USA v. Burgos

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
UNITED STATES OF AMERICA
-v- 5:25-CR-214 (AJB)
JOHN BURGOS,
Defendant.
_____________________________________
Hon. Anthony Brindisi, U.S. District Judge:
DECISION and ORDER
I. INTRODUCTION
The United States of America (the “government”) has indicted defendant John Burgos for
possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g). Dkt. No. 1.
Burgos has moved to suppress all evidence obtained during the operation preceding his arrest,
including a gun, or in the alternative for an evidentiary hearing. Dkt. No. 17.
The motion is fully briefed, Dkt. Nos. 17-1 (“MTS”), 19 (“Gov’t Mem.”), 22 (“Def.
Reply”), and will be considered based on the parties’ submissions without oral argument.
II. BACKGROUND
In 2022, Burgos pleaded guilty in Supreme Court, Onondaga County, to third-degree
robbery, an offense that involved using a gun and threatening to “shoot up” his victim’s house.
See Gov’t Mem. at 1. On October 24, 2024, after serving about half of a four-year custodial
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sentence, Burgos was released on state parole with a term originally set to expire in March 2026.
Id.; Dkt. No. 17-4 (“Rel. Cert.”) at 2.
As part of Burgos’s parole, he agreed to various conditions of supervision. Rel. Cert. at
2–4. Among others, these included the following (“Condition Four”):
I will permit my Parole Officer to visit me at my residence, will
permit the search and inspection of my person, residence and
property, and will discuss any proposed changes in my residence,
employment or program status with my Parole Office.
Id. at 3. The government claims that, by the spring of 2025, Burgos had violated various terms
of his parole agreement more than two dozen times. See Gov’t Mem. at 2.
On March 27, 2025, the Syracuse Police Department (“SPD”) learned of a robbery at
gunpoint at a gas station. Gov’t Mem. at 2. Sometime later, SPD learned of a second robbery
involving a foot chase. Id. On March 28, 2025, SPD identified Burgos as a person of interest in
at least the former incident, which, it bears repeating—like the robbery to which Burgos had
pleaded guilty—involved a gun. MTS at 2. An SPD officer shared this information with the
parole officers responsible for supervising Burgos, but no warrant for his arrest was issued. Id.
Nevertheless, by April 16, 2025, SPD wanted to question Burgos in connection with the
March robberies. Gov’t Mem. at 2. On that date, SPD and parole officials were conducting a
joint operation to “check on” parolees subject to location monitoring, a group that included
Burgos. Id. Officials determined that Burgos was in or near Teall Market, a convenience store in
Syracuse, and traveled to his location. Id.
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Although the parties interpret the events that followed differently, their retellings largely
align.1 SPD Officers Leonard Brown and Darrin Ettinger arrived at Teall Market in a police
vehicle, dressed in police uniforms, and entered the store. MTS at 3; Gov’t Mem. at 2. Officer
Brown saw Burgos in an aisle and, within moments, tackled him. MTS at 3; Gov’t Mem. at 3.
While both officers manually restrained Burgos on the ground, Officer Ettinger checked Burgos
for weapons and found a gun in his pants. MTS at 4; Gov’t Mem. at 3.
The parties disagree, however, about why Officer Brown tackled Burgos. Burgos seems
to suggest that the SPD officers used force on him because of his race.2 See MTS at 3. On the
other hand, the government points to Burgos’s movements just before Officer Brown tackled
him, noting that, “[u]pon seeing the officers, the defendant began reaching towards his
pocket/waistband.” Gov’t Mem. at 2–3. Based on this gesture and Officer Brown’s knowledge
that Burgos was both (1) on parole after pleading guilty to a crime involving a gun, and
(2) wanted for questioning in connection with at least one additional, more recent incident
involving a gun, the government writes, “Officer Brown believed that the defendant may be
armed and reaching for a firearm.” Id. at 7. In response, Burgos has attested that “[he] didn’t
reach towards [his] front pocket or waistband” at that time. Dkt. No. 22-1.
