07‐3719(L)
United States v. Bailey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
________________
August Term, 2012
(Argued: June 19, 2013 Decided: February 21, 2014)
Docket Nos. 07‐3719(L), 10‐398(CON)
________________
UNITED STATES OF AMERICA,
Appellee,
—v.—
CHUNON L. BAILEY, A/K/A POLO,
Defendant‐Appellant.
________________
Before:
CABRANES, POOLER, and RAGGI, Circuit Judges
________________
On remand from the Supreme Court, see Bailey v. United States, 133 S. Ct.
1031 (2013), this court reconsiders defendant’s Fourth Amendment challenge to a
conviction based in part on evidence obtained when he was stopped by police
about a mile from a residence that he had just departed and that was about to be
searched pursuant to a judicial warrant. The Supreme Court ruled that such a
1
detention was not incident to the authorized search so as to be reasonable
pursuant to Michigan v. Summers, 452 U.S. 692 (1981), even without
individualized probable cause or reasonable suspicion. But it left this court to
decide on remand whether the detention was a reasonable investigatory stop
under Terry v. Ohio, 392 U.S. 1 (1968). We now conclude that defendant’s initial
detention was reasonable under Terry, but ceased to be so when he was placed in
handcuffs. Accordingly, while evidence obtained from defendant before
handcuffing was lawfully obtained under Terry, evidence obtained thereafter
was not. Nevertheless, we conclude that no vacatur for retrial is required
because admission of the tainted evidence at trial was harmless beyond a
reasonable doubt.
AFFIRMED.
Judge Pooler concurs in part and dissents in part in a separate opinion.
________________
KANNON K. SHANMUGAM (Kristin A. Feeley, Williams & Connolly
LLP, Washington, D.C.; Susan V. Tipograph, New York,
New York, on the brief), Williams & Connolly LLP,
Washington, D.C., for Defendant‐Appellant.
CHARLES P. KELLY (Peter A. Norling, on the brief), Assistant United
States Attorneys, for Loretta E. Lynch, United States Attorney
2
for the Eastern District of New York, Brooklyn, New York,
for Appellee.
________________
REENA RAGGI, Circuit Judge:
This case comes before us on remand from the Supreme Court. See Bailey
v. United States, 133 S. Ct. 1031 (2013). Defendant Chunon L. Bailey was
convicted on August 23, 2007, after a jury trial in the United States District Court
for the Eastern District of New York (Joseph F. Bianco, Judge), of (1) possession of
five grams or more of cocaine base with intent to distribute, (2) possession of a
firearm in furtherance of a drug trafficking crime, and (3) possession of the same
firearm as a convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(i); 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(iii). Bailey appealed his conviction on the ground that it
was secured through inadmissible evidence obtained from him in the course of a
constitutionally unreasonable detention. See U.S. Const., amend. IV. The district
court had declined to suppress the evidence at issue, concluding that Michigan v.
Summers, 452 U.S. 692 (1981) (recognizing detentions incident to authorized
searches as reasonable), and Terry v. Ohio, 392 U.S. 1 (1968) (recognizing
investigatory stops based on reasonable suspicion as reasonable), each
independently defeated Bailey’s Fourth Amendment challenge. See United
States v. Bailey (“Bailey I”), 468 F. Supp. 2d 373 (E.D.N.Y. 2006). In affirming,
3
this court found it sufficient to rely on Michigan v. Summers without deciding
whether Terry v. Ohio would also support affirmance. See United States v.
Bailey (“Bailey II”), 652 F.3d 197, 207 n.7 (2d Cir. 2011). The Supreme Court
reversed, holding that Summers’s detention‐incident‐to‐search rule did not apply
to this case because Bailey was not in “the immediate vicinity of the premises to
be searched” when he was stopped. Bailey v. United States (“Bailey III”), 133 S.
Ct. at 1042. The Court nevertheless recognized that Terry’s investigatory stop
rule might provide an independent basis for detention. Expressing no view on
that issue, the Court left it open for further consideration by this court on
remand. See id. at 1043.
After further briefing and oral argument, this court now concludes that
Terry v. Ohio independently supported Bailey’s initial detention and patdown,
but that his subsequent handcuffing exceeded the scope of a reasonable Terry
stop in the circumstances of this case. Accordingly, while evidence obtained
from Bailey before handcuffing—inculpatory statements, a driver’s license, and a
set of keys—was lawfully obtained and admissible at trial, exculpatory
statements made by Bailey after handcuffing were not. We nevertheless
4
conclude that no vacatur for retrial is required because admission of the tainted
statements was harmless beyond a reasonable doubt.
I. Background
While the facts of this case have been thoroughly detailed in prior
opinions, we here reiterate those relevant to our decision today.
A. The Events of July 28, 2005
1. Procurement of a Warrant To Search the Basement Apartment
at 103 Lake Drive, Wyandanch, New York
At 8:45 P.M. on July 28, 2005, Suffolk County Police Detective Richard
Sneider applied for and obtained a warrant to search the basement apartment at
103 Lake Drive in Wyandanch, New York (“103 Lake Drive” or “the subject
premises”) for a chrome .380 handgun. Probable cause for the search was
provided by a known, reliable informant who, in a sworn statement attached to
the warrant application, avowed that, days earlier, while at the subject premises
purchasing six grams of crack cocaine from “Polo,” he had seen a chrome .380
caliber handgun along with drugs on a kitchen counter. The informant reported
that he had also seen the gun on other occasions over the preceding two months,
during which time he had made seven or eight drug purchases from “Polo”
either at the subject premises or at “Polo’s” prior residence in Bay Shore, New
5
York. The informant described “Polo” as a dark skinned, heavyset, black male
with short hair.
2. Police Stop of Bailey
a. Initial Detention
In anticipation of executing the search warrant at the subject premises,
police conducted surveillance outside 103 Lake Drive. At 9:56 p.m., Detective
Sneider and his partner, Detective Richard Gorbecki, observed two black males—
later identified as Bryant Middleton and defendant Bailey—exiting that location
through a gate at the top of stairs leading up from the rear, basement level of the
building. Each man was approximately six‐feet tall, with a stocky build and
short hair. Rather than immediately approach the men—and risk revealing
police presence to any persons inside the subject premises, thereby affording
them an opportunity to arm themselves or destroy evidence before the
authorized search—the detectives watched the men enter a black Lexus parked
in the driveway and leave the scene. In an unmarked car, the detectives followed
the Lexus for approximately one mile before pulling it over into the parking lot
6
of a fire station in order to “identify” the two men “and to see what their purpose
was for being at the residence.” Suppression Hr’g Tr. 16:25–17:1, App. 90.1
The detectives asked both men to step out of the car and proceeded to pat
them down to determine if they were armed. Feeling hard objects in Bailey’s
front and back pockets, Sneider removed the items to ensure that they were not
weapons. The objects were, in fact, a wallet and a set of keys, including keys for
the stopped Lexus. The wallet was returned to Bailey; the set of keys was placed
on the lid of the car trunk.
The detectives then asked the men their names and from where they were
coming. The car’s driver identified himself as Chunon Bailey and stated that he
was coming from “my house.” Id. 56:22–23, App. 122. Asked the location of his
house, Bailey replied, “103 Lake Drive.” Id. 56:25, App. 122. In response to a
request for identification, Bailey produced a driver’s license from his wallet
bearing a Bay Shore address. Sneider knew that the informant had said that
“Polo” had dealt drugs from his Bay Shore home before moving to 103 Lake
Drive.
1 It is undisputed that the officers did not pull the vehicle over based on probable
cause to think the driver had committed any traffic infraction.
7
Meanwhile, Middleton identified himself to Detective Gorbecki and stated
that Bailey lived at 103 Lake Drive and was driving Middleton home so that he
would be in compliance with a 10:00 p.m. curfew condition of his parole.
b. Post‐Handcuffing Detention
At that point, the detectives handcuffed Bailey and Middleton. When
Bailey asked why he was being arrested, the detectives told the men that they
were not being arrested but were being detained, and that a search warrant was
then being executed at 103 Lake Drive. To that, Bailey stated, “I don’t live there.
Anything you find there ain’t mine, and I’m not cooperating with your
investigation.” Bailey III, 133 S. Ct. at 1036.2
All four men then returned to 103 Lake Drive: Bailey and Middleton, both
handcuffed, in a summoned patrol car; Gorbecki driving the Lexus; and Sneider
driving the unmarked police car. Upon their arrival, officers at the scene advised
that a gun and drugs had been found in plain view in the basement apartment.
Police then formally arrested Bailey and Middleton.
2 This statement has been reported with slight (though not material) differences
at various points in the record. For consistency with prior opinions, we reference
the statement as testified to by Detective Gorbecki at the suppression hearing.
See Bailey III, 133 S. Ct. at 1036; Bailey II, 652 F.3d at 201.
8
In total, less than ten minutes elapsed between the time officers first pulled
over the Lexus and detained its occupants and the arrest. Sometime after Bailey
and Middleton were arrested, Detective Sneider confirmed that one of the keys
retrieved from Bailey’s pocket opened locks to the subject premises.
B. Procedural History
1. Suppression Ruling
On April 6, 2006, a federal grand jury indicted Bailey for the three federal
crimes on which he now stands convicted. Through counsel, Bailey moved to
suppress all physical evidence and statements obtained from him during his July
28, 2005 detention, arguing that they were the fruits of an unlawful seizure of his
person.
After conducting an evidentiary hearing, the district court denied the
motion, holding that Bailey’s detention, approximately one mile from a residence
that he had just left and that was about to be searched pursuant to a warrant, was
permissible under Michigan v. Summers, 452 U.S. 692. See Bailey I, 468 F. Supp.
2d at 382. Further, and as relevant here, the district court held that Bailey’s brief
detention was independently supported by reasonable suspicion of his criminal
conduct and, therefore, lawful under Terry v. Ohio, 392 U.S. 1. See id. Insofar as
9
Bailey argued that his detention became a de facto arrest at least when he was
placed in handcuffs, the district court disagreed, holding that such handcuffing
was reasonable to assure officers’ safety “given that the detectives were
searching for a gun at the residence and Bailey came from that residence.” Id. at
384. The district court further concluded that transporting Bailey back to his
residence in a patrol car did not convert the stop into an arrest. See id. at 385.
2. Trial and Sentencing
The prosecution called four witnesses at Bailey’s November 2006 trial. The
confidential informant, Raheem Cannaday, testified to purchasing drugs from
Bailey in the basement apartment at 103 Lake Drive as well as at a prior
residence in Bay Shore, and to seeing a firearm at both locations. Detective
Sneider testified about the stop and the match between a key retrieved from
Bailey’s person and the locks on 103 Lake Drive. Detective Daniel Fischer
testified to items seized during the search of the subject premises, including
weapons, ammunition, drugs, and various documents in Bailey’s name.3 He also
3 Among the items seized were two operable handguns with bullets for each, an
operable rifle, a bulletproof vest, 40.87 grams of crack cocaine, 39.9 grams of
powder cocaine, and various items stipulated by the parties to be tools of the
drug trade. Also seized from the subject premises were various letters, money
receipts, pay stubs, and an identification card, all in Bailey’s name.
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testified to the presence of unpacked boxes in the apartment, suggesting that
someone had recently moved in. Finally, Middleton, a hostile witness, testified
that he knew Bailey by the name “Polo,” knew that he previously resided in Bay
Shore, had told police that he thought that Bailey had recently moved into the
basement apartment at 103 Lake Drive, and had been with Bailey in that
apartment on the night of July 28, 2005, before they were stopped by the police.
