Opinion
No. CR 06-00129932
August 5, 2007
MEMORANDUM OF DECISION RE MOTION TO SUPPRESS
On September 25, 2006, the defendant was arrested incident to a traffic stop in which he was a passenger in a motor vehicle. He is charged with possession of marijuana, possession of marijuana with intent to sell, and possession of drug paraphernalia in violation of General Statutes §§ 21a-279(c), 21a-278(b) and 21a-267. On November 2, 2006, the defendant filed a motion to suppress all evidence seized as the fruits of an illegal seizure.
The defendant's motion is based on the claim that the Connecticut state police trooper who seized the defendant had no reasonable and articulable suspicion to do so. Specifically, the defendant claims that the stop of the motor vehicle because a Christmas tree air freshener was hanging from the rear-view mirror, was illegal. Additionally, the defendant claims that even if the initial traffic stop was valid, his detention and search was improper. A hearing on this motion was held on December 15, 2006. Counsel for the state and defense submitted memoranda of law on January 12, 2007, and reply briefs on February 2, 2007.
The court makes the following findings:
The arresting officers, Trooper Halkett and Trooper Nicholson, are veterans of the Connecticut state police. On September 25, 2006, at approximately 6 p.m., the troopers were on patrol in Brooklyn, Connecticut as members of the Quality of Life Task Force. The troopers were focusing on the area of Quebec Square and in particular, Elm Street, considered to be a high-crime neighborhood. The target residence, 9 Elm Street, was known as "a narcotics house." Nine Elm Street is a multi-family dwelling which had been identified by concerned citizens and reliable confidential informants as a location around which the use and sale of marijuana was taking place. As Trooper Halkett approached 9 Elm Street, he noticed an older pickup truck with three occupants parked in front of the residence. The trooper was suspicious "as to why three individuals were sitting in a parked vehicle in front of [that] target residence" and observed, as he passed, "an obstructed view of the windshield" by way of a couple of air fresheners that were hanging from the rear-view mirror in violation of § 14-99f(c). Trooper Halkett circled the block in his unmarked police vehicle to approach the pickup truck from the left rear quarter and made eye contact with the three occupants, who were turned in their seats and observing him as he approached. As the distance closed, the pickup truck's reverse lights came on and the truck backed off the road into a parking lot adjacent to the residence. Trooper Halkett activated his emergency lights as the vehicle was backing into the parking space, made radio contact with his partner, Trooper Nicholson, and they simultaneously initiated a traffic stop. While the pickup was backing into the parking space, the front seat passenger and defendant, Diego Blanco, exited the vehicle and walked, almost jogged, quickly to the front door of 9 Elm Street, attempting to enter the residence. Both troopers pursued the defendant and told him to return. The defendant was intercepted by Trooper Nicholson and escorted back to the location of the pickup truck and Trooper Halkett's vehicle. He was directed to provide his name and identification and place his hands on the cruiser. The defendant provided the requested information but "became furtive in his movements," reaching into his pockets and the waistline of his pants. The trooper commanded him to place his hands on the hood of the vehicle and when he failed to comply, he was handcuffed. Trooper Halkett conducted an external patdown of the defendant for weapons and detected a large tubular, round item in his front left pants pocket, resembling a hard glass-type pipe or rolled marijuana cigarette. Trooper Nicholson approached with his assigned department canine, "Yuri," who alerted to the odor of controlled substances in the defendant's front right and front left pants pockets. A subsequent search located one marijuana cigarette, one "Fuzion" scale, $906 in cash and a cellular phone.
Troopers are assigned to the Quality of Life Task Force, at Troop "D" in Danielson. The task force is a form of community policing that works with concerned citizens in creative ways to reduce or prevent drug and alcohol abuse, inappropriate traffic activity and other "quality of life crimes."