Burgos has submitted body-worn camera footage of the events inside Teall Market. See
generally Dkt. No. 17, Ex. D. The parties disagree about whether the footage shows Burgos
1 As the government claims, “[t]he facts surrounding the stop and search are not in dispute.” Gov’t Mem. at 2.
2 Burgos’s motion includes several hyperlinked local news articles reporting that Officers Brown and Ettinger have
each “been accused of using excessive force on people of color.” MTS at 3. His reply brief repeats these claims.
Def. Reply at 8 (“As noted in the moving papers, [Officers] Brown and Ettinger have previously been accused of
using excessive force on people of color.”).
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reaching toward his waistband.3 Notwithstanding the footage, in a written report on the incident,
which Burgos also submitted with his motion, Officer Brown detailed his assessment that Burgos
had begun to reach toward what he believed could have been a gun. Dkt. No. 17-8.
Officer Brown’s narrative reads, in part:
Upon entering the store I immediately saw Burgos standing in one
of the [a]isles near the front. It should be noted that for this detail
we were wearing plain clothes with vests that are clearly marked
police along with other items that would clearly indicate we are the
police. It should also be noted that upon seeing us enter the store it
appeared to me that our presence made Burgos highly nervous.
Upon seeing us Burgos[’s] eyes opened up wide and he began
making movements towards the waistband of the pants he was
wearing at that time. Burgos also began reaching into the front right
pocket of the jacket he was wearing in [a] manner that made me
believe he could be reaching for an object that I could not see. It
should be noted that [in] the robbery incident involving Burgos that
[another officer] is investigating, Burgos is accused of being armed
with a handgun. It should also be noted that Burgos was charged for
being in possession of a handgun for the incident that resulted in
hi[s] being placed on parole. Based on the above-mentioned actions,
along with the furtive movements I saw Burgos making, I did believe
he may be armed with a firearm. Based on this belief I did
immediately force Burgos to the ground . . . .
Dkt. No. 17-8 at 6 (emphasis added). Officer Ettinger’s report, which Burgos also appended to
his motion, likewise indicates that officers thought Burgos was likely armed. See id. at 15 (“[O]n
3 In reference to the footage, Burgos describes the events as “unfolding extremely quickly,” noting that Officers
Brown and Ettinger ran at him “[i]mmediately upon entering the store, without pausing,” Officer Brown tackled
him, the officers restrained him, and Officer Ettinger “shoved his hand down the front of [his] pants,” where he
found a gun. MTS at 4. In reference to the same footage, the government says that “[u]on seeing the officers”
Burgos began to move a hand toward his waist, Gov’t Reply at 2–3, and that the motion “[was] clearly visible,” id.
at 7. The government attaches screenshots purporting to show the same. Dkt. Nos. 19-1, 19-2, 19-3.
The parties’ characterizations aside, the Court has reviewed the footage and concludes that nothing therein indicates
that any material fact in this case is genuinely in dispute. See Scott v. Harris, 550 U.S. 372 (2007) (holding courts
should consider video evidence constituting part of record in assessing existence of genuine material issues of fact).
Thus, as discussed below, the footage does not aid Burgos in establishing that an evidentiary hearing is required.
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top of Burgos[’s] being on parole for [criminal possession of a weapon], we were also aware . . .
that he was wanted for a recent armed robbery[.]”).
In any event, after recovering the gun, the officers took Burgos outside to a patrol car.
MTS at 4. State authorities charged him with criminal possession of a weapon and resisting
arrest, id., and a federal grand jury later returned an indictment for possession of a firearm by a
prohibited person, Dkt. No. 1.
On August 22, 2025, Burgos appeared before U.S. Magistrate Judge Thérèse Wiley
Dancks, who appointed the Office of the Federal Public Defender to represent him. Dkt., Text
Minute Entry (Aug. 22, 2025).
Burgos filed the pending motion on October 27, 2025. MTS. The government responded
on November 17, 2025, Gov’t Mem., and Burgos replied on December 1, 2025, Def. Reply.
III. LEGAL STANDARD
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. AMEND.
