Opinion
No. CR-05-41881S
February 10, 2006
MEMORANDUM OF DECISION
The defendant, Lemuel DeValle, filed a motion to suppress certain narcotics which he claims were seized illegally during a warrantless pat-down search of his person. The court held a suppression hearing on the motion on August 31, 2005, during which the following facts were adduced. On April 28, 2005, at approximately 9:56 p.m., Trooper Wiener of the Connecticut state police was responsible for patrolling the Interstate 95 corridor between Guilford and East Lyme, including the Interstate 95 rest areas. When Wiener entered the Madison rest area, he noted the presence of a Ford Expedition sport utility vehicle parked horizontally along a painted yellow curb in a lit area adjacent to the McDonald's restaurant drive-through. The car was not parked between the white lines. The vehicle had tinted windows that were rolled up, the lights were off and it appeared to be unoccupied. Wiener pulled past the vehicle and began to run a check on its license plate. Wiener observed, prior to completing the license plate check, a Hispanic male exit the McDonald's restaurant, stop and look at him, freeze for a moment and then quickly proceed to the vehicle, enter it and begin to pull away. Wiener pulled the vehicle over to complete the license plate check and to issue a ticket for illegal parking. Wiener then activated his cruiser's mobile video recorder and his body microphone, allowing him to record all visual and audio events transpiring in front of his cruiser. (State's Exhibit #7.)
As Wiener approached the vehicle, he observed the defendant in the driver's seat and a female in the passenger seat. Prior to Wiener asking the defendant for identification, the defendant handed Wiener one valid and one expired driver's license. Wiener testified that he observed the defendant's hands shaking, his forehead beading with sweat and his chest pounding. Wiener then asked the defendant to exit the vehicle. The defendant was in an elevated position and Wiener could not see his hands and was concerned if the defendant had a weapon. The defendant complied, leaving the driver's side door open. The defendant followed Wiener to the rear of the defendant's vehicle, and Wiener proceeded to ask the defendant what he had been doing in the area and where he had come from. Wiener testified that the defendant replied nervously, indicating that he was driving home from a visit with relatives in the Bronx, New York. Wiener indicated that the defendant was evasive and failed to answer more specific questions regarding his day's activities.
The defendant was wearing jean shorts and a thick down coat even though it was April 28. Wiener testified that he observed feathers falling out of a hole in the defendant's coat and that he became concerned that the defendant could conceal a weapon there. At this point, Wiener, out of concern for his safety, conducted a pat-down search of the defendant and discovered a knife in the defendant's pants pocket. As the pat-down continued, Wiener grabbed the coat in the area near the hole in the defendant's coat, and he immediately felt what he believed to be packets of street-level narcotics. Wiener, from specialized narcotics training and field experience, knew the feel of packaged narcotics. Upon said discovery, Wiener instructed the defendant to remove his jacket. Wiener testified that the defendant dropped his coat halfway down his shoulders and started to walk by him. Wiener then took hold of and completely removed the coat on his own.
While Wiener proceeded to remove the drugs from the hole in the coat, the defendant started walking toward the open door of the vehicle. Wiener ordered the defendant back to the rear of the vehicle. Subsequently, the defendant again began walking in the direction of the open door. Wiener ordered the defendant to the ground and began to detain him. The defendant, however, broke free, grabbed his coat and ran, pulling plastic bags from the hole in the coat and throwing them to the ground. Wiener apprehended the defendant and ascertained that the plastic bags contained heroin. Wiener then searched the hole in the jacket and discovered 200 additional bags of heroin. The total amount of heroin seized was 597 bags.
The defendant was arrested and charged with improper parking in violation of General Statutes § 14-251, possession of narcotics in violation of General Statutes § 21a-279a, possession of narcotics with intent to sell in violation of General Statutes § 21-278b, interfering with a police officer in violation of General Statutes § 53a-167a and tampering with evidence in violation of General Statutes § 53a-155.
The defendant moves to suppress the seized narcotics on the ground that the seizure of the defendant and subsequent warrantless search of his jacket were unreasonable under the fourth and fourteenth amendments to the United States constitution and article first, §§ 7 and 9, of the Connecticut constitution. Specifically, the defendant argues that: (1) his detention was unwarranted because Wiener did not possess a reasonable and articulable suspicion that a crime had been or was about to be committed; (2) the pat-down of his person was unwarranted because Wiener did not have a reasonable suspicion or probable cause to suspect that the defendant was presently armed and dangerous; (3) Wiener's search of the defendant exceeded the scope of a "patdown" under Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (4) the exclusionary rule and the fruit of the poisonous tree doctrine require suppression of all evidence obtained during and subsequent to the stop and seizure.
