On January 25, 1996, the late edition of the New York Times carried an article by Don van Natta entitled "Not Suspicious To Flee Police, Judge Declares." See Section B, p. 1, Column 5, Metroplitan Desk. The article reported that "[a] federal judge [Judge Haorld Baer] ruled yesterday that 80 pounds of cocaine and heroin seized from a woman's car in Washington Heights could not be used as evidence." According to the artticle, Judge Baer said "it was understandable -- and not suspicious -- for four men who had just delivered the packages to run away when they recognized a police officer." The article further stated:

"...Judge Harold Baer Jr. said the act of running away from the police -- which an officer said he had found suspicious enough to pull over the woman's car and search it -- is considered reasonable behavior in Washington Heights, a neighborhood racked by police brutality and corruption scandals.

"'Even before this prosecution and the public hearing and final report of the Mollen Commission, residents in this neighborhood tended to regard police officers as corrupt, abusive and violent,' wrote Judge Baer, who once served on the Mollen Commission, which investigated police corruption during the Dinkins administration. 'After the attendant publicity surrounding the above events, had the men not run when the cops began to stare at them, it would have been unusual.'"

The issue was probable cause for the search of the trunk of a rental car operated by a certain Carol Bayless. The article stated:

"In an unmarked patrol car parked behind Ms. Bayless's car, a New York City police officer had watched four men walk single file up to the trunk, place the bags inside and -- after seeing the plainclothes officer -- run away in different directions. For that reason, and others, the officer said he decided to stop Ms. Bayless's car and search it. After finding the drugs in the trunk of her 1995 red Chevrolet Caprice rental car, Officer Richard Carroll arrested her."

The police searched Bayless's car and found 75 pounds of cocaine and more than four pounds of heroin. The arrest and search took place at the corner of Amsterdam Avenue and 176th Street in "just before dawn" on April 21, 1995.

According to the article, Judge Baer ruled that the officer did not have a reasonable suspicion that Bayless had committed a crime. The article noted that "Ms. Bayless reacted with glee ... over the ruling." The article further noted that Judge Baer is "white, and ... served as the first executive director of the Police Department's Civilian Complaint Review Board." It reported that that in his ruling Judge Baer wrote, "What I find shattering is that in this day and age blacks in black neighborhoods and blacks in white neighborhoods can count on little security for their person."

***


Judge Baer's ruling and reasoning provoked a virtual firestorm of criticism. For example, Police Commissoner William Bratton, Mayor Guilaani, and, eventually, even President William Jefferson Clinton all criticized Judge Baer's ruling and reasoning. A Newsday article -- Paul Moses & Joseph Queen, "Judge: Men Not Wrong to Run From Cops," January 26, 1996, Friday, Queens Edition, News Section, p. A03 -- gave the following account of the controversy:

"A federal judge ruled yesterday that, because of rampant police corruption in drug-plagued Washington Heights, it is reasonable for someone there to run away from the cops."

"The decision brought a swift and angry reaction from Police Commissioner William Bratton, Mayor Rudolph Giuliani and other officials."

"'He's living in a fairyland,'" Bratton said.

"The judge, Harold Baer, virtually barred all the evidence in the case of Carol Bayless, 41, of Detroit. Bayless, who was allegedly found with 75 pounds of cocaine and four pounds of heroin in the trunk of her car, admitted in a now-suppressed videotaped confession that she came to New York to buy drugs.

"Undercover officers saw four men take five duffle bags containing about $ 1 million in cash out of the trunk and place two bags into the trunk, the judge said. The men fled when they realized they were being observed by police, who then arrested Bayless."

"'Had the men not run when the cops began to stare at them, it would have been unusual,'" Baer wrote, adding that neighborhood residents "'tended to regard police officers as corrupt, abusive and violent.'"

"...

"Bratton called Baer's decision "'absolutely crazy . . . For him to imply that if you're black in this city, if you see a police officer, run - what type of message does that send out?'"

