When ruling whether reasonable suspicion exists to conduct a Terry stop, a court may consider whether a particularized and objective basis for suspicion of wrongdoing existed. On Oct. 25, 2008, a police dispatcher relayed an anonymous tip that an African-American named "Hope" had brought a concealed gun with him to a barbershop. Officers went to the barbershop and asked whether anyone was named "Hope." Allegedly, the defendant raised his hand, identified himself and looked nervously toward the exit. Officers asked the defendant to step outside. An officer observed a gun in the defendant's pocket and yelled "75," which is the police department's code for a handgun. One officer informed the defendant he was under arrest, and the officers placed the defendant in handcuffs. Officers frisked the defendant and allegedly discovered a .45-caliber Colt pistol, a scale, a large bag of marijuana and $1,348 in cash. The District Court denied the defendant's motion to suppress, and the defendant was convicted of possession of ammunition by a convicted felon. The defendant appealed. Although, under "ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop, intrusive and aggressive police conduct is not an arrest when it is a reasonable response to legitimate safety concerns on the part of the investigating officers," pursuant to U.S. v. Vargas, a 2004 decision of the 2nd Circuit. The 2nd Circuit found that police officers possessed reasonable suspicion to conduct a Terry stop and that they did not arrest the defendant until they confirmed the presence of a weapon. The defendant also argued that he should not have been sentenced as an armed career criminal. The government presented evidence that the defendant previously was convicted of two counts of first-degree robbery and one count of assault on a peace officer. The District Court was not wrong when it sentenced the defendant as an armed career criminal. The 2nd Circuit affirmed the judgment of the District Court, Underhill, J. Robert Culp represented the defendant. David Fein, Sandra Glover and Christopher Mattei represented the government.

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