Opinion
No. F02B-MV07-0041283-0
November 12, 2008
MEMORANDUM OF DECISION
On June 30, 2007, the defendant, Keith K. Cronin ("Defendant" or "Cronin"), was arrested and charged with operating a motor vehicle under the influence of alcohol in violation of Section 14-227a of the Connecticut General Statutes. On July 9, 2008, the defendant moved to suppress any and all evidence of his alleged intoxication obtained on June 30, 2007, as a result of what he alleges was an illegal stop and/or unlawful detention by the Milford Police Department. Specifically, the defendant claims that the police officer conducting the initial stop lacked reasonable articulable suspicion to stop his vehicle and, even if the court finds he had authority to initiate the stop, he unlawfully detained the defendant upon completion of the purpose for the initial stop.
PROCEDURAL BACKGROUND
In support of his motion, defendant filed a memorandum of law, dated July 9, 2008. The state filed its memorandum of law in opposition to the motion on August 1, 2008. On October 10, 2008, the court conducted an evidentiary hearing and heard testimony from two police officers called by the state, namely Officer Gallagher and Sergeant Sharoh of the Milford Police Department. The defendant chose not to testify or call any witnesses. At the conclusion of the hearing, the court heard oral argument from counsel.
FINDINGS OF FACT
The court finds the following facts by a fair preponderance of the evidence. On June 30, 2007, at approximately 10:50 p.m. Officer Gallagher was on patrol in her cruiser traveling northbound on Pond Point Avenue heading towards Milford Center. Officer Gallagher observed a dark-colored sports utility vehicle ("S.U.V.") traveling south on Pond Point Avenue that was swerving and crossing over the double yellow lines. As the officer continued down the road she came upon an accident scene within approximately 30 seconds of passing the S.U.V. The accident had just occurred and witnesses reported that their car was struck by a dark-colored S.U.V. After securing the scene and ensuring that no one was injured, Officer Gallagher broadcast over the Milford Police radio a request for assistance in locating an evading vehicle which she described as a dark-colored S.U.V. The radio call occurred approximately 5 to 10 minutes after her arrival on the scene. While one of the occupants of the car reported that the car "could possibly have been a Ford Explorer" and Officer Gallagher noted it in her report, the description she recalled giving over the radio was "a dark colored S.U.V. with possible front end damage and a possible headlight being out . . . traveling southbound on Pond Point Avenue." Transcript at pp. 12 and 14-15.
The location of the accident was close to the intersection of Pond Point Avenue and Pauline Street, which is approximately a couple of blocks from New Haven Avenue. Pond Point runs in the North/South direction and New Haven Avenue runs in the East/West direction. A vehicle traveling south on Pond Point Avenue can return to New Haven Avenue by using several side streets or by continuing south on Pond Point Avenue until it turns and reconnects with New Haven Avenue.
Sergeant Sharoh has been a police officer with the Milford Police Department for approximately 16 years. Prior to becoming a police officer he received training pertaining to law enforcement, specifically motor vehicle statutes and conducting motor vehicle stops. He is trained in accident reconstruction and is the sergeant in charge of the traffic division. In addition, Sergeant Sharoh has received specialized training in conducting investigations of individuals suspected of driving under the influence of alcohol or drugs ("D.U.I.") and has arrested 25 to 50 individuals on such charges in the past. He has received training on what characteristics to look for to determine if someone is intoxicated or under the influence of drugs. According to Sergeant Sharoh, depending on the level of intoxication, the amount of time it takes to identify an individual as possibly being under the influence of alcohol can vary from seconds to a longer encounter. Among the characteristics that an officer can look for are slurred speech, glassy appearance, fumbling or dexterity issues, odor of alcohol and balance.
On June 30, 2007, Sergeant Sharoh was working the evening shift and patrolling the area referred to as Bureau of Woodmont patrol. Shortly before 11:00 p.m., Sergeant Sharoh received a broadcast for a hit and run accident at a location approximately a mile and a half from the fringe of his patrol area. Sergeant Sharoh also recalled the evading vehicle being described as a dark-colored S.U.V. with possible front-end damage.
Sergeant Sharoh positioned his police cruiser at Chapel Street and New Haven Avenue, approximately one and a half mile from the accident scene. Approximately 10 minutes after receiving the broadcast (15 to 20 minutes after the accident), Sergeant Sharoh observed the defendant's vehicle, which appeared to be a dark-colored S.U.V. traveling eastbound on New Haven Avenue from the direction of the accident. Transcript at pp. 37-38. Due to lighting conditions and the vehicle moving, he could not determine if there was front-end damage on the vehicle. Transcript at pg. 40. Based on the proximity of time and distance to the accident and the vehicle's similar appearance to that broadcast over the radio, Sergeant Sharoh conducted an investigative stop. Transcript at pp. 38-39. Sergeant Sharoh followed the vehicle for a couple of blocks and activated the overhead lights to pull it over. The defendant was not speeding or driving erratically.
