United States District Court, D. Connecticut
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Natasha Freismuth, U.S. Attorney's Office, Hartford, CT,
for United States.
L. Frederick, Federal Public Defender's Office, Hartford,
CT, for Defendant.
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, 88 S.Ct.
1868, 20 L.Ed.2d 889 (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 is denied.
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
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
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 ...