11-3554-cr
USA v. Nelson

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 19th day of October, two thousand twelve.

Present: ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
         GERARD E. LYNCH,
                           Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           - v. -                      No. 11-3554-cr

SHAKA NELSON,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                       YUANCHUNG LEE, Federal Defenders of New
                                               York, Inc., New York, N.Y.

For Appellee:                                  HADASSA R. WAXMAN (Brent S. Wible, on the
                                               brief), Assistant United States Attorneys, for
                                               Preet Bharara, United States Attorney for the
                                               Southern District of New York, New York,
                                               N.Y.
        Appeal from the United States District Court for the Southern District of New York
(Castel, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Shaka Nelson appeals from a September 2, 2011 judgment of

conviction entered by the United States District Court for the Southern District of New York

(Castel, J.), following a one-day bench trial on stipulated facts. The Government’s indictment

charged Nelson with one count of possessing ammunition that previously had been shipped and

transported in interstate commerce after having been convicted of a felony, in violation of 18

U.S.C. § 922(g)(1). On appeal, Nelson challenges the district court’s denial of his suppression

motion, arguing that the police officers lacked probable cause to arrest him for disorderly

conduct and thus that the search incident to his arrest was improper. Specifically, he contends

that the officers lacked probable cause to believe that the following elements of New York’s

disorderly conduct statute were satisfied: (1) that Nelson was “congregat[ing]” with others; (2)

that Officer Pietrowski’s order to disperse was “lawful”; and (3) that Nelson had the culpable

intent to disturb the peace. We assume the parties’ familiarity with the facts and procedural

history of the case.

       In an appeal from a suppression decision, we review a district court’s factual

determinations for clear error and its legal holdings de novo. United States v. Stewart, 551 F.3d

187, 190-91 (2d Cir. 2009). “When the [suppression] motion has been denied, all facts are to be

construed in the government’s favor.” United States v. Singh, 415 F.3d 288, 293 (2d Cir. 2005).




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       “A warrantless arrest is justified if the police have probable cause when the defendant is

put under arrest to believe that an offense has been or is being committed.” United States v.

Cruz, 834 F.2d 47, 50 (2d Cir. 1987). Probable cause exists “if the law enforcement official, on

the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy

information to justify a person of reasonable caution in believing that an offense has been or is

being committed by the person to be arrested.” United States v. Patrick, 899 F.2d 169, 171 (2d

Cir. 1990). “The probable-cause standard is incapable of precise definition or quantification into

percentages because it deals with probabilities and depends on the totality of the circumstances.”

Maryland v. Pringle, 540 U.S. 366, 371 (2003). “[I]t is clear that only the probability, and not a

prima facie showing, of criminal activity is the standard of probable cause.” Illinois v. Gates,

462 U.S. 213, 235 (1983) (internal quotation marks omitted).

       Section 240.20(6) of the New York Penal Law provides that “[a] person is guilty of

disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or

recklessly creating a risk thereof . . . [h]e congregates with other persons in a public place and

refuses to comply with a lawful order of the police to disperse.” N.Y. Penal Law § 240.20(6).

New York courts have construed “congregat[ing] with other persons” to mean a gathering of “at

the very least three persons.” People v. Carcel, 3 N.Y.2d 327, 333 (1957). Section 15.05(3) of

the New York Penal Law provides that a person acts “recklessly” with respect to a statutorily

identified result or circumstance when he or she “is aware of and consciously disregards a

substantial and unjustifiable risk that such result will occur or that such circumstance exists.”

N.Y. Penal Law § 15.05(3); see also People v. Weaver, 16 N.Y.3d 123, 128 (2011) (“We have

made clear that a defendant may be guilty of disorderly conduct regardless of whether the action


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results in public inconvenience, annoyance or alarm if the conduct recklessly creates a risk of

such public disruption.”).

       We first turn to Nelson’s contention that the officers lacked probable cause for the arrest

because Nelson was not “congregat[ing] with other persons in a public place” when he

“refuse[d] to comply with [the] order . . . to disperse.” N.Y. Penal Law § 240.20(6). While

conceding that he was standing with two other individuals when Officer Pietrowski ordered him

to move, Nelson contends that because the other two individuals complied with Pietrowski’s

dispersal order, he was no longer part of a group when he refused to obey the dispersal order and

was thus no longer “congregat[ing] with other persons in a public place.” In this case, we need

not reach whether Nelson’s rather technical interpretation of the statute is correct because, even

under Nelson’s construction of the statute, the officers had probable cause to arrest him. As

already noted, there is no dispute that Nelson was standing with two other persons at the time the

officer ordered the group to disperse. There is also no dispute that Nelson refused to obey the

officer’s order. And while the district court found that two of the three individuals “started to

move” when the officer gave the dispersal order, United States v. Nelson, No. 10 Cr. 414 (PKC),

2011 WL 1327332, at *2 (S.D.N.Y. Mar. 31, 2011), it is not clear whether Nelson was, in fact,

standing alone at the time of his arrest. Because the Supreme Court has noted that “it is clear

that only the probability, and not a prima facie showing, of criminal activity is the standard of

probable cause,” Gates, 462 U.S. at 235 (1983) (internal quotation marks omitted), the evidence

supports a finding of probable cause even if it would not support a conviction.

