United States v. Hawkins

21-836 (L)
United States v. Hawkins
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2021
Nos. 21-836 (L), 21-848 (Con)
UNITED S TATES OF AMERICA,
Appellee,
v.
MICHAEL H AWKINS , C AESAR D IAZ , A/K / A S EALED D EFENDANT 1,
Defendants-Appellants.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: APRIL 11, 2022
D ECIDED: J UNE 23, 2022
Before: KEARSE , S ACK , and MENASHI , Circuit Judges.
Defendants Michael Hawkins and Caesar Diaz each pleaded
guilty to one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 2, but reserved the right to
appeal the district court’s denial of their joint suppression motion,
which sought to exclude evidence including a firearm that police

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recovered from Diaz incident to a Terry stop. Hawkins and Diaz argue
that the police lacked reasonable suspicion to initiate the stops that
resulted in the recovery of the firearm. We disagree that the police
lacked reasonable suspicion to effectuate the stops and probable
cause to arrest Hawkins, and we affirm the judgments of the district
court.
MICAH F. FERGENSON, Assistant United States Attorney
(Danielle R. Sassoon, Assistant United States Attorney,
on the brief), for Damian Williams, United States Attorney
for the Southern District of New York, New York, NY, for
Appellee.
A LLEGRA GLASHAUSSER , Federal Defenders of New York,
New York, NY (David A. Ruhnke, Ruhnke & Barrett,
Montclair, NJ, on the brief), for Defendants-Appellants.
PER C URIAM:
Defendants Michael Hawkins and Caesar Diaz appeal the
judgments of the district court (Kaplan, J.) regarding their convictions
for being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 2. Each defendant pleaded guilty to that charge on
the condition that he reserved his right to appeal the district court’s
denial of the joint motion to suppress evidence. That motion sought
to exclude the firearm that police found on Diaz after the defendants
were stopped and searched. Hawkins and Diaz argue that the police
lacked reasonable suspicion to initiate the stops and to conduct the
searches and also lacked probable cause to arrest Hawkins. We
disagree. Reasonable suspicion supported the initial stops, and the

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subsequent searches and arrests of the defendants were likewise
lawful. The judgments of the district court are therefore affirmed.
BACKGROUND
On October 20, 2019, at approximately 8:51 p.m., officers of the
New York City Police Department received a ShotSpotter report of a
gunshot fired from the roof level of a building on Reverend James A.
Polite Avenue in the Bronx. Officers Stephen Bonczyk and Cynthia
Lopez were the first to respond and arrived on the scene within
approximately two minutes of receipt of the report. As Officers
Bonczyk and Lopez exited their marked police vehicle, they observed
Hawkins and Diaz exit a six-story residential building in the vicinity
of where shots were reportedly fired and enter the outdoor vestibule
separating the building from the sidewalk. The officers testified that,
upon seeing Hawkins and Diaz, their “first priority was to get to the
gate and make sure they cannot leave so [the officers] could talk to
them and further investigate the shots fired activation.” App’x 54; see
App’x 107-08. While approaching the location where they would
ultimately meet the defendants (at or just inside the fenced-in
vestibule’s gateway), the officers made two observations. First, the
officers observed Diaz “turn[] his body slightly,” App’x 34, and
Hawkins “slightly pivot” as he exited the building, App’x 82, and
“hurry[]” through the vestibule, App’x 33. Second, Officer Bonczyk
noticed that the defendants had their hands in their pockets and that
Diaz’s hands created a “tension in his pockets and he was pulling his
sweatshirt down below the center waistline.” App’x 37.
Officer Bonczyk asked the defendants to remove their hands
from their pockets, which they did. Officer Bonczyk noticed that,
when Diaz removed his hands from his pockets, there was, in his