The defense sought to impugn the prosecution case through cross‐
examination suggesting that Cannaday was not credible and that the police
investigation was deficient. Further, the defense maintained that Bailey did not
reside in the basement apartment at 103 Lake Drive and that the guns, drugs, and
drug paraphernalia seized therefrom did not belong to him.4 In support, it called
Meltona Sykes, the owner of the house at 103 Lake Drive. She testified that she
had rented the basement apartment in June or July 2005 to a black male named
Frederick Meyers, whom she thereafter saw coming and going from the
apartment. She testified that Bailey did not live in the apartment, but that she
recognized him as someone who occasionally visited Meyers there.
4 Insofar as the prosecution maintained that documents found in the apartment
bore Bailey’s name, the defense noted the lack of corroborating documentation
for such a seizure and suggested that the documents were retrieved from the
Lexus rather than the apartment.
11
In their summations, the parties focused on Bailey’s residency at 103 Lake
Drive. The prosecution argued that residency could not seriously be disputed in
light of the testimony of Cannaday and Middleton, documents seized from the
premises bearing Bailey’s name, Bailey’s initial post‐stop admission to residency,
and his possession of a key that matched the apartment’s locks. Insofar as Bailey
denied residency after learning that the apartment was being searched, the
prosecution maintained that the statement was false and urged the jury to infer
that Bailey made it because he believed he was guilty.
As for Ms. Sykes’s testimony that Frederick Meyers resided in the
basement apartment and that Bailey was simply an occasional visitor, the
prosecution argued that it was not credible, emphasizing the lack of
documentary corroboration for Meyers’s tenancy and Cannaday’s testimony
implicating Ms. Sykes and her sister in drug use.
Defense counsel, by contrast, argued not simply that there was reasonable
doubt as to who resided in or controlled the subject premises, but that the
evidence was “crystal clear” that Bailey did not. Summation Tr. 760:4–10. In
support of this conclusion, the defense first highlighted evidentiary gaps in, and
credibility concerns with, the prosecution case. It then urged the jury to
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recognize that Ms. Sykes was the only disinterested, credible witness, and that
she unequivocally testified that Bailey was not the tenant or resident of the
basement apartment, but only an occasional visitor there. As for Bailey’s own
statements to the police disavowing residency or ownership of anything in the
basement apartment, the defense maintained, “[h]e told them the truth.” Id.
769:24–770:1. It submitted that what was suspect was police testimony that
Bailey had initially admitted residency. The defense suggested that Bailey had
originally told Detective Sneider that “he was coming from 103, not [from] my
house,” and that the officer had recast that exchange in a more incriminatory
light after learning the results of the search. Id. 769:15–770:8. Thus, in its closing
point to the jury, the defense argued that the jury could “see[] clearly” from the
totality of the evidence “that Mr. Bailey did not control this apartment. . . . [H]e
did not possess the items in that apartment.” Id. 789:3–6.
After the jury found Bailey guilty on all crimes charged, the district court
sentenced him to concurrent prison terms of 300 and 120 months, respectively,
for possession with intent to distribute more than five grams of crack cocaine and
for being a convicted felon in possession of a firearm, as well as a consecutive
prison term of 60 months for possession of a firearm in furtherance of a drug
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trafficking crime. The court also imposed concurrent terms of 5 years’ and 3
years’ supervised release and a total special assessment of $300.
3. Section 2255 Petition
On December 5, 2008, Bailey moved pursuant to 28 U.S.C. § 2255 for
vacatur of his conviction and a new trial on the ground that trial counsel was
constitutionally ineffective in pursuing suppression of evidence ultimately
introduced at trial. Specifically, Bailey faulted counsel for failing to offer
evidence that access to the basement door at the rear of 103 Lake Drive could be
gained from either the basement apartment or the house upstairs. Bailey
asserted that such a showing would have established that when Detectives
Sneider and Gorbecki observed Bailey exit the gate on July 28, 2005, they could
not have known whether he was leaving the basement apartment or the house
upstairs. Bailey maintained that a conclusive showing that he had left the
basement apartment was necessary to sustain his subsequent detention under
either Michigan v. Summers or Terry v. Ohio. See Bailey II, 652 F.3d at 202.
The district court denied Bailey’s motion, concluding that, even if counsel
had made the urged showing, the detectives would still have had a reasonable
basis to think that Bailey and Middleton had emerged from the basement
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apartment for which they had a search warrant. See United States v. Bailey, No.
06‐CR‐232 (JFB), 2010 WL 277069, at *11 (E.D.N.Y. Jan. 19, 2010). In reaching this
conclusion, the district court referenced “undisputed evidence at the trial that
this door to the main house was not accessible to the basement tenant and that
the main house was[ ]sealed off from the basement area.” Id. at *10.
4. Appeal to this Court
Bailey appealed both the final judgment of conviction and the denial of
§ 2255 relief. In affirming both, this court construed Michigan v. Summers,
which permits officers executing a search warrant to detain persons on the
premises, see 452 U.S. at 705, to support the detentions in this case because
officers could have detained Bailey at 103 Lake Drive, and their “decision to wait
until [he] had driven out of view of the house to detain him out of concern for
their own safety and to prevent alerting other possible occupants was, in the
circumstances presented, reasonable and prudent,” Bailey II, 652 F.3d at 206.
Accordingly, this court did not consider whether Terry v. Ohio might also have
supported the challenged detention.
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5. Supreme Court Review
The Supreme Court reversed this court’s reliance on Summers to affirm the
judgment of conviction. See Bailey III, 133 S. Ct. 1031. The Court explained that
Summers was a “categorical” rule with a “spatial dimension.” Id. at 1040, 1042.
In short, a “spatial or geographical boundary can be used to determine the area
within which both the search and detention incident to that search may occur.”
Id. at 1042. Thus, a detention incident to search is limited “to the area in which
an occupant poses a real threat to the safe and efficient execution of a search
warrant.” Id. Whatever the outer limit of that area, the Supreme Court
concluded that Bailey had crossed it when he traveled a mile from the subject
premises. See id. (“[T]he decision to detain must be acted upon at the scene of
the search and not at a later time in a more remote place.”).
The Supreme Court observed that this did not mean that Bailey’s off‐site
detention was necessarily unlawful. Rather, it meant that the detention’s
lawfulness was “controlled by other standards, including, of course, a brief stop
for questioning based on reasonable suspicion under Terry.” Id. Noting that the
district court, “as an alternative ruling,” had held that Bailey was lawfully
stopped under Terry, the Supreme Court “express[ed] no view on that issue,”
16
and left the matter for further consideration by this court on remand: “It will be
open, on remand, for the Court of Appeals to address the matter and to
determine whether, assuming the Terry stop was valid, it yielded information
that justified the detention the officers then imposed.” Id. at 1043.5
We now explain why we conclude that Terry v. Ohio supported Bailey’s
initial stop, but not the police actions in placing him in handcuffs.
II. Discussion
A. Stops Pursuant to Terry v. Ohio
On remand from the Supreme Court, Bailey maintains that all evidence
obtained from him before his formal arrest on July 28, 2005, was the fruit of an
5 The quoted language plainly defeats Bailey’s argument on remand that the
Supreme Court “effectively concluded in its decision in this case” that Bailey’s
observed departure from the premises to be searched, “standing alone, did not
give rise to reasonable suspicion” as required by Terry. Appellant’s Supp. Br. 13.
The Supreme Court made no Terry ruling, expressly deferring that issue to this
court on remand.
Thus, when the Supreme Court observed at the start of its Bailey III opinion that
“[t]he issue to be resolved is whether the seizure of the person was reasonable
when he was stopped and detained at some distance away from the premises to
be searched when the only justification for the detention was to ensure the safety
and efficacy of the search,” 133 S. Ct. at 1035, we understand it to have been
framing the Summers inquiry that was the focus of its decision, not to be
expressing a view that “this case should not be resolved on Terry grounds,” as
urged by Judge Pooler in dissent, see Dissenting Op., post at 1.
17
unlawful detention, and that Terry v. Ohio, 392 U.S. 1, warrants no different
conclusion.
The Fourth Amendment recognizes “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const., amend. IV. As this language indicates, “the ultimate
measure” of the constitutionality of a government search or seizure is
“reasonableness,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995);
accord Maryland v. King, 133 S. Ct. 1958, 1969 (2013), a matter generally
determined by balancing the particular need to search or seize against the
privacy interests invaded by such action, see Terry v. Ohio, 392 U.S. at 20–21.
Thus, while “reasonableness” generally requires procurement of a judicial
warrant based on probable cause, “neither a warrant nor probable cause . . . is an
indispensable component of reasonableness in every circumstance.” National
Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989).
In 1968, in Terry v. Ohio, the Supreme Court expressly recognized that
government interests in “effective crime prevention and detection,” as well as in
officer and public safety while pursuing criminal investigations, could make it
constitutionally reasonable “in appropriate circumstances and in an appropriate
18
manner” temporarily to detain a person and to pat him down for weapons “even
though there is no probable cause to make an arrest.” 392 U.S. at 22–25. The
circumstances necessary to justify a Terry stop are a reasonable basis to think
that the person to be detained “is committing or has committed a criminal
offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009). To support an
accompanying patdown, there must be a reasonable basis to think “that the
person stopped is armed and dangerous.” Id. at 326–27.
A reasonable basis requires more than a “hunch.” Terry v. Ohio, 392 U.S.
at 27. Rather, it demands “specific and articulable facts which, taken together
with rational inferences from those facts,” id. at 21, provide detaining officers
with a “particularized and objective basis for suspecting wrongdoing,” United
States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted).6
The standard is “not high.” Richards v. Wisconsin, 520 U.S. 385, 394 (1997)
(discussing “reasonable suspicion” standard for no‐knock warrants and citing
6 Because “the subjective motivations of the individual officers . . . ha[ve] no
bearing on whether a particular seizure is ‘unreasonable’ under the Fourth
Amendment,” Graham v. O’Connor, 490 U.S. 386, 397 (1989), there is no reason
for our dissenting colleague to be “troubl[ed]” that the detectives who stopped
Bailey and Middleton thought they were engaging in a Summers detention,
Dissenting Op., post at 15. Indeed, that subjective assessment is “irrelevant” to
our own Terry inquiry. United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).
19
Terry). Notably, it is less than probable cause, requiring only facts sufficient to
give rise to a reasonable suspicion that criminal activity “may be afoot” and that
the person stopped “may be armed and presently dangerous.” Terry v. Ohio,
392 U.S. at 30 (emphasis added); accord United States v. Arvizu, 534 U.S. at 273
(collecting cases). Moreover, while a reviewing court cannot merely defer to
police officers’ judgment in assessing reasonable suspicion, the court must view
the totality of the circumstances “through the eyes of a reasonable and cautious
police officer on the scene.” United States v. Bayless, 201 F.3d 116, 133 (2d Cir.
2000) (internal quotation marks omitted).