"He called for Baer, who was a member of the Mollen Commission that investigated police corruption during David N. Dinkins' administration, to disqualify himself from further cases involving the New York Police Department."

***

On January 28, 1996, the New York Times carried (late edition-final, Section 1, p. 27, column 5, Metropolitan desk) the following excerpts from Judge Baer's opinion explaining his ruling:

"The mere presence of an individual in a neighborhood known for its drug activity, which here was characterized as from 155th Street to the end of Manhattan, fails to raise a reasonable suspicion that the person observed is there to purchase drugs. ....

"Similarly, the hour at which a person is in a known high-crime neighborhood should not give rise to a reasonable suspicion that they are involved in criminal activity but may constitute an articulable fact to consider. ....

"Here, the defendant was observed in an area allegedly known for its drug trading. Yet, I find nothing unusual about the time at which she was observed. In New York City, people travel to and from work at all hours of the day and night. . . . Further, unlike Officer Carroll, I do not find it odd that a person is seen to drive a car with a Michigan license plate in Manhattan. . . .

"Similarly, while it might be unfortunate, it is certainly not odd for one to observe double-parked cars on a Manhattan street. . . .

"What I find shattering is that in this day and age blacks in black neighborhoods and blacks in white neighborhoods can count on little security for their person. . . .

"Moreover, even assuming that one or more of the males ran from the corner once they were aware of the officers' presence, it is hard to characterize this as evasive conduct. Police officers, even those traveling in unmarked vehicles, are easily recognized, particularly in this area of Manhattan. In fact, the same United States Attorney's office which brought this prosecution enjoyed more success in their prosecution of a corrupt police officer of an anti-crime unit operating in this very neighborhood.

"Even before this prosecution and the public hearing and final report of the Mollen Commission, residents in this neighborhood tended to regard police officers as corrupt, abusive and violent. After the attendant publicity surrounding the above events, had the men not run when the cops began to stare at them, it would have been unusual.

"I find that the defendant's conduct in the early morning on April 21 does not give rise to a reasonable suspicion that criminal activity was afoot."

Update

Joseph Fried, "Following Up," New York Times, Metropolitan Desk, Section 1, Page 25, Column 1 (June 17, 2001), reported on the upshot of the Washington Heights flight case. After Judge Baer "threw out the evidence," Fried wrote, "[a] storm of criticism rained on him from political powerhouses like Gov. George E. Pataki, and Republicans in Congress urged his impeachment." Following another hearing Judge Baer reversed himself and admitted the evidence. This "[spurred] others to claim that he seemed to have caved in under pressure." Fried noted, however, that an appellate court -- the Second Circuit Court of Appeals -- upheld Baer's eventual ruling admitting the evidence. [See United Srates v. Bayless, 201 F.3d 116 (Jan. 18, 2000, corrected Feb. 3, 2000), cert. denied, -- U.S. -- (April 3, 2000).] According to Fried, the defendant, Carol Bayless, pleaded guilty, was given 54 months in prison and completed her term in 1999." Bayless' lawyer, Joyce London, said, "'She's back in Michigan, working, going on with her life. ... She works in a management company and has been promoted to supervisor." London said that Bayless did not want to be interviewed, but reprorted that Bayless said, "'I'm a productive citizen now, and I intend to stay that way.'"

***

As noted, the Second Circuit Court of Appeals upheld Judge Baer's turnabout. Id. Judge Calabresi, speaking for the court, wrote:

"In this appeal from a conviction of narcotics offenses, defendant-appellant Carol Bayless argues that the district judge (Harold Baer, Jr., J.) who presided over a pre-trial suppression hearing was obliged to recuse himself in the interest of the appearance of justice. Judge Baer's original decision to grant Bayless's motion to suppress drugs seized from her car was fiercely criticized by politicians and press alike, some of whom called for his impeachment. In the midst of the furor over his ruling, Judge Baer granted the government's motion for reconsideration of his decision, reopened the suppression hearing and heard significant new evidence, and then denied the motion to suppress. After the motion to suppress was denied, Bayless moved for Judge Baer's recusal.

