S.D.N.Y.: There was RS for defendant’s 1989 detention where he’s now indicted for murder related to it

Defendant is recently charged with a murder in aid of a drug transaction from 1989. The officers had reasonable suspicion for the encounter. United States v. Merced, 2021 U.S. Dist. LEXIS 229659 (S.D.N.Y. Nov. 30, 2021)*:

In any event, even if the encounter constituted an investigative stop, rather than a consensual encounter, the DEA agents had reasonable suspicion to support the stop. … In determining whether reasonable suspicion existed at the time of the seizure, the Court “must view the surrounding circumstances (i) ‘as a whole, not as discrete and separate facts,’ and (ii) ‘through the eyes of a reasonable and cautious police officer on the scene guided by his experience and training.'” … However, the government still bears the burden of showing that the officer’s actions were based on “something more than an inchoate and unparticularized suspicion or hunch.” Sokolow, 490 U.S. at 7 (internal citations and quotation marks omitted).

Here, the government argues that by the time the agents told Merced he would “save time” by consenting to a search, the agents had developed a reasonable suspicion supported by a number of observations, including that Merced and White were wearing “unusually large winter jackets and carrying no bags, backpacks, or luggage while walking towards the departure gates;” Merced bought two airline tickets with cash; Merced and White “made a point of keeping distances from one another as they approached security;” Merced had no explanation for why he had no luggage during a one-week trip to Washington D.C.; Merced avoided eye contact with agents; and White had no identification matching the name on his ticket. Doc. 60 at 10. The facts here are similar to those in Sokolow, where the Supreme Court held officers had a reasonable suspicion to stop Sokolow, who paid for two airplane tickets with cash, traveled under an alias, stayed in Miami for only 48 hours, appeared nervous during his trip, and checked none of his luggage. 490 U.S. at 3; see also United States v. Padilla, 548 F.3d 179 (“[e]ven conduct that is “as consistent with innocence as with guilt may form the basis for an investigative stop where there is some indication of possible illicit activity'”); Terry, 392 U.S. at 22 (recognizing that a “series of acts, each of them perhaps innocent in itself,” can when “taken together warrant[] further investigation”); Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (“[o]ur cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion”).

The court also doesn’t find the pre-indictment delay unreasonable, either.