I. LAWFULNESS OF THE TRAFFIC STOP
"An investigatory stop is authorized if the police officer had a reasonable and articulable suspicion that a person has committed or is about to commit a crime." (Internal quotation marks omitted.) State v. Dalzell, 96 Conn.App. 515, 524, 901 A.2d 706, cert. granted on other grounds, 280 Conn. 914, 908 A.2d 539 (2006), quoting State v. Bolanos, 58 Conn.App. 365, 368, 753 A.2d 943 (2000). "When a reasonable, articulable suspicion exists, the detaining officer may conduct an investigative stop of the suspect in order to confirm or dispel his suspicions." (Internal quotation marks omitted.) Id., quoting State v. Wilkins, 240 Conn. 489, 495, 692 A.2d 1233 (1997). "A police officer has the right to stop a motor vehicle operating on a Connecticut highway even if the reason for the stop is only an infraction under our traffic laws." (Internal quotation marks omitted.) Id., quoting State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1998). Attaching or affixing an article in a motor vehicle "in such a manner or location as to interfere with the operator's unobstructed view of the highway or to distract the attention of the operator" is an infraction that is clearly prohibited under Connecticut law. General Statutes § 14-99f(c).
Trooper Halkett testified that the air freshener did not obstruct the driver's view as he backed into the parking space, and would not have interfered with the view of on-coming traffic in the opposing lane or in front of the vehicle. It was placed at eye level, however, and would obstruct the view of passengers coming off the sidewalk.
Reasonable suspicion may rely on information less reliable than that required to show probable cause and it need not be correct. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
The constitutional reasonableness of a traffic stop does not depend on the officer's actual motive in conducting the stop. Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). It is irrelevant whether the officer may have had other subjective motives for stopping the vehicle. State v. Parker, 84 Conn.App. 739, 744-45, 856 A.2d 428 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1285 (2005). Applying the objective standard to these circumstances, there was a reasonable and articulable suspicion that a traffic violation occurred and the driver was violating § 14-99f(c). The initial investigatory stop, as a result, was justified.
II. DETENTION OF A PASSENGER DURING A TRAFFIC STOP
The defendant was intercepted by Trooper Nicholson at the front door of the target residence and returned to the scene of the traffic stop. He was directed to provide his name, to produce identification and to place his hands on the cruiser.
The central issue in this case is whether, upon legally stopping a vehicle for a traffic violation, it is reasonable for a police officer to immediately instruct a passenger to return to the scene when the passenger, of his own volition, abruptly exits the vehicle at the outset of the stop. As a preliminary matter, the court assumes the officer lacks reasonable suspicion to believe that the passenger is involved in criminal activity, or that the passenger is implicated in the traffic offenses for which the vehicle was stopped. The court has not found a case on point in Connecticut and has looked elsewhere.
The investigatory stop commenced at the time the officers simultaneously converged on the driver's vehicle with emergency lights flashing because a reasonable person would not have felt free to leave in this situation. State v. Donahue, 251 Conn. 636, 642-43, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S.Ct. 299, 148 L.Ed.2d 240 (2000).
It is well established that following a lawful traffic stop, the police may, as a matter of course, order the driver out of the vehicle pending completion of the stop without violating the protections of the fourth amendment. Pennsylvania v. Mimms, 434 U.S. 106, 111, CT Page 15142 98 S.Ct. 330, 54 L.Ed.2d 331 (1997). This per se rule of Mimms has been extended to the passengers of legally stopped vehicles even where the officer has no suspicion that the passenger has been involved in a crime. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). The Wilson court concluded that the same considerations of safety present when drivers are ordered to get out of a stopped vehicle outweigh the minimal intrusion on any passenger who is ordered out of a car that has been legally stopped for a traffic infraction. Id., 413. "[T]he fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer." Id. Moreover, "the motivation of a passenger to employ violence to prevent apprehension . . . is every bit as great as that of the driver." Id., 414.