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description, a “bulge” below the middle of Diaz’s waistband. App’x
40-41. Officer Bonczyk then asked for consent to search the
defendants, which was declined. At this point, additional officers
arrived on the scene, and Hawkins and Diaz were separated for
questioning. While the defendants were being questioned, officers
spoke with a witness who had been walking his dog. The witness said
that he saw the defendants “coming down from the rooftop.” App’x
123.
Officer Bonczyk frisked Diaz and recovered a plastic bag from
the lower front waistline of Diaz’s pants. In the plastic bag was an
unloaded firearm. Around this time, officers recovered one spent
casing from the rooftop. Both defendants were arrested. Hawkins was
frisked pursuant to his arrest, but no weapons were recovered from
his person at that time.1
The defendants were each charged with one count of being a
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 2. The defendants moved to suppress certain evidence, including
Diaz’s recovered firearm, arguing that the officers lacked reasonable
suspicion to stop and frisk the defendants and that they lacked
probable cause to arrest Hawkins. The district court denied the
motion, and the defendants pleaded guilty on the condition that they
reserved their right to appeal the denial of the joint suppression
motion. The defendants bring that challenge now.
1 When Hawkins was searched again at the precinct, officers recovered a
firearm from his person, and ballistics testing confirmed that the spent shell
casing found on the rooftop matched the firearm found on Hawkins.

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LEGAL STANDARDS
When considering the denial of a motion to suppress, “[w]e
review for clear error findings of fact” while “giving special deference
to findings that are based on determinations of witness credibility.”
United States v. Lucky, 569 F.3d 101, 106 (2d Cir. 2009). In contrast,
“[w]hether a seizure occurred is a question of law to be reviewed de
novo,” Brown v. City of Oneonta, 221 F.3d 329, 340 (2d Cir. 2000), and
we review de novo other “legal conclusions and mixed questions of
law and fact, such as … whether there was reasonable suspicion to
justify a Terry stop” or whether the defendants’ Fourth Amendment
rights were otherwise violated, Lucky, 569 F.3d at 105-06.
To conduct a Terry stop—that is, a temporary detention of an
individual—a police officer must have “reasonable suspicion” that
the individual has engaged in or is about to engage in criminal
activity. United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995).
Reasonable suspicion is less than probable cause, Terry v. Ohio, 392
U.S. 1, 27 (1968), and must be established by “specific and articulable
facts which, taken together with rational inferences from those facts,
reasonably warrant the intrusion,” United States v. Padilla, 548 F.3d
179, 187 (2d Cir. 2008) (alteration omitted) (quoting Terry, 392 U.S. at
21). “[A]n inchoate and unparticularized suspicion or hunch” cannot
support reasonable suspicion, although an officer is permitted to
“draw on his own experience and specialized training to make
inferences from and deductions about the cumulative information
available to him that might well elude an untrained person.” Id.
(internal quotation marks and alterations omitted). “[C]ontextual
considerations,” such as “the fact that the stop occurred in a ‘high
crime area,’” factor into a reasonable-suspicion analysis, and the
officers’ assessment of an individual’s “nervous” or “evasive

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behavior” is “pertinent” in establishing reasonable suspicion. Illinois
v. Wardlow, 528 U.S. 119, 124 (2000). In deciding whether reasonable
suspicion existed at the time of the intrusion, we consider the totality
of the circumstances. See Navarette v. California, 572 U.S. 393, 397
(2014).
While a Terry stop requires only reasonable suspicion, an arrest
requires the heightened standard of probable cause. “Probable cause
to arrest a person exists if the law enforcement official, on the basis of
the totality of the circumstances, has sufficient knowledge or
reasonably trustworthy information to justify a person of reasonable
caution in believing that an offense has been or is being committed by
the person to be arrested.” United States v. Patrick, 899 F.2d 169, 171
(2d Cir. 1990) (citing Brinegar v. United States, 338 U.S. 160, 175-76
(1949)). Probable cause is satisfied by “the kind of fair probability on
which reasonable and prudent people ... act.” Florida v. Harris, 568 U.S.
237, 244 (2013) (internal quotation marks and alteration omitted).
DISCUSSION
The district court did not err by holding that reasonable
suspicion existed at the time the first responding officers initially
detained the defendants. At the point of initial detention when they
met the defendants at the vestibule gate, the officers had received a
report of a shot fired from a rooftop in the immediate vicinity of a
high-crime area familiar to the officers,2 and they suspected that a
2 The defendants argue that the technology which relayed the shot-fired
report to the NYPD, called ShotSpotter, is unreliable. But the responding
officers testified that the technology works with a reasonably high degree
of accuracy. For example, Officer Lopez testified that ShotSpotter reports,
in her experience, were “usually” accurate to the “block.” App’x 78. Lopez

