September 10, 2015
Bradford Buchta, assistant public defender, with whom, on the
brief, was Nicole Donzello, senior assistant public defender,
for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Marc R. Durso, assistant state's attorney, for the
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
defendant, Michael Edmonds, appeals from the judgment of the
Appellate Court affirming his conviction, following a
conditional plea of nolo contendere, of one count of
possession of narcotics with intent to sell in violation of
General Statutes § 21a-277 (a), and one count of failure
to appear in the first degree in violation of General
Statutes § 53a-172. See State v.
Edmonds, 151 Conn.App. 763, 765, 96 A.3d 607 (2014).
On certification to this court, the defendant contends that
the Appellate Court improperly concluded that: (1) the trial
court, Rodriguez, J., in denying the defendant's
motion to suppress narcotics evidence, correctly determined
that the defendant was not seized until police officers
performed a patdown search for weapons; and (2) the record
was inadequate to review the defendant's claim that he
was unreasonably seized, in violation of the federal and
state constitutions, when two police cruisers simultaneously
descended upon him from opposite directions in a small
private parking lot behind a Subway restaurant and a
uniformed officer verbally commanded him to
stop. We agree with both of the
defendant's claims and conclude that the evidence the
defendant sought to suppress was seized in violation of the
fourth amendment to the United States
constitution and article first, §§ 7 and
9, of the constitution of Connecticut. We therefore reverse
the judgment of the Appellate Court.
setting forth the relevant facts and procedural history, we
begin by observing that the standard of appellate review
governing allegedly unconstitutional police searches and
seizures differs from the standard that governs appellate
review of other types of similarly fact intensive questions.
It is well established that we must ‘‘undertake a
more probing factual review'' of allegedly improper
seizures, so that we may come to ‘‘an independent
legal determination of whether a reasonable person in the
defendant's position would have believed that he was not
free to leave.'' State v.
Burroughs, 288 Conn. 836, 843, 844 n.5, 955 A.2d 43
(2008). ‘‘A proper analysis of this question is
necessarily fact intensive, requiring a careful examination
of the entirety of the circumstances in order to determine
whether the police engaged in a coercive display of authority
. . . .'' Id., 846. Although we must, of
course, defer to the trial court's factual findings,
‘‘our usual deference . . . is qualified by the
necessity for a scrupulous examination of the record to
ascertain whether [each] finding is supported by substantial
evidence . . . .'' (Citation omitted; internal
quotation marks omitted.) Id., 843. Furthermore, in
reviewing the record, we are bound to consider not only the
trial court's factual findings, but also the full
testimony of the arresting officers; in particular, we must
take account of any undisputed evidence that does not support
the trial court's ruling in favor of the state but that
the trial court did not expressly discredit. See State
v. DeMarco, 311 Conn. 510, 520 and n.4, 88 A.3d
491 (2014); id., 543 (Palmer, J.,
present case, the trial court's oral decision, as
supplemented by the undisputed testimony of the arresting
officers, reveals the following relevant facts.On the evening
of Friday, January 28, 2011, Officers Elson Morales and
Joseph Lawlor of the Bridgeport Police Department
(department) were patrolling in the vicinity of Madison
Avenue and Capitol Avenue. The officers had been assigned to
patrol there because a large number of teenagers were
expected to attend a basketball game at nearby Central High
School and teenagers tended to congregate on Madison Avenue
after such games, clogging traffic.
officers testified that this area of Bridgeport is plagued by
a high rate of violent crime. Both officers conceded,
however, that the department considers essentially the
entire city of Bridgeport to be a high crime area.
There was no testimony that the crime rate in the
neighborhood of Madison Avenue and Capitol Avenue is any
higher than in other areas of Bridgeport.
approximately 7p.m., the two officers were driving northbound
on Madison Avenue in a marked police cruiser when they
stopped at a red light at the intersection of Madison and
Capitol Avenues. As they waited for the light to change, they
briefly observed a man, later identified as the defendant,
who is black, standing alone in the parking lot at 944
Madison Avenue, behind a Subway sandwich restaurant located
on the corner. Although it is not evidenced in the record, it
may reasonably be assumed-and the state conceded at oral
argument before this court-that the Subway restaurant would
have been open for dinner at that hour.
officers offered three reasons why the defendant aroused
their suspicions at that time. First, Morales testified that,
at the time the officers observed the defendant,
‘‘[i]t was pre-dark, it was starting to get
dark.'' He indicated that the defendant
‘‘was loitering in the rear in the
shadows . . . .'' (Emphasis added.)
trial court does not appear to have credited Morales'
testimony that, at 7 p.m. on January 28, 2011, in Bridgeport,
it was just ‘‘starting to get
dark.'' And for good reason. On that
particular winter evening, the sun had set two hours earlier,
at 5:04 p.m., and even the twilight had long since
passed. Moreover, there was undisputed
testimony that no lights illuminated the Subway parking lot
at that time. Accordingly, the only reasonable inference is
that anyone standing outside the Subway restaurant
at dinnertime on that particular evening necessarily would
have been standing in the ‘‘shadows.''
both officers testified that the defendant aroused their
suspicions because he was ‘‘loitering''
in the Subway lot. In the police report they completed the
evening of the incident, the officers wrote that
‘‘we observed a heavy set black male wearing a
tan colored hooded sweatshirt loitering behind the Subway
[s]and-wich [s]hop . . . .'' In the section of the
report entitled ‘‘Point of Illegal Entry/Means of
Attack, '' the officers entered:
‘‘Loitering near Subway.''
the suppression hearing, however, both officers acknowledged
that, at the time they first observed the defendant and
decided to question him, they had no reason to believe that
he was in violation of Bridgeport's loitering ordinance.
