United States v. Fiseku

• Citation: 915 F.3d 863
• Decision Date: 04 October 2018
• Docket Number: August Term, 2017,Docket No. 17-1222-cr
• Parties: UNITED STATES of America, Appellee, v. Bekim FISEKU, Defendant-Appellant, Sefedin Jajaga, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

915 F.3d 863

UNITED STATES of America, Appellee,

v.Bekim FISEKU, Defendant-Appellant,Sefedin Jajaga, Defendant.^*

Docket No. 17-1222-cr

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: June 7, 2018

Decided: October 4, 2018

Amended: December 17, 2018

Robert Allen, Assistant United States Attorney (Won S. Shin, Assistant United States Attorney, on the brief ), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Mary Anne Wirth, Bleakley Platt & Schmidt, LLP, White Plains, NY, for Defendant-Appellant.

Before: Cabranes, Lynch, and Carney, Circuit Judges.

Susan L. Carney, Circuit Judge:

Defendant-appellant Bekim Fiseku entered a conditional plea of guilty to one count of conspiracy to commit Hobbs Act robbery after the United States District Court for the Southern District of New York (Engelmayer, J .) denied in part his motion to suppress evidence recovered during an investigatory stop. See United States v. Fiseku ("Suppression Order "), No. 15 CR 384, 2015 WL 7871038 (S.D.N.Y. Dec. 3, 2015). On appeal, Fiseku challenges that denial, and also asserts that defense counsel was constitutionally ineffective in failing to make a particular argument contesting Fiseku’s status as a "career offender" under the United States Sentencing Guidelines (the "Guidelines"). As to the suppression ruling, we agree with the District Court that the officers acted reasonably under the Fourth Amendment during the late-night investigatory stop, notwithstanding their decision to briefly restrain Fiseku and two other individuals in handcuffs before the officers developed probable cause to arrest. As to Fiseku’s ineffective assistance claim, in accordance with our usual practice, we decline to address his argument on direct appeal, without prejudice to his renewal of the claim in a collateral proceeding. Accordingly, for the reasons set forth more fully below, we AFFIRM the District Court’s judgment.

BACKGROUND²

I. The investigatory stop

Fiseku and two other individuals were apprehended in the early hours of September 20, 2014, in Bedford, New York, a rural town in Westchester County. Sergeant Vincent Gruppuso of the Bedford Police Department was on duty that night, patrolling the streets in a marked patrol car. At approximately 1:15 a.m., Gruppuso saw a white Nissan Pathfinder stopped on a dirt pull-off. Gruppuso pulled up to the vehicle and had a short conversation with the driver, later identified as Sefedin Jajaga, who appeared to be the only person in the car. Jajaga told Gruppuso that he lived in Staten Island and was in Bedford that night visiting a friend. He was on the pull-off, he explained, because the Pathfinder was having transmission trouble, and he was waiting for a friend who had agreed to bring a tow truck from Brooklyn.

Gruppuso drove on, but as he later testified, the situation "seemed suspicious," particularly because he knew that a nearby house was vacant while awaiting sale, making it a "prime target for ... burglary." App’x 126–27. He decided to circle back and check on the vehicle. On his way back to the pull-off, Gruppuso encountered the Pathfinder driving on a nearby street, less than five minutes after the driver had complained of transmission trouble. Gruppuso followed the Pathfinder to a "park-n-ride" parking lot near the highway.

As he turned into the parking lot, Gruppuso saw the Pathfinder parked in the far corner of the lot, which was ringed by trees. He parked nearby and now observed three men in or near the Pathfinder: Jajaga sitting in the driver’s seat, a second individual (later identified as a certain Hughes) sitting in the passenger seat, and a third (later identified as Fiseku) walking around the rear of the vehicle. Because Gruppuso drove into the parking lot only moments after the Pathfinder, there was not enough time for anyone to enter that vehicle without Gruppuso noticing, unless someone was "stand[ing] there ready to jump in the vehicle when it pulled in and stopped." App’x 158.

Gruppuso radioed from the parking lot at 1:25 a.m., asking for an additional unit to join him, then got out of his car and approached the Pathfinder. Two officers soon arrived in separate police cruisers. By that time, Gruppuso had already begun interacting with Fiseku: after examining Fiseku’s driver’s license, Gruppuso patted him down and found no weapons or contraband. Within moments, the officers directed Jajaga to exit the Pathfinder, patted him down and handcuffed him, and handcuffed Fiseku.³ The officers then directed Hughes to exit the vehicle, then patted him down and handcuffed him as well. Gruppuso testified at the suppression hearing that the three men were handcuffed for officer safety. The officers did not draw their guns, however, because "[t]here was no threat of deadly force at that time." App’x 170 (emphasis added).