In Wilson, the Supreme Court considered whether police officers can order the passengers out of a lawfully stopped vehicle under the fourth amendment, balancing the passenger's liberty interest with the public interest in officer safety. Id., 413-14. The Wilson court recognized that the passenger's liberty interests are stronger than the interests of the driver, because, although there is probable cause to stop the driver based on the traffic infraction, "there is no such reason to stop or detain the passengers." Id., 413. The court reasoned, however, that the additional intrusion was minimal because, "as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle," and thus, "[t]he only change in [the passengers'] circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car." Id., 413-14. The court held that the strong public interest in officer safety outweighed the minimal intrusion on a passenger's personal liberty interest. Id., 413-15.
Federal circuit courts that have addressed the issue post- Wilson have agreed that officers may detain passengers during a traffic stop whether by ordering the passengers to remain inside the automobile or by ordering the passengers to get back into the automobile that they voluntarily exited. See United States v. Williams, 419 F.3d 1029, 1032 (9th Cir.), cert. denied, 126 S.Ct. 840, 163 L.Ed.2d 715 (2005) (holding that a passenger's compliance with an officer's command to get back into the car in which the passenger had just exited is not an unreasonable seizure under the fourth amendment). See also Rogala v. District of Columbia, 161 F.3d 44, 53 (D.C. Cir. 1998); United States v. Moorefield, 111 F.3d 10, 13 (3rd Cir. 1997).
Williams sets forth a summary of the state courts that agree. United States v. Williams, supra, 419 F.3d 1032 n. 2: "See, e.g., CT Page 15143 Carter v. State, 229 Ga.App. 417, 494 S.E.2d 108, 109 (1997) (officer may order passengers to remain inside a lawfully stopped vehicle); State v. Webster, 170 Ariz. 372, 824 P.2d 768, 770 (1991) (officer may order passenger back inside a lawfully stopped vehicle); see also People v. Gonzalez, 184 Ill.2d 402, 235 Ill. Dec. 26, 704 N.E.2d 375, 382-83 (1998)[, cert. denied, 528 U.S. 825, 120 S.Ct. 75, 145 L.Ed.2d 63 (1999)] (`it is reasonable for a police officer to . . . instruct a passenger to remain at the car, when that passenger, of his own volition exits the lawfully stopped vehicle at the outset of the stop'); Harris v. Commonwealth, 27 Va.App. 554, 500 S.E.2d 257, 261 (1998) (`officers may . . . detain passengers beside an automobile until the completion of a lawful traffic stop'). But see, e.g., People v. Dixon, 21 P.3d 440, 445-46 (Colo.Ct.App. 2000) (passenger was unreasonably seized when ordered back into a vehicle that he voluntarily exited). Other state courts have held that an officer may not detain passengers who voluntarily attempt to exit the automobile unless it is supported by reasonable suspicion of dangerousness or criminal activity. Dennis v. State, 345 Md. 649, 693 A.2d 1150, 1152, cert. denied, Maryland v. Dennis, 522 U.S. 928, 118 S.Ct. 329, 139 L.Ed.2d 255 (1997) (passenger who attempts to walk away from traffic stop cannot be detained absent reasonable suspicion of dangerousness or criminal activity); Wilson v. State, 734 So.2d 1107, 1112 (Fla.Ct.App. 1999), review denied, 749 So.2d 504 (Fla. 1999), cert. denied, 529 U.S. 1124, 120 S.Ct. 1996, 146 L.Ed.2d 820 (2000) (same); Walls v. State, 714 N.E.2d 1266, 1267-68 (Ind.Ct.App. 1999) (same)."
The officers in the field who confront myriad circumstances must have the discretion to exercise reasonable control over the movements of people involved in a traffic stop in order to limit the risk of danger to themselves and the occupants of the car. Allowing a passenger or passengers to alight while an officer or officers conduct the traffic stop presents a potentially dangerous situation by splitting the officer's attention and enabling the driver and/or passengers to take advantage of a distracted officer. A bright-line rule is unnecessary. A consideration of all the facts is appropriate.