Bridgeport Municipal Code § 9.04.010 provides:
‘‘Any person who, without permission or
legitimate purpose, loiters upon the property of another or
upon city-owned property, and who upon command of any police
officer or person in charge of city-owned property fails to
quit such property, shall be punished as provided in Chapter
1.12 of this code.'' In this case, there were no
signs indicating ‘‘no loitering'' posted
at that location, and the officers had no information that
the defendant was on Subway's property without permission
or legitimate purpose, nor that he had been commanded to
leave by a police officer or city official. Indeed, the
officers readily conceded that the defendant might have been
a resident of one of the apartment units located above the
Subway restaurant. In addition, the period during which the
officers were stopped at the red light, and had an
opportunity to observe the defendant and conclude that he
might be loitering, lasted only a few seconds. During that
brief period, and given the poor lighting conditions, the
officers were unable to determine even the defendant's
skin color. All they could see was a ‘‘silhouette
and just a vague color of his jacket.''
the officers testified that their suspicions were aroused
because the Subway restaurant had been robbed multiple times
in the past, including within the past year. There was
undisputed testimony, however, that no incidents of any sort
had been reported in the Bridgeport police logs for that
Subway location during the preceding four months. Nor did the
officers receive any calls with respect to that location on
the date in question.
event, after having observed nothing more than a nondescript
individual standing outside a Subway restaurant for a few
seconds at 7 p.m. on a Friday evening, the officers decided
to interrupt their patrol of the high school traffic
situation to question him. They testified that they intended
to ask him why he was in the parking lot, and whether he
lived in one of the apartment units above the Subway
was no testimony suggesting that either Morales or Lawlor had
any reason to believe that the defendant was armed or
dangerous, nor that any sort of criminal activity was
underway or recently had tran- spired at that location.
Nevertheless, before stopping to talk to the defendant, they
decided to radio their supervisor, Sergeant Ronald Mercado,
for backup. Morales testified that ‘‘[w]e wanted
to try to attempt to [identify] the party and we wanted
[Mercado] to cover us.'' Later in the hearing,
Morales reiterated that the two officers contacted Mercado
because ‘‘we wanted cover.''
small parking lot in which the defendant was standing formed
an L shape around the rear of the rectangular Subway
building. There were only two entrances/exits to the lot. The
small end of the L exited onto Capitol Avenue, and the large
end onto Madison Avenue. Otherwise, the lot was enclosed by
the Subway building on the street corner side, and by various
commercial buildings on the opposite side. The lot was
private property. The defendant, who was standing in the
middle of the lot, was the only person in the lot at the time
of the incident.
Mercado reached the location to provide the requested
‘‘cover'' for Morales and Lawlor, the
three officers in two patrol cars entered the Subway lot from
opposing directions and converged on the defendant
simultaneously in the middle of the lot, near a staircase
leading to the apartments located above the Subway shop.
Morales and Lawlor entered the lot from the Capitol Avenue
entrance, while Mercado entered through the Madison Avenue
entrance. Both vehicles were marked police cruisers. All
three officers were in uniform, and armed. The record does
not reveal whether they activated the cruisers' light
bars or sirens as they approached the defendant.
precise sequence of events from the time the officers entered
the Subway lot until they frisked the defendant is less
clear. In their signed police report, the officers provided
the following account: ‘‘We . . . drove into the
rear parking lot of [the] Subway [s]and-wich [s]hop when the
[defendant] turned away from us when he observed our patrol
unit, Sergeant Mercado drove in from the Madison [Avenue]
entrance and stopped the [defendant] . . . . [The defendant]
immediately stated ‘I didn't rob nobody!' He
kept moving his hands around in a nervous manner and yelling
‘this is embarrassing!' while continuing to state
officers' testimony at the suppression hearing, together
with the trial court's subsequent factual findings,
injected some ambiguity into three elements of the police
report account of events: (1) whether Mercado entered the lot
precisely at the same time as Morales and Lawlor; (2) the
circumstances under which the defendant was stopped; and (3)
the timing and nature of the defendant's nervous hand
with respect to the timing of the two cruisers entering the
lot and approaching the defendant, Morales' testimony
mirrored and expanded upon the account in the officers'
police report: ‘‘As we entered from Capitol
[Avenue] into the rear parking lot of Subway we observed the
[defendant] still in the shadow of the parking lot. He
immediately-when he saw our car, it's a marked unit, he
immediately turned around and started walking away.