The officers did not tell the men that they were under arrest, nor did they issue Miranda warnings; rather, they explained that the men "were being detained" while the officers investigated their suspicious activity. App’x 139. The men were then separated for individual questioning, a "common interview tactic," according to Gruppuso. App’x 137. Jajaga and Hughes were each seated, separately, in the back seat of patrol cars, while Fiseku remained standing outside.

Jajaga told Gruppuso that he had been able to get the Pathfinder started shortly after their conversation on the dirt pull-off. He then drove to the parking lot, he explained, to pick up Fiseku and Hughes, who had driven there in a separate car; the three men planned to travel together to a party in Waterbury, Connecticut. When Gruppuso expressed skepticism, Jajaga offered a different reason for being in Bedford at such a late hour: he had arranged a sexual encounter with a woman who lived there. When asked for additional details, however, Jajaga claimed he did not know the woman’s name or where she lived.

Hughes, like Jajaga, stated that the three men were en route to a party in Connecticut in two separate cars. His account diverged at that point, however: whereas Jajaga claimed that the three men intended to proceed from Bedford together in one car, Hughes claimed they stopped in Bedford only to stretch their legs and smoke a cigarette, after which the men got back into separate cars. Fiseku, too, mentioned a party in Connecticut, but, contrary to both Jajaga’s and Hughes’s accounts, he claimed that all three men had arrived in Bedford together in one car. When Gruppuso confronted Fiseku with that inconsistency, Fiseku "stopped talking." App’x 142.

After hearing all three accounts, Gruppuso returned to Jajaga and said he didn’t believe Jajaga’s story. When asked "if there was anything in the vehicle that shouldn’t be there," Jajaga responded, "[N]o, you can look." Id. The officers searched the vehicle and found the following items: baseball caps and a sweatshirt bearing New York Police Department insignia, a gold "repo/recovery agent" badge on a lanyard, a stun gun, a BB gun "replicating" a Colt .45 pistol, a blank pistol "replicating" a .25 automatic, flashlights, walkie talkies, gloves, a screw driver, and duct tape. Suppression Order , 2015 WL 7871038, at *4.

The search was complete by 1:35 a.m., approximately ten minutes after Gruppuso first arrived in the parking lot. At that point, concerned about a possible home invasion, Gruppuso called in a request for additional units to help canvass the area. The canvass did not reveal any criminal activity.

II. Procedural history

On June 18, 2015, the Government filed a sealed indictment charging Fiseku and Jajaga with one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951. In September 2015, Fiseku and Jajaga moved to suppress both the physical evidence recovered from the vehicle and certain statements they made to the officers during the stop, asserting arguments under both the Fourth and Fifth Amendments. The District Court held a suppression hearing in October 2015, and then invited supplemental briefing, followed by oral argument.

On December 3, 2015, the District Court entered an order granting in part and denying in part the suppression motion. Suppression Order , 2015 WL 7871038. The court rejected defendants’ argument that the officers effectuated a de facto arrest without probable cause in violation of the Fourth Amendment. See id. at *11. In the District Court’s view, the officers’ conduct—including their use of handcuffs—was reasonable in light of the circumstances of the late-night investigatory stop in a remote area. See id. Turning to defendants’ arguments under the Fifth Amendment, the court concluded that defendants’ statements must be suppressed because the officers subjected defendants to a custodial interrogation without providing Miranda warnings. See id . at *14–15 (finding inapplicable the "public safety" exception to Miranda ’s requirements); see also Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (requiring suppression of statements "stemming from custodial interrogation of the defendant unless [the prosecution] demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination"). The court declined, however, to suppress the physical evidence recovered from the vehicle, concluding that "Jajaga’s consent to search the vehicle was voluntarily and freely given," notwithstanding the lack of Miranda warnings. Suppression Order , 2015 WL 7871038, at *18.

In November 2016, Fiseku entered a conditional guilty plea to the single count of conspiracy to commit Hobbs Act robbery. At the change-of-plea hearing, he allocuted that he conspired with others to rob a known narcotics trafficker in Bedford. Fiseku’s plea agreement articulated the parties’ consensus that, in light of his status as a career offender (as defined in Guidelines section 4B1.1), the applicable offense level would be 29, producing a...