terry stop based only on reasonable suspicion into an arrest without probable cause in doing so he violated core fourth amendment principles tenants that that i have long held that there should be arrest without probable cause and while this court has recognized that there are rare unusual exceptions when a police officer is permitted to handcuff during a terry stop none of those exceptions apply here and to expand those rare exceptions to cover facts at like in the case here would undercut core fourth amendment principles that prohibit arrest without probable cause this court should reverse conviction because it was secured based on  evidence that was obtained in violation of the fourth amendment the guiding principles that have been set by this court on hold during a terry stop of course the police may first but their investigation has to be as minimally intrusive as possible bearing in mind the circumstances that gave rise to the suspicion and one of those circumstances here they're very minimal they're based on intuition there's a possible lie about whether a car was broken down the driver you see that only as a possible misapplied at the time that the officer is of use waiting for a tow truck to be a transmission problem he's pulled off on a dirt road and moments later the car was on the road moving i understand that but at the time that the officer sees him it's a possible therefore they must hide in the woods and get ready for that or that they would secretely weapons somewhere there's no no basis in the record for that whatsoever it was no way that they would know that the weapons had been but why would they be if there's no reason in the record to believe that that would ever happen to anybody testifying one way or another on this that anybody making that witness suggested that was a concern the on the concern that weapons might have been hidden in the city no you're right i think that that's something that the district court judge discussed in distinguishing value and what were the police to make of the fact that the at the first encounter there was one individual in the car and then moments later after the current miraculously recovered from its transmission problems there were two other individuals who appeared and i think it was in several minutes wasn't isn't that right there were two hundred fifty two other individuals one was walking around the car that was my client another was in the car it's certainly not finder right and certainly not been apparent had been just an encounter with a single individual at the first again you know it was it caused a reason to be suspicious but it's certainly not evidence of criminal activity and also emphasize that was just the promises pointing out that there were a known actors and unknown factors based on the role nature of the area it was one in the morning i think and there were a lot of wood so did the people come from the woods did they come from another  car and you know immediately there were disparate stories that were being told by the three individuals that was afterwards that's afterwards but that there's no evidence of criminal activity and i would contract that's not the issue here right i mean the everyone agreed below and if there's ever a case that shows that sometimes actually clear what state is there is between a bunch and probable cause that's called reasonable suspicion everyone agrees that there was a reasonable suspicion that justifies a terry stop and that there was not probable cause that would justify an arrest right right so you have to worry about evidence of criminal activity here we know exactly what was allowed in wasn't allowed generically the question is does the handcuffing amount to a reasonable security precaution that is part of a terry stop what does that escalate this to an arrest and that goes to the issue of is there reason to believe there's a physical threat now him and when he gets to the parking right there is already one person out of the car is one person my client is walking from the record it sounds like he's walking around towards the back of the car and two people are in the car including the original drive sees the car moving but he tall as it to the park and ride by the time he gets into the park and ride lot there's two people in the car and one person out of the car but i think he did testify that there was no time for someone to get in the car between the time them going into the parking right and he pulled in there was no time for that to take right he said in terms of this speculation or thought process about whether there were people in the woods it's not right into the parking lot so i don't think there's any reason in the record to support that someone could have come out of the woods and i would just didn't in my remaining time you know just very quickly turn the court's attention to the recent decision grice you know where this court just last september made it very clear that it is only in rare unusual circumstances where it is allowed to handcuff during a terry stop and not without turning that into an arrest in the examples vargas newton all cases you know where there's specific evidence of a threat some is armed with a gun someone has a gun and threatens murder grice itself you know where the person is was with a remote control device near tracks where innocent bystanders there's nothing like that here there's no evidence of a complaint no evidence of criminal activity no evidence of arming and i would say that if the unusual circumstance is extended to this case any time someone is stopped in a dark wooded area big bed for somewhere else or in the projects in the middle of the night the view of the rationale that there could be confederates around that there could be weapons stash will always hold true and that means that terry is gone and you know we can handcuff that well and that would be a violation of your fourth minute actually testify that this was his standard practice during a terry stop yes your honor he's subjective reasoning doesn't matter but that may suggest some reason for your concern that if we but minutes later we have two new suspects who had appeared right he sees the car plowed into the parking right he sees one person circling towards the back i'm not sure he's out there what point but eventually he realizes that there's another person in the car so there how many people in the car two in the car one one walking around the back as far as he's concerned there are two new persons that he other two others that is correct why would a reasonable officer in these circumstances not be worried that there might be even more persons around somewhere effectively arrested unconstitutional how does that deprivation of judge i guess right affect the rights of your client because because the search said well it doesn't matter because i would have given him the sentence anyway i would point out the following first of all it is very clear from the record that the judge selected and said so a midpoint between the non career offender good morning may it please the court my name is robert allen and i represent the united states on appeal i want to focus the issue of the terry stop although i am of course happy to answer questions about the sentencing guidelines morning