Argued
January 18, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of
carrying a pistol without a permit, criminal possession of a
firearm and criminal possession of a pistol or revolver,
brought to the Superior Court in the judicial district of New
Haven, where the court, Cradle, J., denied the
defendant's motion to suppress certain evidence;
thereafter, the defendant was presented to the court,
Keegan, J., on a conditional plea of nolo contendere
to the charges of carrying a pistol without a permit and
criminal possession of a pistol or revolver; subsequently,
the state entered a nolle prosequi as to the charge of
criminal possession of a firearm; judgment of guilty, from
which the defendant appealed to the Appellate Court,
DiPentima, C. J., and Beach and Bishop,
Js., which affirmed the judgment of the trial court, and
the defendant, on the granting of certification, appealed to
this court. Affirmed.
Laila
M. G. Haswell, senior assistant public defender, for the
appellant (defendant).
Mitchell S. Brody, senior assistant state's attorney,
with whom, on the brief, were Patrick J. Griffin, state's
attorney, and Karen A. Roberg, assistant state's
attorney, for the appellee (state).
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins
and Ecker, Js.
OPINION
D'AURIA, J.
The
facts of this case implicate governmental and privacy
interests that courts struggle to reconcile. This court is no
exception. On this record, there is no question that the
defendant, Demetrice L. Lewis, illegally possessed a pistol.
Responding to a report of a domestic violence incident, a
police officer encountered the defendant. On the basis of a
description of the perpetrator and other attendant
circumstances, the police officer believed that the defendant
might have been the perpetrator who, only minutes earlier,
had choked a woman and broken a window in her apartment. On
that basis, the officer approached the defendant, attempted
to ask him questions, and patted him down pursuant to
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968). During this patdown, the police officer
discovered the pistol and seized it after a brief struggle.
It
turned out that the defendant was not the perpetrator.
Rather, he was essentially minding his own business, standing
in the rain with no one else around at 4:20 a.m., talking on
his cell phone. However odd this behavior might appear to
some, in this country, an individual enjoys the right to act
in this manner undisturbed by the police unless the police
have reasonable and articulable suspicion that he is involved
in or about to be involved in criminal activity.
It is
the solemn responsibility of our courts to ensure that when
the police intrude on a person's privacy or liberty, they
do so in strict adherence to the requirements of
Terry. To ensure that the police have not
overreached when they conduct investigatory stops, we require
that the state articulate its justification so that a court
may review it for objective reasonableness. Although this is
a lower standard than probable cause, it is important that
courts apply it vigilantly to guarantee that the police
indeed have justification for even limited intrusions, and to
guard against arbitrariness and harassment. The police cannot
retroactively justify an investigatory stop and patdown on
the ground that the patdown resulted in the discovery of
illegal contraband.
In this
case, we are once again confronted with the ill-defined
notion of a ‘‘high crime neighborhood.''
We have noted in the past how this imprecise shorthand
challenges-indeed, can undercut-our ability to apply it to a
standard of suspicion that is meant to require circumspection
before justifying a governmental interference with
constitutionally protected interests. See State v.
Edmonds, 323 Conn 34, 69, 145 A.3d 861 (2016)
(‘‘cautioning that high crime area justification
is easily subject to abuse'' [internal quotation
marks omitted]) Too often, reliance on the nature of the
neighborhood too easily justifies intrusions on those who
happen to reside in neighborhoods plagued by crime, which
courts have recognized are inhabited predominantly by those
with low incomes and disproportionately by minorities See
id., 83-84 (Robinson, J., concurring) We
have recognized that it is inappropriate that the poor and
minorities come under suspicion, at least in part, because of
their own surroundings, while those of greater wealth and
majority status, although engaged in the same conduct, are
less likely to suffer these intrusions and their accompanying
indignities See id, 83-85 (Robinson, J.,
concurring).
We
cannot ignore the fact that in the present case, the officer
and the state, in part, justified the stop of the defendant
on the basis of the reputation of the
neighborhood.[1] Nor is that the only circumstance that
challenges us in this case. The officer also testified that
he ‘‘pat[s] everybody down.'' As we and
the Chief Justice, in his concurring opinion, indicate, this
is plainly an unacceptable and improper approach to law
enforcement.
The
officer was not, however, on routine patrol on general watch
for those who might be acting illegally. Rather, he was
responding to a 911 call from a victim reporting a domestic
assault-specifically, that she had been choked by a male with
whom she had been spending time. Within minutes, the officer
was on the scene in search of the perpetrator, whose
description the officer reasonably determined matched that of
the defendant.