"... [We conclude] in the circumstances of this case, Judge Baer did not commit plain error in failing to recuse himself sua sponte, and further ... Judge Baer did not err when, after hearing all the relevant evidence, he concluded that the drugs seized from Bayless's car were properly admissible against her ...."

"BACKGROUND

"A. Bayless's Arrest and the Search of Her Car

"{The story begins on April 21, 1995, the day of Bayless's arrest. The parties agree that the arresting police officers, Officer Carroll and Sergeant Bentley, were patrolling the Washington Heights area of Manhattan in an unmarked police car when they observed Bayless, in a car with Michigan license plates, double-parked on 176th Street, near St. Nicholas Avenue. While Bayless was stopped, the officers saw four men load two heavy duffel bags into the trunk of her car. Almost immediately, the men stepped away from the car, and Bayless drove off alone. The officers followed Bayless for about two blocks, during which time she did not drive erratically or commit any traffic violations. They nevertheless pulled her over. After discovering that the car was a rental car and that Bayless was not an authorized driver, the officers asked her about the bags that had been placed in her trunk. When Bayless denied knowledge of the bags, they asked her for the keys, opened the trunk, and discovered that the bags contained a large quantity of cocaine, along with some heroin. (The exact amount of each was later determined to be thirty-four kilograms of cocaine and two kilograms of heroin.)

"Bayless was arrested and taken to the 33rd Precinct, where the case was turned over to federal authorities. After being read her Miranda rights, Bayless was interviewed by federal agents and confessed to acting as a drug courier for her son, who sold drugs in the Detroit area. She then repeated her statement on videotape.

"On June 21, 1995, Bayless was indicted by a grand jury .... Her case was assigned to Judge Baer.

"B. The January 1996 Suppression Hearing

"On October 3, 1995, Bayless moved to suppress the drugs seized from her car and her post-arrest statements on the ground that the police did not have reasonable suspicion to stop her car. In early January, 1996, Judge Baer held a suppression hearing, at which the government introduced the testimony of one of the arresting officers, Officer Carroll, and the court viewed the videotaped statement Bayless gave after her arrest.

"At the hearing, Officer Carroll testified that on the morning of April 21, he and his partner, Sergeant Bentley, both members of the Street Crime Unit, were in plain clothes, patrolling Washington Heights in an unmarked police car. At about 5 a.m., the officers entered 176th Street, and observed a 1995 Chevrolet with Michigan license plates moving slowly along the street. The officers saw the car pull over to the north side of the street, near the intersection with St. Nicholas Avenue, and double park. At that time, Officer Carroll could not tell who was driving the car, but could tell that there was no passenger. As soon as the car stopped, four men came from between parked cars on the south side of the street. Walking in single file, they crossed the street and approached the Chevrolet. Just before the men reached the car, the driver leaned over to the passenger side of the car, and the trunk opened a few inches. The first of the four men opened the trunk all the way, the second man put a large duffel bag into the trunk, the third man put a second large duffel bag into the trunk, and the last man closed the trunk. There was no conversation or other interaction between the four men and the driver, and the entire transaction was concluded in seconds.
"After the trunk was shut, the driver immediately drove away, stopping at a red light at the intersection. The officers followed the car, stopping opposite the four men, who were standing on the sidewalk on the north side of 176th Street. Officer Carroll testified that at least two of the men noticed him and his partner and spoke briefly to each other (he could not hear what they said) and that the four men then moved rapidly in different directions. Officer Carroll watched one of the men, who walked to the corner and then began to run north on St. Nicholas Avenue.