That's-at the time when we went to go around the L shape
of-toward Madison [Avenue] Sergeant Mercado entered in his
marked unit and was able to stop the [defendant].''
Morales later summarized this sequence of events by stating
that the two cruisers ‘‘pulled in'' at
‘‘about the same time'' and arrived at
the defendant's location in the middle of the lot at
approximately the same time.
testimony was consistent with that of Morales on this point.
He testified that when he and Morales entered the lot from
Capitol Avenue, the defendant immediately turned and started
to walk away, and that Mercado entered the lot from Madison
Avenue ‘‘shortly thereafter.''
trial court found, however, that ‘‘[t]he two
officers and . . . Mercado entered the parking lot at the
same time and through the only two entrances into the
eatery's parking lot. . . . As soon as the two officers
arrived . . . the defendant started to immediately walk away
from the officers . . . .'' (Emphasis added.) Because
the police report, Morales, and Lawlor all indicated that
Morales and Lawlor entered the lot from Capitol Avenue
shortly before Mercado entered from Madison Avenue,
and the record contains no evidence to the contrary, we must
understand the court's finding that the two cruisers
entered at the same time to mean that the two cruisers
arrived at the lot at approximately the same time,
and that, as the defendant began to walk away from the first
cruiser, Mercado entered and the two simultaneously converged
on his position in the middle of the lot.
with respect to when the defendant was stopped, Morales'
testimony was again consistent with the police report. In
response to direct questioning by the trial court to clarify
the sequence of events, Morales indicated that Mercado made
the first contact with the defendant as he attempted to walk
away from the cruiser driven by Morales and Lawlor, and that
Mercado stopped the defendant ‘‘[b]y verbally
commanding him to stop.'' Morales indicated that
Mercado also ‘‘might have been'' the one
who began to question the defendant after he was stopped,
although Morales was unsure.
testified that it was Morales who ‘‘made contact
with [the defendant] first, '' spoke to the
defendant, and ‘‘handl[ed] more of the contact,
'' while Lawlor himself observed the interaction.
During that portion of the suppression hearing, however,
Lawlor was not asked- and did not testify-about Mercado's
role in the stopping and questioning of the defendant. Lawlor
also did not testify as to how the defendant came to be
stopped when he began to walk away from the first cruiser,
and the trial court made no findings in this regard.
the record contains three accounts of the defendant's
nervous hand movements. The police report states that, after
Mercado stopped the defendant and he denied having robbed
anyone, ‘‘[the defendant] kept moving his hands
around in a nervous manner and yelling ‘this is
embarrassing!' while continuing to state his
innocence.'' Morales offered a far more detailed
account at the suppression hearing. He testified that, after
the officers exited their cars and the defendant denied
having robbed anyone, and as the three officers approached
him on foot, the defendant moved his hands in a nervous
manner while he stood facing the officers, and repeatedly
stated that he felt embarrassed. These hand movements
entailed ‘‘going on the side, behind him fixing
his pants, '' and were accompanied by complaints
about a bad back. Morales variously described these movements
as ‘‘tussling with his pants'';
‘‘tussling with his belt buckle . . . the belt
area of his pants''; and ‘‘fidgeting with
his hands . . . moving his belt, his upper part of the pants
. . . .'' Morales testified that when the officers
then ordered the defendant to keep his hands where the
officers could see them, the defendant refused to comply with
those orders, which led the officers to pat him down for
their safety. Lawlor, by contrast, testified without
elaboration that the defendant moved his hands toward his
waistband at the outset, as he turned to walk away from the
approaching patrol car.
trial court found on this question that, ‘‘as the
defendant started to immediately walk away from the officers,
he was observed by . . . Morales and . . . Lawlor to engage
in movements around his waistband as he walked. While the
police exited their vehicles and approached the defendant, he
spontaneously yelled out ‘I didn't rob anyone'
and he kept saying that he was embarrassed.''
Although there was no evidence in the record to support the
court's finding that Morales witnessed
suspicious hand motions at the outset, while the officers
were still in their vehicle pulling into the lot, the court
was free to credit Lawlor's testimony that
he witnessed such motions at that time. The court
made no findings with respect to Morales' testimony that
the defendant later defied the officers' commands to keep
his hands in plain view, after the officers had stopped him.
event, it is clear that, soon after they entered the lot,
exited their cruisers, and approached the defendant, the
officers decided to pat the defendant down for their safety.
Although they testified that they were concerned that he
might have been carrying a weapon, the only fact they were
able to articulate in support of that concern was that the
defendant moved his hands near his waistband as he turned
away from them. In fact, the officers did not find any
weapons on the defendant when they frisked him. They did
discover a bundle containing heroin, however, and arrested
defendant moved to suppress the narcotics evidence,
contending that its discovery was the fruit of an illegal
search and seizure, in violation of the state and federal
constitutions. The trial court denied the defendant's
motion and the defendant subsequently entered a plea of nolo
contendere to the counts of possession of narcotics with
intent to sell and failure to appear in the first degree,
conditional on his right to appeal the denial of his motion
to suppress pursuant to General Statutes § 54-94a.
