On November 7, 2012, the First Circuit Court of Appeals decided the United States v. Rabbia [i], which serves as an excellent review of reasonable suspicion, Terry stops, and de facto arrests.  The facts of Rabbia, taken directly from the case, are as follows:

At 11:00 p.m. on September 3, 2008, police detectives Derek Sullivan and Emmett Macken were patrolling an area in downtown Manchester, New Hampshire they knew to be the site of significant drug trafficking activity. Sullivan and Macken were members of the Manchester Police Department’s Street Crime Unit, a plain clothes unit assigned to urban neighborhoods with high rates of criminal activity. A majority of the unit’s arrests were related to drug crimes and, in the detectives’ experience, the individuals involved in these crimes tended to be armed.

While driving an unmarked vehicle, Sullivan and Macken observed a small group of men gathered in front of 282 Concord Street, a rooming house known to the detectives to be a center of drug activity. One of the men, later determined to be Joshua Lacy, reached into his waistband with his hand concealed by his shirt, which led Macken to suspect that he was carrying a gun. Concerned, the detectives parked their vehicle one block away and got out to conduct surveillance on foot.

After watching the group for a short while, the detectives saw Lacy and another man, later identified as Bryan Bleau, separate from the group and walk to a parking lot behind 282 Concord Street that  [*3] abutted a busy public alleyway. There, they were joined by a third man, who remains unidentified. As the three men were conversing, Lacy held out his wallet, and the detectives heard him say to the unidentified man “I already gave you $70” and “don’t let me down.” The unidentified man then left the lot.

Believing that they were observing the beginnings of a drug deal, the detectives continued to watch Lacy and Bleau. After several minutes, a black Honda Civic pulled into the parking lot, and Bleau entered the passenger’s side door. The Civic then drove away. When it returned a few minutes later, Bleau emerged from the passenger’s side door and retrieved a bag from the trunk. Expecting the bag to contain drugs, the detectives decided to approach Lacy, Bleau, and the driver of the Civic, later identified as Rabbia. Because they were outnumbered three to two, Sullivan and Macken called for backup to detective Paul Thompson, who was nearby.

Without waiting for Thompson, Sullivan and Macken drew their service weapons and approached the trio. Lacy and Bleau were standing in the parking lot. Rabbia was still seated in his car. Because the detectives were wearing civilian clothes, they announced themselves as police officers and displayed their badges. Macken then ordered Lacy and Bleau to lay on the ground and proceeded to pat-frisk and handcuff them. As he was restraining Lacy and Bleau, Macken was joined by Thompson, who began to question Bleau about the contents of the bag he had removed from the Civic.

Meanwhile, Sullivan walked up to the Civic alone with his weapon drawn. He was approximately thirty or forty feet from Macken and Thompson, who were occupied with Lacy and Bleau. From where he stood, Sullivan could only see Rabbia’s upper body and could not determine if he was armed. Sullivan instructed Rabbia to exit the car. When he complied, Sullivan placed him in handcuffs. As he did so, Sullivan told Rabbia that he was not under arrest, that he was being handcuffed as a safety measure, and that the handcuffs would be removed when other officers arrived. Rabbia indicated that he understood. Sullivan then pat-frisked Rabbia for weapons and found none. During the frisk, Sullivan reiterated that Rabbia had been handcuffed as a precaution and that the handcuffs would be removed when additional officers appeared.

While Rabbia was still in handcuffs, Sullivan heard Thompson say that the bag retrieved from the Civic contained a gun. Shortly thereafter, another officer arrived on the scene and, as promised, Rabbia’s handcuffs were removed. In all, he had been handcuffed for approximately five minutes.

After the handcuffs were removed, Sullivan asked Rabbia what he had been doing, without advising him of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). When Rabbia responded that he had been giving Bleau a ride home, Sullivan replied that he did not believe him. Rabbia then said that he had picked up Bleau and sold the gun in the bag to him for $200. Sullivan asked Rabbia to describe the gun, and Rabbia identified the weapon as a shotgun. Sullivan confirmed with Thompson that the bag contained a 12-gauge shotgun and shells.