"The officers followed the Chevrolet and, after about two blocks, placed a red flashing light on their dashboard and pulled the car over. After stopping the car, Officer Carroll ordered Bayless to turn the motor off, which she did, and asked her for her license, registration, and insurance. Bayless told Carroll that it was a rented car, and he asked for the rental agreement and her license, which she gave him. When he asked her to whom the car was rented, she said she did not know. The rental agreement was not in Bayless's name, and it did not authorize any other drivers. Officer Carroll asked Bayless who the men who had put bags in her trunk were, and she denied that anyone had put bags in her trunk. He then asked Bayless to get out of the car and, handcuffing her, arrested her for unauthorized operation of a motor vehicle. After the arrest, Sergeant Bentley unlocked the trunk, opened the duffel bags, and found the drugs. The officers then took Bayless to the 33rd Precinct.

"Upon questioning by the court, Officer Carroll gave several reasons why he and his partner were suspicious of Bayless. First, Officer Carroll claimed that the area around 176th Street, and the Washington Heights/Inwood neighborhood in general, was 'known as a hub . . . for the drug trade.' Second, the 'orchestrated' manner in which the four men loaded the trunk suggested to Carroll a rehearsed transaction, and he found it abnormal and suspicious that the four men had no conversation or interaction with the driver of the car. Third, the men dispersed upon spotting the officers, and one of them began to run. Fourth, the car had out-of-state license plates. Finally, Officer Carroll noted that he and his partner pulled Bayless over when they did because they wanted to prevent her from reaching the highway, which led to the George Washington Bridge and thence out of New York state.

"At the hearing, the court also viewed Bayless's videotaped statement, which described the events surrounding her arrest in a somewhat different fashion. According to Bayless, she left Detroit on the afternoon of April 20 with five duffel bags full of cash (she estimated the total to be about $ 1 million), planning to purchase drugs in New York and to bring them back to Detroit. She was a passenger in the Chevrolet, which was driven by an associate, Terry, and they were accompanied by three other men driving a van (Robert, Chubb, and another man whose name she could not remember). When they reached 176th Street, where they were met as planned by the people selling them the drugs, Terry double-parked and got out of the car and went to move the van. The other men took the money out of the trunk of the Chevrolet and went into an apartment building to exchange the cash for drugs. Bayless waited in the car for about ten minutes, until the men returned. The men put two duffel bags containing drugs in the trunk of the car, and handed her the keys. Bayless then drove by herself down 176th Street, and saw Robert and Chubb walking in the same direction that she was driving. Bayless stopped for a red light at the corner of St. Nicholas Avenue, proceeded for a short distance until she saw the flashing red light in the police car and pulled over. She waited until the police officers got out of the car; they asked her for her license and registration, which she gave them. When they asked her what was in the trunk, she responded that she did not know. The officers asked for her keys and opened the trunk, and arrested her.

"C. Judge Baer's Decision of January 22, 1996

"After hearing Officer Carroll's testimony and viewing Bayless's videotaped statement at the hearing, Judge Baer on January 22 issued a ruling suppressing the cocaine and heroin seized from Bayless's car, along with her post-arrest statements. See United States v. Bayless, 913 F. Supp. 232, 243 (S.D.N.Y. 1996). Judge Baer began by noting that Officer Carroll's testimony and Bayless's videotaped statement 'differed dramatically,' and that, given its inculpatory nature, he found Bayless's statement more credible. Id. at 234. He pointed out that if Bayless was telling the truth, 'Officer Carroll apparently missed or overlooked the fact that the car had come to a halt, never saw the man exit the [car], and missed the million dollars being taken out of the trunk,' making his version 'incredible.' Id. at 239-40. Judge Baer also asked rhetorically where the officer in charge, Sergeant Bentley, was during the suppression hearing: '[w]hile presumably available to corroborate [Officer Carroll's] gossamer,' the judge commented, 'he was never called to testify.' Id. at 239.