Consistent with the plea agreement, the court, Arnold,
J., imposed a total effective sentence of ten years
imprisonment, execution suspended after four years, and three
defendant appealed to the Appellate Court, arguing that he
was seized when the police converged on him in the Subway
parking lot or, at the very latest, when Mercado commanded
him stop. State v. Edmonds, supra,
151 Conn.App. 766. The defendant further argued that at
neither of those times did the police possess a reasonable
and articulable suspicion that he was involved in criminal
activity, as required to justify a nonarrest seizure under
Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). State v.
Edmonds, supra, 766. The Appellate Court
rejected the defendant's claim that he was seized at the
outset, when the officers converged on him in the Subway lot.
Id., 772-73. The court also concluded that (1) the
defendant had not preserved his claim that Mercado's
verbal command to stop constituted a seizure, and (2) the
record was inadequate to review that claim under the test for
the review of unpreserved constitutional claims that we
established in State v. Golding, 213 Conn.
233, 239-40, 567 A.2d 823 (1989). State v.
Edmonds, supra, 769-71. Accordingly, the
Appellate Court upheld the trial court's implicit finding
that the defendant was not seized until Morales performed the
patdown search. Id., 773. Finally, the Appellate
Court concluded that, at that time, the police had a
reasonable and articulable suspicion sufficient to detain and
frisk the defendant. Id., 775. Accordingly, the
court affirmed the judgment of the trial court. Id.,
776. We granted the defendant's petition for
certification and this appeal followed. See footnote 1 of
this opinion. Additional facts and procedural history will be
set forth as necessary.
I of this opinion, we consider whether the Appellate Court
properly concluded that the defendant was not seized until
the officers patted him down for weapons and that certain of
his claims in that regard are unreviewable. In part II, we
consider whether, at the time of the defendant's seizure,
the police officers possessed a reasonable and articulable
suspicion of criminal activity, whether the purpose of the
seizure was reasonable, and whether the scope and character
of the seizure was reasonable in light of its purpose.
considering the validity of a . . . [Terry] stop,
our threshold inquiry is twofold. . . . First, we must
determine at what point, if any, did the encounter between
[the police officers] and the defendant constitute an
investigatory stop or seizure. . . . Next, [i]f we conclude
that there was such a seizure, we must then determine whether
[the police officers] possessed a reasonable and articulable
suspicion at the time the seizure occurred.''
(Internal quotation marks omitted.) State v.
Brown, 279 Conn. 493, 516, 903 A.2d 169 (2006). With
respect to the former inquiry, the defendant argues that he
was seized at the moment the two marked police cruisers
converged on him from opposite directions in the small Subway
parking lot, and no later than the time at which Mercado
commanded him to stop. The state, by contrast, contends that
the Appellate Court properly affirmed the implicit conclusion
of the trial court that the defendant was not seized until
the officers patted him down for weapons. We agree that the
defendant was seized no later than when Mercado commanded him
begin by setting forth the legal test used to determine when
a person is seized for purposes of the federal and state
constitutions. ‘‘[A] person is seized
when, by means of physical force or a show of authority, his
freedom of movement is restrained. . . . The key
consideration is whether, in view of all the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave. . . . The inquiry is
objective, focusing on a reasonable person's probable
reaction to the [officers'] conduct.'' (Citations
omitted; footnotes omitted; internal quotation marks
omitted.) State v. Burroughs,
supra, 288 Conn. 844-46; accord United States
v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.
1870, 64 L.Ed.2d 497 (1980). In situations in which the
police have not applied any physical force, we must conduct
‘‘a careful [fact intensive] examination of the
entirety of the circumstances in order to determine whether
the police engaged in a coercive display of authority . . .
.'' State v. Burroughs,
to be considered in determining whether police conduct
projects coercion include, but are not limited to: the number
of officers and vehicles involved; whether the officers are
uniformed; whether the officers are visibly armed or have
their weapons drawn; whether the vehicles involved are marked
police cruisers, whether the vehicles' sirens and
emergency lights are activated, and whether the vehicles'
headlamps or spotlights illuminate the defendant; whether the
defendant is alone or otherwise appears to be the target of
police attention; the nature of the location, including
whether it is public or private property; whether the
defendant is surrounded or fully or partially blocked in by
the police; the character of any verbal communications or
commands issued by the police officers; whether the officers
advise the detainee of his right to terminate the encounter;
the nature of any physical contact; whether the officers
pursue after an initial attempt by the defendant to leave;
whether the officers take and retain possession of the
defendant's papers or property; and any other
circumstance or conduct that bespeaks aggressiveness or a
show of force on the part of the police, or suggests that the
defendant is under suspicion or otherwise not free to leave.
See United States v. Griffith, 533 F.3d
979, 983 (8th Cir. 2008); State v.