IV. In general, a search performed without a warrant issued upon a showing of probable cause is
per se unreasonable. See Katz v. United States, 389 U.S. 347, 356–57 (1967). But “the warrant
requirement is subject to certain reasonable exceptions.” Kentucky v. King, 563 U.S. 452, 459
(2011). To justify a warrantless search, the government must show that an exception applies.
See United States v. Iverson, 897 F.3d 450, 458 (2d Cir. 2018).
IV. DISCUSSION
As an initial matter, the Court writes to clarify the parties’ respective burdens. A criminal
defendant bears the burden of “demonstrating disputed issues of fact that would justify an
evidentiary hearing” using “an affidavit from an individual with personal knowledge of the
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underlying facts.” United States v. Diaz, 303 F. Supp. 2d 84, 93 (D. Conn. 2004). Where “no
contested issues of fact going to the validity of the search” would justify an evidentiary hearing,
however, no hearing is required. See United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992).
Broadly speaking, Burgos’s moving papers contain an affidavit that oulines his
perceptions of the SPD officers’ and his parole officer’s actions relating to his arrest. See Dkt.
No. 17-2. His initial papers also include, among other things, police reports and body-worn
camera footage from the operation. Dkt. No. 17, Exs. D & E. In a subsequent affidavit, Burgos
explains that he did not, in fact, reach toward his waistband inside Teall Market. See Dkt. No.
22-1. The Court may examine all of these submissions in evaluating whether Burgos has carried
his burden. See, e.g., United States v. Suggs, 2021 WL 1601120, at *2 n.5 (D. Conn. Apr. 23,
2021) (describing shifting burdens in motion to suppress context).
To defeat suppression, the government must show by a preponderance of the evidence
that there was a lawful basis for a search and/or seizure. See, e.g., United States v. Zayas, 2022
WL 16737223, at *3 (S.D.N.Y. Nov. 7, 2022) (citing United States v. Delossantos, 536 F.3d 155,
158 (2d Cir. 2008) and United States v. Matlock, 415 U.S. 164, 177 n.14 (1974)).
Since in this case SPD officers acted without a warrant, the parties focus their arguments
on exceptions to the warrant requirement. Burgos contends that neither the search-incident-to-
arrest nor parole-search doctrines provides a legal basis for SPD’s actions. See MTS at 5–7. In
response, the government argues that the search was justifiable under either of those exceptions,
the exigent circumstances doctrine, or Terry v. Ohio, 392 U.S. 1 (1978), and its progeny. Gov’t
Mem. at 4–7. For reasons that will become clear, the Court begins with Terry.
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A. Terry v. Ohio
In Terry, the Supreme Court held that “[w]hen an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close range is armed and presently
dangerous,” it is reasonable under the Fourth Amendment “to take necessary measures to
determine whether the person is in fact carrying a weapon and to neutralize the threat of physical
harm.” 392 U.S. at 24. The stop-and-frisk procedure authorized in that case has come to be
known as a “Terry stop.” See, e.g., United States v. Rhodes, 2025 WL 1797284, *3 (S.D.N.Y.
June 26, 2025) (characterizing “typical Terry stop” as entailing “a brief seizure and limited
search” (emphases omitted)).
To conduct a Terry stop, an officer needs only reasonable suspicion, a less exacting
standard than probable cause. See, e.g., United States v. Arvizu, 534 U.S. 266, 273 (2002);
United States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014) (explaining that under Terry police may
detain and pat down individuals even without probable cause to arrest). The Supreme Court has
described reasonable suspicion as a “‘particularized and objective basis’ for suspecting legal
wrongdoing,” based on the totality of the circumstances. Arvizu, 534 U.S. at 273 (quoting
United States v. Cortez, 449 U.S. 411, 417–18 (1981)). An officer may determine that reasonable
suspicion exists by drawing inferences from his present knowledge, his perceptions, and “[his]
own experience and specialized training.” Id.
