BACKGROUND
I. The investigatory stop
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." App'x 126-27. 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
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 and found no weapons or contraband. Within moments, the officers directed Jajaga to exit the Pathfinder, patted him down and handcuffed him, and handcuffed Fiseku.
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. App'x 139. The men were then separated for individual questioning, a "common interview tactic," according to Gruppuso. App'x 137. 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." App'x 142.
After hearing all three accounts, Gruppuso returned to Jajaga and said he didn't believe Jajaga's story. When asked "if
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. Procedural history
On June 18, 2015, the Government filed a sealed indictment charging Fiseku and Jajaga with one count of conspiracy to commit Hobbs Act robbery, in violation of
On December 3, 2015, the District Court entered an order granting in part and denying in part the suppression motion. Suppression Order ,
In November 2016, Fiseku entered a conditional guilty plea to the single count of conspiracy to commit Hobbs Act robbery. At the change-of-plea hearing, he allocuted that he conspired with others to rob a known narcotics trafficker in Bedford. Fiseku's plea agreement articulated the parties' consensus that, in light of his status as a career offender (as defined in Guidelines section 4B1.1), the applicable offense level would be 29, producing a stipulated advisory Guidelines sentencing range of 151 to 188 months' imprisonment. Fiseku agreed not to appeal or collaterally attack any sentence that fell within or below that stipulated Guidelines range, except that he reserved the right to assert two specific types of challenges: (1) a claim of ineffective assistance of counsel, whether on direct appeal or in a habeas proceeding;
Fiseku appeared for sentencing on April 12, 2017. The District Court adopted the Guidelines calculation in the plea agreement (including Fiseku's designation as a career offender) and sentenced him, principally, to 108 months' imprisonment. Fiseku timely appealed.
DISCUSSION
In this appeal, Fiseku argues that the investigatory stop ripened into a de facto arrest when Officer Gruppuso restrained him in handcuffs, and therefore, that the Fourth Amendment compels suppression of the physical evidence recovered from the Pathfinder during that stop. We disagree, and so affirm the District Court's decision declining to suppress that evidence. Fiseku additionally asserts a claim of ineffective assistance of counsel, arguing that defense counsel was ineffective in failing to make certain arguments challenging the Government's proposed Guidelines calculation. We decline to reach this argument on direct appeal, without prejudice to its renewal in a future collateral proceeding where the record may be more fully developed.
I. Fiseku's Fourth Amendment challenge
Fiseku maintains that the officers' use of handcuffs caused the investigatory detention to ripen into a de facto arrest without probable cause in violation of the Fourth Amendment. He contends, therefore, that the District Court erred in declining to suppress the physical evidence recovered during the investigatory stop as fruit of the poisonous tree.
The Fourth Amendment defines a right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV. Courts assess "reasonableness" in this context by "balancing the particular need to search or seize against the privacy interests invaded by such action." United States v. Bailey ,
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 ,
(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 ,
The Supreme Court has emphasized that "[i]t is the [Government's] burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." Florida v. Royer ,
B. The investigatory stop in this case
On appeal, the parties appear to agree to two propositions: first, that Officer Gruppuso had reasonable suspicion sufficient to justify initiating a Terry stop, and second, that he did not have probable cause to arrest Fiseku until he discovered the suspicious equipment inside the Pathfinder. Fiseku urges us to conclude that the investigatory stop ripened into a de facto arrest unsupported by probable cause when, shortly after initiating the Terry stop and patting him down, Gruppuso handcuffed him. On de novo review, we conclude that this case presents "unusual circumstances" under which an officer may handcuff a suspect without "transform[ing] a Terry stop into an arrest." Grice v. McVeigh ,
When, at approximately 1:25 a.m., Gruppuso followed the white Pathfinder into the dark parking lot surrounded by trees, he had reason to believe that Jajaga had lied about why he was in rural Bedford so late
Gruppuso radioed for assistance, but given the late hour and the remote location, he could not be sure how many units would respond, or how long it would take them to arrive. In fact, two units responded within minutes, but by that time, Gruppuso had already begun interacting with Fiseku. A pat-down did not reveal any weapons or contraband on Fiseku's person, but the 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 ,
We generally view handcuff use as a "hallmark of a formal arrest." Newton ,
In this case, Fiseku asserts that Gruppuso acted unreasonably and based on suspicion alone: Gruppuso had neither received reports of, nor directly observed, conduct suggesting that the occupants of the Pathfinder had engaged in criminal activity, or that any of them carried a weapon or otherwise presented a physical threat or risk of flight. In Fiseku's view, his apprehension closely resembles the investigatory stop in United States v. Bailey ,
In Bailey , two detectives were surveilling an apartment in which, according to a reliable informant, a man armed with a handgun was selling drugs. Two men, each of whom matched the drug dealer's general description, emerged from the apartment and got into a car. The detectives followed the car for approximately one mile, then directed the men to pull over in a fire station parking lot and exit the vehicle. A pat-down revealed no weapons. In response to the detectives' questions, one of the men claimed to live at the surveilled apartment. The detectives handcuffed the men and detained them while the police searched the apartment pursuant to a warrant that had been issued earlier that same day. On appeal, we found a Fourth Amendment violation in the handcuffing, concluding that the record evinced no "physical threat" or other factor that would justify handcuffing the two men. Id . at 340. We cautioned, however, that in a future case, "the government may be able to point to circumstances supporting a reasonable basis to think that even an unarmed person poses a present physical threat or flight risk warranting handcuffing."