Burroughs, supra, 288 Conn. 846-47;
State v. Thomas, 291 Kan. 676, 683, 246
P.3d 678 (2011); 4 W. LaFave, Search and Seizure (5th Ed.
2012) §§ 9.2 (a) and 9.4 (a). Although it is true
that ‘‘not all personal intercourse between [the
police] and citizens involves seizures of persons'';
(internal quotation marks omitted)Immigration
&Naturalization Service v. Delgado, 466
U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); and
that law enforcement officers must be free to engage in
‘‘healthy, mutually beneficial intercourse with
the public''; State v. Burroughs,
supra, 853; it is equally true that use of coercion
beyond that inherent in any police-citizen encounter
transforms these sorts of informal, voluntary interactions
into seizures. 4 W. LaFave, supra, § 9.4 (a),
support of its conclusion that the defendant was not seized
until the officers frisked him for weapons, the Appellate
Court offered the following analysis: ‘‘The facts
found by [the trial court] and our independent review of the
record demonstrate nothing more than a benign police presence
in the Subway parking lot. The court's oral decision
portrays an unremarkable scene of three uniformed officers
approaching the defendant as part of a routine investigation
to obtain identification and determine his purpose for being
in the lot. In addition to the facts set forth in the
court's oral decision, the record does not contain any
evidence suggestive of threatening or coercive police
conduct. For instance, there is no evidence that the police
engaged their lights or sirens when they entered the Subway
parking lot, that they brandished their weapons, or that they
impeded the defendant's ability to move, either
physically or verbally. . . . We conclude, therefore, that
the defendant was not seized when the police approached him
because a reasonable person in the defendant's position
would not have believed that it was impermissible to leave
the scene.'' (Citations omitted.) State v.
Edmonds, supra, 151 Conn.App. 772-73.
independent review of the record reveals anything but an
unremarkable instance of benign community-police dialogue. On
the contrary, we do not believe that any reasonable person,
finding himself or herself in the position of the defendant,
would have felt free to simply disregard the approaching
officers and leave the scene. Numerous circumstances of the
present case support this conclusion.
the perspective of the defendant, the incident began when two
police cruisers suddenly converged on him from opposite
directions, effectively blocking off his only means of egress
from the small Subway parking lot. It is well established
that, when law enforcement officials block a suspect's
vehicle so as to prevent him from driving off, they have, by
that fact alone, executed a fourth amendment seizure. See,
e.g., Pane v. Gramaglia, 509 Fed.Appx. 101,
103 (2d Cir. 2013) (citing authorities); State v.
Clark, 297 Conn. 1, 8, 997 A.2d 461 (2010);
State v. Januszewski, 182 Conn. 142, 147,
438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct.
3159, 69 L.Ed.2d 1005 (1981), overruled in part on other
grounds by State v. Hart, 221 Conn. 595,
609, 605 A.2d 1366 (1992); 4 W. LaFave, supra,
§ 9.4 (a), pp. 596-97 n.122. Both this court and our
sister courts have applied the same reasoning with respect to
pedestrians, concluding that a seizure occurs when the police
maneuver or park their vehicles, or approach a pedestrian on
foot, in such a way as to block the pedestrian's path or
effectively close off any avenue of escape. See, e.g.,
United States v. Berry, 670 F.2d 583, 597
(5th Cir. 1982) (‘‘blocking an individual's
path or otherwise intercepting him to prevent his progress in
any way is a consideration of great, and probably decisive,
significance''); State v.
Januszewski, supra, 147 (pedestrian
constructively seized where police blocked his vehicle from
leaving parking lot); State v. Allen,
Docket No. 02CA0059, 2003 WL 21276146, *3 (Ohio App. June 4,
2003) (defendant held seized where officers effectively
blocked only exit from hallway), review denied, 100 Ohio
St.3d 1424, 797 N.E.2d 92 (2003); State v.
Ingram, 82 Ohio App.3d 341, 345, 612 N.E.2d 454
(1992) (seizure when two officers blocked defendant's
exits from where he sat on porch railing).
recognize that, in the present case, the officers did not
fully block in the defendant, who presumably could have
walked past one of the two police cruisers onto Capitol
Avenue or Madison Avenue. Even under such circumstances,
however, when officers have only partially blocked the
available exits, courts have not hesitated to find a seizure
when a reasonable person would conclude that the police have
positioned their bodies or vehicles so as to effectively
surround the suspect or thwart his egress. See, e.g.,
United States v. Smith, 794 F.3d 681, 685
(7th Cir. 2015) (pedestrian in alleyway held seized when two
officers ‘‘positioned their bicycles at a
[forty-five degree] angle to him, obstructing his intended
path forward''); State v.
Burroughs, supra, 288 Conn. 847 (important
factors include whether individual's movement was
restrained or he was otherwise isolated in some manner, such
as when cruiser parks in close proximity); J.N. v.
