Issue: Whether the initial stop of the defendant was an unlawful arrest rather than a permissible level-3 seizure.

Held: The issue is unpreserved for review.

Discussion: A deeper dive into this case may help practitioners better understand what makes an issue “unpreserved” for purposes of Court of Appeals review. Here, the facts, as described in the Appellate Division opinion (221 A.D.3d 1430) and the Court of Appeals briefing, showed that, after a report of shots fired by a Black “kid,” walking with two other kids, the police approached four Black men walking together in the vicinity of the shooting to ask where they were coming from, and one officer (Thomas, who did not testify at the hearing) chased Mr. Watkins after he fled holding his right hand in front of his body as if holding something. After a different officer (Santiago, who testified) handcuffed Mr. Watkins, Thomas recovered a pistol from him.

The defense’s omnibus motion stated the police lacked either probable cause to arrest the defendant or reasonable suspicion to believe he was engaged or about to engage in criminal activity. After the hearing, defense counsel argued that the police did not have reasonable suspicion to pursue Mr. Watkins because he didn’t match the description in the dispatch report.

The hearing court held that the officers had reasonable suspicion to pursue and stop Mr. Watkins (Level 3), and that upon discovering the weapon, the officer gained probable cause to arrest.

In the Appellate Division, the defense argued, inter alia, that the People failed to establish the legality of the police conduct in stopping Mr. Watkins because Thomas didn’t testify, and that even if the officers had reasonable suspicion, they failed to establish that the handcuffing officer acquired probable cause to elevate the seizure into an arrest, which was effected by the handcuffing, before the gun was recovered. The Appellate Division, in a 3-2 opinion, affirmed, finding that the probable-cause claim based on the additional physical restriction had not been preserved. Two justices dissented finding a lack of reasonable suspicion for the pursuit and a dissenter granted leave.

In the Court of Appeals, the defendant conceded reasonable suspicion and solely argued that Mr. Watkins was subjected to a full-scale arrest without probable cause when he was handcuffed after the chase. Probable cause - the recovery of the pistol – was acquired only after the arrest. As to preservation, the defense argued that the omnibus motion referenced a lack of probable cause to arrest. The defense also argued that the hearing court implicitly decided the issue of probable cause, thus preserving it, by concluding that the officer gained probable cause to arrest upon discovering the weapon. In other words, the hearing court necessarily found that the initial seizure was a non-arrest detention.

At the oral argument, there was considerable discussion about whether allegations in the omnibus can alone preserve an issue. Judge Garcia challenged the adequacy of the motion papers to preserve, pointing out that the challenge was to the lawfulness of the stop, not the level of the stop. The defense, he said, never challenged that the stop was an arrest. The argument below, he said, was that they had no lawful reason, either reasonable suspicion justifying a Terry stop or probable cause justifying an arrest. He didn’t see “anywhere in the record where you made an argument about the circumstances of his custody, initially, being an arrest.” “None of that is in . . . the suppression argument.” Defense counsel maintained it was a slightly different focus at the hearing, but the defense was understood to be challenging probable cause.

On the prosecution’s argument, CJ Wilson asked why the motion papers stating that the police lacked either probable cause to arrest or reasonable suspicion didn’t preserve the PC question, and cited DeBour for the proposition that an argument preserved in papers isn’t vitiated by oral argument unless it’s expressly disclaimed. The prosecutor maintained and cited cases supporting that a general reference to a theory like probable cause won’t suffice unless the theory is articulated.

We know the result - unpreserved.

CAL Observes: Trying to tease out preservation from a limited record below is a huge challenge for defense practitioners, and the current make-up of the Court is still ungenerous in this regard. Watkins provides something of a roadmap. There, the defense never argued that the stop actually put the defendant under arrest, and the general reference to probable cause in the motion papers was not enough to preserve by itself. However, the case suggests that if you can show some preservation in the omnibus and some articulation of the specific theory, whether in the omnibus or at the hearing, or, perhaps, the hearing court directly addressing the issue, you may be able to get over the line. DeBour is helpful in this regard. That seemed to be what the judges were looking for and not finding on the record in Watkins.