United States v. Lopez

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          Natasha Freismuth, U.S. Attorney's Office, Hartford, CT, for United States.

          Tracy L. Frederick, Federal Public Defender's Office, Hartford, CT, for Defendant.

         RULING AND ORDER

         Robert N. Chatigny, United States District Judge.

         Johnathen 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.

         Proactive 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.

         The 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.^[1] I further conclude that Mr. Lopez's subsequent conduct in response to

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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.

         I. Background

         Officer 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.

         At 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.

         The parking lot where the two cars were parked is shown by the following Google satellite image.^[2]

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         As 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.

         The 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"

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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.

         Officer 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.^[3]

         In his 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 ...