Argued
January 18, 2019.
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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.
COUNSEL:
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. D'AURIA, J. In this opinion the other
justices concurred. ROBINSON, C. J., with whom MULLINS, J.,
joins, concurring.
OPINION
Page 580
[333
Conn. 546] 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 [333 Conn.
547] earlier, had
Page 581
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
[333 Conn. 548] 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
Page 582
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.
[333
Conn. 549] 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 [333 Conn. 550] 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
Page 583
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 [333 Conn. 551] 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 material. 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 [333
Conn. 552] 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."
Page 584
" It's like he'snot 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.
[333
Conn. 553] 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 [333 Conn. 554] 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
Page 585
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 [333 Conn. 555] 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 [333
Conn. 556] 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
Page 586
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 [333 Conn. 557] 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 ...