It is
easy for a court to question the officer's conclusions
and actions. Indeed, that is our job. It is easier still to
suggest that the officer could have or should have done
something else, or even that a different course of action
would have been more logical or more reasonable. That is not
our job. Thus, in the present case, we do not determine
whether the officer could have taken a less intrusive course
of action but, rather, determine whether his actions-stopping
the defendant and patting him down-were supported by
reasonable and articulable suspicion.
The
defendant contends that the trial court improperly denied his
motion to suppress the gun on the ground that his seizure and
subsequent patdown were lawful under both the fourth
amendment to the United States constitution and article
first, §§ 7 and 9, of the Connecticut constitution.
Specifically, he claims that the Appellate Court improperly
concluded that the trial court correctly determined that (1)
he was not seized until the police officer touched him and
performed a patdown search for weapons, (2) the officer had
reasonable and articulable suspicion that he had committed a
crime, and (3) the officer had reasonable and articulable
suspicion that he might be armed and dangerous. Although we
recognize the unique challenges that this case raises, we
disagree with the defendant's claims and conclude that
the seizure and subsequent patdown of the defendant were
lawful. We therefore affirm the judgment of the Appellate
Court.
The
following facts, as found in the record, and procedural
history are relevant to our consideration of the claims on
appeal. On May 25, 2013, at approximately 4:16 a.m., a woman
called New Haven 911 to report a domestic assault on Derby
Avenue in New Haven. The 911 caller informed the 911
dispatcher that approximately fifteen minutes earlier,
[2]
a thirty-two year old black man identified as
‘‘O, ''[3] whom she had been
‘‘dealing with, ''[4] had broken a window
in her apartment and choked her. Although the victim stated
that she did not need an ambulance, her assailant choked her
hard enough that her throat was sore. She further explained
that her assailant had left her home but that, although she
could not see her assailant from her window, she could hear
him talking, ‘‘so, he's around the
area.'' She believed that he was most likely hiding
in bushes or other dark places outside in the area. She also
stated that she had his state identification. In response to
an inquiry from the 911 dispatcher, the victim stated that
the perpetrator did not have any weapons. She described her
assailant as wearing a black hoodie, black sweatpants, and a
chain around his neck. She stated that she believed that he
also wore a fitted orange and grey hat. She did not give any
additional details about the hat, such as, for example,
whether the hat was predominantly more orange than grey or
vice versa.
At
approximately 4:19 a.m., police officers were dispatched to
Derby Avenue to respond to the 911 call, which was reported
as a domestic violence incident involving choking. The police
dispatcher[5] described the perpetrator as a black
male, ‘‘O, '' who was dressed in all
black clothing and was believed to be outside the
victim's home in bushes nearby because the victim had
stated that she could hear him outside in the area. At the
time of the dispatch call, Officer Milton DeJesus was
patrolling the area, with which he was very familiar,
[6]in a marked patrol vehicle and was
approximately one quarter mile from Derby Avenue. Being in
close proximity, he responded to the call and proceeded
toward Derby Avenue. Approximately one minute after the
dispatch call, while en route to Derby Avenue, Officer
DeJesus observed the defendant, a black male in dark
clothing, standing in a parking lot area to the right of a
market at 1494 Chapel Street, which is near the corner of
Chapel Street and Derby Avenue and approximately one
minute's walking distance from Derby Avenue.
At the
time that Officer DeJesus saw the defendant, it was dark and
raining heavily. Because of this, the defendant was soaking
wet, and his clothing appeared to Officer DeJesus to be all
black, although the defendant was wearing dark blue jeans, a
dark grey leather jacket, and a navy blue skullcap. Due to
the pouring rain, Officer DeJesus could not discern any
additional details about the defendant's clothing, such
as its mate- rial. The defendant was standing alone in the
rain and appeared to be speaking on a cell phone. A street
lamp near the market parking lot illuminated the street onto
the sidewalk area, allowing Officer DeJesus to see the
defendant's presence, but the area around the defendant
was not well lit. The defendant was the only person Officer
DeJesus saw in the area.