Here, the same risk of harm to police officers discussed in Mimms and Wilson is present. When the defendant attempted to exit the vehicle, the automobile was in the process of being lawfully stopped with him inside. The officer's order for him to return to the scene maintained the status quo by returning the defendant to his initial position. The only thing that changed was the location of the defendant. Because he had exited the vehicle, he was now positioned in front of the police vehicle. The difference between ordering the passenger to return inside the vehicle or remain outside, at the scene, is immaterial. The passenger abruptly left a moving vehicle in a high crime neighborhood to enter the target residence identified as a "narcotics house." His detention was not an unreasonable seizure.
An alternative analysis concerns the detention of passengers who have exited a vehicle when the driver of the vehicle has been stopped for minor traffic violations, and the officer had reasonable suspicion to believe that the passenger is involved in criminal activity. In such a case, the passenger may be detained for reasons independent of the traffic stop itself.
"Under the fourth amendment to the United States Constitution and article first, §§ 7 and 9, of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest. Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Terry v. Ohio, [ 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)]; State v. Mitchell, 204 Conn. 187, 194-95, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S.Ct. 293, 98 L.Ed.2d 252 (1987)." (Emphasis in original.) State v. Colon, 272 Conn. 106, 149, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).
"[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, supra, 392 U.S. 21 . . . In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity." (Internal quotation marks omitted.) State v. Colon, supra, 272 Conn. 149. The defendant argues that flight, standing alone, is not sufficient to engender reasonable suspicion on the part of a police officer. While unprovoked flight alone is not enough to justify a stop, the Supreme Court has held that flight upon noticing police, plus some other indicia of wrongdoing, can constitute reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 125-26, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). In Wardlow, flight plus presence in a high crime area justified the stop. The court explained that "the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior." Illinois v. Wardlow, supra, 528 U.S. 125.
A mere presence in an area known for high crime does not give rise to reasonable suspicion for a stop. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).
In this case, the defendant did not simply flee upon "noticing" the police. The defendant exited a moving vehicle during a lawful traffic stop and was attempting to enter a target residence known for narcotics activity. See United States v. Bonner, 363 F.3d 213, 215 (3rd Cir. 2004), cert. denied, 543 U.S 1058, 125 S.Ct. 868, 160 L.Ed.2d 783 (2005) (although flight alone is not enough to justify a police stop, flight from a nonconsensual, legitimate traffic stop in which the officers are authorized to exert superintendence and control over the occupants of the car, gives rise to reasonable suspicion). These facts are sufficient to support a reasonable suspicion for his detention.
III. SEARCH OF THE DEFENDANT
After the officer brought the defendant back to the car from the target house, the defendant became furtive in his movements and reached into his pocket and the waistband of his pants. When the officer directed the defendant to place his hands on the hood of the vehicle, the defendant failed to comply. These additional facts, coupled with the facts that justified his seizure, were sufficient to support a reasonable suspicion that the defendant was armed. See State v. Tuck, 90 Conn.App. 872, 879, 879 A.2d 553 (2005). The officer was justified in conducting an "external patdown" of the defendant for weapons, limited to a frisk of the outer clothing and pockets of the defendant. The search and detection of a large, tubular item in the defendant's front left pants pocket, resembling a hard glass-type pipe or rolled marijuana cigarette, was reasonable in scope. Once the officer felt what he reasonably believed to be contraband, he had probable cause to arrest the defendant and to conduct a full search of the defendant's person and to seize whatever contraband was found. State v. Trine, 236 Conn. 216, 223-24, 673 A.2d 1098 (1996).
The full search predicated upon the earlier frisk and alerting of the drug dog, was supportive by probable cause and was valid.
The use of a drug detecting dog in and of itself does not constitute a search. See Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct, 834, 160 L.Ed.2d 842 (2005) ("[g]overnmental conduct that only reveals the possession of contraband `compromises no legitimate privacy interest'"). Therefore, the use of the dog, with or without reasonable suspicion or probable cause, does not implicate the fourth amendment.
In summary, the court concludes the patrol officers in this case had a lawful basis to initiate a traffic stop and to order the defendant back to the patrol car. Upon effectuating the stop, the drugs were lawfully revealed. For the foregoing reasons, the motion to suppress is hereby denied.