He threw the gun out the window

This is a fairly straightforward search and seizure case where the Second Circuit says the police were able to nail a guy for having an unlicensed gun at the wrong place at the wrong time.

The case is United States v. Bert, decided on February 9. The police got a call that five men were trespassing in a building in New York City. When the police found the men, their brief investigation suggested the guys did not belong in the building. At some point, Bert was not free to leave as the police went about their job. When Bert faced a window, the police told him to turn around and put up his hands. At that point, the police saw that Bert had a gun. Bert then threw the gun out of the 10th floor window. Bert was eventually arrested, and later on he made incriminating statements that made it clear the gun was his.Bert then moved to suppress the statements as the fruit of an unlawful seizure under the Fourth Amendment.

The Court of Appeals (Hall, Pooler and Jacobs) asks in this case if the police had the right to detain Bert such that they were able to find out about the gun. The Court says the seizure was legal. We call this a "Terry stop," where the police can detain you even without probable cause if they have reason to believe criminal activity is afoot. Here is the state of the law:

A police officer may detain an individual for questioning if the officer has “a reasonable suspicion that the individual is, has been, or is about to be engaged in criminal activity.” The officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion on a citizen’s liberty interest.” “While the officer may not rely on an inchoate and unparticularized suspicion or hunch, he is entitled 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.”

Under the totality of the circumstances, the police had the right to detain Bert over the trespass inside the building. When the police got there, they were directed to the floor where Bert was situated. Bert told the officers he did not live in the building. This allowed the officers to briefly detain him to investigate his claim that Bert was visiting a friend in an adjacent apartment. On these facts, the officers were able to detain Bert, which means that his incriminating statements were admissible at trial.