Believing
that the defendant matched the description of the suspect,
Officer DeJesus stopped his patrol vehicle about fifteen feet
from the defendant. He did not activate his vehicle's
overhead lights. While remaining in the vehicle, he rolled
down the driver's side window and asked the defendant,
‘‘yo, my man, what's your name?'' The
defendant did not respond and did not appear to notice
Officer DeJesus. At that point, Officer DeJesus, who was
wearing his police uniform, exited the patrol vehicle,
approached the defendant from an angle, in an effort to
appear nonconfrontational, and asked the defendant for his
name, where he was coming from, and whether he had any
identification. The defendant responded by
‘‘mumbling back.'' ‘‘It's
like he's not there, '' Officer DeJesus related,
and so he asked the defendant what his name was several times
more. Although most of the defendant's mumbling was
incoherent, at one point Officer DeJesus thought the
defendant mumbled something that sounded like
‘‘Michael'' in response to a question
about his name, but it was unclear because he was slurring
his words. In response to the question about where he was
coming from, the defendant mumbled something about being
‘‘in a program.'' The defendant did not
otherwise coherently answer Officer DeJesus' questions,
and he continued to hold the cell phone to his ear, did not
appear stable, and was swaying. The only time the defendant
made eye contact with Officer DeJesus, he did not appear
‘‘right.'' According to Officer DeJesus,
the defendant was not acting normally or rationally but,
rather, appeared guarded and under the influence of alcohol
or controlled substances.
In
light of the defendant's behavior, the violent nature of
the alleged crime, and the time of day, [7] Officer DeJesus
walked around him and began patting him down for weapons. The
defendant immediately moved his right hand downward toward
his side. Officer DeJesus told him, ‘‘no, hold
on, '' and reached toward the defendant's
waistband. To that point, the encounter from beginning to end
had lasted less than one minute when Officer DeJesus felt the
butt of a gun, after which he and the defendant began
wrestling in the street for control of the gun.
As the
defendant and Officer DeJesus wrestled for the gun, another
officer arrived with a canine. Both officers commanded the
defendant to stop resisting, but he did not comply. The
canine then bit the defendant in the arm, subduing him, and
the defendant was taken into custody and arrested. It was
subsequently determined that the defendant was not the
perpetrator in the incident on Derby Avenue.
The
defendant was charged with carrying a pistol without a permit
in violation of General Statutes § 29-35 (a), criminal
possession of a firearm in violation of General Statutes
§ 53a-217 (a) (1), and criminal possession of a pistol
or revolver in violation of General Statutes § 53a-217c
(a) (1). The defendant subsequently moved to suppress the gun
on the ground that he had been unlawfully seized and searched
during an unlawful stop by the police in violation of the
fourth amendment to the United States constitution and
article first, §§ 7 and 9, of the Connecticut
constitution. The defendant argued that he was seized the
moment Officer DeJesus stopped his patrol vehicle near him,
the seizure was unlawful because Officer DeJesus lacked
reasonable and articulable suspicion that the defendant had
committed a crime, and the patdown was unlawful because his
behavior was not sufficient to raise a reasonable and
articulable suspicion that he might be armed and dangerous.
The
trial court denied the defendant's motion to suppress.
The court agreed with the state that the defendant was not
seized until Officer DeJesus touched the defendant at the
start of the patdown because Officer DeJesus did not display
a show of authority or engage in coercive or threatening
behavior until he touched the defendant. The court further
found that Officer DeJesus had reasonable and articulable
suspicion of criminal activity to stop the defendant because
the defendant sufficiently matched the description of the
suspect in the incident on Derby Avenue and was located in
sufficiently close proximity to the alleged crime scene, both
geographically and temporally. Finally, the court found that
the patdown of the defendant was supported by reasonable and
articulable suspicion that he might be armed and dangerous,
on the basis of the totality of the circumstances, including
the violent nature of the crime under investigation, the
defendant's behavior, and the time of day. In making
these findings, the court credited the testimony of the
officer that in approaching and questioning the defendant, he
intended to appear nonconfrontational, and the court found
that he did indeed appear nonconfrontational, the rain and
darkness made the defendant's clothing appear to be all
black, and the defendant's behavior made him appear
guarded and evasive.
Following
the denial of the motion to suppress, the defendant entered a
conditional plea of nolo contendere to one count of carrying
a pistol without a permit and one count of criminal
possession of a pistol or revolver. The state entered a nolle
prosequi with respect to the count of criminal possession of
a firearm. The defendant was sentenced to five years of
incarceration, execution suspended after a mandatory minimum
of one year of incarceration, followed by a three year
conditional discharge on the count of carrying a pistol
without a permit, and five years of incarceration, execution
fully suspended, with a three year conditional discharge on
the count of criminal possession of a pistol or revolver. The
sentences were to run consecutively for a total effective
sentence of ten years of incarceration, execution suspended
after one year, and a three year conditional discharge.
The
defendant appealed to the Appellate Court, which affirmed the
judgment of the trial court. See State v. Lewis, 173
Conn.App. 827, 851, 162 A.3d 775 (2017). The Appellate Court
agreed with the trial court that Officer DeJesus'
questioning of the defendant was not confrontational and that
he did not seize the defendant until he touched him.
