In People v. Herrera (76 AD3d 891, 908 NYS2d 383 [1st Dept 2010]) the Court held that the police officer had reasonable suspicion of criminal activity justifying a level-three forcible stop of defendant and removal of a knife from his pocket where, based on the officer's training and experience, the clip observed was more likely than not part of a gravity knife.
Police officers were in an unmarked vehicle when defendant walked in front of the car. Street lamps illuminated a shiny, silver object clipped to defendant's back pants pocket.
The object had a curved clip and the head of it visibly protruded above the top of defendant's pocket. Although the officer could not absolutely exclude the possibility that the clipped object was lawful until he removed it from defendant's pocket, he testified that he was "90 percent sure that it was either a knife or some other weapon . . . the way the clip is designed and curved was typical of clips that are . . . part of knives" (People v. Herrera, 76 AD3d at 892-893.
On defense counsel's cross-examination, the officer rejected counsel's suggestion that there was a likelihood that the object was something like a money clip, a cellphone, or a tape measure (id. at 893).
The Supreme Court granted defendant's motion to suppress, finding that the officer could not be absolutely certain that the object was a gravity knife without removing the clipped object from defendant's pocket.
The Appellate Division, First Department reversed, stating that "absolute certainty" that the object was a gravity knife was not required for the officer to have reasonable suspicion based on his training and experience with identifying gravity knives.