Second Circuit Affirms Use of Handcuffs During Late Night Terry Stop

by Patterson Belknap Webb & Tyler LLP

In United States v. Bekim Fiseku, the Second Circuit (Cabranes, Lynch, Carney) rejected the defendant’s argument that police officers unlawfully seized evidence from the trunk of his co-defendant’s vehicle.  The Panel held that an officer acted reasonably and consistent with the Fourth Amendment when he handcuffed Fiseku—despite lacking probable cause to believe Fiseku was engaged in criminal activity and having already determined that Fiseku was unarmed—due to the “unusual circumstances” of the encounter.  Despite the Court’s assertions that its holding was based on the “unusual circumstances” presented by the case, the decision could be incorrectly taken by law enforcement personnel as permission to handcuff a suspect during a routine Terry stop, even in the absence of more tangible indications that the suspect is armed or otherwise dangerous.


The events culminating in Fiseku’s arrest occurred in the early morning of September 20, 2014, in Bedford, New York, a town located about 35 miles north of New York City, in Westchester County.  The New York Times has described Bedford as one of the richest towns in America, home to celebrities such as Ralph Lauren, Martha Stewart and Glenn Close.[1]

At roughly 1:15 am, a Bedford police officer on patrol in a marked car observed a vehicle pulled over on the side of the road.  He stopped to speak with the driver, co-defendant Sefedin Jajaga, who told the officer that he was having transmission trouble and was waiting for a friend to arrive.  The officer drove on, but decided that the situation “seemed suspicious” because there was a nearby vacant house that was a “prime target for burglary.”

The officer drove back and saw the same vehicle driving on a nearby street.  He followed the vehicle, and then saw it parked in the far corner of a parking lot.  The officer observed three men in or near the vehicle, including Fiseku and Jajaga.  The officer radioed for backup, and two other officers arrived minutes later.  Before they arrived, the first officer examined Fiseku’s driver’s license, patted him down and found no weapons or contraband, and placed Fiseku in handcuffs.  The team of officers then patted down and handcuffed the other two men.  The officers told the men that they “were being detained” while the officers investigated their suspicious activity.  The officers did not issue Miranda warnings.

The officers then separated the men in the back of the police vehicles for questioning.  The officers testified that this was a “common interview tactic,” and one officer acknowledged that it was not “unusual” for him to use handcuffs during investigatory stops.  The three men told the officers somewhat inconsistent stories about plans to attend a party in Connecticut.  An officer told Jajaga that he did not believe Jajaga’s story and asked “if there was anything in the vehicle that shouldn’t be there.”  Jajaga responded, “No, you can look.”  The officers searched the vehicle and found hats and a sweatshirt with New York Police Department logos, a gold police badge, several replica guns, walkie talkies, gloves, a screw driver, and duct tape.  These items appeared to be evidence of a planned police-impersonation robbery.  The entire encounter lasted approximately ten minutes.

The government charged Fiseku and Jajaga with conspiracy to commit Hobbs Act robbery.[2]  Both defendants moved to suppress statements they made to the officers and the physical evidence seized from the vehicle.  The district court granted the motion in part after a suppression hearing.  The court held that the officers’ conduct, including the use of handcuffs, was reasonable since the investigatory stop occurred late at night in a remote area.  But the district court suppressed the defendants’ statements as the product of a custodial interrogation conducted without Miranda warnings in violation of the Fifth Amendment.  Nonetheless, the court declined to suppress the evidence seized during the subsequent search because Jajaga’s voluntary consent to the search severed the connection to the unlawful interrogation. 

Fiseku subsequently entered a conditional guilty plea in which he admitted to conspiring with others to rob a known narcotics trafficker in Bedford.  He was sentenced principally to 108 months’ imprisonment.

The Court’s Decision

On appeal, Fiseku argued that the officer’s decision to handcuff him at the outset of the encounter, even though the officer had patted down Fiseku and determined that he was unarmed, was unreasonable and a violation of the Fourth Amendment.[3]  Fiseku argued that what began as a so-called Terry investigatory stop (named after the landmark Supreme Court decision Terry v. Ohio, 392 U.S. 1 (1968)) became a de facto arrest when the officer handcuffed Fiseku.  The parties agreed that the officer had reasonable suspicion sufficient to conduct a Terry stop at the time of the handcuffing, but lacked probable cause to arrest Fiseku until the officers later discovered the suspicious evidence in the vehicle.

