Ignoring Police Order to Remove Hand From Pocket in New York
In People v. Santiago, 64 AD2d 355, 361, 409 NYS2d 716, 720 [1st Dept 1978], the suspect had his hand in his pocket when approached by police and did not remove his hand when ordered to do so (id. at 358, 718).
The court in Santiago held that a hand in a pocket does not generate a "founded suspicion that a crime was at hand" (id. at 360, 719).
The Respondent put his hand in his pocket after seeing police officers, and just like in that case there was no "founded suspicion that a crime was at hand," the predicate necessary for a level two inquiry (id.).
Under Santiago, the query about a weapon and subsequent frisk were impermissible when the cause for suspicion was purportedly that the suspect wore a ski mask in 33 to 36 degree weather in February and put his hand in his pocket because there was no "founded suspicion that a crime was at hand" (id.)
The court took judicial notice of the weather and where the suspect was standing outside a liquor store on a cold, rainy day, and where the suspect walked into a phone booth and put his hand in his pocket, the Appellate Division First Department held that multiple innocuous behaviors did not rise to the level of required suspicion (id. at 360).
In considering the entirety of his conduct, the Santiago court held that "Santiago's conduct could not generate a founded suspicion that a crime was at hand" (id.).
The court's reasoning was that "Not only was each of his earlier acts consistent with innocent behavior, but we find the entire sequence was devoid of any element of objective evidence to justify the officer's suspicions" (id. at 360-61).