"Judge Baer highlighted two major disparities between Officer Carroll's testimony and Bayless's statement: first, Carroll testified that one of the men ran from the scene, while Bayless stated that they all walked away; and, second, Carroll testified that the men had no conversation or other interaction with Bayless, while Bayless said that they gave her the car keys after loading the bags into the trunk. See id. at 237, 239, 241-42. Judge Baer made it clear that he credited Bayless's version on both counts. See id. at 242. He found that the remaining facts articulated by Carroll - the 'high-crime' neighborhood, the early morning hour, the out-of-state license plates, the duffel bags, and the double parking - did not, without more, give rise to reasonable suspicion, and he therefore suppressed the seized drugs and Bayless's post-arrest statements. See id. at 242-43.

"Judge Baer's holding rested on the conclusion that Bayless's account was more credible than Officer Carroll's, and that the men loading the bags into her trunk had not run away upon seeing the officers. In dicta, however, he went on to say that even had one or more of the men run away, 'it [would be] hard to characterize this as evasive conduct.' Id. at 242. In the passage of his opinion that subsequently drew the most fire from critics, he added:

"'Police officers, even those travelling in unmarked vehicles, are easily recognized, particularly, in this area of Manhattan. In fact, the same United States Attorney's Office which brought this prosecution enjoyed more success in their prosecution of a corrupt police officer of an anti-crime unit operating in this very neighborhood. Even before this prosecution and the public hearing and final report of the Mollen Commission, residents in this neighborhood tended to regard police officers as corrupt, abusive and violent. After the attendant publicity surrounding the above events, had the men not run when the cops began to stare at them, it would have been unusual.'"

"Id. (footnotes omitted).

"D. The Publicity Following Judge Baer's January 22, 1996 Ruling

"Judge Baer's ruling immediately drew heavy criticism in the press and from local political figures, including New York's Mayor and Police Commissioner, as well as Governor George Pataki. See Chester L. Mirsky, The Exclusionary Rule Was Appropriately Used, Nat'l L.J., Feb. 26, 1996, at A21. The decision itself, and the language in the opinion, referring as it did to widespread police corruption, was perceived by many as an affront to the police and to victims of drug-related crime. An editorial in the New York Times called Judge Baer's decision 'judicial malpractice,' and accused him of 'undermining respect for the legal system, encouraging citizens to flee the police and deterring honest cops in drug-infested neighborhoods from doing their job.' Judge Baer's Tortured Reasoning, N.Y. Times, Jan. 31, 1996, at A16.

"In February, the government filed a motion for reconsideration of the order granting the suppression motion.

"The decision, however, continued to attract attention and quickly became the focus of a nationwide controversy and a flashpoint for the 1996 Presidential campaign, as Democrats and Republicans competed to enhance their reputations as proponents of law and order by denouncing Judge Baer. In early March, more than two hundred members of Congress, led by Republican Representatives Bill McCollum, Fred Upton, and Michael Forbes, sent a letter to President Clinton calling Judge Baer's ruling 'a shocking and egregious example of judicial activism.' Jon O. Newman, The Judge Baer Controversy, 80 Judicature 156, 156 (1997). The letter claimed Judge Baer had 'sided with drug traffickers and against hard-working police officers and the frightened residents of violence-ridden communities,' and that he had 'demonstrated a level of ideological blindness that rendered him unfit for the proper discharge of his judicial duties.' Id. The writers asked President Clinton to join them in calling for Judge Baer's resignation. See id. at 157.

