In United States v. Bekim Fiseku, the Second Circuit (Cabranes, Lynch, Carney) rejected the defendant’s argument that police officers unlawfully seized evidence from the trunk of his co-defendant’s vehicle. The Panel held that an officer acted reasonably and consistent with the Fourth Amendment when he handcuffed Fiseku—despite lacking probable cause to believe Fiseku was engaged in criminal activity and having already determined that Fiseku was unarmed—due to the “unusual circumstances” of the encounter. Despite the Court’s assertions that its holding was based on the “unusual circumstances” presented by the case, the decision could be incorrectly taken by law enforcement personnel as permission to handcuff a suspect during a routine Terry stop, even in the absence of more tangible indications that the suspect is armed or otherwise dangerous.

Background

The events culminating in Fiseku’s arrest occurred in the early morning of September 20, 2014, in Bedford, New York, a town located about 35 miles north of New York City, in Westchester County. The New York Times has described Bedford as one of the richest towns in America, home to celebrities such as Ralph Lauren, Martha Stewart and Glenn Close.[1]

At roughly 1:15 am, a Bedford police officer on patrol in a marked car observed a vehicle pulled over on the side of the road. He stopped to speak with the driver, co-defendant Sefedin Jajaga, who told the officer that he was having transmission trouble and was waiting for a friend to arrive. The officer drove on, but decided that the situation “seemed suspicious” because there was a nearby vacant house that was a “prime target for burglary.”

The officer drove back and saw the same vehicle driving on a nearby street. He followed the vehicle, and then saw it parked in the far corner of a parking lot. The officer observed three men in or near the vehicle, including Fiseku and Jajaga. The officer radioed for backup, and two other officers arrived minutes later. Before they arrived, the first officer examined Fiseku’s driver’s license, patted him down and found no weapons or contraband, and placed Fiseku in handcuffs. The team of officers then patted down and handcuffed the other two men. The officers told the men that they “were being detained” while the officers investigated their suspicious activity. The officers did not issue Miranda warnings.

The officers then separated the men in the back of the police vehicles for questioning. The officers testified that this was a “common interview tactic,” and one officer acknowledged that it was not “unusual” for him to use handcuffs during investigatory stops. The three men told the officers somewhat inconsistent stories about plans to attend a party in Connecticut. An officer told Jajaga that he did not believe Jajaga’s story and asked “if there was anything in the vehicle that shouldn’t be there.” Jajaga responded, “No, you can look.” The officers searched the vehicle and found hats and a sweatshirt with New York Police Department logos, a gold police badge, several replica guns, walkie talkies, gloves, a screw driver, and duct tape. These items appeared to be evidence of a planned police-impersonation robbery. The entire encounter lasted approximately ten minutes.

The government charged Fiseku and Jajaga with conspiracy to commit Hobbs Act robbery.[2] Both defendants moved to suppress statements they made to the officers and the physical evidence seized from the vehicle. The district court granted the motion in part after a suppression hearing. The court held that the officers’ conduct, including the use of handcuffs, was reasonable since the investigatory stop occurred late at night in a remote area. But the district court suppressed the defendants’ statements as the product of a custodial interrogation conducted without Miranda warnings in violation of the Fifth Amendment. Nonetheless, the court declined to suppress the evidence seized during the subsequent search because Jajaga’s voluntary consent to the search severed the connection to the unlawful interrogation.

Fiseku subsequently entered a conditional guilty plea in which he admitted to conspiring with others to rob a known narcotics trafficker in Bedford. He was sentenced principally to 108 months’ imprisonment.

The Court’s Decision

On appeal, Fiseku argued that the officer’s decision to handcuff him at the outset of the encounter, even though the officer had patted down Fiseku and determined that he was unarmed, was unreasonable and a violation of the Fourth Amendment.[3] Fiseku argued that what began as a so-called Terry investigatory stop (named after the landmark Supreme Court decision Terry v. Ohio, 392 U.S. 1 (1968)) became a de facto arrest when the officer handcuffed Fiseku. The parties agreed that the officer had reasonable suspicion sufficient to conduct a Terry stop at the time of the handcuffing, but lacked probable cause to arrest Fiseku until the officers later discovered the suspicious evidence in the vehicle.