Applying these principles here, we conclude that Bailey’s initial stop and
patdown were supported by articulable facts giving rise to a reasonable
suspicion that he may have, and might still be, engaged in criminal activity and,
moreover, might be armed. Further, because Bailey’s responses to initial
inquiries after the stop only enhanced that suspicion, we conclude that it was
reasonable under Terry for officers to detain him for the few minutes it took for a
contemporaneous search of the subject premises to confirm those now‐
heightened suspicions. At the same time, however, we conclude that police
exceeded the permissible scope of a Terry stop when they handcuffed Bailey
20
after a patdown showed that neither he nor his companion Middleton was
armed. Accordingly, evidence procured before handcuffing was not the product
of an unlawful detention, but statements made by Bailey after handcuffing were
tainted by this overly intrusive action.
B. Bailey’s Initial Stop and Patdown Were Reasonable Under Terry
Bailey’s initial stop and patdown were supported by multiple articulable
facts giving rise to a reasonable suspicion that he had been and was then
engaged in criminal activity and might be armed.
First, at the time of the challenged stop, just over an hour after the police
had obtained a warrant to search the basement apartment at 103 Lake Drive, the
detectives already had probable cause—a higher standard than reasonable
suspicion—to think that the apartment was the site of recent drug trafficking and
contained a .380 caliber handgun.
Second, minutes before the stop, the detectives watched Bailey exit 103
Lake Drive through a gate that the police knew was accessible only from the rear
basement level of the building.
These facts provided a reasonable basis to believe that Bailey had just left
an apartment where criminal activity was conducted and where a .380 caliber
21
firearm subject to seizure was then located. See United States v. Villegas, 928
F.2d 512, 516 (2d Cir. 1991) (citing police observation of defendant at location of
criminal activity “as evidenced by the issuance of a search warrant for the
premises” as one factor supporting later Terry stop).
In urging otherwise, Bailey submits that his presence in the basement
apartment was by no means obvious as it was possible for a person to travel
from the building’s upstairs apartment to its basement level rear door in exiting
the premises from the gate. The law, however, does not demand that all possible
innocent explanations be eliminated before conduct can be considered as part of
the totality of circumstances supporting a reasonable basis to believe that
criminal activity may be afoot. See United States v. Arvizu, 534 U.S. at 274–75
(holding that series of potentially innocent acts, taken together, could provide
reasonable suspicion). Moreover, as we noted in Bailey II, the configuration of
103 Lake Drive made it “unlikely” that Bailey would have used the basement
rear door to exit the upstairs apartment of 103 Lake Drive. 652 F.3d at 207. Thus,
the officers’ observation of the men’s departure provided at least a reasonable
basis to suspect that they had just left the basement apartment where there was
probable cause to believe criminal activity was ongoing.
22
Third, the two men fit the informant’s general description of “Polo,” the
individual from whom the informant had bought drugs in the basement
apartment only days earlier, i.e., each was a short‐haired, stocky, black male.
Judge Pooler submits that these facts cannot support reasonable suspicion, citing
the high percentages of black residents in two Long Island towns and of
overweight adults across America. See Dissenting Op., post at 10. This misses
the point. While many men in the United States may fit the description of
“Polo,” it is the fact that Bailey and Middleton fit that description and had just
left the very premises where “Polo” dealt drugs that provided an articulable
basis (i.e., more than a mere hunch) to suspect that one man or the other was
“Polo” and, therefore, involved in criminal activity. Indeed, Judge Pooler
acknowledges the “strong case [of criminal activity] mounted against the tenant
at 103 Lake Drive.” Id., post at 18 n.4. Thus, when detectives observed two men
who fit the description of the tenant “Polo” leaving the basement apartment,
they had an articulable basis to conduct an investigatory Terry stop to ascertain
the men’s identities and their reason for being at a premises where there was
probable cause to think criminal conduct was occurring and a gun was located.
See United States v. Salazar, 945 F.2d 47, 50–51 (2d Cir. 1991) (holding that
23
“height, coloring, gender, and ethnicity” supported stop of person approaching
residence referenced by confidential informant as site of criminal activity).
Bailey attempts to distinguish Salazar by noting that the person stopped in that
case displayed nervousness. See id. at 51. While this fact may have enhanced
reasonable suspicion, it was not essential to it. In any event, as discussed below,
here too there is an additional fact supporting reasonable suspicion to stop.
Fourth, the firearm that police had probable cause to think was in the
subject premises was an easily transportable item of a sort frequently carried by
drug dealers. See, e.g., United States v. Gaskin, 364 F.3d 438, 457 (2d Cir. 2004).
These circumstances made it reasonable to suspect that one or the other of the
men fitting the general description of the drug dealer “Polo” might be armed
with the targeted weapon.
Insofar as Bailey suggests that the district court erred in locating support
for its favorable Terry ruling in a statement in United States v. Jaramillo, 25 F.3d
1146 (2d Cir. 1994)—that “‘[c]ircumstances giving rise to sufficiently ‘specific and
articulable facts’ to warrant the stop and patdown of an individual’ include[] ‘an
individual’s ownership or occupancy of private premises for which a search
warrant has been obtained,’” Bailey I, 468 F. Supp. 2d at 384 (quoting United
24
States v. Jaramillo, 25 F.3d at 1151) (second alteration added)—we here clarify
that our own Terry analysis does not depend on Jaramillo. In any event, while
Jaramillo includes the quoted language in a paragraph discussing Terry stops, it
specifically supports the statement by citation to Summers. Thus, Jaramillo is
properly understood to recognize that Terry v. Ohio and Michigan v. Summers
provide distinct standards for reasonable stops, the first—on which we base our
decision today—requiring reasonable suspicion of criminal conduct beyond7
proximity to a location of suspected crime, and the second requiring spatial
proximity to the premises to be searched without regard to reasonable
suspicion.8
This, of course, comports with the Supreme Court’s recognition in
Bailey III that a stop not falling within the spatial limits of Summers might
nevertheless be reasonable under Terry. See Bailey III, 133 S. Ct. at 1043. In sum,
7 By “beyond,” we do not suggest, as does our dissenting colleague, that
proximity to a location subject to a search warrant is irrelevant to a reasonable
suspicion determination. See Dissenting Op., post at 10. As noted supra at 21,
our precedent recognizes such a fact as a permissible consideration under Terry.
See United States v. Villegas, 928 F.2d at 516.
8
Unlike Judge Pooler, then, we do not understand the district court’s citation to
Jaramillo to reflect “an incorrect view of the interactions between Terry and
Summers.” Dissenting Op., post at 17 n.3.
25
Jaramillo should not be read to suggest that ownership or occupancy of searched
premises is necessarily enough to provide the reasonable suspicion necessary for
a Terry stop while the search is conducted. At the same time, however, Bailey III
cannot be read to bar any consideration of ownership or occupancy of premises
to be searched in making a reasonable suspicion assessment under Terry.9
Indeed, such a conclusion would be at odds with Supreme Court precedent
instructing that reasonable suspicion be determined from the totality of
circumstances. See United States v. Arvizu, 534 U.S. at 274.
For the reasons already stated, we conclude that the totality of
circumstances known to the detaining detectives when they saw Bailey and
Middleton leave 103 Lake Drive supported a reasonable suspicion to think that
the men may have been engaged in criminal activity and were armed, thus
making a stop and subsequent patdown constitutionally reasonable under
Terry.10
9 Although Bailey seemed to argue for such a bar in his supplemental brief, he
abandoned the position at oral argument. See June 19, 2013 Oral Arg. Tr. 4:13–15
(“[W]e are not arguing today that an observed connection with the premises to
be searched can’t contribute to a finding of reasonable suspicion . . . .”).
Insofar as Judge Pooler suggests that the officers’ suspicion of criminal activity
10
was unreasonable because Cannaday’s information about that site was already
“several days old,” Dissenting Op., post at 12, the contention cannot bear close
26
Brown v. City of Oneonta, 221 F.3d 329 (2d Cir. 2000), cited by Bailey to
question the detectives’ reliance on race and generic physical characteristics,
warrants no different conclusion. In dismissing a § 1983 equal protection claim
that certain police stops were impermissibly based on race, we observed that “a
description of race and gender alone will rarely provide reasonable suspicion
justifying a police search or seizure.” Id. at 334 (emphasis added). At the same
time, however, we held that police could reasonably consider a victim’s
description of a perpetrator’s race “as one of several elements” in identifying
scrutiny. First, the evidence Judge Pooler dismisses as “several days old” in fact
revealed the most recent in a series of approximately eight drug sales that “Polo”
had made to the informant over the past two months at either the 103 Lake Drive
apartment or “Polo’s” prior Bay Shore residence, circumstances strongly
indicating ongoing—not stale—criminal activity. Second, Terry does not
demand reasonable suspicion that the person stopped is currently engaged in
criminal activity. Rather, a Terry stop may be based on reasonable suspicion that
the person “was involved in or is wanted in connection with a completed
felony.” United States v. Hensley, 469 U.S. 221, 229 (1985); accord United States
v. Lucky, 569 F.3d 101, 106 (2d Cir. 2009) (upholding Terry stop of vehicle that
matched description of automobile that two days earlier fled shooting). Finally,
and most important, the warrant to search 103 Lake Drive issued because there
was probable cause to think that a firearm belonging to “Polo” and used in his
drug trafficking was then on the premises. Thus, to the extent there was
reasonable suspicion to think that Bailey was “Polo,” there was reasonable
suspicion to think that he was then in unlawful possession of the sought firearm,
constructively if not actually. See United States v. Chavez, 549 F.3d 119, 129–30
(2d Cir. 2008) (upholding § 924(c) conviction for constructive possession of
firearm found in apartment from which defendant departed).
27
potential suspects for investigation. Id. at 337–38. This case falls into the latter
category. Police did not here stop men simply because they were black, or even
because they were coincidentally seen at a location of suspected criminal activity.
Cf. United States v. Swindle, 407 F.3d 562, 569 (2d Cir. 2005) (stating that it was
unreasonable for officers searching for fugitive to order person earlier seen
entering known drug house to pull over when “only obvious physical
characteristic” the man shared with the fugitive “was the color of [his] skin” and
“[the man] was five inches taller—and 70 pounds heavier—than [the fugitive]”).
Rather, police here stopped the two persons whose race, sex, build, and hair
were consistent with an informant’s description of the man who had sold him
drugs, and who were seen leaving the very premises where the reported drug
sale took place and where police had probable cause to think that an easily
transportable firearm used in the drug trafficking was then located. It is the
combination of these circumstances that provided the reasonable suspicion of
ongoing criminal activity and weapon possession necessary for a Terry stop and
patdown, and no different conclusion is warranted by either Bailey’s or our
dissenting colleague’s efforts to view the facts in isolation. See Dissenting Op.,
post at 4–10. The Supreme Court has rejected such a “divide‐and‐conquer
28
analysis” because it “seriously undercut[s] the ‘totality of the circumstances’
principle which governs the existence vel non of ‘reasonable suspicion.’” United
States v. Arvizu, 534 U.S. at 274–75.
C. The Reasonableness of Continued Detention
Even if articulable suspicion supports an investigatory stop and patdown,
the Fourth Amendment demands that the scope and duration of the detention be
reasonable. In assessing whether a detention is too long or intrusive to be
justified as an investigative stop, courts properly “examine whether the police
diligently pursued a means of investigation that was likely to confirm or dispel
their suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686 (1985);
accord United States v. Glover, 957 F.2d 1004, 1011 (2d Cir. 1992); see also United
States v. McCargo, 464 F.3d 192, 198–99 (2d Cir. 2006) (concluding that
transportation of detainee to crime scene for possible identification was
reasonable because it “could have immediately confirmed or dispelled whether
he was a suspect”).