"When asked about the letter at a White House press conference, President Clinton's spokesperson Mike McCurry said that the President would defer deciding whether to call for Judge Baer's resignation until the Judge ruled on the government's motion for reconsideration, adding that, while the President would evaluate Judge Baer's record 'on the full breadth of his cases,' the White House was 'interested in seeing how he rules' in response to the motion. Id. The press interpreted McCurry's comment as a veiled warning. For example, the New York Times reported that 'the White House put [Judge Baer] on public notice today that if he did not reverse a widely criticized decision throwing out drug evidence, the President might ask for his resignation.' Alison Mitchell, Clinton Pushing Judge to Relent, N.Y. Times, Mar. 22, 1996, at A1. Subsequently, in a written response to Rep. McCollum, the White House disavowed any intent to ask for Judge Baer's resignation, saying that the issues should be resolved in the courts. See Newman, The Judge Baer Controversy, supra, at 160. Then-Senate Majority Leader and Presidential candidate Bob Dole joined the fracas by saying that if Judge Baer did not resign, he should be impeached. See id.

"D. The Hearing of March 15, 1996

"In February, and well before the furor had died down, Judge Baer presumably began to consider the government's motion asking him to revisit his ruling. On March 5, he granted the government's motion to reopen the hearing for the presentation of additional evidence--specifically testimony by Sergeant Bentley that would corroborate Officer Carroll's earlier testimony.

"At the hearing on March 15, Sergeant Bentley testified to the events surrounding the arrest. He confirmed Officer Carroll's account that the loading of the trunk appeared 'orchestrated' and that there was no communication between the men and the driver of the car. He also confirmed Officer Carroll's statement that he had seen one of the men who had loaded the trunk run away. In fact, Sergeant Bentley claimed to have seen two of the men run away: one, he said, ran east on 176th Street and then north on St. Nicholas Avenue, while the other ran west on 176th Street.

"Carol Bayless again testified about the events surrounding her arrest. Her account now included some details not present in her videotaped statement; for example, on cross-examination, Bayless for the first time said that she had a cellular phone with her in the car, with which she could have contacted the men who had made the trip with her, who also had a cell phone. Bayless continued to claim that she had seen the men walk toward the corner after they loaded the bags into her car, and denied seeing them run. She conceded, however, that she would not have been able to see what they did after turning the corner. On cross-examination, Bayless insisted that she was alone in the car for ten minutes without the keys while her companions were getting the drugs, and that she did not open the trunk, but that the men had opened it with a key. She also claimed that while her confession was being videotaped, the police coached her on what to say, and stopped and started the videotape when her answers did not satisfy them.

"E. Judge Baer's Decision of April 1, 1996

"On April 1, Judge Baer vacated his earlier order suppressing the seized drugs and Bayless's post-arrest statements. See United States v. Bayless, 921 F. Supp. 211, 212 (S.D.N.Y. 1996). He emphasized that he had not changed his evaluation of the evidence presented by the government at the earlier hearing, which he still found to be legally insufficient. See id. at 213. The testimony presented at the second hearing, however, had changed his mind as to the relative credibility of the police officers and Carol Bayless. See id. at 216.

"Judge Baer found that Sergeant Bentley's testimony at the rehearing strongly corroborated Officer Carroll's account: both said that they had first observed Bayless driving east on 176th Street and briefly double-parking while the drugs were loaded into her car; both said that there was no conversation or exchange of keys between the men and Bayless; and both said that at least one of the men ran from the scene. See id. at 215-16 & nn.6-9. Judge Baer also found that the affirmations now submitted by the government supported the assertion that the area around 176th Street and St. Nicholas Avenue, in part because of its proximity to the George Washington Bridge, was a hub for drug transactions. (In his earlier opinion, he had noted that the government had not provided any evidence to back up this claim. See id. at 215 & nn.3-4.)

"Judge Baer concluded, moreover, that, for several reasons, Carol Bayless's testimony at the second hearing made her story less credible. ...

"Taking into account the newly presented evidence, and crediting Sergeant Bentley and Officer Carroll's account over that of Bayless, Judge Baer determined that the government had now met its burden of articulating facts sufficient to give the police reasonable suspicion to stop Bayless's car. See id. at 217. He closed by apologizing for the controversial dicta in his earlier opinion:
"'Unfortunately the hyperbole (dicta) in my initial decision not only obscured the true focus of my analysis, but regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.'"