Here, Officer Brown plainly had reasonable suspicion that Burgos was armed and
dangerous. Officer Brown’s report establishes that he was aware of Burgos’s relevant criminal
history, including that Burgos had pleaded guilty to one armed robbery and was a suspect in
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another. Dkt. No. 17-8 at 6.4 That was not all. Burgos also reacted to SPD’s arrival at Teall
Market with what Officer Brown perceived as a “highly nervous” response, including by almost
immediately beginning to motion toward his waistband and front jacket pocket in a way that
“made [Officer Brown] believe he could be reaching for an object that [Officer Brown] could not
see.” Id.; United States v. Hagood, 78 F.4th 570, 578 (2d Cir. 2023) (holding consideration of
suspect’s perceived nervousness was valid part of officer’s reasonable-suspicion analysis and
collecting cases); Zayas, 2022 WL 16737223, at *9 (holding same). Taken together, these factors
amounted to a “particularized and objective basis” for suspicion. See Arvizu, 534 U.S. at 273.
As such, concluding that Burgos was likely armed and dangerous, and then conducting a Terry
stop, was reasonable under the circumstances. See Rhodes, 2025 WL 1797284, at *5 (finding
defendant’s criminal history and perceived movements around waistband, inter alia, created
reasonable suspicion).
Once an officer has reasonable suspicion, “the law recognizes the ‘important need to
allow authorities to graduate their responses to the demands of any particular situation.’” United
States v. Newton, 369 F.3d 659, 674 (2d Cir. 2004) (quoting United States v. Sharpe, 470 U.S.
675, 686 (1985)). “Thus, where an officer has a reasonable basis to think that [a] person . . .
poses a present physical threat to the officer or others, the Fourth Amendment permits the officer
to take ‘necessary measures . . . to neutralize the threat’ without converting a reasonable stop into
a de facto arrest.’” Id. (quoting Terry, 392 U.S. at 24, and collecting cases).
Therefore, “[a]lthough ‘under ordinary circumstances, drawing weapons and using
handcuffs are not part of a Terry stop, intrusive and aggressive police conduct’ is not an arrest
4 The Court would consider the combination of a prior conviction and being sought for questioning in connection
with a more recent armed robbery sufficient to establish reasonable suspicion. But, as discussed infra, Officer
Brown had more, since—on top of these factors—Officer Brown also relied on his interpretations of Burgos’s
physical response to police’s presence in the corner store to determine that a stop was warranted.
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‘when it is a reasonable response to legitimate safety concerns on the part of the investigating
officers.” United States v. Vargas, 369 F.3d 98, 102 (2d Cir. 2004) (quoting United States v.
Miles, 247 F.3d 1009, 1012 (9th Cir. 2001) (alterations adopted)).
In this manner, United States v. Rhodes proves instructive. There, the court denied a
motion to suppress, concluding police had obtained the disputed evidence, a gun, as the result of
a lawful—if atypically intrusive—Terry stop. See 2025 WL 1797284, at *3. While surveilling a
Manhattan intersection, an officer had spotted the defendant, who had previously pleaded guilty
to attempted criminal possession of a weapon and who could not lawfully possess guns. Id. at
*1. During the surveillance, the officer “observed [the defendant] move in a way that suggested
he was carrying a firearm,” including by holding a hand to his waistband. Id. Based on his
perceptions, “his knowledge of [the defendant’s] criminal history,” and his awareness of previous
incidents involving guns in the same area, the officer concluded the defendant was armed. Id. at
*2. Accordingly, that officer instructed others to locate the defendant and investigate whether he
had a gun. Id. A different officer tracked the defendant to a corner store where bystanders were
present, approached him, and told him to remain calm. Id. The defendant then “lowered [a]
hand . . . toward his side,” brushing against the officer, who “proceeded to force [the defendant]
to the ground,” after which he found a gun in the defendant’s waistband. Id.
The Rhodes court noted that the officer who tackled the defendant had entered the corner
store “specifically intending to effectuate a Terry stop . . . because . . . he had reasonable
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articulable suspicion that [the defendant] was armed.” 2025 WL 1797284, at *4.5 And since the
officer reasonably believed the defendant was armed, his actions were appropriate to ensure both
his and the public’s safety, regardless of probable cause. Id. (citing United States v. Alexander,
907 F.2d 269, 272 (2d Cir. 1990)). The court summarized the sequence of events as follows: the
officer developed reasonable suspicion, “br[ought] [the defendant] to the ground to subdue him
ahead of a pat down for weapons,” which revealed a gun, which in turn provided “probable cause
to arrest [him] for being a felon in possession.” Id. So, “[w]hile perhaps more intrusive than the
average Terry stop,” the officer’s actions were reasonable under the circumstances. Id.