       We next turn to Nelson’s argument that the officers lacked probable cause to arrest him

because the order to disperse was not “lawful,” as dispersal would not serve an important end.


                                                 4
In advancing this argument, he contends that the district court applied an improper standard in

assessing the legality of the dispersal order. Quoting language drawn from People v. Galpern,

259 N.Y. 279 (1932), the district court ruled that “[u]nder New York’s disorderly conduct

statute, an order to disperse is lawful unless ‘the order was “purely arbitrary” and “not calculated

in any way to promote the public order.”’” Nelson, 2011 WL 1327332, at *3 (quoting Crenshaw

v. City of Mount Vernon, 372 F. App’x 202, 206 (2d Cir. 2010) (summary order) (quoting

Galpern, 259 N.Y. at 284-85)). Nelson argues that this standard no longer passes constitutional

muster because, after the New York Court of Appeals decided Galpern in 1932, multiple

Supreme Court cases held that loitering laws are unconstitutional to the extent that they

“encourage arbitrary and discriminatory enforcement” and fail to provide “minimal guidelines to

govern law enforcement.”1 See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); see also

Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90-91 (1965) (noting that law permitting

arrest based on “the moment-to-moment opinion of a policeman on his beat . . . bears the

hallmark of a police state”). In light of these cases, he contends that the standard employed by

the district court provides too much deference to police officers. We need not decide the proper

standard for assessing the legality of dispersal orders, as the undisputed facts establish that the

officer’s dispersal order here served an important end. Nelson and his companions were

indisputably blocking the only cleared pathway, forcing customers to walk on the snow and ice

in order to enter the market and thus creating a safety risk. Accordingly, because the dispersal

order served an important purpose and because the other statutory requirements were satisfied,

we cannot conclude that the dispersal order was unlawful.

       1
         On appeal, while Nelson challenges the district court’s interpretation of New York’s
disorderly conduct statute in light of various Supreme Court decisions concerning the void-for-
vagueness doctrine, he has not brought a constitutional challenge to the statute.

                                                  5
       Finally, we reject Nelson’s contention that the officers lacked probable cause to arrest

him because the mens rea requirement of the disorderly conduct statute was not satisfied. At the

outset, we note that N.Y. Penal Law § 240.20(6) does not clearly specify whether Nelson must

have had the requisite mens rea when he “congregate[d] with other persons,” when he “refuse[d]

to comply with a lawful order,” or at both times. Nonetheless, the officers had probable cause to

believe that Nelson had the requisite mens rea at both relevant times. First, there is sufficient

evidence to support the district court’s conclusion that the officers had probable cause to believe

that Nelson was “recklessly creating a risk” of “public inconvenience, annoyance or alarm”

when he refused to comply with the officers’ lawful order to disperse. See Nelson, 2011 WL

1327332, at *5. Nelson’s combative tone and abusive language, coupled with the location of the

incident, were “sufficient to warrant a person of reasonable caution in the belief” that Nelson

was recklessly creating the relevant risks. United States v. Delossantos, 536 F.3d 155, 158 (2d

Cir. 2008) (internal quotation marks omitted). Similarly, the evidence also supports the district

court’s conclusion that the officers had probable cause to believe that Nelson “recklessly

creat[ed] a risk” of “public inconvenience, annoyance or alarm” while he congregated outside

the store. See Nelson, 2011 WL 1327332, at *4. As the district court observed:

           The combination of the icy conditions, the position of defendant’s group in
           the only shoveled path leading up to the door of the Market, and the
           impediment the defendant’s group caused to the goal of the customers to
           enter the Market in a convenient and safe manner is sufficient to warrant a
           person of reasonable caution to believe that defendant was recklessly
           creating a hazardous public inconvenience.

Id. Accordingly, under any interpretation of N.Y. Penal Law § 240.20(6), the officers had

probable cause to believe that Nelson had the requisite mens rea. Relying principally on People

v. Jones, 9 N.Y.3d 259 (2007), Nelson argues that the officer could not base the arrest solely on



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the fact of Nelson’s obstructive conduct, because some “independent evidence of the defendant’s

intent” to disturb the peace was required. Jones however, imposes no such independent evidence

requirement.

       We have considered all of the defendant’s remaining arguments and find them to be

without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.


                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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