After a records check revealed that Rabbia and Bleau had previously been convicted of felonies, they were formally arrested for unlawful possession of a firearm and ammunition following a felony conviction. See 18 U.S.C. § 922(g)(1). About thirty minutes had elapsed since Sullivan first confronted Rabbia.

Rabbia was then transported to the police station and read his Miranda rights. He waived those rights and gave a more complete description of the gun sale. Rabbia and Bleau had been imprisoned together previously. As they were finishing their sentences and leaving prison, Rabbia told Bleau that he had a gun he wanted to sell. Bleau later contacted Rabbia to purchase the gun, offering to pay $200. They arranged a meeting place for the sale, which is what led to the events immediately prior to the encounter described above.

At the police station, Rabbia gave written consent to search a room in his mother’s apartment, where he claimed to be living. That search was unproductive, but Rabbia’s mother informed the detectives that he had in fact been staying with his girlfriend in a different apartment. Rabbia’s girlfriend consented to a search of her apartment and, in a drawer containing Rabbia’s clothing, the detectives found a box of .45 caliber shells and an empty box of 12-gauge shotgun shells. [ii]

Rabbia filed a motion to suppress the gun, ammunition and his statements.  The district court denied his motion and he appealed to the First Circuit Court of Appeals.  On appeal he argued (1) that the officers did not possess sufficient reasonable suspicion of criminal activity to detain him, and (2) even if reasonable suspicion was present, the officers’ actions amounted to a de facto arrest and his statements that were made prior to Miranda warnings should be suppressed.

Thus, the first issue before the court was whether the facts and circumstances surrounding this incident provided the officers with sufficient reasonable suspicion to detain Rabbia.  The First Circuit noted that the rule regarding investigative detentions (aka Terry stops) is that:

A police officer is permitted to make a brief investigatory stop, commonly known as a Terry stop, based on a reasonable suspicion that criminal activity may be afoot. The officer must have a particularized and objective basis for suspecting the person stopped of criminal activity, rooted firmly in specific and articulable facts. [iii][internal citations and quotations omitted] [emphasis added]

The relevant facts pertinent to this issue are as follows: (1) the officers were in an area known for illegal drug activity; (2) the officers observed an apparent commercial transaction at 11:00p.m. in a parking lot behind a known drug house; (3) the officers heard one man say to another “I already gave you $70…don’t let me down”; (4) the officer observed one of the men (Bleau) leave and Rabbia drive into the parking lot, pick up another man, and drop him off a few minutes later; and (5) the officer observed Bleau remove a bag from Rabbia’s trunk which appeared to complete the transaction.

The First Circuit then noted that the presence of the suspects in a high-crime area is not alone sufficient to justify a detention.  However, it is also not a factor that must be overlooked.  Thus, the location plus the other relevant factors can amount to reasonable suspicion sufficient to justify a Terry stop.  Further, they noted various other federal circuits have held that similar behavior to what the officers observed in Rabbia does amount to sufficient reasonable suspicion of criminal activity. [iv]  Lastly, the court noted that it is not significant that, after the investigation, the officers learned it was a gun deal rather than a drug deal.

Thus, the court held that the officers did have sufficient reasonable suspicion to justify a Terry stop (investigative detention) of Rabbia in this case.

The second issue before the court was whether the officer’s display of their firearms and handcuffing and frisking of Rabbia amounted to a de facto arrest that should render any non-Mirandized statement inadmissible as a Fifth Amendment violation.  The First Circuit then stated several rules regarding Terry stops and de facto arrests.  First, they stated:

Because a Terry stop allows an individual to be seized on less than probable cause, the extent of that intrusion must be limited.” If those limits are exceeded, the stop may evolve into a de facto arrest, and if it does, the suspect is entitled under the Fifth Amendment to Mirandawarnings before being interrogated. [v] [internal citations and quotations omitted] [emphasis added]

Second, the court noted:

Where an investigatory stop is justified at its inception, it will generally not morph into a de facto arrest as long as the actions undertaken by the officer[s] following the stop were reasonably responsive to the circumstances justifying the stop in the first place as augmented by information gleaned by the officer[s] during the stop. [vi] [internal citations and quotations omitted] [emphasis added]

Lastly, the court noted:

Whether a Terry stop has escalated into a de facto arrest depends on a number of factors, including, inter alia, the location and duration of the stop, the number of police officers present at the scene, the degree of physical restraint placed upon the suspect, and the information conveyed to the suspect. Above all, an inquiring court must bear in mind that it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. [vii] [internal citations and quotations omitted] [emphasis added]

Rabbia argued that the display of firearms, handcuffing and frisk transformed the Terry stop into a de facto arrest.  The court then examined the relevant facts that pertain to this issue.  The facts are as follows: (1) Rabbia was stopped because it was suspected he was involved in a drug transaction; (2) Rabbia’s full body was not visible to the officer as he approached Rabbia; (3) Rabbia could have easily been concealing a weapon in his vehicle and weapons are commonly associated with drug transactions; (4) the officer approached Rabbia with his weapon drawn, handcuffed Rabbia and quickly frisked him; (5) the officer told Rabbia he was not under arrest and would be un-handcuffed when additional back-up officers arrived; (6) upon the arrival of additional back-up, Rabbia was un-handcuffed; and (7) the whole detention prior to formal arrest last about 30 minutes.

The First Circuit then addressed whether the gun pointing, handcuffing and frisking together transformed the stop into a de facto arrest.  The court noted:

“[T]he intrusiveness of the measures taken . . . is only part of the equation,” however. Pontoo, 666 F.3d at 30When officer safety is a legitimate concern, these prophylactic measures can be employed, even in combination, without exceeding the constitutional limits of a Terry stopSee id. at 30-31; see also United States v. Mohamed, 630 F.3d 1, 6-7 (1st Cir. 2010) (observing that “valid concerns for [officers’] safety during the stop” justified use of drawing weapons, surrounding defendant, and using handcuff and pat-frisk during brief detention). [viii]

The court noted that the relevant facts of this case provided the officer with “a good reason to fear that Rabbia was armed and dangerous” and it was reasonable for the officer to “neutralize the risk of harm by drawing his weapon, applying handcuffs, and conducting a pat-frisk.” [ix]  Further, the court found it significant that the officer told Rabbia he was not under arrest and would be un-handcuffed when back-up arrived and then, did in fact, un-handcuff him when back-up arrived.  Lastly, the stop time of 30 minutes prior to arrest was held to be reasonable.

The court then held that the use of guns and handcuffing in this case, “while intrusive, was both proportional to the occasion and brief in duration.” [x]  As such, the stop was not transformed into a de facto arrest and no Fifth Amendment violation occurred.

As such, the First Circuit affirmed the denial of the motion to suppress.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 11-1510, 2012 U.S. App. LEXIS 22912 (1st Cir. Decided November 7, 2012)

[ii] Id. at 2-6

[iii] Id. at 8

[iv] Id. at 9 (A reasonably prudent and experienced police officer would have recognized this behavior as consistent with the consummation of a drug deal. See United States v. Miller, 959 F.2d 1535, 1539 (11th Cir. 1992) (describing drug transactions in which “the supplier arrived by car, [the customer] got in the car, the car drove around the block during which time the exchange of drugs for money occurred, and then the car returned to the residence and dropped [the customer] off”); United States v. Morris, 223 F. App’x 491, 495 (7th Cir. 2007) (referring to “behavior consistent with drug-dealing, namely entering a car, riding around the block, and then exiting the vehicle”); cf. United States v. Funches, 327 F.3d 582, 586 (7th Cir. 2003) (“Experienced agents would recognize the use of an intermediary and the parties moving to a less-visible location before goods are exchanged as common characteristics of drug transactions undertaken to protect the identity of sellers and to avoid detection by authorities.”).

[v] Id. at 12-13

[vi] Id. at 13

[vii] Id. at 14

[viii] Id. at 15-16

[ix] Id. at 16

[x] Id. at 19

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