Here, we deal with a stop lasting a total of ten minutes before police
sufficiently confirmed their suspicions to arrest Bailey on undisputed probable
cause. We conclude that such a brief detention did not exceed the permissible
29
scope of a Terry stop simply because, for its last few minutes, police were not
questioning Bailey but, rather, were awaiting the results of a court‐authorized
search of the location from which Bailey was just seen to depart.
1. Questioning Incident to the Initial Stop and Patdown
At the outset, we observe that it was certainly within the reasonable scope
of the initial stop and patdown for detectives (1) to remove hard objects from
Bailey’s pockets to ensure that they were not weapons, and (2) to ask him to
identify himself and his residence. Indeed, Bailey effectively conceded at oral
argument on June 19, 2013, that, if there was an articulable basis to stop him at
all—which we conclude there was for the reasons just stated—such actions were
reasonable. Thus, the evidence obtained during this phase of the stop—Bailey’s
statement of his name, his admission to residing at 103 Lake Drive, his
production of a driver’s license indicating his prior residence in Bay Shore, and
the fact that he had a set of keys in his pocket—was all admissible at trial.
2. Retention of Bailey’s Keys
Bailey contends that the police nevertheless exceeded the permissible
scope of a Terry stop when they retained control of his keys,11 placing them on
11 These included both keys for the Lexus and a key to the subject premises.
30
the trunk of a car instead of returning them to him as they did his wallet. We
think this argument depends on the reasonableness of Bailey’s continued
detention because as long as a person’s detention remains lawful, he can hardly
complain about police retaining control over his means of departing the scene.
See United States v. Sharpe, 470 U.S. at 678–79, 687 & n.5 (upholding stop during
which police officer detained vehicle and retained detainee’s driver’s license
pending arrival of federal agent who, upon smelling marijuana from truck,
seized keys and conducted warrantless search of vehicle resulting in arrest); see
also United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 87 (2d
Cir. 2002) (Sotomayor, J.) (relying on Terry to uphold brief retention of luggage
suspected of containing criminal proceeds “so that trained law enforcement
personnel could investigate further . . . , especially when one considers that
failing to have done so would likely have resulted in claimant and his money
orders disappearing altogether”); United States v. Glover, 957 F.2d at 1009–12
(concluding reasonable suspicion permitted detention of suspect and his bus
ticket, identification, and baggage, last of which was suspected to contain
narcotics). Indeed, the quintessential Terry stop of a vehicle necessarily results in
brief police control of the detainees’ means to depart the scene. See generally
31
Arizona v. Johnson, 555 U.S. at 333 (“[A] traffic stop of a car communicates to a
reasonable passenger that he or she is not free to terminate the encounter with
the police and move about at will.”).
We here conclude that Bailey’s brief continued detention did not exceed
the permissible scope of a Terry stop because the initial questioning enhanced
suspicions of his criminal activities at the subject premises, and those suspicions
were quickly confirmed by a contemporaneous search of that location. See
United States v. Sharpe, 470 U.S at 686–87.
Bailey responded to Detective Sneider’s initial questions by admitting that
he presently resided at 103 Lake Drive. At the same time, he produced
documentary evidence of past residence in Bay Shore. These facts strongly
enhanced the likelihood that Bailey was “Polo,” the person who was dealing
drugs from the subject premises and who had recently done so at a prior Bay
Shore residence. Even if these circumstances did not by themselves establish
probable cause to arrest Bailey,12 they made it entirely reasonable for police to
We do not here decide whether the totality of facts known to the detaining
12
detectives before the apartment search supported probable cause for Bailey’s
arrest because the government, at oral argument on June 19, 2013, specifically
disavowed probable cause and argued only reasonable suspicion. See generally
United States v. Moran Vargas, 376 F.3d 112, 114 (2d Cir. 2004) (declining to
32
detain him for the few additional minutes it took to use a readily available
investigative means—execution of an already‐procured search warrant at the
suspected crime scene—to confirm or dispel suspicion of his ongoing criminal
activity.
Bailey submits that such a conclusion would allow the government to do
under Terry what the Supreme Court, in Bailey III, specifically said it could not
do under Summers, i.e., detain a person away from the premises pending a
search. In fact, Bailey III holds only that the Summers rule allowing persons to
be detained incident to searches without probable cause or a reasonable basis to
suspect their involvement in criminal activity is geographically cabined to the
immediate vicinity of the search site. Bailey III did not hold that a valid Terry
stop of a person who is reasonably suspected of ongoing criminal activity at a
location about to be searched could not be detained off site for the brief period it
took to see if the search confirmed or dispelled those reasonable suspicions.
Indeed, persons suspected of discarding criminal evidence are regularly detained
pursuant to Terry while police search for the discarded item to confirm or dispel
their suspicions. See United States v. Vasquez, 638 F.2d 507, 523–24 (2d Cir.
address possible grounds to uphold warrantless search in light of government
concession).
33
1980) (approving restraint of suspect to search shopping bag dropped at his feet
and suspected of containing weapon); see also United States v. Caruthers, 458
F.3d 459, 468–69 (6th Cir. 2006) (upholding Terry stop while police searched area
where detainee “was observed in a position suggesting that he was discarding
what . . . might have been a gun”); United States v. Soto‐Cervantes, 138 F.3d
1319, 1323 (10th Cir. 1998) (upholding Terry stop while police searched nearby
area where detainee’s furtive movements “could support an inference that the
man had left to hide something upon spotting the officers”); United States v.
Robinson, 30 F.3d 774, 779, 784 (7th Cir. 1994) (approving Terry stop for twenty
to thirty minutes while police searched area for discarded contraband); cf.
Michigan v. Summers, 452 U.S. at 700 n.12 (“If the purpose underlying a Terry
stop—investigating criminal activity—is to be served, the police must under
certain circumstances be able to detain the individual . . . ‘while it is determined
if in fact an offense has occurred in the area, a process which might involve
checking certain premises, locating and examining objects abandoned by the
suspect . . . .’” (quoting 3 LaFave, Search and Seizure § 9.2, at 36–37 (1st ed.
1978)). So here, we hold that a defendant reasonably suspected of criminal
34
activity at particular premises may be detained briefly pursuant to Terry while
police lawfully search the premises to confirm or dispel that suspicion.
In urging otherwise, Bailey contends that because a lawful Terry stop must
have an investigative purpose, detention while police pursue investigative
means distinct from the stop—such as execution of an already procured search
warrant for some other location—is necessarily unreasonable. The argument
fails for two reasons.
First, Bailey’s stop did have an investigative purpose: to ascertain his
identity and his connection to the basement apartment at 103 Lake Drive.
Bailey’s responses to the officers’ inquiries strongly indicated that he was “Polo,”
the person who was selling drugs and keeping a gun at the subject premises.
Indeed, it was that evidence from the investigatory stop, when combined with
the almost contemporaneous discovery of guns and drugs at the subject premises
that provided probable cause to arrest Bailey for unlawful possession.
Second, we do not construe Terry or its progeny to hold, as Bailey appears
to suggest, that an investigatory stop is reasonable only to the extent the detained
person is himself a participant in the investigative means being employed. In the
course of Terry stops, police routinely employ a range of investigative techniques
35
not limited to detainee questioning and not requiring detainee participation. See
United States v. Place, 462 U.S. 696, 706 (1983) (upholding seizure of luggage to
conduct dog sniff, “provided that the investigative detention is properly limited
in scope”); United States v. Tehrani, 49 F.3d 54, 61 (2d Cir. 1995) (upholding stop
while telephone inquiries conducted into suspects’ immigration status); United
States v. Glover, 957 F.2d at 1007 (upholding stop while computer check
conducted of detainee’s criminal history and luggage subjected to dog sniff).
What reasonableness demands is not that a stop be limited to investigative
means requiring the detainee’s participation, but that police “diligently pursue[]”
means of investigation “likely to confirm or dispel their suspicions quickly,
during which time it was necessary to detain the defendant.” United States v.
Sharpe, 470 U.S. at 686.
Here, the challenged stop lasted only ten minutes, during which time the
combination of police questioning of Bailey at the stop scene and a police search
of the premises he had recently departed established probable cause to arrest
him for weapon and drug possession. We easily conclude that such
circumstances demonstrate diligent pursuit of investigative means that quickly
confirmed the reasonable suspicions supporting the stop. Accordingly, because
36
police acted within the permissible scope of a Terry stop when they detained
Bailey for ten minutes, it was reasonable during that time to retain control over
the keys that he would have needed to depart the scene.
Even if we were to identify Fourth Amendment error in the brief retention
of Bailey’s keys, we would conclude, as the district court did, see Bailey I, 468 F.
Supp. 2d at 393 n.14, that the keys’ seizure was inevitable given the
reasonableness of Bailey’s continued detention up until his lawful arrest. In such
circumstances, we can conclude with a high level of confidence that, even
without retention of Bailey’s keys, police would have detained Bailey himself for
the brief time it took to learn the results of the search of 103 Lake Drive; would
have arrested Bailey upon discovery of drugs and a firearm in that premises;
would have searched him incident to that arrest, see Smith v. Ohio, 494 U.S. 541,
543 (1990) (recognizing exception to warrant requirement for searches incident to
arrest); and, in the course of that search, would have reclaimed custody of
returned keys as evidence linking Bailey to the site of criminal activity. See
United States v. Heath, 455 F.3d 52, 60 (2d Cir. 2006) (explaining that illegally
obtained evidence can be admitted under inevitable discovery exception to
exclusionary rule where court can find, with “high level of confidence,” that each
37
of contingencies necessary to legal discovery of contested evidence would be
resolved in government’s favor); accord United States v. Vilar, 729 F.3d 62, 84 (2d
Cir. 2013).
Accordingly, there is no merit to Bailey’s challenge to the admission of the
keys discovered and retained during the stop or of the fact that one of those keys
fit the locks of the subject premises.
3. Exculpatory Statements After Handcuffing
The only remaining evidence whose admission is at issue is the statements
Bailey made to Detective Sneider after he was handcuffed and told that the
subject premises was being searched, i.e., that he did not live there, that nothing
found therein was his, and that he was not cooperating with the investigation.
Bailey contends that the statements are tainted by Fourth Amendment error
insofar as it exceeded the permissible scope of a Terry stop to place him in
handcuffs. We agree, but conclude that the admission of the challenged
statements at trial was harmless.13
13 Bailey also contends that it exceeded the permissible scope of a Terry stop to
transport him to 103 Lake Drive, but because no challenged evidence was
obtained as a result of the decision to transport Bailey in a patrol car to the
subject premises rather than detaining him at the original location of the stop
while the search of the premises was conducted, we need not address that
argument.
38
a. Fourth Amendment Error
To satisfy the Fourth Amendment’s reasonableness requirement, “officers
conducting stops on less than probable cause must employ ‘the least intrusive
means reasonably available’ to effect their legitimate investigative purposes.”
United States v. Newton, 369 F.3d 659, 674 (2d Cir. 2004) (quoting Florida v.