The same must be said regarding SPD’s actions in this case. Once Officer Brown had
reasonable suspicion, he could conduct a Terry stop. Arvizu, 534 U.S. at 273; Bailey, 743 F.3d at
332. The Fourth Amendment permits such stops in response to officers’ reasonable assessments
of defendants’ threats to public safety. See Vargas, 369 F.3d at 102. This remains true even
when a Terry stop is “perhaps more intrusive” than usual. Rhodes, 2025 WL 1797284, at *4.
Under these circumstances, the brief use of nonlethal force against someone reasonably believed
to be armed and dangerous, in a public place with bystanders present, and then conducting a
limited frisk for weapons, was entirely appropriate to “neutralize the threat” that officers had
reasonably concluded the individual posed. See Newton, 369 F.3d at 674.
Furthermore, like the police in Rhodes, Officers Brown and Ettinger “br[ought] [the
defendant] to the ground to subdue him ahead of a pat down for weapons[,] . . . in the process . . .
5 Writing separately to assess reasonable suspicion, the court held that the officer who had been surveilling the
intersection had appropriately concluded that the defendant had a gun, “based on numerous factors, including his
observation of [the defendant’s] movements, his knowledge of [the defendant’s] prior arrests, and his understanding
that the intersection . . . was a high-crime area,” drawing on past police experience. Rhodes, 2025 WL 1797284, at
*5. And even though the defendant later identified some factual errors in the complaint filed in support of his arrest,
including the location of a different gun recovered from the same defendant during a previous arrest, the fact “[t]hat
[the officer] may have been mistaken about some of the details . . . [did] not undercut his reasonable suspicion
because the touchstone is whether the mistake was reasonable.” Id.
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discovered [the defendant] was armed,” and so “had probable cause to arrest [him] for being a
felon in possession.” 2025 WL 1797284, at *4.
Thus, Burgos’s arguments about whether and/or when SPD effectuated a de facto arrest
without probable cause, Def. Reply at 5–7, miss the mark. Officer Brown’s initial response was
a valid Terry stop based on reasonable suspicion. Once Officer Ettinger found a gun on Burgos’s
person, this reasonable suspicion developed into probable cause, given officers’ awareness of
Burgos’s status as an individual prohibited from possessing such weapons. And the Fourth
Amendment plainly does not require warrants for arrests based on crimes committed in officers’
presence. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable
cause to believe that an individual has committed even a very minor criminal offense in his
presence, he may, without violating the Fourth Amendment, arrest the offender.”).
While Terry does not permit limitless incursions into defendants’ personal spaces, the
events in this case did not encroach upon Burgos’s Fourth Amendment rights. Even aside from
any probable cause that ultimately resulted, seizing the gun was permissible under Terry: given
not only Burgos’s past conviction for and suspected involvement in separate armed robberies, but
also what Officer Brown reasonably perceived to be a potentially threatening response to SPD’s
arrival on the scene, Officer Brown reasonably believed Burgos was armed and dangerous. Once
Officer Brown made the stop on that basis, Officer Ettinger’s frisk of Burgos’s pants was
appropriate to ensure both police’s and the public’s safety.
Therefore, the motion to suppress must be denied.
B. Parole Search
While evaluating the motion requires no further analysis, the Court considers the parties’
arguments about the parole-search exception as an alternate basis for a decision. For his part,
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Burgos argues that this exception does not apply because the relevant language in his parole
agreement, Condition Four, did not provide consent to warrantless searches by people other than
parole officers. MTS at 6. The government responds that the law in our circuit allows for
warrantless searches of parolees by other law enforcement officials who are cooperating with
parole officers. Gov’t Mem. at 6.
Broadly speaking, the Fourth Amendment allows some warrantless searches of
individuals who have been released from custody but remain subject to government supervision.