he tries to help so we asked the driver if you need any help he observes that the driver is by himself and the driver says i'm from staten island which is hours and hours away from where they  were up in bedford he says i have a tow truck coming from brooklyn which makes no sense why you'd have a tow truck coming from you know an area of three or four already had a friend who had a tow truck correct you know is that not everybody belongs to aaa and not everybody has the money to pay for a tow if you have a friend with a tow truck you might wait a few hours for them to come rather than pay for so it's certainly possible but it's also certainly i think the grounds for suspicion again it in the whole thing is grounds for suspicion that's agreed right yes agreed stipulated everybody says there was reasonable suspicion justifying a terry stop there was not probable cause for an arrest right yes so the question of the question is what is it that justified is the security concern that would warrant handcuffing in a terry stop situation such that we would conclude that despite daily this is a  case in which handcuffing is justified as part of a terry stop yes so just to two quick very quick keep points from the initial encounter one only one person in the car and two the officer knows that there is an empty vacant he sees another person in the car and he sees a person behind the car right so there are a couple of inferences that he's allowed to draw from those in the district court found were appropriate inferences to have been drawn one  who is the driver why obviously he lied about having transmission trouble and he did not i don't think he was specifically asked he never notified the officer that there was another person with him and the fact there was another person in the car means there was someone outside on the side of the road doing something which the officer naturally infers is preparing for or conducting or being about to conduct a burglary or robbery second there's another person who is not in the vehicle it's possible he had just gotten out of the vehicle it's also possible he was there waiting in the park and ride the entire time so the officer concludes that this is could be a staging point for the robbery could be or people were planning to meet up afterwards and if that's the case there may be more people who are there or maybe sitting in a parked car there could be more people who are going to come later right he doesn't know who else was there and it's not obvious to him where this third person who came from so the key difference between this case and between bailey is that bailey is a very controlled situation it is a stop that the officers conducted at a location the officers chose which was right outside of a fire station by a firehouse in a presumably suburban neighborhood where there would be other people around but with would also be lights and visibility it's a regular street in the middle of the day and it's a place where it couldn't have been a staging ground there's no reason to think that anyone associated with the defendants would be nearby but here by necessity and there was also in daily evidence that the two people who were in the car matched the description of a man who had a gun at a previous occasion which gave a gave grounds for of probable cause search warrant of the house from which these people had come yes in into this considerable calmly is conducted with weapons so i think in this case as well burglary of an empty house is commonly done with guns i think it's the type of crime that commonly involves weapons yes and the whole point is this was a vacant house that's why the officer thought that that house might be the subject of a burglary is because it was vacant you put it do burglars normally bring guns to houses that they think are uninhabited you honor the district court found that there was the officers had a reasonable concern that there would be weapons involved and in fact there were weapons in yeah that's the that's the efter the fact we might have reason to think that these guys were trying to rob a drug dealer because they were all set up as police officers too but we didn't know that no one knew that at the time we can't be confused with the facts but the after the fact facts were focused on what the officers knew  you mentioned home invasion as well as the possibility which to me suggests that there aren't cations in which individuals are in a house that is then indeed and things taken and that would suggest a need for arms potentially but was there any basis for that it was his he testified that his concern was based solely on the vacant house so the officers in this case as many officers are in numerous instances are operating with without perfect vision and perfect right into what's happening what gives the officer the initial concern about a home invasion robbery or burglary is the fact that he knows there are vacant houses nearby but he also i think has a concern more generally about burglaries and robberies and that concern is proven by by first the fact that jogger has obviously emitted that there is a person who is outside the vehicle at one fifteen in the morning that person is presumably scouting out a robbery and once the officer here finds two the robbery tools the fake gun and what he did merchandise he actually has other officers canvassed all nearby houses not just the vacant home so although i think what causes the left it is it is after the fact but it's speaks to the reasonable the of the inference that the court drew which is that there was concern here that this was a violent offense and that there might have been weapons that were secret in the location or held in the possession of the defendants is that you do think that we overstated the matter  grace in saying that circumstances in which handcuffs might be used in connection with the terry stop or unusual i think your honor that it's hard to say obviously because i don't have on the average terry stop i think the average terry stop does not come anywhere near this type of situation and obviously thirty nine people on the sidewalk officers on the beat kind of thing but i wonder about the average terry stop in bedford i wonder if you know maybe we we make assumptions about what's average and what's normal based on where we happen to live but for these officers i would imagine they're very often encountering suspects in cars on roads in leafy areas that's not so unusual for them and there's nothing the record as to as to these questions i'm not sure i would imagine th bedford probably conducts far fewer terry stops than an officer in the city just try to figure out what you know what we should be saying one way or another what you would like us to say for example and what the defense would like to be said about know i think that this was if you were to consider terry stops overall nationally this is an unusual terrorist up there certainly yes it's a you know for all the reasons that we've already stated and so i don't think there's anything incorrect with saying that generally speaking the use of handcuffs is unusual although i think when filling houses suggest that if we were to find that this search even after the pat down after the two additional officers have