Royer, 460 U.S. 491, 500 (1983) (plurality opinion)). The rule does not operate
categorically to authorize or prohibit particular forms of restraint in conjunction
with an investigatory stop. Rather, it demands a careful consideration of the
circumstances in which challenged restraints were used. Courts conducting such
an inquiry are, moreover, properly mindful of the Supreme Court’s caution in
Sharpe that,
[a] creative judge engaged in post hoc evaluation of police conduct
can almost always imagine some alternative means by which the
objectives of the police might have been accomplished. But the fact
that the protection of the public might, in the abstract, have been
accomplished by less intrusive means does not, itself, render the
search unreasonable. The question is not simply whether some
other alternative was available, but whether the police acted
unreasonably in failing to recognize or to pursue it.
470 U.S. at 686–87 (internal quotation marks, alterations, and citation omitted).
With these principles in mind, courts have upheld a range of restraints
incident to a Terry stop, from the patdown at issue in Terry itself, to the drawing
39
of firearms, to the use of handcuffs, all depending on the circumstances
presented. See United States v. Newton, 369 F.3d at 674 (collecting cases). In
sum, even though handcuffs are generally recognized as a “hallmark of a formal
arrest,” id. at 676 (collecting cases), not every use of handcuffs automatically
renders a stop an arrest requiring probable cause to satisfy Fourth Amendment
reasonableness, see id. at 675. The relevant inquiry is whether police have a
reasonable basis to think that the person detained poses a present physical threat
and that handcuffing is the least intrusive means to protect against that threat.
See id. at 674.
We found these twin conditions satisfied in Newton, a case in which a
defendant was handcuffed inside his home for the few minutes it took officers to
search for and locate a firearm. See id. at 675. The officers were in the home in
response to “a report that Newton illegally possessed a firearm and had recently
threatened to kill his mother and her husband.” Id. In “such a volatile
situation,” we concluded that it was objectively reasonable for officers to
handcuff Newton until they had located and secured the gun. Indeed, we
concluded that handcuffing was “a less intimidating—and less dangerous—
40
means of ensuring the safety of everyone on the premises than holding Newton
at gunpoint during the search.” Id.
Here, the police faced no comparable physical threat when they
handcuffed Bailey. To the contrary, having already subjected both Bailey and
Middleton to a patdown, the officers had confirmed that neither man was armed.
Further, having had both men exit the stopped vehicle, the officers had
eliminated the risk that the men might obtain any weapon from therein. We
recognize that police were investigating drug trafficking and unlawful firearm
possession, crimes frequently associated with violence. See United States v.
Garcia, 339 F.3d 116, 119 (2d Cir. 2003) (“This Court has repeatedly
acknowledged the dangerous nature of the drug trade and the genuine need of
law enforcement agents to protect themselves from the deadly threat it may
pose.” (internal quotation marks and alterations omitted)). But just as the law
does not categorically assume that handcuffing transforms every stop into an
arrest, so the law does not categorically assume that every investigatory stop
related to particular crimes requires handcuffing, particularly when a patdown
outside a vehicle reveals the detainee to be unarmed. We do not foreclose the
possibility that, in other cases, the government may be able to point to
41
circumstances supporting a reasonable basis to think that even an unarmed
person poses a present physical threat or flight risk warranting handcuffing. We
note only that the government failed to make such a showing in this case.
Accordingly, we conclude that police here exceeded the reasonable bounds of a
Terry stop when they handcuffed Bailey, a Fourth Amendment error that tainted
statements procured immediately thereafter.
Nor is a different conclusion warranted simply because the statements
here at issue were volunteered rather than in response to interrogation. Those
circumstances may eliminate Fifth Amendment concerns, see Miranda v.
Arizona, 384 U.S. 436, 478 (1966) (recognizing that “[v]olunteered statements of
any kind are not barred by the Fifth Amendment”), but not necessarily Fourth
Amendment taint, see generally Brown v. Illinois, 422 U.S. 590, 601–03 (1975)
(holding that statements voluntarily made after Miranda warnings were
nevertheless inadmissible as tainted by an unlawful arrest). To do that, the
government must demonstrate that the statements were “an act of free will
sufficient to purge the primary taint of the unlawful invasion.” Kaupp v. Texas,
538 U.S. 626, 632 (2003) (internal quotation marks and alteration omitted).
Factors relevant to that determination include (1) the flagrancy of the official
42
misconduct, (2) the temporal proximity between that conduct and the statement
at issue, (3) the presence of intervening circumstances, and (4) the use of Miranda
warnings. See Brown v. Illinois, 422 U.S. at 603–04. To avoid suppression, the
factors, taken together, must demonstrate a significant “attenuat[ion]” between
the Fourth Amendment violation and the challenged statement.
The Supreme Court found such attenuation in Wong Sun v. United States,
371 U.S. 471 (1963), a case in which a defendant arrested without probable cause
was released on his own recognizance and days later confessed to certain crimes,
see id. at 491. In those circumstances, suppression of the confession was not
warranted because “the connection between the arrest and the statement had
become so attenuated as to dissipate the [Fourth Amendment] taint.” Id.
(internal quotation marks omitted). Similarly, in Mosby v. Senkowski, 470 F.3d
515 (2d Cir. 2006), this court ruled on habeas review that a defendant’s
statements made after Miranda warnings and five hours after a defective arrest
were admissible in light of “significant intervening circumstances between the
warrantless arrest and the confession,” specifically, the appearance of a witness
who linked the defendant to the crime, id. at 522–23 (noting that unlawful arrest
43
would not be deterred by suppression because police questioned defendant only
after critical witness had appeared).
In this case, however, the factors do not demonstrate significant
attenuation. The handcuffing was not only an objectively excessive intrusion for
this particular investigatory stop, but also the sort of restraint that a reasonable
person would “normally associate[] with formal arrest.” United States v.
Newton, 369 F.3d at 676. Further, Bailey’s statement followed within minutes, if
not seconds, of the handcuffing, during which time he was not given Miranda
warnings.
To be sure, Bailey was told that he was not under arrest, but only being
detained while a search was conducted at 103 Lake Drive. But as we have had
occasion to observe in making a Fifth Amendment assessment of custody,
“telling a suspect that he is not under arrest does not carry the same weight in
determining custody when he is in handcuffs as it does when he is
unrestrained.” Id. Translated to the Fourth Amendment context, we conclude
that because of the conflicting signals implicit in telling a suspect he is not under
arrest at the same time that he is being handcuffed—when, as here, handcuffing
is the very action that takes a particular detention outside the scope of a
44
reasonable Terry stop—something more than a police disclaimer of arrest may be
necessary to demonstrate that statements made within moments of the
handcuffing were not tainted by that action. No different conclusion is
warranted because Bailey’s volunteered statements immediately followed the
disclaimer’s revelation of an ongoing search of the subject premises rather than
his handcuffing. The record indicates that the sequence of events—handcuffing,
Bailey’s inquiry as to the rationale for arrest, police disclaimer of arrest and
revelation of search, volunteered exculpatory statements—all followed so
quickly one upon another as to preclude the finding of attenuation necessary to
remove any taint.
Accordingly, in the absence of a record basis to conclude that the
handcuffing exceeding the reasonable scope of a Terry stop in this case did not
taint Bailey’s exculpatory statements so as to allow their admission at trial, the
motion to suppress these statements should have been granted.
b. Harmless Error
Where evidence obtained in violation of constitutional rights is wrongfully
admitted at trial, the error can be deemed harmless only if it appears “beyond a
reasonable doubt” that it “did not contribute to the verdict obtained.” Chapman
45
v. California, 386 U.S. 18, 24 (1967); see United States v. Dhinsa, 243 F.3d 635,
659–64 (2d Cir. 2001). The fact that wrongfully admitted evidence takes the form
of exculpatory, rather than inculpatory, statements, does not by itself satisfy this
standard. See generally Miranda v. Arizona, 384 U.S. at 476–77 (rejecting
distinction between inculpatory and exculpatory statements for purposes of
Fifth Amendment analysis: “If a statement made were in fact truly exculpatory it
would, of course, never be used by the prosecution.”). Rather, a court must
consider the importance of the erroneously admitted exculpatory statements to
the government’s proof of guilt in order to assess harmlessness. See United
States v. Quiroz, 13 F.3d 505, 510 (2d Cir. 1993) (rejecting harmlessness challenge
to false exculpatory statements admitted in violation of Miranda, noting that
“false exculpatory statement . . . may be an important part of the government’s
proof”), abrogated on other grounds by Berghuis v. Thompkins, 560 U.S. 370
(2010).14 A court must be able to conclude that the wrongfully admitted evidence
was “unimportant in relation to everything else the jury considered on the issue
in question, as revealed in the record,” to excuse the error as harmless. Yates v.
Berghuis holds that a suspect’s invocation of his right to remain silent must be
14
unambiguous. See 560 U.S. at 381–82.
46
Evatt, 500 U.S. 391, 403 (1991), overruled on other grounds by Estelle v. McGuire,
502 U.S. 62 (1991); see United States v. James, 712 F.3d 79, 101 (2d Cir. 2013).
A number of factors properly inform this determination. “[M]ost critical”
is the strength of the prosecution’s case absent the erroneously admitted
evidence. United States v. Okatan, 728 F.3d 111, 120 (2d Cir. 2011) (internal
quotation marks omitted). Also relevant are the materiality of the evidence to
critical facts in the case and the prosecutor’s actions with respect to the evidence
at issue. See id. In this case, these factors tilt decisively in favor of harmless
error.15
First, even without Bailey’s exculpatory statements, the prosecution had
evidence far more significant to its case against Bailey. See United States v.
Treacy, 639 F.3d 32, 45–46 (2d Cir. 2011) (holding erroneous admission of false
exculpatory statement harmless where “other evidence in the prosecution’s case
was vastly more significant to demonstrating [defendant’s] actual actions”); cf.
Wood v. Ercole, 644 F.3d 83, 94–96 (2d Cir. 2011) (citing weakness in prosecution
case in concluding under more stringent standard applicable to habeas review
15
Judge Pooler concludes otherwise because she thinks all evidence procured
during the stop was inadmissible. She does not, however, contend that if, as we
conclude, the pre‐handcuffing evidence was lawfully admitted, any error in
admitting the post‐handcuffing evidence was not harmless.
47
that admission of statements in violation of Fifth Amendment could not be
deemed harmless). The prosecution case consisted of drugs, drug paraphernalia,
guns, and ammunition found in the basement apartment at 103 Lake Drive—
indisputable evidence of criminality at that location. As for Bailey’s possession
of the seized contraband—the only issue seriously in dispute at trial—the
prosecution offered direct evidence from confidential informant Cannaday that
he had purchased drugs from Bailey—whom he knew by the name “Polo”—
seven or eight times over the two months prior to Bailey’s arrest inside both the
subject premises and at a prior Bay Shore residence, at which times he had seen a
firearm present. While the defense challenged Cannaday’s credibility, hostile
witness Middleton corroborated Bailey’s use of the name “Polo” and his
residency in the Lake Drive basement apartment. Indeed, Middleton
acknowledged being with Bailey in that apartment only minutes before police
searched the premises and found the charged drugs and gun.16 The prosecution
16 Judge Pooler suggests that if Bailey’s stop had “properly been deemed illegal,”
Middleton should not have been allowed to testify for the prosecution at trial
because he “was only seized by the police as a result of the unlawful stop.”