"Id.

"F. Bayless's Recusal Motions

"On April 12, counsel for Bayless made an oral motion that Judge Baer recuse himself from further proceedings in the case, arguing that 'because of the high profile or the type of publicity that this case has received, and . . . meddlers from the outside public concerning this matter, there seems to be . . . an appearance of impropriety in the way the decision was done.' He pointed out that the calls for Judge Baer's resignation or impeachment created the appearance that the judge 'may have been influenced by outside forces' in his April 1 decision to deny the motion to suppress.

"Judge Baer denied the motion for recusal from the bench ....

"DISCUSSION

"On appeal, Bayless argues (1) that Judge Baer was required to recuse himself sua sponte before deciding the government's motion for reconsideration; (2) that the failure of her counsel below to file a motion for recusal prior to Judge Baer's ruling on that motion constituted ineffective assistance of counsel; (3) that Judge Baer erred when he reopened the suppression hearing at the government's request; and (4) that Judge Baer's final disposition of the merits of her suppression motion was erroneous, because the police officers had no reasonable suspicion to stop her car on the morning of the arrest.

"A. Recusal

... "1. The statutory scheme. -- Bayless's claim that Judge Baer should have recused himself rests on 28 U.S.C. § 455(a) (1994), which provides simply: 'Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.' Id.

...

"Although the reach of § 455 is broad, it has significant limits. Thus, our cases state that 'disqualification is not required on the basis of remote, contingent, indirect or speculative interests.' Diamondstone, 148 F.3d at 121 (quoting United States v. Thompson, 76 F.3d 442, 451 (2d Cir. 1996)) (internal quotation marks omitted). Moreover, the legislative history of § 455 cautions that it is not intended to be 'used by judges to avoid sitting on difficult or controversial cases.' H.R. Rep. No. 93-1453, at 5, reprinted in 1974 U.S.C.C.A.N. at 6355. In the instant case, the parties do not dispute this legal standard, but differ as to whether, on the facts before us, recusal was mandated.

"2. Waiver. -- Before reaching the merits of the recusal issue, however, we must address the government's contention that, by waiting to file her recusal motion until after Judge Baer had reopened the suppression hearing and ruled against her, Bayless waived the right to appeal the denial of that motion.

...

"We need not decide whether Bayless's failure to make a timely recusal motion below constituted implied waiver. For assuming arguendo that Bayless's failure to make a timely recusal motion below was a forfeiture and not an implied waiver of her recusal claim, we can (as the parties agree) review that claim only for plain error. And we find that Judge Baer's decision not to recuse himself sua sponte was not plain error.

"3. Plain error. -- Rule 52(b) of the Federal Rules of Criminal Procedure provides that "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

"...

"... We hold merely that, on the facts before us, Judge Baer's decision not to recuse himself was not plain error, in part because Bayless made a strategic choice not to move for his recusal until he had ruled against her.

"...

"B. Ineffective Assistance of Counsel

"Bayless next argues that her trial counsel's failure to file a timely motion for recusal constituted ineffective assistance of counsel. This argument is without merit, and, once again, the strategic nature of counsel's choice not to move for recusal in a timely fashion below is dispositive.

"...

"C. The Propriety of Granting the Motion for Reconsideration

"... Bayless first argues that Judge Baer erred when he granted the government's motion to reopen the suppression hearing.

"The argument is meritless.

"...

"D. Reasonable Suspicion

"Because it was proper to grant the reconsideration motion, we review this case on the basis of the evidence before Judge Baer at the second hearing. Accordingly, we need not and do not consider whether Judge Baer's initial decision to grant Bayless's suppression motion, made on the basis of the evidence before him in the first hearing, was erroneous.

"...