The defendant first argues that the initial stop of the defendant's vehicle was not legally justified because he was not improperly parked pursuant to General Statues § 14-251. Specifically, the defendant argues that he was not on a "traveled portion" of the highway, he was not impeding the flow of traffic, and there were no signs or markers indicating that the area was a no parking zone. Because a rest stop falls within the definition of "highway" under § 14-251, Wiener was legally justified to stop the defendant's vehicle.
"When construing a statute, we first look to its text, as directed by General Statutes 1-2z, which provides: [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Genesky v. East Lyme, 275 Conn. 246, 253-54, 881 A.2d 114 (2005). Section § 14-251 provides in relevant part that "[n]o vehicle shall be permitted to remain stationary . . . upon the traveled portion of any highway except upon the right-hand side of such highway in the direction in which such vehicle is headed; and, if such highway is curbed, such vehicle shall be so placed that its right hand wheels, when stationary, shall, when safety will permit, be within a distance of twelve inches from the curb. The Commissioner of Transportation may post signs upon any highway at any place where the keeping of a vehicle stationary is dangerous to traffic and the keeping of any vehicle stationary contrary to the directions of such signs shall be a violation of this section." General Statutes § 14-1(a)(37) defines highway as "any state or other public highway, road, street, avenue, alley, driveway, parkway or place under the control of the state or any political subdivision of the state, dedicated, appropriated or opened to public travel or other use." Rest areas, being "under the control of the state" and "appropriated . . . to public travel" fit squarely within the statutory definition of highway. Therefore, based on Wiener's testimony that the defendant was impeding traffic while parked, his initial stop was legally justified under § 14-251.
The defendant next argues that his initial detention was unwarranted because Wiener did not have a reasonable suspicion or probable cause to suspect that the defendant has committed or was about to commit a crime. "Under Terry . . . an officer may forcibly stop a suspect and engage in a `stop and frisk' investigation if the officer has a reasonable and articulable suspicion that the suspect has committed or is about to commit a crime." State v. Czyzewski, 70 Conn.App. 297, 303 n. 7, 797 A.2d 643, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). "When considering the validity of a Terry stop, [the court's] threshold inquiry is twofold . . . First, [the court] must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure . . . Next, [i]f [the court concludes] that there was such a seizure, [the court] must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred." State v. Santos, 267 Conn. 495, 505, 838 A.2d 98 (2004).
In determining whether a seizure took place within the meaning of article first, §§ 7 and 9, of the constitution of Connecticut, the Connecticut Supreme Court has "defined a person as seized under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained . . . In determining the threshold question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard. Under our state constitution, a person is seized only if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave . . . Therefore, [w]hether there has been a seizure in an individual case is a question of fact." State v. Santos, supra, 267 Conn. 503-04. In the present case, the defendant, or any other reasonable person, would not have felt free to leave once Wiener pulled the defendant over for a parking violation and asked the defendant to exit his vehicle. Therefore the defendant was seized.
"Under the fourth [and fourteenth amendments] to the United States constitution and article first, §§ 7 and 9, of [the Connecticut] 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 . . . [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 . . . 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." State v. Santos, supra, 267 Conn. 505; see also Terry v. Ohio, supra, 392 U.S. 21-22. "Any inquiry into the permissible justification for, and boundaries of, a particular investigatory detention and patdown search is necessarily factbound." State v. Trine, 236 Conn. 216, 224, 673 A.2d 1098 (1996); see also Terry v. Ohio, supra, 392 U.S. 29.
