S.D.N.Y.: “Under ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop,” but the totality of the circumstances here justified it

“Under ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop,” but the totality of the circumstances can justify it. Here, it did. Defendants were stopped on a rural road with reasonable suspicion. Although a frisk for weapons came up empty, based on what the officers knew of their potential for violence, weapons might have been close at hand because the defendants chose the place to stop. This wasn’t the officers pulling them over. United States v. Fiseku, 2015 U.S. Dist. LEXIS 162466 (S.D.N.Y. Dec. 3, 2015)

A number of features of this case parallel Bailey: Like the two suspects in Bailey, Fiseku and Jajaga were suspected of an offense associated with violence, ordered out (Jajaga) or kept out (Fiseku) of their vehicle, and patted down and shown to have no arms on their persons before being placed in handcuffs. These similarities make the claim of a de facto arrest colorable and defendants’ suppression claim on this ground substantial. But, on a close comparison, there are also a number of features of the stop here that were not present in Bailey that, in the Court’s view, made it reasonable, in context, for the officers to handcuff the suspects during their interrogation at the park-n-ride.

To begin with, the stop in this case took place in an isolated rural spot in the middle of a deserted area of the suspects’, not the officers’, choosing. In Bailey, the officers initiated the stop at the officers’ chosen location, following the suspects as they traveled more than a mile away from the location of the suspected criminal activity. Under those circumstances, once the suspects had been patted down, there was no realistic scenario presented that they might have access to weapons or confederates. By contrast, here, it was Jajaga who chose to pull into the park-n-ride, in an act of apparent pre-arrangement: Gruppuso, following Jajaga into the park-n-ride, saw two other individuals, one (Hughes) in the passenger seat of the car and another (Fiseku) outside the car. Neither had been present when Gruppuso first encountered Jajaga several minutes earlier; and it was not clear whether Fiseku had been in the car or had joined Jajaga at the park-n-ride. A reasonable officer encountering the suspects at this site could therefore reasonably have been concerned that other confederates were in the vicinity with whom Jajaga, Hughes, and Fiseku were intending to rendezvous at the park-n-ride, and/or that weapons were stashed somewhere nearby.