See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873–74 (1987). Thus, a parole officer may search a
parolee without a warrant—and without even reasonable suspicion—when parole is expressly
conditioned upon the parolee’s submitting to such searches. Samson v. California, 47 U.S. 843,
855 (2006) (upholding state parole system providing for such searches and observing parolees
have “substantially diminished expectation[s] of privacy”). The Second Circuit has added a
gloss to Samson, approving of a suspicionless search of a parolee that is “reasonably related to
the parole officer’s duties.” United States v. Braggs, 5 F.4th 183, 186–87 (2d Cir. 2021).
The facts of this case do not fit neatly into these categories.6 Assuming that Condition
Four intended to authorize only parole officers’ warrantless searches, see MTD at 6–7, the Court
confronts the fact that the relevant actors here were not parole officers, but police officers who
were engaged in a joint operation with a parole officer. Gov’t Mem. at 2. This matters because,
6 The text of Condition Four is no model of clarity. See Rel. Cert. at 3 (“I will permit my Parole Officer to visit me
at my residence, will permit the search and inspection of my person, residence and property, and will discuss any
proposed changes in my residence, employment or program status with my Parole Office,” a term the Court
interprets to encompass “parole officer”). It obligates Burgos to “permit [his] Parole Officer to visit [him] at [his]
residence,” to “discuss any proposed changes in [his] residence, employment, or program status with [his] Parole
Office” and to “permit the search and inspection of [his] person, residence, and property.” Id. (emphases added).
The last of these clauses—located between the other two in the original—does not identify what person or category
of people may conduct such “search[es] and inspection[s].” Id. One reading could put any law enforcement official,
including police officers, into that group, given the clause’s apparent breadth compared to its more specific
neighbors. But another could reason that, because the surrounding clauses refer to parole officers, non-parole law
enforcement officials fall beyond its scope.
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while the Fourth Amendment permits a great deal of police-parole cooperation, in our circuit the
outer boundaries of this area of law are somewhat hazy.
The government correctly quotes the Second Circuit as having approved of “cooperation
between probation officers and other law enforcement officials so that they may work together
and share information to achieve their objectives.” Gov’t Mem. at 6 (quoting United States v.
Reyes, 283 F.3d 446, 471 (2d Cir. 2002) (quotations omitted)). Based on this holding, the
government argues, “[p]arole was lawfully permitted to stop and search [Burgos], and they were
allowed to enlist SPD to assist, especially given the defendant’s dangerous history.” Id. This
much is not self-evident.
The Reyes panel collapsed the distinction between probation officers and parole officers
as relevant here. 283 F.3d at 458–61 (discussing “probation/parole officer’s observation and
supervision responsibilities,” including, among other things, enforcing supervision conditions
and preventing new criminal activity); see also Black v. Petitinato, 761 F. App’x 18, 21–22 (2d
Cir. 2019) (summary order) (“We have held that police officers may coordinate with parole
officers to conduct a search of a parolee’s home.”) (citing Reyes, 283 F.3d at 464). And the panel
firmly rejected the idea that the Fourth Amendment prohibits collaboration between police and
probation or parole officers designed to facilitate warrantless searches, known as the “stalking
horse” theory. Reyes, 283 F.3d at 463; see also United States v. Chandler, 56 F.4th 27, 44 (2d
Cir. 2022) (reaffirming Reyes and sanctioning joint police-probation effort to observe and search
defendant suspected of engaging in repeated drug dealing), cert. denied, 143 S.Ct. 1791 (2023).
But cases blessing warrantless interagency searches have appeared to involve a level of
collaboration that the available record in this case does not make clear. In Reyes, for example, a
Drug Enforcement Agency (“DEA”) officer had asked federal probation officers to coordinate a
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home visit of a probationer to coincide with DEA’s planned search of a neighboring home; DEA,
federal probation, and local police officers traveled together to the two homes; and both DEA
and federal probation officers searched the probationer’s home, even as the DEA officers took
the lead on the more invasive parts of the search. 283 F.3d at 451–53. In Chandler, after a
federal probation officer received a tip regarding a probationer’s alleged possession of a
prohibited gun, the federal probation officer and local police officers together conducted a
planned search of the probationer’s residence. 56 F.4th at 32. And in Black (a civil case in a
different procedural posture), “the parole officers [who had searched the plaintiff suing under 42
U.S.C. § 1983] were accompanied in their search by police officers.” 761 F. App’x 18 at 21.
