United States v. Diaz

SACK, Circuit Judge:

During a routine patrol of a Bronx apartment building, New York City Police Department (“NYPD”) Officer Chris Ay-bar observed defendant Jose Diaz sitting in a stairwell while holding a plastic cup that seemed to Aybar to smell of alcohol. Officer Aybar initially intended only to issue Diaz a summons — not to make an arrest — for violating New York’s open-container law. She ordered him to stand against the wall and produce identification. Diaz stood and then, as if to retrieve something, fumbled with his hands in his jacket pockets and rearranged his waistband. Officer…