United States of America v. Robert Horner

Brooklyn, New York criminal defense lawyer represented the defendant charged with felony gun possession in violation of 18 U.S.C. 922(g).

At 2:18 a.m. on February 14, 2023, New York City Police Depart-

ment ("NYPD") Detective Nicholas Conte began surveilling a

group of people, including Defendant Robert Homer, on Guy R.

Brewer Boulevard between 134th Avenue and 137 th Avenue in

Queens, New York from a NYPD ARGUS camera. (Transcript for

October 26, 2023 Suppression Hearing ("Hearing Tr.") at 13:9,

13:23-25, 24:25-25:7, 25:22-26:2.) 1 Mr. Homer was seated in

the driver's seat of a silver minivan. (Id. at 18:12, 28:17-23.) De-

tective Conte stated that he recognized the minivan as a vehicle

used by a local gang that he was investigating, but he could not

identify the minivan's license plate nor did he recognize any of

the people in the car, including Mr. Homer. (Id. at 28:8-19, 56:7-

13, 58:20-59:5.) At 2:21 a.m., Detective Conte observed the man

in the driver's seat, who he later determined was Mr. Homer,

place a black handgun into his pants pocket and noted that Mr.

Homer did not have "firearm discipline." (Id. at 29:9-12, 31:16-

17.) Up until this moment, Mr. Homer had not done anything

that Detective Conte found to be suspicious or indicative of crim-

inality. (Id. at 58:12-19.) According to his testimony, Detective

Conte immediately called Officer Anthony Lombardi, an officer

on patrol that night, and alerted him that the driver of the silver

minivan had a gun. (Id. at 18:19-24.) After Detective Conte saw

Mr. Homer place the gun into his pocket, Mr. Homer left the car

to order something at the deli, and then returned to the driver's

seat of the silver minivan. (Id. at 33:2-25.) Detective Conte stated

that he was on the phone with Officer Lombardi up until Officer

Lombardi arrived to the section of Guy R. Brewer Boulevard that

Detective Conte was surveilling. (Id. at 31:18-25.) At 2:25 a.m.,

NYPD officers pulled up to the silver minivan that Detective

Conte observed and then immediately arrested and disarmed Mr.

Homer. (Id. at 34:13-35:19.)

The Fourth Amendment protects the public against umeasonable

searches and seizures, including arrests. See Manuel v. City of Jo-

liet, fll., 580 U.S. 357, 364 (2017). Thus, pursuant to the Fourth

Amendment, law enforcement officials generally must obtain a

search warrant in order to seize an individual's property. See

United States v. Scopa, 19 F.3d 777, 782 (2d Cir. 1994). ''The

warrant requirement creates a presumption that any warrantless

search or seizure is unconstitutional, and requires that evidence

obtained in such illegal searches be excluded from trial." Id. 2 A

warrantless arrest is unreasonable unless the arresting officer has

probable cause to believe that a crime is being committed.

Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The government

has the burden to demonstrate that its agents had probable cause

to justify a warrantless arrest. United States v. Delossantos, 536

F.3d 155, 158 (2d Cir. 2008).

Probable cause is a "practical, nontechnical conception" that is

"incapable of precise definition or quantification." Maryland v.

Pringle, 540 U.S. 366, 370-71 (2003). The inquiry is fact inten-

sive and depends on the totality of the circumstances. Id. at 371.

An officer has probable cause if, based on an objective view of

the facts, there is reasonable ground for belief of guilt particular-

ized with respect to the subject of the search or seizure. Id.; see

also D.C. v. Wesby, 583 U.S. 48, 54 n.2 (2018). The inquiry fo-

cuses on the "facts and circumstances within the officers'

knowledge" at the time of the arrest. United States v. Ginsberg,

758 F.2d 823, 828 (2d Cir. 1985). Observations of otherwise law-

ful activity can support a finding of probable cause when that

conduct, based on a police officer's experience and expertise, is

indicative of criminal activity. See Delossantos, 536 F.3d at 161.



Prior to the Supreme Court's decision in Bruen, New York

granted licenses for carrying a firearm outside of the home

only upon a showing of "proper cause." N.Y. Penal Law §

400.00(2)(f) (2022). This was an exacting standard. In order

to demonstrate proper cause, an applicant had to make a

showing that he or she has a "special need for self-protection

distinguishable from that of the general communiry." Bruen,

597 U.S. at 12 (citing In re Klenosky, 428 N.Y.S.2d 256, 257

(N.Y. App. Div. 1980)). Living or working in an area with ele-

vated crime rates was not enough. Id. at 12-13. Instead,

applicants were required to provide specific evidence of recur-

rent threats to life or safety. Id. at 13.





In Bruen, the Supreme Court struck down the "proper cause"

requirement as violating the Second and Fourteenth Amend-

ments. Id. at 17. After analyzing historical statutes to clarify

the original scope of the Second Amendment, the Court held

that the exercise of the constitutional right to carry a firearm

for self-defense in public could not depend on demonstrating

a special need to a government official. See generally id. How-

ever, the Court affirmed the existence of longstanding laws

that forbid the carrying of firearms in "sensitive places." Id. at

30.

After the Supreme Court's decision in Bruen, New York Gover-

nor Kathy Hochul convened an extraordinary session of the

New York State Legislature to pass new gun safety legislation.

See Antonyulc v. Chiumento, 89 F.4th 271, 289-90 (2d Cir.

2023). The state legislature passed the Concealed Carry Im-

provement Act ("CCIA") in July 2022, with an effective date of

September 2022. Id. In relevant part, the Act changed the pro-

cess by which licensing officers would grant a license for a pistol

or revolver: "A license for a pistol or revolver ... shall be issued

to ... have and carry concealed, without regard to employment

or place of possession subject to the restrictions of state and fed-

eral law, by any person." N.Y. Penal Law§ 400.00(2)(f). The

CCIA also required applicants to provide character references,

verification that the applicant had completed sixteen hours of in-

person safety training, and to pass a written test and demonstrate

firearm proficiency in live-fire range training. See Antonyulc, 89

F.4th at 290.





The government cites to Second Circuit case law to argue that an

arresting officer has probable cause to arrest a person he or she

sees with a gun. But the facts of the cases that the government

relies on differ from the circumstances of Mr. Homer's arrest in

crucial respects. The government cites to United States v. Scopa,

for example, asserting that the Second Circuit reversed the dis-

trict court's suppression of a firearm after a warrantless search

because "the mere presence of a partially concealed firearm is

highly and immediately incriminating." (Post-Hearing Mem. in

Opp. at 7 (citing Scopa, 19 F.3d at 782).) But the government

mischaracterizes Scopa. In Scopa, the arresting officer had prob-

able cause because the defendant committed a traffic violation.

Scopa, 19 F.3d at 781. At that point, the officer had probable

cause to arrest. During the traffic stop, but after the officer al-

ready had probable cause, the officer saw the defendant throw

something into the "grab space." Id. at 782. The search of the

grab space that revealed a "partially concealed firearm" was

therefore a lawful search for which probable cause was already

established. Id. It was not relevant that the probable cause was

premised on a traffic violation. See id. (" [A] s long as a valid basis

for a detention and search exists[,] it is not rendered invalid by

the fact that police resort to a pretext for one purpose or another

to continue that detention and search.")

Motion to suppress granted.