come even after the pat down even after the individuals are put in separate police cars for interrogation i think it's at that moment that that they're handcuffed right so they're in the back seat of police cars they're segregated and there's it's kind of man on man but the police are armed and they know that the individuals are not so easy you know with the woods or round or not you know if we were  circumstances and defense counsel wrecked that we'd be basically authorizing the use of handcuffs and any kind of dark at night one on one a situation where there was reasonable suspicion sufficient to support a stop don't you always have that kind of safety concern but i think that the key difference here is that there was a legitimate concern that there may have been other people who would be coming to the scene of the stop i would not always be if someone is stopped you know in a high crime neighborhood as well but again in bailey for example the stop occurred at a location of the officers choosing which i think is very common and just the presence of a high crime neighborhood is not the same type of specificity of the suspicion here where people seem to have been caught in the midst of committing a crime and then immediately went to a particular location where another individual seems to have met them that the when handcuffs are not appropriate but i think under the specific facts here the district court's findings were correct that the officers had a concern about their own safety they had a concern that other people might come to the scene that there could be weapons scene weapons in other cars or in joggers own car and also i think one of the important difference is that the purpose of this stop was one that was not going to be completed immediately and this is a difference in bailey and bailey the purpose of the stop was substantially to identify who the people were who were leaving the house to see if the people were if if if one of the guys was stopped was polo you know who had sold drugs to the informant right and what i think is a problem  daily is that that purpose is accomplished before the handcuffs are even put on the two individuals identify themselves and then they say we can't and then polo says i came from my house and frankly at that  but here there was the complete the objectives of the terry stop which is to determine whether in fact a robbery had occurred it's going to take a little bit more time we're going to need to separate the individuals you're going to need to ask them questions and in that individuals that they're not armed and you know they are there in the back of the police cars which presumably are locked to them i guess the record is not clear about that and i don't know the can run easily from the police car was this they have an obligation to use the least restrictive means available yes i mean the point of cherry is to use the most minimally intrusive means  providing protecting the officer safety but on the other hand the cornerstone of the fourth amendment is reasonable ness and in sharp the supreme court has instructed courts not to second guess the snap judgments made by officers but rather to ask even if there was a better way to have done this whether what it occurred was reasonable under the circumstances and so while it may have been possible for the officers to ensure their safety through a through a through a lesser invasive means i don't think it's possible to say that what occurred here was an reasonable given the ambiguity and the difficulties of knowing whether anyone else was going to come to the scene whether there were weapons at the scene whether robberies been in progress and again when when folks are caught in the midst of a crime that's a highly volatile situation where they may want to escape they may want to try to overpower the police and so i you know i do think under the specific facts here judging omar was correct to find that the use of handcuffs for a limited period of time again it was under ten minutes under ten minutes this is going to ask some undetermined yes the duration of the stop which was determined by comparing radio runs was approximately ten minutes and we've had cases of course if on that particular issue we've had thirty three minutes twenty two sixty sixty two miles let me ask you about the bid for the police department is it the practice of the bedford police department to handcuff all suspects determination to stand under stand that the issue is whether even if he does this all the time and he shouldn't do it all the time and most of the time he's violating some right if in this instance a reasonable officer could have used handcuffs legitimately because that was what a reasonable officer would do there's no violation here i get that when you see the problem is that you said earlier maybe we don't need to make pronouncements about the use and cause the problem is we kind of did delhi we made a pretty strong statement about handcuffs being a line of demarcation and then in grace we may walk that back a little bit to the right the unusual exceptions you know one issue is are we giving any guidance at all in these cases is it valuable to have some sort of rule or is it important that we walk back to this role because it isn't a very good rule if it turns out there are going to be quite a number of types of circumstances in which handcuffing is it is appropriate some a little concerned about what we say here both in terms of what we do with our precedence in terms of whether there is some twenty fourteen i'm not sure what month price was obviously decided well after so it's not i don't think it's possible to tell from the facts of this case whether those decisions have subsequently provided guidance to the officers again the sickness is a stop that occurred a few things i was listening to the government and the language that they use in describing what the officer knew here words like possible could be a staging point maybe more people all very speculative very level of reason to believe that a physical threat is imminent and again i would just compare what the officer knew here with what the officer knew in christ the cases cited and in bailey as  well just briefly the point that the officers the officer didn't choose this location which is one of the things that the district court relied upon in my experience they don't often get to the location where stop occurs and if that's the case you know what why not just follow them and choose your location and avoid this whole situation i would just go back to my original point i mean you think about the ramifications of this decision in the projects you know an officer of the day ask you about that i guess why why isn't your argument cut the other way these are not the products this is a wooded area late at night in a suburban why isn't it in this in a sense a stronger case for the police than than you would find in the proverbial projects actually i don't think so because i think in the projects the likelihood the guns are stashed that confederates are looking everywhere is very strong but in this situation it is in my opinion absurdly speculative that somebody would be hiding in the bushes or guns would have been stashed somewhere in anticipation of this arrest