"2. The governing legal standard. -- Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), first delineated the contours of a limited investigative stop, now frequently called a Terry stop. Terry held that a police officer can stop and briefly detain a person if the officer has a reasonable suspicion "that criminal activity may be afoot." Id. at 30. In deciding whether a Terry stop is reasonable under the Fourth Amendment, a reviewing court must determine, first, 'whether the officer's action was justified at its inception, and [second,] whether it was reasonably related in scope to the circumstances which justified the interference in the first place.' Id. at 20. It is the first prong of the Terry test that is at issue here.

"This circuit has characterized the quantum of suspicion necessary under the first prong of Terry as 'reasonable suspicion, based on specific and articulable facts, of unlawful conduct.' United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994) (quoting United States v. Hassan El, 5 F.3d 726, 729 (4th Cir. 1993)) (internal quotation marks omitted). ...

"When evaluating the reasonableness of a Terry stop, the reviewing court must consider 'the totality of the circumstances' surrounding the stop. Sokolow, 490 U.S. at 8 (quoting United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981)). ...

"3. The evidence before Judge Baer at the second hearing. -- At the second hearing, Judge Baer was able to hear the testimony of Sergeant Bentley, the officer in charge on the morning of Bayless's arrest. Sergeant Bentley and Officer Carroll testified that several factors combined to make them suspicious of Bayless: (1) she was out at an early hour (5 a.m.); (2) her car had out-of-state license plates; (3) she was spotted driving slowly and double-parking; (4) the neighborhood where she was observed, Washington Heights, was known for drug activity; (5) at least one of the men who loaded the trunk ran away from the scene upon observing the police officers; and (6) the men loading the car did so very quickly and in an 'orchestrated' fashion, and had no conversation or interaction with Bayless. Judge Baer, at the second hearing, credited the testimony of Sergeant Bentley, which corroborated the earlier testimony of Officer Carroll. Accordingly, we must decide whether these factors, to which Sergeant Bentley testified, taken together, provided 'a particularized and objective basis for suspecting' Bayless of a crime. United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981).

"As the Supreme Court said in Terry, 'this demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence.' Terry, 392 U.S. at 21 n.18. Terry explicitly recognized that specificity was essential in part because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and 'severely exacerbate . . . police-community tensions.' Id. at 14 n.11. The Court commented, 'The degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security caused by those practices.' Id. at 17 n.14.

"The factors invoked by the police to justify their stop of Bayless vary in their weightiness, that is, their salience to the question whether crime is afoot. Standing alone, some of these factors would be innocuous, and some perhaps even inappropriate. See Brown v. Texas, 443 U.S. 47, 52, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979) ('The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.'). The final factor -- the strange behavior of the men who loaded the duffel bags into the trunk of her car -- however, is itself an appropriate and weighty factor. The speed with which the men loaded the bags into the trunk and dissociated themselves from the car, together with the absence of any communication between the driver and the men, provide a specific basis for the police officers' suspicion that they were witnessing an illicit transaction that the participants did not want to prolong.

"This weighty factor makes the case before us easy. In its presence, the sometimes innocuous factors such as the time of day and Bayless's out-of-state license plates take on added significance. When joined to the furtive loading of the car, they strengthen the likelihood of a drug transaction. Similarly, the men's odd behavior while loading the car makes factors such as the high-crime neighborhood and flight more significant. Cf. United States v. Martinez, 54 F.3d 1040, 1045, 1046 (2d Cir. 1995) (Calabresi, J., concurring) (noting that while 'the aggregation of many small pieces of data - which are not evidence at all because every one is in equipoise - can never establish proof beyond a reasonable doubt,' there may be one 'conditional fact' which, were it present, would give those pieces of data enough evidentiary significance to suffice for proof even beyond a reasonable doubt).

"Taken all together, the facts and circumstances relied on by the police were sufficient to give rise to reasonable suspicion. The Terry stop of Bayless's car was therefore warranted, and Judge Baer was not in error when he decided, after hearing all the evidence, that no Fourth Amendment violation had occurred.

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"The judgment of the district court is AFFIRMED.