Dissenting Op., post at 20 n.5. The point merits little discussion in light of our
determination that the stop was not illegal. Nevertheless, we note that the urged
suppression conclusion is hardly obvious. See United States v. Ceccolini, 435
U.S. 268, 278 (1978) (observing that because “cost of excluding live‐witness
testimony often will be greater” than cost of excluding other evidence that came
48
also offered evidence that, when Bailey and Middleton were stopped shortly
after leaving 103 Lake Drive, Bailey admitted presently to residing there and
produced a license indicating a Bay Shore address, facts that strongly established
both his residency and control over the subject premises and his identity as the
drug dealer “Polo.” Further, a key found on Bailey’s person at the time of the
stop fit the locks of the subject apartment, and various documents found within
the premises bore Bailey’s name. The totality of this evidence provided
compelling proof of Bailey’s residency in, and control over, the basement
apartment at 103 Lake Drive and, therefore, of his possession of the drugs and
firearm found therein.
Second, the erroneously admitted exculpatory statements were plainly
material insofar as they disclaimed Bailey’s residency at 103 Lake Drive and his
ownership of anything found therein. But, far from helping the prosecution, the
to light though chain of causation that began with illegal seizure, a “more direct
link between the illegality and that kind of testimony is required”); see generally
Herring v. United States, 555 U.S. 139–44 (2009) (explaining that exclusionary
rule applies only where benefits of deterring sufficiently culpable police
misconduct outweigh suppression’s substantial costs). In any event, the issue is
not properly before us in light of Bailey’s failure to seek suppression of
Middleton’s testimony at trial, see Fed. R. Crim. P. 12(b)(3)(C) & (e), or to raise
the issue either in his habeas petition or on this appeal, see United States v.
Farhane, 634 F.3d 127, 155 n.29 (2d Cir. 2011).
49
admission of these exculpatory statements helped Bailey by allowing him to
admit his own disclaimers of residency and possession before the jury, to argue
the truthfulness of these disclaimers, see Summation Tr. 769:24–770:1, and, thus,
to cast doubt on government proof of his earlier admission of residency, all
without being subjected to cross‐examination.17
More to the point, however, for Bailey’s exculpatory statements to support,
rather than undermine, the prosecution’s case, the government first had to prove
that Bailey’s disclaimers were false, in which case it could then urge the jury to
infer Bailey’s consciousness of guilt. In this respect, Bailey’s particular
exculpatory statements, even if false, cannot be deemed particularly important to
the prosecution case. This is not simply because false exculpatory statements
“are only circumstantial evidence of guilt, and weak circumstantial evidence at
that.” United States v. Treacy, 639 F.3d at 45–46. Rather, it is because the sole
value of Bailey’s particular omissions lay in their falsity and the consciousness of
Without the exculpatory statements, the jury would have heard only that, upon
17
being stopped, Bailey admitted residing at the subject premises, which would
have been in direct conflict with the defense theory, supported by the building
owner, that Bailey was an occasional visitor of the real tenant of the premises.
But with the exculpatory statements, the defense was able to argue that Bailey’s
disclaimer was the truth, as corroborated by the building owner, and that the
police were mistaken, or deceitful, in their account of his initial admission of
residency.
50
guilt that could be inferred therefrom. See United States v. DiStefano, 555 F.2d
1094, 1104 (2d Cir. 1977) (“False exculpatory statements are not admissible as
evidence of guilt, but rather as evidence of consciousness of guilt.”); accord
United States v. Strother, 49 F.3d 869, 877 (2d Cir. 1995).18 In short, this is not a
case in which the government offered a false exculpatory statement that also
contained damaging omissions, or otherwise locked the defendant into an
18 The district court’s charge was detailed and specific in this respect:
You have heard testimony that the defendant made certain
statements outside the courtroom to law enforcement authorities in
which the defendant claimed that his conduct was consistent with
innocence and not with guilt.
The government claims that these statements in which he
exonerated or exculpated himself are false.
If you find that the defendant gave a false statement in order to
divert suspicion from himself, you may, but are not required to,
infer that the defendant believed that he was guilty.
You may not, however, infer on the basis of this alone that the
defendant is, in fact, guilty of the crime for which he is charged.
Whether or not the evidence as to [] defendant’s statement[s] shows
that the defendant believed that he was guilty and the significance,
if any, to be attached to any such evidence are matters for you, the
jury, to decide.
Closing Tr. 105:9–106:1, App. 253–54.
51
implausible defense theory, circumstances precluding a finding of harmlessness.
Cf. Wood v. Ercole, 644 F.3d at 96–97 (rejecting harmlessness in such
circumstances on habeas review).
To prove falsity, the government had to convince the jury that Bailey did,
in fact, reside in the subject premises and control, i.e., possess, the charged
contraband found therein. Thus, before the jury could consider Bailey’s
disclaimers as false exculpatory statements indicating consciousness of guilt, the
government effectively had to prove his guilt. In such circumstances, erroneous
admission of false exculpatory evidence can be deemed harmless beyond a
reasonable doubt. See United States v. Reifler, 446 F.3d 65, 88 (2d Cir. 2006)
(holding harmless admission of “plainly cumulative” evidence); see also United
States v. Durham, 139 F.3d 1325, 1332 (10th Cir. 1998) (holding false exculpatory
instruction harmless because it was of no relevance to jury until it determined
that defendant knowingly made false exculpatory statement, and to make that
determination, jury must have already independently concluded that defendant
participated in charged crime); United States v. Littlefield, 840 F.2d 143, 150 (1st
Cir. 1988) (holding consciousness of guilt instruction harmless because
52
consideration of evidence “would simply re‐prove the conclusion the jury
already had reached”).
Third, the government’s treatment of the exculpatory evidence only
reinforces a conclusion of harmlessness. The prosecutor referenced the evidence
twice in its opening summation and not at all in its rebuttal summation. See
Summation Tr. 734:21–735:3, 743:5–19. Viewed in context, the references are
more supplemental than critical to the government’s theory of guilt. Certainly,
the prosecutor did not begin his summation by suggesting that Bailey’s false
exculpatory statements were the starting point for the jury’s understanding of
the case; nor did he use the statements to buttress the testimony of the
prosecution’s own witnesses. Cf. Wood v. Ercole, 644 F.3d at 97–98 (rejecting
harmlessness argument on habeas review where prosecutor used erroneously
admitted statement in such ways). To the contrary, the prosecutor was careful to
argue only that the statements could support an inference of consciousness of
guilt if the jury found them to be false. See Summation Tr. 743:13–19. Because
falsity depended on proof of defendant’s residency and control of the subject
premises and its criminal contents, matters which effectively established Bailey’s
guilt and undermined Bailey’s affirmative case, and because the admissible
53
evidence of guilt was compelling, we conclude that Fourth Amendment error in
the admission of Bailey’s exculpatory statements was necessarily harmless.
III. Conclusion
To summarize, we conclude as follows:
1. Bailey’s initial detention on July 28, 2005, was a reasonable
investigatory stop and patdown under Terry v. Ohio, 392 U.S. 1,
because there was reasonable suspicion to think that he had been
and was engaged in criminal activity and that he was armed.
2. Insofar as police retained control over Bailey’s keys while his
detention continued for ten minutes,
a. the retention of means of departure is reasonable as long as
the detention itself is reasonable;
b. a ten‐minute detention here was reasonable under Terry
because Bailey’s responses to initial police inquiries only
heightened the suspicion that prompted the initial stop and
that suspicion could most quickly be confirmed or dispelled
by the results of a then‐ongoing search of the premises from
which Bailey had just departed. The spatial limitations of the
54
rule in Michigan v. Summers, 452 U.S. 692, which permits
detention without reasonable suspicion pending execution of
search warrants, do not categorically apply to the rule in Terry
v. Ohio, which permits detentions only upon articulable facts
supporting reasonable suspicion; and
c. even if retaining control of the keys had exceeded the limits of
a reasonable Terry stop, any error would be harmless because
the investigatory detention of Bailey himself remained
reasonable until the time of his arrest, and police inevitably
would have seized the keys when they searched Bailey
incident to arrest.
3. Handcuffing Bailey after he was removed from his vehicle and a
patdown confirmed that he was unarmed exceeded the bounds of a
reasonable Terry stop in the circumstances of this case. Volunteered
statements made by Bailey within minutes of that handcuffing were
thus tainted by Fourth Amendment error and should not have been
admitted at trial. Nevertheless, because the sole value of the
statements to the prosecution was their falsity, which could only be
55
demonstrated by proof that also established Bailey’s guilt, the
admission was harmless beyond a reasonable doubt, and no vacatur
for a new trial is required.
Accordingly, the judgment of conviction is AFFIRMED.
56
1 POOLER, Circuit Judge, concurring in part and dissenting in part:
2 As this case was described by the Supreme Court in Bailey v. United States,
3 “[t]he issue to be resolved is whether the seizure of the person was reasonable
4 when he was stopped and detained at some distance away from the premises to
5 be searched when the only justification for the detention was to ensure the safety
6 and efficacy of the search.” 133 S. Ct. 1031, 1035 (emphasis added) (“Bailey III”).
7 Such a justification is not appropriately used for a Terry stop, and this case
8 should not be resolved on Terry grounds.
9 I believe that the initial stop was not supported by reasonable suspicion
10 under Terry. And, while I concur with the majority that the police exceeded the
11 bounds of Terry upon handcuffing Bailey and join in Part II.C.3.a. of the majority
12 opinion, I would reverse for a new trial, untainted by the erroneously admitted
13 evidence gathered from the initial stop and subsequent unlawful detention. For
14 that reason, I respectfully dissent.
15 I.
16 Terry permits a police officer in “appropriate circumstances and in an
17 appropriate manner [to] approach a person for purposes of investigating possibly
1
1 criminal behavior even though there is no probable cause to make an arrest.”
2 Terry v. Ohio, 392 U.S. 1, 22 (1968). However, police may only stop someone if
3 there is “reasonable suspicion supported by articulable facts that criminal activity
4 may be afoot.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation
5 marks omitted). Reasonable suspicion must be “based on specific and articulable
6 facts” and not on an “inchoate suspicion or mere hunch.” United States v. Bayless,
7 201 F.3d 116, 132‐33 (2d Cir. 2000) (internal quotation marks omitted). We
8 consider the “totality of the circumstances of each case to see whether the
9 detaining officer has a particularized and objective basis for suspecting legal
10 wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (emphasis added)
11 (internal quotation marks omitted). “Terry explicitly recognized that specificity
12 was essential in part because according the police unfettered discretion to stop
13 and frisk could lead to harassment of minority groups and severely exacerbate
14 police‐community tensions.” Bayless, 201 F.3d at 133 (internal quotation marks
15 and alterations omitted).
2
1 II.
2 In concluding that the detectives’ initial stop of Bailey was supported by
3 reasonable suspicion, the majority lists four “articulable facts” that it concludes
4 warranted the intrusion at issue here: (1) that at the time of the challenged stop,
5 the detectives already had probable cause “to think that the apartment [at 103
6 Lake Drive] was the site of recent drug trafficking and contained a .380 caliber
7 handgun,” Maj. Op. at [21]; (2) that the detectives watched Bailey leave the
8 premises “through a gate that the police knew was accessible only from the rear
9 basement level of the building,” id.; (3) that both men fit the confidential
10 informant’s “general description of ‘Polo,’” that is, a “short‐haired, stocky, black
11 male,” id. at [22]; and (4) the firearm which was the subject of the search warrant
12 was “an easily transportable item of a sort frequently carried by drug dealers,”
13 id. at [24].