The defendant contends that the factors considered by Wiener in detaining him did not amount to a reasonable and articulable suspicion. However trooper Wiener was aware of the following facts at the time of the investigatory detention and pat-down of the defendant that give rise to a reasonable and articulable suspicion: (1) Wiener observed the defendant's vehicle parked illegally; (2) Wiener observed the defendant look at him, hurry to his vehicle, and then attempt to pull away; (3) once stopped, the defendant gave Wiener both a valid driver's license and an expired one; (4) Wiener observed that the defendant was sweating and nervous; (5) he also observed that the defendant was evasive when asked simple questions; (6) Wiener observed that the defendant wore a thick down coat on April 28; and (7) the coat had a hole in its inseam that could be used to conceal a weapon. "In determining the legality of a Terry stop, [the court does] not look at each fact in isolation, but at the totality of the circumstances presented to the police at the time they detain an individual." State v. Gregory, 74 Conn.App. 248, 257, 812 A.2d 102 (2002), cert. denied, 262 Conn. 948, 817 A.2d 108 (2003). "The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the reaction of the suspect to the approach of police are all facts which bear on the issue of reasonableness." State v. Wylie, 10 Conn.App. 683, 687, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987). On the basis of the totality of the circumstances presented to Wiener and applying an objective standard, Wiener had a reasonable and articulable suspicion for the investigatory detention. Wiener did not act upon a hunch, speculation or pretext when he conducted the investigatory detention of the defendant. Wiener acted upon his reasonable suspicion, sufficiently articulated in his testimony and objectively supported by the circumstances surrounding his encounter with the defendant.
The defendant next argues that Wiener was not legally justified in conducting a pat-down search of the defendant during the course of his investigatory detention. The Connecticut Appellate Court has stated that "[d]uring a Terry detention, the police may conduct a [patdown] search to locate weapons if they reasonably believe that the suspect may be armed and dangerous . . . Suspicious conduct during a Terry stop, including flight at the approach of officers and a refusal to comply with officers' instructions, are other integral factors that will justify a [patdown] for weapons." State v. Gregory, supra, 74 Conn.App. 261; see also Terry v. Ohio, supra, 392 U.S. 20-27. The defendant argues that a pat-down search was not justified because he was fully cooperative when pulled over and ordered to exit the vehicle by Wiener. Once exiting the vehicle, though, Wiener indicated that he observed the defendant wearing a thick down coat in late spring, and that feathers were falling out of a hole in the coat's lining, which Wiener was concerned could be used to conceal a weapon. "[T]he public interest is not served by allowing a [factfinder] with the benefit of 20/20 hindsight to second-guess the exercise of a policeman's discretionary professional duty." Glorioso v. Police Department, 49 Conn.Sup. 200, 206, 867 A.2d 160 (2004). "[The Connecticut courts] again use an objective standard in determining whether a police officer had a particularized basis for suspecting whether an individual should be patted down for weapons." State v. Gregory, supra, 74 Conn. App. 261. Viewed by this objective standard, a reasonably prudent officer would have been warranted in the belief that either his safety, or the safety of others, was in jeopardy. Trooper Wiener's pat-down of the defendant was justified.
The defendant argues in the alternative that even if Wiener's pat-down search was legally justified, he exceeded the scope of a pat-down while grabbing and removing the jacket from the defendant. The state counters that Wiener could not ensure his own safety by patting the defendant down with an open hand because the defendant was wearing a puffy down coat; therefore, a weapon could easily escape detection if Wiener only used an open hand pat-down. "According to Terry, where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous . . ." State v. Gregory, supra, 74 Conn.App. 261. Here, the defendant wore a large, puffy jacket that Wiener had a reasonable and articulable suspicion contained a weapon. Under the facts adduced at the suppression hearing, Wiener conducted a pat-down search of the defendant that was reasonable under the circumstances.
Wiener further testified that in conducting his pat-down search, he felt what he immediately knew to be packaged narcotics, based on his specified experience and training. "In State v. Trine, supra, 236 Conn. 228-29, this court considered the plain feel exception to the fourth amendment warrant requirement as set forth in [ Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)], and recognized the applicability of that exception to the warrant requirement of article first, § 7, of the state constitution. We held that `[t]he fundamental premise of [ Dickerson] is that a police officer's tactile perceptions, formed during a lawful patdown search, in appropriate circumstances may provide the officer with probable cause to believe that an object felt during the search is nonthreatening contraband."
State v. Clark, 255 Conn. 268, 287-89, 764 A.2d 1251 (2001). Therefore, once Wiener lawfully discovered what he immediately recognized to be contraband under the "plain feel" doctrine, he had probable cause to expand the scope of his search and fully remove the defendant's jacket. Accordingly, the defendant's Motion to Suppress is denied.