Id., 841. The Appellate Court also agreed with the
trial court that Officer DeJesus had reasonable and
articulable suspicion to stop the defendant. Id.,
847. The Appellate Court reasoned that, even if, under the
collective knowledge doctrine, [8] Officer DeJesus were
charged with knowing the precise details of the suspect's
clothing as stated by the victim in the 911 call, on the
basis of the totality of the circumstances, it was reasonable
for him to suspect the defendant of criminal activity.
Id., 846-47. Specifically, the Appellate Court
relied on the fact that (1) despite the discrepancies, the
defendant's clothing, due to the darkness and rain,
generally matched the description of the suspect's
clothing, (2) the defendant was standing alone in the rain at
4:20 a.m. without anyone else around, (3) the defendant
appeared to be under the influence of a controlled substance
and was not responsive to Officer DeJesus, (4) the defendant
was in close proximity to the crime scene, and (5) the
defendant was in an area that Officer DeJesus knew to be
prone to violence, drugs, and prostitution. Id.
Relying on these same facts, the Appellate Court agreed with
the trial court that the patdown of the defendant was
supported by reasonable and articulable suspicion that he
might be armed and dangerous. Id., 850-51.
The
defendant petitioned for certification to appeal, which we
granted, limited to the following issue: ‘‘Did
the Appellate Court err in affirming the trial court's
denial of the defendant's motion to suppress evidence of
a firearm that police seized during an investigatory
stop?'' State v. Lewis, 327 Conn. 925, 171
A.3d 58 (2017).
On
appeal to this court, the defendant argues that he was
unlawfully seized and searched by Officer DeJesus.
Specifically, he argues that he was seized the moment that
Officer DeJesus stopped his patrol vehicle near the defendant
and asked his name. Alternatively, he argues that he was
seized when Officer DeJesus exited his vehicle and approached
him while asking him questions. He further argues that
regardless of when he was seized, the seizure was unlawful
because Officer DeJesus did not have reasonable and
articulable suspicion that the defendant was or had been
engaged in criminal activity in light of the facts that his
clothing and name did not match the clothing and name
described by the victim to the 911 dispatcher. Finally, he
argues that the officer's patdown was similarly unlawful
because there was no reasonable and articulable suspicion
that he might be armed and dangerous. The state responds that
the Appellate Court properly upheld the trial court's
determination that the defendant was not seized until Officer
DeJesus touched him and that the resulting seizure and
patdown were based on reasonable and articulable suspicion in
light of the totality of the circumstances.
We
begin our analysis with our standard of review and well
established overarching legal principles regarding search and
seizure. ‘‘Our standard of review of a trial
court's findings and conclusions in connection with a
motion to suppress is well defined. A finding of fact will
not be disturbed unless it is clearly erroneous in view of
the evidence and pleadings in the whole record . . . .
[W]here the legal conclusions of the court are challenged, we
must determine whether they are legally and logically correct
and whether they find support in the facts set out in the
memorandum of decision . . . .'' (Internal quotation
marks omitted.) State v. Burroughs, 288 Conn. 836,
843-44, 955 A.2d 43 (2008).
‘‘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. . . . 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 . . . . 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 . . . .'' (Citations omitted; internal
quotation marks omitted.) State v. Edmonds, supra,
323 Conn. 38-39.
‘‘Notwithstanding
our responsibility to examine the record scrupulously, it is
well established that we may not substitute our judgment for
that of the trial court when it comes to evaluating the
credibility of a witness. . . . Questions of whether to
believe or to disbelieve a competent witness are beyond our
review.'' (Internal quotation marks omitted.)
State v. DeMarco, 311 Conn. 510, 519-20, 88 A.3d 491
(2014).
‘‘The
fourth amendment [to the federal constitution and] article
first, § 7, [of the state constitution proscribe] only
‘unreasonable' searches and seizures. U.S. Const.,
amend. IV; accord Conn. Const., art. I, § 7. A search or
seizure is presumptively unreasonable when it is conducted
without a warrant issued upon probable cause. . . .
[However], under [Terry v. Ohio, supra, 392 U.S.
30-31], officers may temporarily seize an individual if they
have a reasonable and articulable suspicion that he is
involved in criminal activity.'' (Citations omitted;
footnote omitted.) State v. Kelly, 313 Conn. 1, 16,
95 A.3d 1081 (2014).
‘‘[W]hen
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 officer] 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 officer] possessed a reasonable and articulable
suspicion at the time the seizure occurred.''