Here, it is unclear whether there was such close interagency collaboration. The record
shows that, in an application for a warrant to search Burgos’s phone after his arrest, Bureau of
Alcohol, Tobacco, Firearms, and Explosives (“ATF”) Special Agent Jacob Garrett describes “a
NYSPO Supervision detail in Syracuse, New York,” involving ATF, SPD, parole, and Onondaga
County Sheriff’s Office personnel. Dkt. No. 17-9 at 4–5. A report from the parole agency states,
“[o]n 4/16/2025 . . . members of [the New York State Department of Corrections and Community
Supervision], Syracuse Police, and other law enforcement were working a joint GPS detail.”
Dkt. No. 17-5 at 3. Officer Brown describes his unit as having included one parole officer and
three SPD officers, the latter “assist[ing] with . . . administer[ing] checks on parolee[s] who have
been placed on GPS monitors,” like Burgos. Dkt. No. 17-8 at 6. Officer Ettinger’s account
mirrors Officer Brown’s. See id. at 15 (describing “a multi-agency cooperation, where . . . we
were detailed to stop and detain persons on parole and being monitored by GPS bracelet”).
The available record does not establish the parole officer’s contributions to the joint detail
after Officers Brown and Ettinger learned of Burgos’s location. The Court can ascertain that
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Officers Brown and Ettinger entered Teall Market, and only they were involved in tackling,
restraining, and ultimately recovering the gun from Burgos. See, e.g., MTS at 3; Gov’t Mem. at
2–3. Neither SPD officer’s report refers to any contemporaneous or subsequent actions the
parole officer may have taken. Dkt. No. 17-5 at 6–7, 15–16. But see Dkt. 17-2 ¶ 14 (attestation
that during this process Burgos saw no parole officer “until a few minutes after [he] had already
been arrested and put in a patrol car”). Based on these somewhat limited facts, it is not readily
apparent that the Reyes line of cases must dictate the outcome of the pending motion.7
Nevertheless, the parties should not understand this section to mean that the parole-search
exception does not apply, or that these events for any other reason offend the Fourth Amendment.
Rather, since SPD’s actions were permissible under Terry and its progeny, the Court leaves the
task of defining the outer boundaries of police-parole cooperation for another day.
C. Evidentiary Hearing
Finally, the Court turns to whether an evidentiary hearing is warranted in this case. It is
not. Put briefly, Burgos has failed to carry his burden of establishing a genuinely disputed
material fact, i.e., one bearing on the question of whether Officer Brown reasonably perceived
Burgos to be an armed-and-dangerous threat to public safety when confronted inside Teall
Market. Therefore, his request for an evidentiary hearing will be denied.
“An evidentiary hearing on a motion to suppress ordinarily is required if the moving
papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to
conclude that contested issues of fact going to the validity of the search are in question.” United
States v. Getto, 729 F.3d 221, 226 n.6 (quoting In re Terrorist Bombings of U.S. Embassies in E.
Afr., 552 F.3d 157, 165 (2d Cir. 2008) (emphasis added, quotation marks omitted)). Thus, where
7 Neither party has identified an intra-circuit case about police-parole cooperation mirroring these facts. See MTS at
6–7; Gov’t Mem. at 4–6; Def. Reply at 2–4. Perhaps unsurprisingly, the Court has found no such case, either.
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a defendant’s claims would not require suppression, a district court may deny his request for an
evidentiary hearing. Id.; United States v. Lewis, 62 F.4th 733, 741 (2d Cir. 2023) (“[A
defendant’s] entitlement to an evidentiary hearing . . . turn[s] on whether he establishe[s] that
there [are] disputed factual issues going to the validity of the search.”); see also United States v.