The court credits Sergeant Sharoh's testimony that he is not familiar with the variations in shape, size and weight of different types of Sports Utility Vehicles ("S.U.V.").
Following standard police procedure, Sergeant Sharoh informed the communication center that he was stopping a vehicle and gave the plate number and location of the vehicle. The defendant was driving a grey-colored Chevrolet Suburban. Sergeant Sharoh approached the driver and requested that he turn the car off so he could check the vehicle for any damage consistent with the accident. This conversation took approximately 10 seconds.
Even assuming at some point a description of the suspect vehicle as a "dark colored Ford Explorer" was given over the radio, a possibility Officer Gallagher could not rule out, Sergeant Sharoh testified that under the lighting conditions that evening and his knowledge of cars, he could not have differentiated between a Ford Explorer and Chevrolet Suburban.
After walking around the vehicle for approximately 10-15 seconds and determining that there was no damage on the vehicle, Sergeant Sharoh approached the driver to explain further the purpose for the stop, thank him for his cooperation and tell him he was free to leave. During this conversation, which was approximately 30 to 60 seconds in duration, Sergeant Sharoh first noticed the defendant's slurred speech, an odor of alcohol and a glassy appearance to his eyes. Suspecting the defendant was under the influence of alcohol, Sergeant Sharoh asked further questions about the defendant's consumption of alcohol. The defendant indicated he had been drinking alcohol at a party but declined to identify the location.
Both Sergeant Sharoh and Officer Gallagher testified that it was standard procedure to approach a vehicle stopped for an investigatory stop, such as this one, to explain the purpose for the stop and to thank the driver or occupants for their cooperation.
Suspecting defendant was operating a vehicle under the influence of alcohol, Sergeant Sharoh requested assistance from a specialized DUI unit that was working that evening. A sergeant from that unit arrived within a couple of minutes and, at that time, the defendant was asked to exit his vehicle. The defendant participated in three roadside sobriety tests, including horizontal gaze nystagmus, nine-step walk and run test and a one-legged 30-second stand. Defendant was subsequently arrested and charged with operating under the influence in violation of Conn. Gen. Stat. § 14-227a.
Additional facts found by the court are set forth below where necessary.
DISCUSSION I. Applicable Law
"Under the fourth amendment of the United States Constitution and Article First, Sections 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 under limited circumstances." State v. Lipscomb, 258 Conn. 68, 75, 779 A.2d 68 (2001) citing, Alabama v. White, 496 U.S. 325, 330-31, 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). Whether an investigatory stop is constitutional requires a two-prong test.
First the court must determine whether a seizure occurred. A seizure occurs when "by means of physical force or a show of authority, his freedom of movement is restrained." State v. Burroughs, 288 Conn. 836, 844 (2008). It calls for an objective inquiry of whether a reasonable person under the circumstances "would have believed that he was not free to leave." Id. at 846; see also, State v. Ostroski, 186 Conn. 287, 291 (1982); United States v. Mendenhall, 446 U.S. 544, 554 (1980).
Secondly, the court must determine whether the officer had reasonable and articulable suspicion of criminal activity to justify the seizure. "Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion." Lipscomb, supra, 258 Conn. 75, quoting, State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994), State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d. 1005 (1981). In making this assessment, the court should consider, "the specific information available to the officer at the time of the initial intrusion and any rational inferences to be derived therefrom," to determine if particularized and objective basis for suspecting the particular individual stopped of criminal activity. Lipscomb, supra, 258 Conn. 76.
Finally, the "scope of [an investigative] detention must be carefully tailored to its underlying justification [and the] investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." State v. Jenkins, 104 Conn. 417, 426, 934 A.2d 281 (2007), quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Thus, an investigative stop that is initially justified may become unconstitutional if unduly prolonged or intrusive beyond what would be necessary to complete the investigation for which the stop was initiated. Jenkins, supra, 104 Conn. 426. Whether a stop impermissibly exceeds its initial scope requires a "fact-bound inquiry." Id.; see also Mitchell, supra, 204 Conn. 197. "If the officer's suspicions are confirmed or further aroused" the detention may be prolonged and the scope expanded as circumstances require. Mitchell, supra, 204 Conn. 197.
