State v. Lewis

         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

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          [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

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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

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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

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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."

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" 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

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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

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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 ...