State, 778 So.2d 440, 441-42 (Fla. 2001) (pedestrian
suspected of loitering held seized when exiting alley and
approached on either side by three uniformed officers in
marked patrol cars); State v. Epperson, 237
Kan. 707, 714, 703 P.2d 761 (1985) (suspects held seized when
officer ‘‘cut off their avenue of
escape'' by parking cruiser so that his open car door
blocked lane of travel in which suspects' vehicle was
parked [internal quotation marks omitted]); Swift v.
State, 393 Md. 139, 149, 156, 899 A.2d 867 (2006)
(defendant walking on public road held seized when police
officer pulled marked cruiser directly in front of him,
‘‘blocking his path'').
there is no Connecticut authority directly on point, given
the unique factual circumstances of the present case,
State v. Rustad, Docket No. 58691-2-I, 2008
WL 555945 (Wn. App. March 3, 2008), a decision of the
Washington Court of Appeals, is instructive. In that case,
two officers, driving separate marked patrol cars, were
responding to a ‘‘911 hang-up call'' from
a ‘‘ ‘known drug house' '' at
approximately 10:30 p.m. when they noticed a suspicious
vehicle begin to turn into that home's driveway.
Id., *1. When the officers shined their flashlights
at the vehicle, it instead continued down the street.
Id. The officers then spotted that same vehicle in
the rear of a nearby parking lot. Id. The officers
entered the lot and parked thirty to forty feet away from the
vehicle, near the only road providing entry to or exit from
the area, and partially blocking that exit. Id.
Their spotlights were aimed at the vehicle, but they did not
activate their emergency lights or sirens. Id. One
officer then approached the passenger side of the
defendant's vehicle, while his partner
‘‘stood guard at the rear of the
vehicle.'' Id. Both officers were uniformed
and armed, although their weapons remained holstered.
Id., *2. Under those circumstances, the court
concluded that the officers' actions constituted a
seizure. Id. Specifically, the court concluded that,
although the defendant was not physically detained,
‘‘a reasonable person would not feel free to
leave or otherwise terminate the encounter'' because
the officers ‘‘largely, though not fully, blocked
any exit the [defendant's vehicle] may have had from the
parking area and back onto the road . . . .''
the theory that the police seize an individual when they
knowingly surround him or obstruct his free passage is firmly
rooted in our state constitution and federal common law. In
State v. Oquendo, 223 Conn. 635, 650-51,
613 A.2d 1300 (1992), in construing article first,
§§ 7 and 9, of the constitution of Connecticut, we
emphasized that, at common law, ‘‘no man [could]
be restrained of his liberty; be prevented from removing
himself from place to place, as he [chooses]; be
compelled to go to a place contrary to his inclination, or be
in any way imprisoned, or confined, unless by virtue
of the express laws of the land. 1 Z. Swift, [A System of the
Laws of the State of Connecticut (1795)] p. 180. . . .
Moreover, every detention or confinement of the person in
any shape, including the forcible detention of a person
in the street, constituted an imprisonment." (Citation
omitted; emphasis altered; internal quotation marks omitted.)
A review of the case law construing certain maritime
provisions of a 1790 act, which prohibited the
‘‘confine[ment of] the master of any ship or
other vessel''; An Act for the Punishment of Certain
Crimes against the United States, c. 9, § 12, 1 Stat.
115 (1790); makes clear that, at both the time that Chief
Justice Swift wrote his two volume treatise, A System of the
Laws of the State of Connecticut, in 1795 and 1796, and when
the relevant provisions of the state constitution were
adopted in the early nineteenth century, an individual was
deemed to be illegally ‘‘confined'' not
only when he was physically restrained or imprisoned, but
also under circumstances in which he was surrounded and
thereby intimidated into believing that he could not freely
move. See, e.g., United States v. Huff, 13
F. 630, 641 (C.C.W.D. Tenn. 1882), and authorities cited
therein; United States v. Hemmer, 26 F.
Cas. 259, 260 (C.C.D. Mass. 1825) (No. 15, 345).
extent that the state relies on State v.
Benton, 304 Conn. 838, 43 A.3d 619 (2012), and
State v. Burroughs, supra, 288
Conn. 836, for the proposition that blocking in or
surrounding a defendant does not support a finding of
seizure, that reliance is misplaced. In Ben-ton,
three young males suspected of possible involvement in gang
related violence were riding their bicycles on a public
street in New Haven. State v. Benton,
supra, 841. Two officers on foot patrol stepped into
the road approximately twenty to twenty-five feet ahead of
the three cyclists. Id. At that point, the
defendant's two companions reversed direction and rode
off. Id. The defendant also veered away and
attempted to pedal off, but the officers physically
apprehended him. Id. In concluding that the officers
had not seized the defendant at the moment they initially
stepped into the road, we relied on the facts that (1) the
officers entered the road twenty to twenty-five feet away
from the defendant, (2) they occupied less than one quarter
of the two lane road, and (3) they stepped into the road in
such a way as to indicate that they might merely have
intended to advertise a police presence, or to observe the
cyclists, rather than to stop them. Id., 845-47. In
addition, the fact that both of the defendant's
companions decided to ride off in another direction, and did
so, indicated that they were not in fact blocked in by the
officers' conduct. See id., 841. Accordingly,
Benton is readily distinguishable from the present
case, in which the arrival of a second police
presence, from the opposite direction, closing off the only
available means of egress from the lot, thwarted the
defendant's initial attempt to walk away from Morales and
Lawlor as they approached him.
provides even weaker authority for the state's position,
because in that case the police did nothing whatsoever to
discourage or hinder the defendant from leaving the scene. In
Burroughs, a single police cruiser pulled up
behind a vehicle that was parked at night in an
industrial area, without activating the cruiser's
emergency lights or sirens. State v.