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shot may have been fired from the rooftop of the building the
defendants exited. The officers also observed the defendants exiting
the building at around the time it would have taken to descend the
six flights of stairs from the rooftop of the building. The officers
observed that both defendants exhibited body movements they
perceived to be evasive, 3 and Officer Bonczyk made the “very
significant” observation that the defendants had their hands in their
sweatshirt pockets and that doing so created tension at Diaz’s
waistline. These “specific and articulable facts” and the
corresponding “rational inferences” that the defendants may have
been involved with the reported shooting “reasonably warrant[ed]”
the initial stop. Padilla, 548 F.3d at 187.
Nor did the district court err in finding that the officers had
reasonable suspicion to frisk Diaz. In addition to the facts supporting
the initial stop, Officer Bonczyk observed a “bulge” around Diaz’s
center waistline when Diaz removed his hands from his sweatshirt
testified that the reports were even more accurate “with respect to
elevation.” Id. The district court did not err in crediting the officers’
reasonable reliance on the ShotSpotter report in supporting the reasonable-
suspicion or probable-cause determinations.
3 The defendants challenge the district court’s reliance on the defendant’s
body movements, based primarily on partial surveillance video and what
they argue is contradictory testimony elicited from Officer Lopez. We owe
the district court “special deference to findings that,” as here, “are based on
determinations of witness credibility,” Lucky, 569 F.3d at 106, and we cannot
say the district court erred in its decision to credit the officers’ testimony
about the defendants’ movements.

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pockets.4 Before frisking Diaz, Officer Bonczyk had also learned from
a fellow officer that an eyewitness had “heard a gunshot” and
identified the defendants as having “com[e] down from the rooftop.”
App’x 123. Given these additional developments, Officer Bonczyk
martialed sufficient “specific and articulable facts” to “warrant”
frisking Diaz. Padilla, 548 F.3d at 187.
Finally, the officers had probable cause to arrest Hawkins. In
addition to the facts that supported reasonable suspicion to stop the
defendants and to frisk Diaz, at the time of Hawkins’s arrest, the
officers had recovered from Diaz’s waist a firearm wrapped in a
plastic bag. Officers had also recovered a spent shell casing from the
rooftop. Accordingly, the officers reasonably assessed that, contrary
to his argument on appeal, Hawkins was not a mere bystander to
whom they could not attribute “individualized” probable cause. To
the contrary, Hawkins admitted that he had accompanied Diaz in the
building, and the officers thought that he exhibited evasive behavior.
Meanwhile, a firearm was found on Diaz, a shell casing had been
found on the rooftop, and an eyewitness told officers that he had
heard a gunshot and saw Hawkins descend from the rooftop with
Diaz. Given these circumstances, the district court did not err in
determining that officers had probable cause to arrest Hawkins on
suspicion that he and Diaz committed the shooting together.
4 The district court’s analysis suggests that it believed the initial stop did
not begin until after Officer Bonczyk observed the “concealment of a bulge”
around Diaz’s center waistline. Even if the initial stop began at an earlier
point, it was adequately supported based on the reasonable suspicion
detailed above.

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CONCLUSION
The district court did not err in declining to suppress the
firearm recovered from Caesar Diaz during the course of an
interaction in which police lawfully detained, searched, and arrested
the defendants. We affirm the judgments of conviction for Michael
Hawkins and Caesar Diaz.

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