(Internal quotation marks omitted.) State v.
Edmonds, supra, 323 Conn. 49. If the Terry stop
is lawful and ‘‘the officer reasonably believes
that the detained individual might be armed and dangerous, he
or she [also] may undertake a patdown search of the
individual to discover weapons.'' State v.
Wilkins, 240 Conn. 489, 495-96, 692 A.2d 1233 (1997).
I
We
first address the defendant's claim that he was seized
when Officer DeJesus stopped his patrol vehicle and asked his
name because a reasonable person in the defendant's
position would not have believed he was free to leave.
Specifically, the defendant argues that Officer DeJesus
evinced a show of authority by ‘‘effectively
blocking the defendant from the street using his marked
police cruiser at a time when businesses were closed and the
defendant was completely alone in the dark . . . .''
Alternatively, he argues that he was seized when Officer
DeJesus exited his police cruiser and approached him while
asking questions about his identity because Officer
DeJesus' persistence in interacting with him amounted to
a show of authority. The state responds that the defendant
was not seized until Officer DeJesus physically touched him
because Officer DeJesus' prior conduct was not coercive
or confrontational. We agree with the state.[9]
We
begin by setting forth the legal test used to determine when
a person is seized for purposes of the federal and state
constitutions. ‘‘[U]nder certain circumstances,
the relevant provisions of the state constitution provide
broader protection from unreasonable search and seizure than
does the fourth amendment . . . .'' (Citation
omitted.) State v. Edmonds, supra, 323 Conn. 38 n.3.
Under both constitutions, ‘‘[i]n determining the
threshold question of whether there has been a seizure, we
examine the effect of the police conduct at the time of the
alleged seizure, applying an objective standard. Under our
state constitution, a person is seized only if in view of all
of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave. . .
. Under the federal constitution, in contrast, a seizure
occurs only if there is a show of physical force . . . or . .
. submission to the assertion of
authority.''[10] (Citations omitted; internal
quotation marks omitted.) State v. James, 237 Conn.
390, 404-405, 678 A.2d 1338 (1996). Accordingly, the
defendant does not dispute that, under the federal
constitution, he was not seized until Officer DeJesus
physically touched him.
Under
our state constitution, ‘‘[t]he inquiry is
objective, focusing on a reasonable person's probable
reaction to the [officer's] conduct. . . . 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 [such
that a reasonable person in the defendant's position
would not have believed he was free to leave] . . .
.'' (Citations omitted; internal quotation marks
omitted.) State v. Edmonds, supra, 323 Conn. 50.
‘‘Factors
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.
. . . Although it is true that not all personal intercourse
between [the police] and citizens involves seizures of
persons . . . and that law enforcement officers must be free
to engage in healthy, mutually beneficial intercourse with
the public . . . 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.'' (Citations omitted; internal
quotation marks omitted.) Id., 50-51; see also
State v. Burroughs, supra, 288 Conn. 846-47.
The
defendant contends that he was seized when Officer DeJesus
stopped his patrol vehicle because such conduct effectively
blocked the defendant's egress while alone in the dark.
It is true 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.'' State v. Edmonds, supra, 323 Conn.
53. This is especially so if the defendant is located on
private property where police are not normally expected to
patrol. Id., 58.
The
present case is distinguishable from the cases in which this
court has held that a seizure occurred when a police officer
stopped his patrol vehicle in a manner that blocked the
defendant from leaving. See, e.g., id., 52 (stop
occurred when police officers parked patrol vehicles at both
of restaurant parking lot's exits to prevent defendant
from leaving private property); State v. Clark, 297
Conn. 1, 8, 997 A.2d 461 (2010) (‘‘officers had
blocked the defendant's vehicle in a manner that
restricted his freedom of movement''); State v.
Januszewski, 182 Conn. 142, 147, 438 A.2d 679 (1980)
(pedestrian constructively seized where police blocked his
vehicle from leaving parking lot) (overruled in part on other
grounds by State v. Hart, 221 Conn. 595, 609, 605
A.2d 1366 [1992]), cert. denied, 453 U.S. 922, 101 S.Ct.
3159, 69 L.Ed.2d 1005 (1981). Officer DeJesus stopped his
patrol vehicle on the side of the road approximately fifteen
feet from the defendant. The defendant was located in a
parking lot area near to and open and visible from the
street. The placement of the police cruiser did not impede
the defendant's movement or prevent him from leaving in
any way. On numerous occasions, we have stated that an
officer stopping near a person, either in a police cruiser or
on foot, without more, does not impede the person's
movement and, thus, is not coercive conduct that would cause
a ...