Burroughs, supra, 288 Conn. 840, 852. Two
officers exited the cruiser and walked up to the driver's
and passenger's sides of the parked vehicle to determine
whether the occupants needed assistance. Id. Under
those circumstances, we concluded that there was no
significant show of police authority sufficient to indicate
that the defendant and his passenger were not free to leave.
Id., 851-52. Importantly, nothing barred the
defendant in Burroughs from simply driving off in
the direction his vehicle was facing. By contrast, if a
second police cruiser had entered the scene and pulled in
front of the defendant's vehicle, boxing him in, he
would not have been free to leave. That is precisely what
the fact that two marked police cruisers converged on the
defendant from opposite directions, effectively blocking him
from exiting the lot, several other aspects of the present
case would indicate to a reasonable person in the
defendant's position that he was not free to leave.
First, the defendant was the only person in the parking lot
at the time the police entered. Whereas an individual
standing in a crowded area or traveling a public road has no
reason to assume that a sudden police presence is directed
toward him, in the present case it would have been apparent
to the defendant that the two cruisers and three officers who
suddenly approached were there for him. See State v.
Oquendo, supra, 223 Conn. 653. Second, and
relatedly, it is important that the Subway lot was private
property, where police would not be expected to routinely
patrol. See Parker v. Commonwealth, 255 Va.
96, 102, 496 S.E.2d 47 (1998).
third, critical consideration is the fact that, as the
defendant turned to walk away from the marked police cruiser
driven by Morales and Lawlor, he was confronted by a second
cruiser, driven by Mercado, which had entered from the
opposite direction, appearing to thwart his passage. There is
a common trope in espionage and other action genre films in
which the protagonist turns to retreat upon confronting an
enemy, only to see more would-be captors appear from the
other direction. At that point, he, along with the audience,
realizes that he is trapped. Both courts and commentators
have applied this basic intuition in the search and seizure
context, recognizing that cornering or ‘‘pursuing
a person who has attempted to terminate the contact by
departing'' sends a clear signal that the person is
not free to leave. 4 W. LaFave, supra, § 9.4
(a), p. 586; see, e.g., United States v.
Beauchamp, 659 F.3d 560, 566-67 (6th Cir. 2011);
In re D.J., 532 A.2d 138, 141 (D.C. App. 1987),
abrogated for federal constitutional purposes by
California v. Hodari D., 499 U.S. 621, 626,
111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Commonwealth
v. Depina, 456 Mass. 238, 242, 922 N.E.2d 778
(2010); Commonwealth v. Lewis, 535 Pa. 501,
506, 509, 636 A.2d 619 (1994); Parker v.
Commonwealth, supra, 255 Va. 102.
factors that would have indicated to a reasonable person in
the defendant's position that he was not free to leave
were the fact that he was approached by multiple uniformed
police officers; see State v. Benton,
supra, 304 Conn. 846; driving multiple marked patrol
cars; see State v. Burroughs,
supra, 288 Conn. 847; in a dark, unlit space. See
United States v. Smith, supra, 794
F.3d 685. Moreover, although there is no indication whether
the cruisers' sirens and emergency lights were activated,
we must at least assume, because the incident occurred
approximately two hours after sunset, that the officers had
illuminated their headlamps, and, therefore, that the
defendant would have been illuminated in the glare of those
headlamps as the cruisers approached him in the unlit lot.
See Commonwealth v. Helme, 399 Mass. 298,
303, 503 N.E.2d 1287 (1987); State v.
Pierce, 173 Vt. 151, 153, 787 A.2d 1284 (2001).
These factors, therefore, further support the conclusion that
a reasonable person, standing alone in a dark and private
parking lot, who suddenly found himself blocked in by marked
police cruisers, would not have felt free to leave.
if we had any remaining doubt as to whether a reasonable
person in the defendant's position would have felt free
to disregard the three officers and leave the scene as they
approached, those doubts are dispelled by the fact that
Mercado, upon entering the Subway lot, commanded the
defendant to stop. As a result of this command, the
defendant, who initially sought to turn away from the first
cruiser driven by Lawlor and Morales, stopped and submitted
to police authority.
well settled that a reasonable citizen would not feel free to
disregard a verbal command to stop issued by an armed,
uniformed police officer. See State v.
Benton, supra, 304 Conn. 844 n.4 (state
conceded that police officer's command to stop
constitutes seizure for purposes of state constitution);
State v. Oquendo, supra, 223 Conn.
