S.D.N.Y.: Not unhandcuffing defendant after frisk came up empty converted stop to de facto arrest

Defendant’s stop was converted from a stop to a de facto arrest. He was handcuffed before the frisk, the frisk came up empty, and he was not then unhandcuffed. United States v. Polanco, 2011 U.S. Dist. LEXIS 6341 (S.D. N.Y. January 18, 2011):

Once Officer Bakraqi checked Polanco for weapons, and found none, however, his stated safety concerns no longer justified the maximal intrusion of handcuffing. Polanco had complied with all of Officer Bakraqi’s instructions by turning off his engine, surrendering his keys, and exiting his vehicle without objection, and when the Officer’s search of Polanco yielded no weapon, the safety concerns which once justified Polanco’s handcuffing, had, by this point, been allayed. At that moment, the moment in which Officer Bakraqi did not remove Polanco from handcuffs after finding no weapons on his body, the stop was converted into a de facto arrest because the maximal intrusion of handcuffing, a hallmark of formal arrest, was no long justified by “legitimate safety concerns.”

The person who consented to the search of the car defendant was in had apparent authority to do so. It is highly unlikely that defendant even had standing in the first place, but that is not decided. United States v. Young, 2011 U.S. Dist. LEXIS 6389 (S.D. Ga. January 20, 2011).*

Off-duty officer seeing one person in a parking area giving the finger to another person did not form reasonable suspicion for a stop as a “possible road rage incident.” Jones v. State, 2011 Ark. App. 61 (January 26, 2011).*