Almonte-Polanco, 2023 WL 4246105, at *4 (2d. Cir. June 29, 2023) (summary order) (affirming
denial of request for evidentiary hearing where record, which included video evidence, failed to
reveal “genuinely contested issue of fact going to the validity of the search”); United States v.
Brito, 771 F. Supp. 3d 157, 181 (E.D.N.Y. 2025) (denying motion for evidentiary hearing where
even crediting defendant’s version of disputed facts did not require suppression).
As discussed elsewhere in this decision, Burgos has submitted, among other things,
affidavits on his own behalf, SPD reports, the terms of his parole, and body-worn camera
footage. See generally Dkt. No. 17. Meanwhile, as Burgos points out, the government has not
submitted any affidavits or declarations in support of its arguments. Def. Reply at 1; cf. Dkt. No.
19. Yet the government’s failure to do so, by itself, does not entitle Burgos to a hearing.
In the affidavit submitted with Burgos’s response papers, he attests: “On April 16, 2025,
while I was inside Teall Market when multiple law enforcement officers entered and ran towards
me, I didn’t reach towards my front pocket or waistband.” Dkt. No. 22-1. In Burgos’s telling,
against the government’s contention that the SPD officers’ actions were justified in part because
they saw Burgos move in such a way, this creates a contested factual issue requiring an
evidentiary hearing. See Def. Reply at 2. For the following reasons, however, this is not so.
No genuine, material factual dispute exists here because the relevant question is not
whether Burgos gestured toward his pocket or waistband, which alone would not decide whether
suppression is necessary, but whether police reasonably believed him to be armed and dangerous,
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based on their knowledge, perceptions, and experience. See, e.g., Arvizu, 534 U.S. at 273. In
answering this question, the Court must be “careful to evaluate the record ‘from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Tracy v.
Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (quoting Jones v. Parmley, 465 F.3d 46, 61 (2d Cir.
2006)). And it must “make allowance for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation.” Id. (quotations omitted).
Burgos’s own submissions show that Officer Brown’s actions were reasonable under the
circumstances. Officer Brown’s report details his understanding that Burgos was wanted for
questioning in connection with an armed robbery and on parole for an earlier gun-related crime.
See Dkt. No. 17-8 at 6. The report recounts how, equipped with this background knowledge,
Officer Brown entered Teall Market, spotted Burgos, and saw him respond in a “highly nervous”
manner, which he perceived to entail Burgos’s eyes widening and Burgos’s reaching toward his
waistband and jacket pocket, where he may have been concealing a weapon. Id. Nothing in the
available record—not the body-worn camera footage, Burgos’s affidavits, or anything else—
suggests that Officer Brown was unreasonable in concluding, in that moment, that Burgos was
armed and dangerous. Instead, his perceptions were reasonable, and his response likewise.
So, while indeed “contested,” whether Burgos in fact moved his hand in the manners
described does not “go[] to the validity of the search,” especially considering all the other factors
that contributed to Officer Brown’s assessment. Cf. Getto, 729 F.3d at 226 n.6. And the Court
can identify no other genuinely contested fact that would affect the suppression analysis.
Thus, an evidentiary hearing is unwarranted in this case.
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D. Remaining Arguments
Before concluding, the Court briefly addresses the parties’ remaining arguments.
Because police recovered the gun from Burgos pursuant to a valid Terry stop (and because the
Court has spilled enough ink on other collateral matters), the search-incident-to-arrest and/or
exigency exceptions to the warrant requirement have no effect on the outcome of this motion and
thus require no independent analysis.
V. CONCLUSION
The available record demonstrates not only that Burgos has failed to establish a disputed
fact bearing on the suppression analysis, but also that SPD officers acted well within the limits of
the Fourth Amendment in determining that Burgos was armed and dangerous inside Teall
Market, stopping him, conducting a frisk for weapons, and ultimately seizing a gun. As such, the
Court cannot conclude that either an evidentiary hearing or suppression is warranted in this case.
Therefore, it is hereby
ORDERED that Burgos’s motion to suppress (Dkt. No. 17) is DENIED.
The Clerk of the Court is directed to terminate the pending motion and set a trial date.
IT IS SO ORDERED.
Dated: January 13, 2026
Utica, New York.
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