United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY UNITED STATES DISTRICT JUDGE
Lopez is charged with unlawful possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1).
He has moved to suppress the firearm, a Glock pistol, on the
ground that it was taken from his vehicle in violation of his
right under the Fourth Amendment to be free from unreasonable
searches and seizures. An evidentiary hearing has been held.
The pistol was recovered during a search of Mr. Lopez's
vehicle in a parking lot in a “high-crime area.”
The parked vehicle, in which Mr. Lopez was seated, drew the
attention of officers performing a “proactive
patrol” of the area, and his reaction to their presence
prompted them to investigate. His subsequent failure to
cooperate led to a search of his vehicle and recovery of the
weapon. The parties dispute whether the officers' conduct
was lawful under Terry v. Ohio, 392 U.S. 1 (1968),
which authorizes police officers to conduct investigative
stops based on reasonable suspicion of criminal activity and
also authorizes pat-down searches when officers have reason
to think that the individual with whom they are dealing may
be armed and dangerous.
patrols in high-crime areas can lead to actions by police
officers that test the limits of their discretionary
authority under Terry. Motions to suppress give
courts an opportunity to try to clarify those limits in a
manner that provides helpful guidance to officers and reduces
the risk of violations of Fourth Amendment rights. This is an
important function, of course, but no court ruling can
eliminate the risk of unconstitutional conduct by patrol
officers. Officers engaged in proactive patrols are
necessarily vested with discretion when interacting with
individuals on the street; street encounters are not always
videotaped or witnessed by third parties; and in a swearing
contest at a suppression hearing, the testimony of the police
officer who recovered the evidence is apt to seem more
credible than that of the person seeking its suppression.
Thus, it is the individual officer's commitment to act
honestly and in good faith at all times that provides the
ultimate safeguard of constitutional rights.
importance of an officer's honesty and good faith to the
protection of Fourth Amendment rights is highlighted by cases
like the present one, in which the witnesses' accounts of
the key facts diverge dramatically. Having considered the
testimony of the witnesses at the evidentiary hearing in
light of the record as a whole, I find the officer's
testimony more credible than that of the defendant, Mr.
Lopez. Accepting the officer's version as more likely
true than not true on the record before me, I conclude that
Mr. Lopez's reaction to the officer's presence
justified a Terry stop. I further conclude that Mr.
Lopez's subsequent conduct in response to the
officer's approach to his vehicle - most significantly,
his persistent refusal to comply with lawful orders -
provided a sufficient basis under the principles of
Terry to remove him from the vehicle and conduct a
protective search of the area of the passenger compartment
where the gun was found. Accordingly, the motion to suppress
Juan Rivera, the arresting officer and the government's
principal witness, is a member of the Street Crimes Unit of
the Waterbury Police Department, which is assigned to address
“quality of life issues, ” such as
“weapons, narcotics, [and] prostitution” by
“proactive patrols.” On the night of April 27,
2018, Rivera and another officer, Officer Hoffler, were
patrolling Gilyard Drive in Waterbury. This area is the
source of frequent complaints to the Waterbury Police
Department, but Rivera and Hoffler were not responding to any
particular complaints that night. The officers were in an
unmarked patrol car, but both were in uniform, and Rivera
testified that the unmarked Crown Victoria he was driving was
commonly recognized as a police vehicle.
about 9:00 PM, Officer Rivera's attention was drawn to
two vehicles - a black Honda and a red Chevy Impala - parked
next to each other in a parking lot next to Gilyard Drive not
far from an apartment building known for drug activity. Each
car was parked facing outward. Rivera testified that the
Honda's engine was running, but he could not recall if
the Impala's was as well. Rivera's training and
experience led him to suspect that the cars' occupants
were conducting a drug deal. As he explained at the
evidentiary hearing, “parking lots like that are
commonly used to conduct drug sales, ” and
“[m]ost individuals that conduct drug sales will often
back into the spot” in order to be able to “flee
the scene quickly instead of backing up” in the event
police arrive in the area.
parking lot where the two cars were parked is shown by the
following Google satellite image.
depicted in the photo, the parking lot is small, with a
single narrow opening onto Gilyard Drive, which serves as the
only entrance and exit. Using the photo as a guide, Rivera
testified that the Honda and Impala were parked on the lower
side of the lot near the entrance/exit, such that when he
turned left into the lot from Gilyard Drive, the two cars
were almost immediately on his left. Government's Exhibit
2 demonstrates that Lopez's car, the black Honda, was in
the second parking spot from the entrance, with the Impala
one spot deeper into the lot. See Tr. 57:22-24;
Gov't Exh. 2.
parties' versions of what happened are irreconcilable.
The government's version is summarized in Rivera's
police report of the incident and described in greater detail
in his hearing testimony. According to the officer, as he
drove past the Black Honda, he “saw Lopez notice the
police vehicle, quickly reach towards his waistband, and
place his driver's side seat back while placing an item
in the rear passenger side of the vehicle.” Govt. Ex.
10 (incident report). Rivera knew from his training and
experience that people who “possess weapons will often
carry them in their waistband area and will quickly try to
discard them once they notice the police presence to avoid
arrest.” Accordingly, he stopped and exited his police
vehicle to investigate. As he approached Lopez's vehicle,
he told Lopez in a loud voice, “Show me your hands,
” but Lopez did not comply. Instead, Lopez continued to
reach with his right hand behind the front passenger seat.
Rivera feared that Lopez could have a weapon and therefore
opened the driver's door while telling Lopez to stop
moving and show his hands. Lopez ignored these commands.
Rivera grabbed Lopez's left hand and applied pressure to
his bent wrist to force him to comply. Rivera's use of
this “pain compliance technique” was successful.
