri ct court’s findings of fact for clear error without viewing the evidence in favor of either party”), we need not re solve this disagreement here because Rodriguez’ challenge fails under either view of the evidence. Rodriguez’ body movement, coupled with th e extensive testimony at the suppression hearing by officers Gale and Kont ouris about why such movement indicated that Rodriguez had a gun, established reasonable su spicion for the stop-and-frisk. 1 In United States v. Padilla , the Court found reasonable suspicion to conduct a stop-and-frisk where th e arresting officer observed, among other things, the defendant “reach underneath his jacket a nd shirt and adjust a weighty object concealed at the center of his waistline.” 548 F.3d 179, 189 (2d Cir. 2008). As in the present case, the district court watched in-court demonstrations of the gesture, and “concluded that it was a distin ctive gripping motion, as if holding and adjusting . . . something

1 Because this testimony was sufficient to justify the investigatory stop, we do not reach the issue of whether Hunts Point is a “high crime area” or whether it was probative that Rodriguez walked away from the police van. We also do not reach th e issue of whether Rodriguez’ affiliation with HPF is a factor supporting reasonable suspicion (a ground not relied on by the district court).6 comparable in size, shape, and heft to a handgun.” Id. (internal quotation marks omitted). The arresting officer also testified th at he recognized the defendant’s “g esture as consistent with the adjustment of a concealed firearm” based on hi s “eight to ten arrests of armed individuals observed to make the same movement,” and that “t he adjustment was not c onsistent with any of the innocent explanations proposed by defense couns el,” such as a cell phone, key ring, or belt buckle. Id. On this basis, the Padilla Court concluded that “[e]ven if the gesture were consistent with conceivable innocuous adjust ments, its distinctive consiste ncy with the adjustment of a firearm provided the detective with a reasonabl e basis to suspect that [the defendant] was armed.” Id. (internal quotation marks omitted). These same considerations apply to the pr esent appeal. The district court requested officers Gale and Kontouris to demonstrate how Rodriguez walked away from the scene of the early-morning gathering, and noted that there wa s nothing inherently susp icious about a person who “swing[s] one arm and keep[s] another stationary.” App. 80. The court nonetheless concluded that Rodriguez’ movement became susp icious when it continued for a long period of time, because it established an “articulable suspic ion of having a weapon in the waistband area of the trousers and the body.” Id. at 81. The district court furthe r requested officer Kontouris to demonstrate how Rodriguez covered his waistb and upon recognizing the o fficers, and credited Kontouris’ testimony that this behavior was su spicious and indicated that Rodriguez had a firearm. Although defense counsel proposed seve ral innocent explanatio ns of Rodriguez’ movements, officer Gale testified that he us ually did not “see people carrying smartphones or wallets in that position or w ith that movement of the body,” id. at 42, and we find no clear error in the district court’s crediting that testimony. These findings were sufficient to establish r easonable suspicion to justify the stop of7 Rodriguez. Officer Gale testifie d that he was aware that Rodriguez pleaded guilty to attempted criminal possession of a weapon in 2014, and ther efore was aware that Rodriguez was barred under federal law from possessing a firearm. Acco rdingly, once officers Gale and Kontouris had reasonable suspicion that Rodri guez had a gun, they also had reas onable suspicion that he was engaged in a crime— i.e. , possessing a firearm in violation of Title 18, United States Code, Section 922(g)(1). Their stop-and-frisk was accord ingly lawful under the Fourth Amendment. We have considered all of Rodriguez’ argumen ts on this appeal and find in them no basis for reversal. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK