On October 4, 2018, the Second Circuit Court of Appeals decided the United States v. Fiseku[i], in which the court examined whether an investigative detention was transformed into an illegal, de facto arrest when the suspects were detained in handcuffs prior to probable cause to arrest.   The relevant facts of Fiseku, taken directly from the case, are as follows:

Fiseku and two other individuals were apprehended in the early hours of September 20, 2014, in Bedford, New York, a rural town in Westchester County. Sergeant Vincent Gruppuso of the Bedford Police Department was on duty that night, patrolling the streets in a marked patrol car. At approximately 1:15 a.m., Gruppuso saw a white Nissan Pathfinder stopped on a dirt pull-off. Gruppuso pulled up to the vehicle and had a short conversation with the driver, later identified as Sefedin Jajaga, who appeared to be the only person in the car. Jajaga told Gruppuso that he lived in Staten island and was in Bedford that night visiting a friend. He was on the pull-off, he explained, because the Pathfinder was having transmission trouble, and he was waiting for a friend who had agreed to bring a tow truck from Brooklyn.

Gruppuso drove on, but as he later testified, the situation “seemed suspicious,” particularly because he knew that a nearby house was vacant while awaiting sale, making it a “prime target for . . . burglary.” He decided to circle back and check on the vehicle. On his way back to the pull-off, Gruppuso encountered the Pathfinder driving on a nearby street, less than five minutes after the driver had complained of transmission trouble. Gruppuso followed the Pathfinder to a “park-n-ride” parking lot near the highway.

As he turned into the parking lot, Gruppuso saw the Pathfinder parked in the far corner of the lot, which was ringed by trees. He parked nearby and now observed three men in or near the Pathfinder: Jajaga sitting in the driver’s seat, a second individual (later identified as a certain Hughes) sitting in the passenger seat, and a third (later identified as Fiseku) walking around the rear of the vehicle. Because Gruppuso drove into the parking lot only moments after the Pathfinder, there was not enough time for anyone to enter that vehicle without Gruppuso noticing, unless someone was “stand[ing] there ready to jump in the vehicle when it pulled in and stopped.”

Gruppuso radioed from the parking lot at 1:25 a.m., asking for an additional unit to join him, then got out of his car and approached the Pathfinder. Two officers soon arrived in separate police cruisers. By that time, Gruppuso had already begun interacting with Fiseku: after examining Fiseku’s driver’s license, Gruppuso patted him down (finding no weapons or contraband), then placed him in handcuffs. Working together, the three officers directed Jajaga and Hughes to exit the Pathfinder, then patted them down and handcuffed them as well. Gruppuso testified at the suppression hearing that the three men were handcuffed for officer safety. The officers did not draw their guns, however, because “[t]here was no threat of deadly force at that time.” (emphasis added).

The officers did not tell the men that they were under arrest, nor did they issue Miranda warnings; rather, they explained that the men “were being detained” while the officers investigated their suspicious activity. The men were then separated for individual questioning, a “common interview tactic,” according to Gruppuso. Jajaga and Hughes were each seated, separately, in the back seat of patrol cars, while Fiseku remained standing outside.

Jajaga told Gruppuso that he had been able to get the Pathfinder started shortly after their conversation on the dirt pull-off. He then drove to the parking lot, he explained, to pick up Fiseku and Hughes, who had driven there in a separate car; the three men planned to travel together to a party in Waterbury, Connecticut. When Gruppuso expressed skepticism, Jajaga offered a different reason for being in Bedford at such a late hour: he had arranged a sexual encounter with a woman who lived there. When asked for additional details, however, Jajaga claimed he did not know the woman’s name or where she lived.

Hughes, like Jajaga, stated that the three men were en route to a party in Connecticut in two separate cars. His account diverged at that point, however: whereas Jajaga claimed that the three men intended to proceed from Bedford together in one car, Hughes claimed they stopped in Bedford only to stretch their legs and smoke a cigarette, after which the men got back into separate cars. Fiseku, too, mentioned a party in Connecticut, but, contrary to both Jajaga’s and Hughes’s accounts, he claimed that all three men had arrived in Bedford together in one car. When Gruppuso confronted Fiseku with that inconsistency, Fiseku “stopped talking.”

After hearing all three accounts, Gruppuso returned to Jajaga and said he didn’t believe Jajaga’s story. When asked “if there was anything in the vehicle that shouldn’t be there,” Jajaga responded, “[N]o, you can look.” The officers searched the vehicle and found the following items: baseball caps and a sweatshirt bearing New York Police Department insignia, a gold “repo/recovery agent” badge on a lanyard, a stun gun, a BB gun “replicating” a Colt .45 pistol, a blank pistol “replicating” a .25 automatic, flashlights, walkie talkies, gloves, a screw driver, and duct tape.

The search was complete by 1:35 a.m., approximately ten minutes after Gruppuso first arrived in the parking lot. At that point, concerned about a possible home invasion, Gruppuso called in a request for additional units to help canvass the area. The canvass did not reveal any criminal activity.[ii]

Ultimately, Fiseku and Jajaga were charged under federal law for conspiracy to commit a Hobbs Act robbery.  They filed a motion to suppress the evidence found in the vehicle and argued that the investigative detention was transformed into a de facto arrest without probable cause when they were handcuffed.  They also argued that their statements should be suppressed because they were questioned while handcuffed without being advised of their rights under Miranda.  The district court denied the motion to suppress related to the Fourth Amendment but granted the motion as to the statements the defendant’s made while handcuffed.  The defendants entered guilty pleas with the right to appeal the denial of the motion to suppress.

On appeal, the issue before the Second Circuit Court of Appeals was whether the officer’s use of handcuffs caused the investigatory detention to ripen into a de facto arrest without probable cause in violation of the Fourth Amendment.  If so, the evidence should be suppressed as fruit of the poisonous tree because the illegal, de facto arrest led to the discovery of the evidence.

The court of appeals first discussed the applicable legal principles for this issue.  The court stated

While an arrest must generally be supported by probable cause, “an officer may conduct a brief investigatory detention”—also referred to as a “Terry stop”—”as long as the officer has reasonable suspicion that the person to be detained is committing or has committed a criminal offense.” United States v. Compton, 830 F.3d 55, 61 (2d Cir. 2016) (emphasis added) (internal quotation marks omitted); see also Terry v. Ohio, 392 U.S. 1 (1968). Even a properly initiated investigatory stop, however, may “ripen into a de facto arrest that must be based on probable cause.Compton, 830 F.3d at 64. When a court considers a claim of de facto arrest, the following facts are “generally deemed relevant“:

(1) the length of time involved in the stop; (2) its public or private setting; (3) the number of participating law enforcement officers; (4) the risk of danger presented by the person stopped; and (5) the display or use of physical force against the person stopped, including firearms, handcuffs, and leg irons. United States v. Newton, 369 F.3d 659, 674 (2d Cir. 2004).

As we cautioned in Newton, “No one of these factors is determinative. But to satisfy the reasonableness standard, officers conducting stops on less than probable cause must employ the least intrusive means reasonably available to effect their legitimate investigative purposes.” Id. (citation and internal quotation marks omitted).[iii] [emphasis added]

The court then began its analysis of Fiseku’s case.  At the outset, the court noted that both the defendant’s and the government agree that (1) the officer had reasonable suspicion to detain the defendants, and (2) the officer did not have probable cause to arrest the defendants until the suspicious items were discovered in the vehicle.

The court then set out to apply the facts of Fiseku’s case to the principles above.  First, the court noted that Jajaga had just told the officer that he was waiting on friend and a tow truck because he was broken down with transmission trouble.  Then moments later, Jajaga drove to a dark parking lot surrounded by trees.  It was 1:25a.m.  The officer also observed that there were now two additional men.  This allowed the officer to infer either (1) that the men had been hiding in Jajaga’s vehicle or (2) the men were waiting on Jajaga at the parking lot.  The officer called for back-up but did not know how long it would take other officers to arrive.  Therefore, he made contact with men while he was still alone.  He had Fiseku exit the vehicle, frisked him for weapons, and handcuffed him.  There were still two “muscular” men in the vehicle.  Two back-up officers arrived and the other two men were removed from the vehicle and handcuffed.  They were then split up and questioned.  They gave somewhat conflicting or different versions regarding their actions.  One of the officer’s asked Jajaga if there was anything in the vehicle he should not have, and Jajaga gave consent to search the vehicle.  The officer searched the vehicle and discovered the suspicious items.  The men were then arrested.

The court of appeals discussed the fact that, while the frisk of Fiseku did not reveal any weapons,

[T]he Supreme Court has “expressly recognized” that “suspects may injure police officers and others by virtue of their access to weapons, even though they may not themselves be armed.” Michigan v. Long, 463 U.S. 1032, 1048 (1983) (emphasis added). The Long Court explained further that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Id. at 1047. When Gruppuso restrained Fiseku in handcuffs, two additional suspects (Jajaga and Hughes) remained seated in the Pathfinder, where weapons may have lain within reach. Moreover, in the dark, tree-lined parking lot, Gruppuso could not feasibly conduct a protective perimeter sweep to check for secreted weapons or additional associates while monitoring three suspects, whom the District Court described as “muscular men.”[iv]

Thus, the facts above, in the situation at hand, weighed in favor of the use of handcuffs.  The court did note that, generally, handcuffing is the “hallmark of a formal arrest.”[v]  However, in contrast, the court also noted that, even when an officer does not have probable cause to arrest a person, the officer when “faced with the possibility of danger,” has the “right to take reasonable steps to protect himself.”[vi]  The court then stated

Recognizing the tension between these competing principles, we have explained that the Fourth Amendment occasionally will permit handcuff usage during a Terry stop when the “police have a reasonable basis to think that the person detained poses a present physical threat and that handcuffing is the least intrusive means to protect against that threat.[vii] [emphasis added]

Thus, if handcuffing is the least intrusive option in a potentially dangerous situation, then it is permitted to ensure the officer’s safety.  In Fiseku’s case, the court recognized that the officer’s other option was to hold Fiseku and the other men at gunpoint.  The court explained

[The officer] made the cautious choice to restrain Fiseku in handcuffs at the outset of the investigatory stop so he could safely turn his attention to the two suspects in the vehicle and the two newly arrived police cruisers. Under these circumstances, “handcuffing was a less intimidating—and less dangerous—means of ensuring [officer] safety . . . than holding [Fiseku] at gunpoint.” Newton, 369 F.3d at 675. Given the “swiftly developing situation” in which [the officer] found himself, we heed the Supreme Court’s warning not to “indulge in unrealistic second-guessing.” United States v. Sharpe, 470 U.S. 675, 686 (1985). As the Sharpe Court explained, “The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.” Id. at 687 (emphasis added). Here, although [the officer] might have chosen to proceed without using physical restraints, we conclude that he did not act unreasonably when he placed Fiseku in handcuffs shortly after initiating the investigatory stop.[viii] [emphasis added]

After the court held that it was not unreasonable for the officer to handcuff Fiseku, the court set out to answer whether it was unreasonable to leave him in handcuff’s after the back-up officer’s arrived.  The court noted that approximately ten minutes elapsed from when the officer placed Fiseku in handcuffs to when the officer discovered the items that provided probable cause to arrest him and the other men.  The court held that ten minutes was not an unreasonable amount of time as the officers were actively pursuing the investigation by questioning each suspect and searching the vehicle.

In conclusion the court held

[W]e conclude that this case presents “unusual circumstances” under which an officer may handcuff a suspect without “transform[ing] a Terry stop into an arrest.[ix]

The court then affirmed the denial of the motion to suppress.



[i] No. 17-1222-cr (2nd Cir. Decided October 4, 2018)

[ii] Id. at 3-6

[iii] Id. at 9-10

[iv] Id. at 12

[v] Id. at 12

[vi] Id.

[vii] Id. at 12-13

[viii] Id. at 15-16

[ix] Id. at 11

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