14 With its enumeration of these four facts, the majority concludes that the
15 totality of circumstances “supported a reasonable suspicion to think that the men
16 may have been engaged in criminal activity and were armed,” making the stop
17 reasonable under Terry. Maj. Op. at [26]. In the next sections, I examine the
3
1 majority’s facts regarding proximity to the premises and physical similarity to
2 “Polo”: first, whether these facts may provide independent justifications for a
3 Terry stop, and next, whether they would justify a stop under the “totality of the
4 circumstances.” For the reasons discussed below, I cannot agree that this stop
5 was justified under Terry.
6 A.
7 As an initial matter, the majority’s reliance on the detectives’ observation of
8 Bailey and Middleton leaving the subject premises—that is, factors (1), (2) and (4)
9 cited by the majority—is not enough, without more, to justify a stop under Terry.
10 The Supreme Court has repeatedly emphasized that “[a]n individual’s presence
11 in an area of expected criminal activity, standing alone, is not enough to support
12 a reasonable, particularized suspicion that the person is committing a crime.”
13 Illinois v. Wardlow, 528 U.S. 119, 124 (2000); see also United States v. Swindle, 407
14 F.3d 562, 569 (2d Cir. 2005) (“Swindle’s entering a known drug house does not
15 itself suggest that a crime was afoot.”).
16 In Ybarra v. Illinois, the Court explained that even in the context of a search
17 authorized by search warrant, the “‘narrow scope’ of the Terry exception does not
4
1 permit a frisk for weapons on less than reasonable belief or suspicion directed at
2 the person to be frisked, even though that person happens to be on premises where an
3 authorized . . . search is taking place.” 444 U.S. 85, 94 (1979) (emphasis added).
4 Although Ybarra involved a search warrant authorizing the search of a tavern
5 rather than a private residence, I believe that its holding that mere presence at the
6 site of the execution of a search warrant does not create individualized,
7 reasonable suspicion is applicable more broadly, particularly in light of the
8 Court’s emphasis on Terry’s carefully maintained “narrow scope.” Id. at 93.
9 A number of other circuits have similarly concluded that presence alone in
10 a suspicious area does not meet the requisite standard for reasonable suspicion
11 under Terry. See, e.g., United States v. Black, 707 F.3d 531, 542 (4th Cir. 2013) (“The
12 pertinent facts remaining . . . are that the men were in a high crime area at night.
13 These facts, even when coupled with the officers’ irrational assumptions based
14 on innocent facts, fail to support the conclusion that Officer Zastrow had
15 reasonable suspicion that Black was engaging in criminal activity.”); United States
16 v. Ritter, 416 F.3d 256, 269 (3d Cir. 2005) (“Under Ybarra, [a] ‘cursory search for
17 weapons’ clearly is not permitted absent a reasonable belief or suspicion that an
5
1 individual encountered is armed.”); United States v. Cole, 628 F.2d 897, 899 (5th
2 Cir. 1980) (evidence gathered via patdown search of an individual who arrived at
3 a private home when the police were preparing to execute a search warrant was
4 inadmissible because the search of the individual was not supported by
5 reasonable suspicion, and “[m]ere presence neither obviates nor satisfies the
6 requirement of Terry.”).
7 This conclusion, that the detectives’ observation of Bailey merely departing
8 the subject premises is not enough for reasonable suspicion, is further buttressed
9 by the Supreme Court’s decision in this case. In rejecting our initial holding that
10 Bailey’s detention was justified under Michigan v. Summers, 452 U.S. 692 (1981),
11 the Supreme Court acknowledged that:
12 Although the danger of alerting occupants who remain inside may
13 be of real concern in some instances, as in the case when a no‐knock
14 warrant has been issued, this safety rationale rests on the false
15 premise that a detention must take place. If the officers find that it
16 would be dangerous to detain a departing individual in front of a
17 residence, they are not required to stop him. And, where there are
18 grounds to believe the departing occupant is dangerous, or involved in
19 criminal activity, police will generally not need Summers to detain him at
20 least for brief questioning, as they can rely instead on Terry.
21
6
1 Bailey III, 133 S. Ct. 1031, 1039 (2013) (emphasis added). The Court noted that
2 Terry is the appropriate doctrine on which to rely for police to detain a
3 “departing occupant” away from the subject premises, and in so writing, the
4 Court also emphasized that there must be “grounds to believe the departing
5 occupant is dangerous, or involved in criminal activity,” id., in order to lawfully
6 detain that occupant. It seems clear, based on the reasoning provided in Bailey
7 III, that simply departing from a premises about to be searched, without more,
8 cannot be enough to justify a Terry stop.1
9 Though the majority relies on its first, second, and fourth factors to support
10 reasonable suspicion, a closer look at this list leads me to the conclusion that they
11 are all variations on the same theme—i.e., that Bailey and Middleton were seen
12 leaving 103 Lake Drive, and because of this, the police had reasonable suspicion
1
The majority opinion seems to acknowledge this portion of Bailey III in
reasoning that the Summers standard is “distinct” from Terry, and that Terry
“requir[es] reasonable suspicion of criminal conduct beyond proximity to a
location of suspected crime.” Maj. Op. at [25]. At the same time, however, the
majority fails to recognize that most of the “articulable facts” on which it relies
here are entirely dependent on spatial proximity to the subject premises about to
be searched, and have nothing to do with reasonable suspicion of criminal
conduct.
7
1 to stop them. The cases discussed above are clear that mere presence in a
2 location known for criminal activity is insufficient under Terry, and thus, the
3 “articulable facts” linking Bailey to the subject premises and relied on by the
4 majority are similarly insufficient to create reasonable suspicion. Upholding the
5 detectives’ stop of Bailey in this case because of Bailey’s presence leaving 103
6 Lake Drive would constitute an unwarranted expansion of Terry’s scope.
7 B.
8 The remaining “articulable fact”—that both Bailey and Middleton
9 resembled the confidential informant’s description of “Polo”—also did not create
10 a reasonable suspicion to stop them. This is because generic descriptions of race,
11 gender, and build, without more, have been held insufficient to justify reasonable
12 suspicion.
13 “[A] description of race and gender alone will rarely provide reasonable
14 suspicion justifying police search or seizure.” Brown v. City of Oneonta, 221 F.3d
15 329, 334 (2d Cir. 2000); cf. Goodson v. City of Corpus Christi, 202 F.3d 730, 733, 737
16 (5th Cir. 2000) (in a Section 1983 action where suspect was described as “white
17 male, approximately six feet tall, heavy‐set, and dressed like a cowboy, possibly
8
1 heading to a cowboy bar,” the Fifth Circuit stated that “[s]uch a description
2 would simply be too vague, and fit too many people, to constitute particular,
3 articulable facts on which to base reasonable suspicion,” and reversed the district
4 court’s grant of summary judgment). As the majority notes, race may properly be
5 considered as one of several elements in identifying potential suspects for
6 investigation, Maj. Op. at [27], however, because I conclude that the factors
7 related to Bailey’s proximity to the subject premises were insufficient to create
8 reasonable suspicion of criminal activity, we are left to consider the generic
9 description of Polo’s race, gender, and build (and description of his short
10 hairstyle). This is simply insufficient, particularly where none of these
11 descriptors are unique or remarkable, to give rise to the requisite individualized
12 suspicion. See Swindle, 407 F.3d at 569‐70 (“courts agree that race, when
13 considered by itself and sometimes even in tandem with other factors, does not
14 generate reasonable suspicion for a stop”); cf. United States v. Jones, 998 F.2d 883,
15 885 (10th Cir. 1993) (no reasonable suspicion to stop defendants where
16 description was of two black men in a black Mercedes “based solely on the color
17 and manufacturer of the car, and the fact that it contained two black men,”
9
1 particularly because there was no showing by the government that “the sight of
2 two African‐Americans in a black Mercedes was a highly unusual event”).
3 Indeed, the facts we are left with apart from physical proximity to 103 Lake
4 Drive—that Bailey and Middleton both shared race, gender, build and short hair
5 styes with “Polo,” in a part of Long Island where, as of 2006, approximately 78
6 percent of the population in the relevant neighborhood was black, and
7 approximately two thirds of American adults were overweight—simply do not
8 create a reasonable suspicion of involvement in criminal activity as to these
9 particular two individuals.
10 C.
11 Finally, properly taking all four of the majority’s facts together does not
12 change my view that this case does not fit within Terry’s narrow scope.
13 Examining the totality of the circumstances, see Arvizu, 534 U.S. at 273, we are
14 lacking the essential ingredient for a Terry case: that is, some conduct observed
15 by an officer that would lead the officer to reasonably suspect that criminal
16 activity may be afoot, i.e., in the process of development.
10
1 The majority relies on United States v. Salazar, 945 F.2d 47, 50‐51 (2d Cir.
2 1991) to suggest that factors like those at issue here—descriptions of a suspect’s
3 height, coloring, gender and ethnicity, when combined with a person
4 approaching a particular residence associated with criminal activity—are
5 sufficient to support a Terry stop. See Maj. Op. at [23]. However, in Salazar, our
6 Court emphasized that the person stopped had appeared nervous in front of the
7 police. 945 F.2d at 51. Understandably, nervousness, odd, or furtive behavior
8 have all been identified by the Supreme Court as an important factor in the
9 reasonable suspicion analysis, because such behavior in the presence of law
10 enforcement is reasonably linked to criminal activity. See Wardlow, 528 U.S. at
11 124 (“In this case, . . . it was not merely respondent’s presence in an area of heavy
12 narcotics trafficking that aroused the officers’ suspicion, but his unprovoked
13 flight upon noticing the police. Our cases have . . . recognized that nervous,
14 evasive behavior is a pertinent factor in determining reasonable suspicion.”); see
15 also Arvizu, 534 U.S. at 270 (“The driver appeared stiff and his posture very rigid.
16 He did not look at [Agent] Stoddard and seemed to be trying to pretend that
17 Stoddard was not there. Stoddard thought this suspicious because in his
11
1 experience on patrol most persons look over and see what is going on, and in that
2 area most drivers give border patrol agents a friendly wave.”) (citation omitted);
3 Florida v. Royer, 460 U.S. 491, 502 n.2 (1983) (plurality opinion) (the police noted,
4 among the other facts cited as justifying reasonable suspicion, that Royer
5 “appeared pale and nervous, looking around at other people”).
6 In Bailey III, considering the specific facts of this case, Justice Kennedy
7 enumerated several factors an officer might look to in order to lawfully detain a
8 departing occupant under Terry. These included: “A suspect’s particular actions
9 in leaving the scene, including whether he appears to be armed or fleeing with
10 the evidence sought.” 133 S. Ct. at 1042. Here, there was no such evidence of
11 suspicious or evasive behavior on Bailey or Middleton’s part. For example, there
12 was no testimony that Bailey or Middleton were moving quickly or furtively, or
13 that the detectives suspected that they had just purchased or sold drugs at 103
14 Lake Drive, or that one of them was readjusting something in his waistband that
15 could reasonably be considered a firearm. Further, the “criminal activity” that
16 had been reported at 103 Lake Drive and that provided the basis for the warrant
17 affidavit was several days old. The confidential informant’s statement described
12
1 conduct occurring days earlier, and as such, did not describe activity that could
2 provide “a particularized and objective basis for suspecting legal wrongdoing” at
3 the time of the stop. Arvizu, 534 U.S. at 273 (emphasis added) (internal quotation
4 marks omitted).