The Panel recognized that use of handcuffs is generally considered a “hallmark of a formal arrest” and stressed that, consistent with Circuit precedent, “suspecting a person of having committed a burglary cannot, in and of itself, provide police with grounds to subject that person to an extremely intrusive Terry stop.” On the other hand, in several cases the Second Circuit has held that handcuffing is permitted during a Terry stop if an officer has a reasonable basis to think that the individual poses a present physical threat and handcuffing is the least intrusive means to protect against that threat.

The Panel identified several reasons why the officer’s use of handcuffs here was reasonable and consistent with a lawful Terry stop. First, the officer had observed suspicious activities by three men in a remote area late at night. Second, the officer was initially outnumbered, and given the late hour, he could not be sure when backup would arrive. Third, while the officer had determined that Fiseku had no weapons on his person, the officer could not exclude the possibility that there were weapons or additional dangerous associates in the area. Fourth, the officer opted not to hold Fiseku at gunpoint, which would have been more intimidating and dangerous than the use of handcuffs. Fifth, the entire encounter was brief. Taken together, the Court concluded that although the officer “might have chosen to proceed without using physical restraints, . . . he did not act unreasonably when he placed Fiseku in handcuffs shortly after initiating the investigatory stop.” Because there was no Fourth Amendment violation, the Court affirmed the denial of the motion to suppress the seized physical evidence.

Analysis

As the Panel recognized, police officers are often forced to make quick decisions in rapidly evolving situations where the risk of physical harm can never be fully eliminated. Police officers make those decisions in the moment and without a full awareness of the facts, while lawyers and judges present arguments and make decisions in the calm of a courtroom, long after any possible danger has been neutralized. In that sense, it is understandable that the Court was unwilling to second-guess the use of handcuffs and thus concluded that the officer acted reasonably. Indeed, in other cases, courts have perhaps been insufficiently protective of police safety. See, e.g., Florida v. J.L., 529 U.S. 266 (2000) (holding that a police officer may not conduct a Terry stop based on an anonymous tip that a person is armed, even if the suspect matches the tipper’s description).

At the same time, the Panel’s narrative of a police encounter in a quiet bedroom community is in some regards unexceptional and devoid of the readily discernible or imminent danger that might set the facts of this case apart from future cases. While the officer here could not rule out all possibility of danger even after conducting a traditional Terry pat-down frisk and finding no weapons, that same possibility of danger is present during many police encounters. Similarly, while the Panel is correct in observing that the fact that the events unfolded at night heightened the potential danger, police work (and suspected criminal activity) often occurs at night. To be sure, the encounter was brief, but Terry stops are meant to brief—if they are not brief, they are more likely to be treated as arrests that require probable cause. Finally, while it is true that handcuffing a suspect is less intrusive than holding him at gunpoint, one would hope that neither would be necessary to conduct routine police work.

As a result of the generic nature of the facts, there is a fair concern that this decision will be read to authorize unduly wide latitude in the use of handcuffing during Terry investigatory stops. Indeed, the testimony given by the officer who used handcuffs in this case suggests that the practice is already commonplace. While that officer’s subjective intent is not relevant to the Fourth Amendment analysis, see Whren v. United States, 517 U.S. 806 (1996), the use of handcuffs ought not to be the default procedure during a Terry stop. Fifty years ago, Justice Douglas warned in dissenting in Terry v. Ohio that the Court’s decision applied “powerful hydraulic pressures” that may lead to the watering down of constitutional guarantees. Interpreted more broadly than the Panel wishes, this decision could apply those same pressures, permitting handcuffing—the hallmark of a formal arrest—in too many everyday police encounters. This concern is perhaps even more important today, when stop-and-frisk programs have been criticized for their disparate impact on certain communities and have been the subject of litigation in federal court across the country. Hopefully, district court judges will take to heart the Panel’s repeated admonition that this case involved “unusual circumstances” and will treat the decision as the exception, not the rule.