Lopez was handcuffed, removed from the vehicle and placed in
the back of the cruiser. Rivera then returned to Lopez's
vehicle and looked behind the front passenger seat, where he
found the Glock pistol.
Rivera's police report makes no mention of his use of a
flashlight, and the defendant relies on this omission as a
basis for discrediting Rivera's entire account. The
parties agree that it was too dark for the officers to see
the interior of Lopez's vehicle without a flashlight.
However, at the hearing, Rivera credibly testified that he
used a flashlight throughout the encounter. He testified that
as he drove past Lopez's car, he shined a flashlight
through Lopez's windshield. Tr. 17:5-10. Lopez reacted
with a “surprised face, ” then made the movements
described above. Tr. 17:5-10.
testimony at the hearing, Lopez provided the following
version of the events. He was parked in the lot because he
knew somebody who lived in a nearby apartment. Before the
police arrived, he had been talking or arguing with people in
the Impala. He then “shut the car off, ”
“rolled up the window, ” and “just laid
back.” Tr. 69:25-70:4. His driver's seat was deeply
reclined, which is the way he always kept it even while
driving. The Glock pistol was never in his waistband. He
thought it would be dangerous to keep the pistol in his
waistband because he had been led to believe that the pistol
had no safety. Tr. 70:22-71:7; see also Tr. 81:11-16
(Lopez responding to government's assertion that a Glock
has three internal safeties by saying “I believe they
don't have any safeties”). Rather, he kept the gun
under the front passenger seat where it could not be seen.
Tr. 71:8-11. Lopez “didn't see the officers drive
up, ” Tr. 74:6, and was unaware of their presence until
Rivera banged on the side of his window while yelling. Tr.
70:4-7. Rivera did not have a flashlight. Tr. 70:12-13. Lopez
opened the driver's door and Rivera immediately
“grabbed [him] and bent [his] wrist.” Tr.
70:14-18. Lopez at no time made any movement toward the rear
passenger compartment of his car. Tr. 70:19-21.
issue presented by the motion to suppress is whether the
officers violated Mr. Lopez's Fourth Amendment right to
be free from unreasonable searches and seizures. In his
memorandum, Mr. Lopez argues that the officers conducted a
Terry stop “without probable cause and without
any reasonable suspicion of a crime being committed.”
Def. Mem. (ECF No. 54), at 1. The government maintains that
“the totality of the circumstances gave rise to a
reasonable suspicion that Lopez was reaching for a weapon or
attempting to conceal something illegal in his vehicle . . .
sufficient for officers to conduct an investigatory detention
to explore further in either confirming or dispelling their
suspicions.” Gov't Mem. (ECF No. 55) at 7.
the Fourth Amendment, “the ultimate measure of the
constitutionality of a government search or seizure is
reasonableness.” United States v. Bailey, 743
F.3d 322, 331 (2d Cir. 2014)(internal quotations omitted).
The reasonableness of a search or seizure is “generally
determined by balancing “the particular need to search
or seize against the privacy interests invaded by such
action.” Id. (citing Terry, 392 U.S.
Terry, the Supreme Court addressed the interests
involved in an investigative detention of a person suspected
of criminal activity. Under Terry, “an officer
may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)
(citing Terry, 392 U.S. at 30). Terry also
permits a pat-down, or frisk, of a detainee's outer
clothing for the presence of a weapon as a protective measure
if the officer has an articulable suspicion that the
individual is armed and dangerous. See Terry, 392
U.S. at 28; Arizona v. Johnson, 555 U.S. 323, 326-27
(2009)(pat-down of passenger during traffic stop justified if
officer has reasonable basis to think person stopped is armed
Michigan v. Long, 463 U.S. 1032 (1983), the Supreme
Court extended the principals of Terry to permit an
officer to conduct a protective search of the passenger
compartment of a vehicle for weapons when the officer has a
reasonable basis to think the individual with whom he is
dealing is armed and potentially dangerous. See id.
at 1051-52 (officers conducting Terry investigation
did not act unreasonably in searching passenger compartment
for weapons before permitting suspect to reenter vehicle).
suspicion to conduct a Terry stop exists when a law
enforcement officer can ‘point to specific and
articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the
intrusion.'” United States v. Bell, 733
Fed. App'x 20, 21 (2d Cir. 2018) (quoting Terry,
392 U.S. at 21 (alteration omitted)). A Terry stop
is not necessarily unreasonable even if the facts available
suggest “less than a fair probability of
wrongdoing.” Id. An officer need only have a
“reasonable basis to think that the person to be
detained ‘is committing or has committed a criminal
offense.'” Bailey, 743 F.3d at 332
(quoting Johnson, 555 U.S. at 326). In reaching this
conclusion, an officer is “entitled to draw on his own
experience and specialized training to make inferences”
but may not “rely on an inchoate and unparticularized
suspicion or hunch.” United States v. Padilla,
548 F.3d 179, 187 (2d Cir. 2008). In determining whether an
officer had reasonable suspicion warranting a Terry
stop, a court “must consider the totality of the
circumstances surrounding the stop” and “evaluate
those circumstances through the eyes of a reasonable and
cautious police officer on the scene, guided by his
experience and training.” United States v.
Bayless, 201 F.3d 116, 133 (2d Cir. 2000) (internal
citations and quotation marks omitted).
Findings of Fact
considering the record evidence, and having had an
opportunity to assess the credibility of the witnesses, I
think Officer Rivera's testimony concerning the relevant
events is more credible than that of Mr. Lopez. Crediting
Rivera's testimony concerning the disputed issues of
material fact, I make the following findings of fact:
- Rivera's attention was drawn to Lopez's vehicle for
the reasons he described (the hour, the location, the manner
in which the two cars were parked, and the fact that the