5 It is obvious that the detectives suspected that either Bailey or Middleton
6 could be “Polo,” the person whom the confidential informant had told them
7 about. See App’x at 89‐90 (“Q: And why did you follow them?” Officer Gorbecki:
8 “To identify them and see what their purpose was for being at the residence.”).
9 While I concede that this testimony evinces the detectives’ suspicion that one of
10 these men could have been “Polo,” that is not what the law under Terry requires
11 to justify a stop. Terry requires that the facts giving rise to reasonable suspicion
12 be addressed towards whether Bailey in particular was “engaged in wrongdoing
13 when they encountered him.” Sokolow, 490 U.S. at 7 (emphasis added); see also
14 Bayless, 201 F.3d at 134 (the factors invoked by the police to justify a Terry stop
15 must be salient with respect “to the question [of] whether crime is afoot”).
16 The evidence here only showed that the confidential informant had
17 identified someone named “Polo,” along with “other persons unknown” as likely
13
1 occupants of the basement apartment, and that when the officers observed two
2 men leaving the basement apartment—both of whom fit the generic details given
3 by the confidential informant as to “Polo’s” appearance—they believed that one
4 of the men could be “Polo.” However, instead of obtaining an arrest warrant,
5 they decided to try to “identify them” and learn their “purpose” for being at the
6 residence, all without particularized, articulable details as to why Bailey and/or
7 Middleton were reasonably suspected of engaging in criminal activity at the time
8 of the stop.2
9 Permitting a stop based on proximity to premises suspected of past
10 criminal activity, together with mere similarity of gender, race, build and
2
The majority’s reliance on United States v. Hensley, 469 U.S. 221 (1985) for
the proposition that a Terry stop may be permissible where there are facts giving
rise to reasonable suspicion that a particular individual is wanted “in connection
with a completed felony,” see id. at 229, does not change the analysis here, in my
opinion. Hensley involved the application of Terry to a named individual who
had a “wanted flyer” issued against him for his participation in a specific armed
robbery that had occurred a few days earlier. Id. at 223 (“We granted certiorari in
this case . . . to determine whether police officers may stop and briefly detain a
person who is the subject of a ‘wanted flyer’ while they attempt to find out
whether an arrest warrant had been issued.”). The Supreme Court was careful to
limit Hensley, noting that “[w]e need not and do not decide today whether Terry
stops to investigate all past crimes, however serious, are permitted.” Id. at 227.
14
1 unremarkable hairstyle attributes, and without any perceived suspicious
2 behavior, expands Terry beyond what the Supreme Court originally intended.
3 That is to say, in cases “where a police officer observes unusual conduct which
4 leads him reasonably to conclude in light of his experience that criminal activity
5 may be afoot,” limited investigatory stops and seizures are permissible under the
6 Fourth Amendment. Terry, 392 U.S. at 30‐31 (emphasis added). The facts here
7 make this a close case, but they are simply not close enough.
8 III.
9 I also find troubling that the detectives’ own testimony at the suppression
10 hearing supports the conclusion that, contrary to the majority’s position, they did
11 not perceive any conduct giving rise to a suspicion of criminal activity. Rather,
12 they wanted to detain Bailey and Middleton in order to bring them back to the
13 premises that was to be searched, i.e., under a Summers‐type detention. This is
14 made clear by Detective Gorbecki’s statement to Bailey, upon handcuffing him,
15 that “[y]ou are not under arrest; you are being detained . . . We’re about to
16 execute a search warrant in your apartment.” Detective Gorbecki testified that
17 once he brought Bailey back to the residence, he met some of the entry team
15
1 officers in the driveway, and they confirmed “that there was a handgun in plain
2 view next to the bed and some crack cocaine on a bookshelf,” and it was at that
3 point that Detective Gorbecki’s view of why they were holding Middleton and
4 Bailey changed:
5 Q: [I]t changed from being a detention while the search warrant
6 was being executed to what?
7 A: Now it was an arrest.
8
9 When pressed on cross‐examination about why the detectives did not stop
10 or detain Bailey and Middleton on the premises, Detective Gorbecki responded
11 that it was a “safety issue,” and that “if we stopped them too close to the
12 residence and there are still people in the apartment we’ll search the individuals.
13 If one of them finds out we did a search of the individuals, . . . they could prepare
14 themselves with weapons.” Detective Sneider described their actions by stating
15 “[t]he procedure we follow is the same every time. . . . [I]f anyone leaves the
16 house, we do not stop them next to the house. We let them leave the area, and
17 then we detain them.”
18 All of this testimony leads to the same conclusion: the detectives were
19 effectuating a detention pursuant to Summers, and the district court concluded as
16
1 much, see United States v. Bailey, 468 F. Supp. 2d 373, 379‐82 (E.D.N.Y. 2006)
2 (“Bailey I”), as did this panel in our initial 2011 opinion. In fact, although the
3 district court separately held that the stop could also be justified under Terry, the
4 district court’s reasoning upholding the stop on Terry grounds was supported by
5 Summers jurisprudence, in that the district court relied on United States v.
6 Jaramillo, 25 F.3d 1146 (2d Cir. 1994). In Jaramillo, our court allowed “an
7 individual’s ownership or occupancy of private premises for which a search
8 warrant has been obtained” to give rise to “sufficiently specific and articulable
9 facts” to warrant a Terry stop by relying on Summers. Jaramillo, 25 F.3d at 1151.3
10 We know now that these holdings and rationales are incorrect. In Bailey III, the
11 Supreme Court explained that, under Summers:
12 detention is justified by the interests in executing a safe and efficient
13 search, the decision to detain must be acted upon at the scene of the
14 search and not at a later time in a more remote place. If officers elect
15 to defer the detention until the suspect or departing occupant leaves the
3
The majority opinion attempts to sidestep this analytical flaw in the
district court’s suppression ruling by noting that “we here clarify that our own
Terry analysis does not depend on Jaramillo.” Maj. Op. at [24]. However, this
does not alter the fact that the district court’s specific conclusions underpinning
its denial of Bailey’s suppression motion were in the context of an incorrect view
of the interactions between Terry and Summers.
17
1 immediate vicinity, the lawfulness of detention is controlled by other
2 standards, including . . . a brief stop for questioning based on
3 reasonable suspicion under Terry or an arrest based on probable
4 cause. A suspect’s particular actions in leaving the scene, including
5 whether he appears to be armed or fleeing with the evidence sought,
6 and any information the officers acquire from those who are
7 conducting the search, including information that incriminating
8 evidence has been discovered, will bear, of course, on the lawfulness
9 of a later stop or detention.
10
11 Bailey III, 133 S. Ct. at 1042 (emphasis added); see also id. at 1043 (Scalia, J.,
12 concurring) (“Bailey was seized a mile away. Ergo, Summers cannot sanction
13 Bailey’s detention. It really is that simple.”).
14 The detectives in this case believed they were entitled to detain Bailey and
15 Middleton away from the premises pursuant to the execution of the search
16 warrant, i.e., under Summers. The Supreme Court has now clearly rejected this
17 particular use of Summers‐type detention, and our Court should not distort
18 Terry’s narrow scope in an attempt to accommodate the detectives’ conduct.4
4
I find this all the more pertinent here, where the detectives clearly had a
strong case mounted against the tenant at 103 Lake Drive, based on their work
with the confidential informant and their lawfully obtained search warrant. This
is not a situation in which the police were struggling to gather evidence, nor
where they could not have waited and obtained an actual arrest warrant for the
resident of the subject premises upon executing the search warrant.
18
1 “Beyond Summers’ spatial bounds, seizures must comport with ordinary
2 Fourth Amendment principles.” Id. at 1045 (Scalia, J., concurring). Because the
3 record does not support a conclusion that the detectives had grounds to believe
4 that based on Bailey and Middleton’s “particular actions in leaving the scene,” id.
5 at 1042 (Opinion of Kennedy, J.), they were dangerous or involved in criminal
6 activity, I believe the initial stop was not supported by reasonable suspicion, and
7 as such, was not justified under Terry.
8 IV.
9 While I agree that the police exceeded the bounds of Terry upon
10 handcuffing Bailey, I do not share the majority’s conclusion that the erroneous
11 admission of the post‐arrest statements was harmless error. The admission of
12 Bailey’s post‐arrest statements, when considered along with the evidence gleaned
13 as a result of the initially unlawful stop, was not harmless.
14 The evidence obtained as a result of the stop and unlawful handcuffing
15 consisted of Bailey’s own statements confirming that 103 Lake Drive was his
16 “house”; that his driver’s license confirmed that he used to live at a Bayshore
17 address; that Bailey’s keys opened the basement apartment at 103 Lake Drive;
19
1 and Bailey’s contradictory exclamation upon being handcuffed that “I don’t live
2 there. Anything you find there ain’t mine, and I’m not cooperating with your
3 investigation.” Such evidence was clearly the type with which a jury could, and
4 likely did, convict him. As such, the admission of the tainted evidence in this
5 case does not give us any “fair assurance that the jury’s judgment was not
6 substantially swayed” by the erroneous admission of this evidence. See United
7 States v. Estrada, 430 F.3d 606, 622 (2d Cir. 2005) (internal quotation marks
8 omitted).
9 The bulk of the disputed facts at trial centered on whether Bailey was
10 indeed “Polo,” and whether it was Bailey who exercised control and possession
11 of the subject premises. Without the evidence described above, the jury would
12 have had on the one hand the identification made by the confidential informant,
13 as well as his testimony at trial, and on the other hand, the testimony of the
14 landlady, Meltona Sykes, that someone other than Bailey was the tenant who
15 lived in and possessed the basement apartment at issue.5 Certainly, the
5
At trial, the jury also had the benefit of Middleton’s testimony as a hostile
witness, which further corroborated that Bailey was known as “Polo.” However,
Middleton was only seized by the police as a result of the unlawful stop, and as
20
1 confidential informant’s testimony was both damning and highly relevant to
2 Bailey’s identification as “Polo.” But Bailey was entitled to a jury’s consideration
3 of the competing testimonial and identification evidence—and the respective
4 factual inferences to be drawn from such evidence—without the prejudicial and
5 improperly admitted evidence that indubitably and substantially swayed the
6 jury’s judgment.6
7 “[B]efore a federal constitutional error can be held harmless, the court must
8 be able to declare a belief that it was harmless beyond a reasonable doubt.”
9 Chapman v. California, 386 U.S. 18, 24 (1967). Considering in particular Bailey’s
10 own statements confirming 103 Lake Drive as his home, and that his keys (seized
11 during the stop) opened the locks on the basement apartment, I cannot conclude
12 that the error was harmless, i.e., that this wrongfully admitted evidence was
such, the police may not have had the benefit of his testimony had the stop
properly been deemed illegal.
6
Juries are generally instructed on witness credibility. Without the benefit
of the additional, improperly admitted evidence, the confidential informant’s
credibility, and his motivations for testifying on behalf of the government, may
have been afforded significantly different weight, given that the jury heard
testimony that the confidential informant’s tip was given in exchange for
“get[ting] [his] felony thrown out.”
21
1 “unimportant in relation to everything else the jury considered on the issue in
2 question.” Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled on other grounds by
3 Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991). I would hold that all of the evidence
4 as a result of the stop and the unlawful detention should have been suppressed,
5 and thus, I cannot join in the majority’s conclusion of harmless error. I would
6 reverse and remand for a new trial.
7 V.
8 For all of these reasons, though I join in Part II.C.3.a of the majority
9 opinion, I respectfully dissent from the remainder.
22