The Panel recognized that use of handcuffs is generally considered a “hallmark of a formal arrest” and stressed that, consistent with Circuit precedent, “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.”  On the other hand, in several cases the Second Circuit has held that handcuffing is permitted during a Terry stop if an officer has a reasonable basis to think that the individual poses a present physical threat and handcuffing is the least intrusive means to protect against that threat.

The Panel identified several reasons why the officer’s use of handcuffs here was reasonable and consistent with a lawful Terry stop.  First, the officer had observed suspicious activities by three men in a remote area late at night.  Second, the officer was initially outnumbered, and given the late hour, he could not be sure when backup would arrive.  Third, while the officer had determined that Fiseku had no weapons on his person, the officer could not exclude the possibility that there were weapons or additional dangerous associates in the area.  Fourth, the officer opted not to hold Fiseku at gunpoint, which would have been more intimidating and dangerous than the use of handcuffs.  Fifth, the entire encounter was brief.  Taken together, the Court concluded that although the officer “might have chosen to proceed without using physical restraints, . . . he did not act unreasonably when he placed Fiseku in handcuffs shortly after initiating the investigatory stop.”  Because there was no Fourth Amendment violation, the Court affirmed the denial of the motion to suppress the seized physical evidence.


As the Panel recognized, police officers are often forced to make quick decisions in rapidly evolving situations where the risk of physical harm can never be fully eliminated.  Police officers make those decisions in the moment and without a full awareness of the facts, while lawyers and judges present arguments and make decisions in the calm of a courtroom, long after any possible danger has been neutralized.  In that sense, it is understandable that the Court was unwilling to second-guess the use of handcuffs and thus concluded that the officer acted reasonably.  Indeed, in other cases, courts have perhaps been insufficiently protective of police safety.  See, e.g., Florida v. J.L., 529 U.S. 266 (2000) (holding that a police officer may not conduct a Terry stop based on an anonymous tip that a person is armed, even if the suspect matches the tipper’s description).

At the same time, the Panel’s narrative of a police encounter in a quiet bedroom community is in some regards unexceptional and devoid of the readily discernible or imminent danger that might set the facts of this case apart from future cases.  While the officer here could not rule out all possibility of danger even after conducting a traditional Terry pat-down frisk and finding no weapons, that same possibility of danger is present during many police encounters.  Similarly, while the Panel is correct in observing that the fact that the events unfolded at night heightened the potential danger, police work (and suspected criminal activity) often occurs at night.  To be sure, the encounter was brief, but Terry stops are meant to brief—if they are not brief, they are more likely to be treated as arrests that require probable cause.  Finally, while it is true that handcuffing a suspect is less intrusive than holding him at gunpoint, one would hope that neither would be necessary to conduct routine police work.  

As a result of the generic nature of the facts, there is a fair concern that this decision will be read to authorize unduly wide latitude in the use of handcuffing during Terry investigatory stops.  Indeed, the testimony given by the officer who used handcuffs in this case suggests that the practice is already commonplace.  While that officer’s subjective intent is not relevant to the Fourth Amendment analysis, see Whren v. United States, 517 U.S. 806 (1996), the use of handcuffs ought not to be the default procedure during a Terry stop.  Fifty years ago, Justice Douglas warned in dissenting in Terry v. Ohio that the Court’s decision applied “powerful hydraulic pressures” that may lead to the watering down of constitutional guarantees.  Interpreted more broadly than the Panel wishes, this decision could apply those same pressures, permitting handcuffing—the hallmark of a formal arrest—in too many everyday police encounters.  This concern is perhaps even more important today, when stop-and-frisk programs have been criticized for their disparate impact on certain communities and have been the subject of litigation in federal court across the country.  Hopefully, district court judges will take to heart the Panel’s repeated admonition that this case involved “unusual circumstances” and will treat the decision as the exception, not the rule.

[1] Elsa Brenner, “Bedford, N.Y.:  Peace and Quiet, Even for the Famous,” N.Y. Times (July 15, 2001), available at

[2] While the underlying conduct occurred in Westchester County, the indictment was assigned to a district judge in the Foley Square courthouse in New York City, rather than in the White Plains courthouse in Westchester County.

[3] Fiseku also claimed ineffective assistance of counsel premised on defense counsel’s failure to challenge Fiseku’s classification as a “career offender” during sentencing.  The Court denied that portion of the appeal without prejudice, holding that an ineffective assistance claim is properly raised on collateral review rather than in a direct appeal.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Patterson Belknap Webb & Tyler LLP | Attorney Advertising

Written by:

Patterson Belknap Webb & Tyler LLP

Patterson Belknap Webb & Tyler LLP on:

Readers' Choice 2017
Reporters on Deadline

Related Case Law

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.