We find persuasive the District Court's thorough discussion here of material differences between the circumstances of Fiseku's apprehension and the stop in Bailey . See Suppression Order ,
Gruppuso made the cautious choice to restrain Jajaga and Fiseku in handcuffs at the outset of the investigatory stop so he could safely turn his attention to the suspect remaining 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 [Jajaga and Fiseku] at gunpoint." Newton ,
Having concluded that the initial application of handcuffs was reasonable, we next consider whether the continued use of handcuffs became unreasonable at some point thereafter. We conclude that it did not. In the space of ten minutes, the three officers patted down and handcuffed the three suspects, separated them, questioned each of them at least once, then searched the Pathfinder and discovered highly suspicious equipment inside, at which point (as Fiseku concedes) they had probable cause to effectuate an arrest. As the District Court explained, the record does not suggest "that the officers were at all dilatory in questioning the three men." Suppression Order ,
For the reasons set forth above, we conclude that Officer Gruppuso and his colleagues did not violate Fiseku's Fourth Amendment rights by restraining him in handcuffs during the initial ten minutes of the investigatory detention before probable cause was established. We accordingly affirm the District Court's decision not to suppress the physical evidence recovered during the officers' search of the Pathfinder.
II. Fiseku's claim of ineffective assistance of counsel
Fiseku's second argument on appeal is that he received ineffective assistance of counsel in connection with his sentencing. He contends in particular that defense counsel should have challenged his classification as a "career offender" under section 4B1.1 of the Sentencing Guidelines on the grounds that his crime of conviction (conspiracy to commit Hobbs Act robbery) does not meet the definition of a "crime of violence" set forth in Guidelines section 4B1.2.
We are "generally reluctant to address ineffectiveness claims on direct review," a stage at which "the constitutional sufficiency of counsel's performance is usually unripe for seasoned retrospection." United States v. Rivernider ,
CONCLUSION
Given the unusual circumstances of this case, we are unable to conclude that the officers acted unreasonably in restraining Fiseku and his associates in handcuffs as
Notes
The account provided here is drawn from the documentary evidence and testimony adduced before the District Court in connection with Fiseku's motion to suppress. Where the evidence was contested or ambiguous, we defer to the District Court's findings of fact as set forth in its suppression ruling, except with regard to the precise order in which Fiseku and Jajaga were handcuffed in the moments following Officer Gruppuso's arrival in the parking lot, as described below.
The District Court found that Gruppuso first handcuffed Fiseku, and then directed Jajaga to exit the vehicle, at which point Jajaga was handcuffed in the presence of all three officers. Gruppuso's testimony, however, conflicts with that account: as pointed out on Fiseku's petition for panel rehearing, Gruppuso testified that Jajaga was handcuffed "first." App'x 170. We issued this amended opinion to correct this error.
Under the so-called "exclusionary rule," trial courts must generally "exclude evidence obtained by unconstitutional police conduct." Utah v. Strieff , --- U.S. ----,
Fiseku also purports to challenge the District Court's conclusion that Jajaga's consent to search the Pathfinder was voluntarily given. But because Fiseku's argument amounts to a single paragraph bereft of any citation to applicable legal authority, we deem the point abandoned. See United States v. Botti ,
Officer Gruppuso testified at the suppression hearing that it is not "unusual" for him to use handcuffs during investigatory stops. App'x 138. In determining whether police conduct is consistent with the Fourth Amendment, we assess the circumstances objectively, and not according to the subjective motivations of police officers, see Whren v. United States ,
We have previously cautioned that "suspecting a person of having committed a burglary cannot, in and of itself, provide police with grounds to subject that person to an extremely intrusive Terry stop." Oliveira v. Mayer ,
In a recent decision, we determined that conspiracy to commit Hobbs Act robbery meets the definition of a "crime of violence" in the Armed Career Criminal Act,