647-48 n.8 (similar); State v. Williamson,
10 Conn.App. 532, 540, 524 A.2d 655 (order to halt, standing
alone, constituted seizure), cert. denied, 204 Conn. 801, 525
A.2d 965 (1987); see also United States v.
Stover, 808 F.3d 991, 995 (4th Cir. 2015) (command
to halt is example of police conduct that conveys to
reasonable person that he is not free to leave); In re
Martin H., Docket No. B151148, 2002 WL 1732650, *3
(Cal.App. July 25, 2002) (‘‘when an officer
commands a citizen to stop, this constitutes a detention
because the citizen is no longer free to leave''
[internal quotation marks omitted]); Blake v.
State, 939 So.2d 192, 195 (Fla. App. 2006)
(‘‘[i]f . . . the officer phrases his or her
inquiries as commands, this action would indicate that the
individual was not free to leave''); M. Raymond,
‘‘The Right to Refuse and the Obligation to
Comply: Challenging the Gamesmanship Model of Criminal
Procedure, '' 54 Buff. L. Rev. 1483, 1493 (2007)
(‘‘[P]olice commands or orders create seizures.
The quintessential command is the order to stop . . .
.'' [Footnotes omitted.]). Accordingly, having
considered all of the relevant circumstances and all of the
undisputed evidence in the record, we are compelled to
conclude that a reasonable person in the defendant's
position would not have felt free to leave the scene, and
that the defendant was seized no later than when Mercado
successfully commanded him to stop.
consider the state's assertion, which the Appellate Court
found persuasive, that the defendant's claim that he was
seized no later than when Mercado commanded him to stop is
unreviewable on appeal. The state contends that we must
determine either that the defendant was seized at the outset,
when the officers converged on him in the middle of the
parking lot, or later, when they patted him down for weapons.
We disagree, and conclude that the defendant's full
argument is preserved for appellate review and that we are
not barred from considering any of the undisputed testimony
in the record.
following additional procedural history is relevant to our
evaluation of the state's argument. The defendant filed
with the trial court what fairly may be characterized as a
boilerplate motion to suppress evidence. The motion alleged
only that: (1) ‘‘certain items seized by law
enforcement officer(s) or his agent(s) . . . were not seized
pursuant to a search and seizure warrant''; and (2)
‘‘[t]he search and seizure violated the laws and
constitutions of the United States and of the [s]tate of
Connecticut in that . . . [t]he search and seizure was
unreasonable.'' No memorandum of law setting forth
specific legal theories or arguments accompanied the motion,
and the state neither filed an objection to the motion nor
sought any clarification or specification as to the grounds
or theories on which the defendant objected to the search and
seizure. In fact, neither party presented its theory of the
seizure issue prior to the opening of testimony at the
suppression hearing, the state proceeded first with its case,
consistent with its burden of proving that the officers'
warrantless search and seizure of the defendant was
constitutional. See State v. Eady, 249
Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030,
120 S.Ct. 551, 145 L.Ed.2d 428 (1999). The state called and
examined two witnesses-Officers Morales and Lawlor-whom
defense counsel cross-examined broadly about the
circumstances surrounding the defendant's arrest. The
prosecutor indicated that he had intended to call Sergeant
Mercado as well, but that Mercado was on vacation in Florida
and, therefore, unavailable to testify.
the prosecutor completed his redirect questioning of Morales,
the trial court intervened to ask the officer a series of
questions to clarify the timeline of events. The court
specifically asked Morales one-half dozen questions about the
circumstances under which Mercado had stopped the defendant
from walking away, and twice asked Morales to confirm that
Mercado did so by verbally commanding the defendant to stop.
After questioning Morales in this area, the court gave the
prosecutor an opportunity to ask Morales follow-up questions.
the state rested, the defendant briefly called one witness to
establish a lack of recent criminal activity at the Subway in
question. The court then invited the state to present its
closing argument, and the prosecutor for the first time
offered the state's theory of the search and seizure. It
was only then, at the very end of the hearing, after the
witnesses had been excused, both sides had rested, and the
state had presented its argument, that the court invited
defense counsel to argue her theory of the case.
counsel began by advising the court that the court's
primary duty was to determine when the defendant was seized,
if at all. At varying times, she argued that the defendant
was seized: (1) when the police cruisers surrounded him in
the lot; (2) when the three officers exited their cruisers
and approached the defendant; or (3) when the police patted
him down. At other times, however, defense counsel framed the
issue more broadly. Near the end of the hearing, for example,
she argued that the ‘‘bottom line'' was
that the defendant ‘‘was seized the minute that
those police officers turned around and did a U-turn, came
into the parking lot and stopped [the
defendant] . . . .'' (Emphasis added.)
the fact that defense counsel correctly advised the trial
court that the court was obliged to determine whether a
seizure occurred between the time that the officers entered
the lot and when they verbally stopped the defendant, the
trial court made no express findings in that regard. Instead,
the court appears to have assumed that the frisk was the