II. Reasonable and Articulable Suspicion to Initiate Investigatory Stop
The parties do not dispute that a seizure occurred when Sergeant Sharoh activated his overhead lights to pull the defendant over to determine if his car was involved in the accident. Under the circumstances presented here there is no question that a seizure occurred once the defendant's car was pulled over by Sergeant Sharoh. See State v. Donahue, 251 Conn. 636, 643, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S.Ct. 299, 148 L.Ed.2d 240 (2000) (seizure occurred once the officer activated his red, yellow, and blue flashers and pulled the defendant's vehicle).
Defendant claims that the Sergeant lacked reasonable and articulable suspicion to initiate the stop because his vehicle was slightly larger and weighed a thousand pounds more than a Ford Explorer S.U.V. described by one of the witnesses as the possible suspect vehicle. However, the majority of the witnesses described the vehicle as a dark-colored S.U.V. and that was the description that was broadcast over the radio. Further defendant points to the passage of time and distance from the alleged accident as evidence that the Sergeant lacked reasonable and articulable suspicion. As noted by Sergeant Sharoh, in his experience, it is not uncommon for a driver involved in a hit and run to pull over at a location away from the accident scene but in the general area to observe the vehicle for damage.
Given the description of the vehicle as a dark-colored S.U.V. and its proximity to the accident scene within 15 to 20 minutes of the accident, Sergeant Sharoh was justified in conducting an investigative stop of defendant's vehicle. See Mitchell, supra, 204 Conn. 196 ("the existence of discrepancies between the victim's description [of the suspects and their car] and the actual appearance of the defendants `does not in and of itself vitiate the reasonable suspicion created by the similarities' ") quoting, State v. Mitchell, 7 Conn.App. 46, 60, 507 A.2d 1017 (1986) ("Reasonable suspicion has `never required precise correlation between a victim's description and the actual appearance of a suspect"); see also, State v. Cofield, 220 Conn. 38, 48, 595 A.2d 1349 (1991) ("The presence of discrepancies in an informant's account does not necessarily undermine the reasonable suspicion of the police"); State v. Lamme, 216 Conn. 172, 184, 579 A.2d. 484 (1990) (after hearing police broadcast of vehicle driven by intoxicated individual, police stopped a vehicle matching the description that was driving without its headlights on). While one witness may have described the evading vehicle as possibly being a dark-colored Ford Explorer S.U.V., the evidence does not establish that level of specificity used over the radio broadcast.
Even if that had been the description given, it would not amount to a significant discrepancy between the broadcast description and defendant's vehicle. Given the timing, proximity to the accident scene, lighting conditions and overall similarities between defendant's S.U.V. (a Chevrolet Suburban) and a dark-colored S.U.V. (Ford Explorer), Sergeant Sharoh had reasonable articulable suspicion to conduct an investigative stop.
III. Duration of Investigatory Stop
Defendant further claims that, even if the initial stop was justified, it was unduly prolonged, leading Sergeant Sharoh to further suspicions that would otherwise not have been detected. Relying on Jenkins, supra, 104 Conn.App. 417, defendant claims that once the officer determined his vehicle did not have damage and was not involved in the hit and run accident, he should have released him by waving him away from a distance rather than approaching his window to accomplish the same result. Sergeant Sharoh's conduct in approaching the driver's window after walking around the car to inspect it for damage was not unreasonable or intrusive.
In determining whether a stop is "too long in duration to be justified as an investigative stop, [it is considered] appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Mitchell, supra, 204 Conn. 198 (citations omitted) (thirty-nine-minute detention held reasonable). The Sergeant took approximately 10 seconds to explain the request to turn the car engine off, 10 to 15 seconds to walk around the vehicle and another 30 to 60 seconds to explain the purpose of the stop and thank the defendant for his cooperation. In total, but for the new suspicions, the stop would have taken one to one and a half minutes to complete.
Nor was it unreasonable for Sergeant Sharoh to return to the driver's window, after inspecting the vehicle, to explain the purpose for the stop, thank the defendant for his cooperation and advise him he was free to leave. See Burroughs, supra, 288 Conn. 854 ("Clearly in the ordinary course of a police officer's performance of his duty to guard the public safety and welfare, there is much laudable interaction between the officer and citizenry. Such positive discourse and conscientious policing should not be stifled in the absence of a showing of some `arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.' "). It is not intrusive or unreasonable for an officer to terminate a stop in the same manner in which it was initiated, by approaching the driver and engaging him or her in conversation.
Defendant's reliance on Jenkins is misplaced. In Jenkins, an officer stopped a vehicle after he observed it make two abrupt lane changes in heavy traffic without using a signal. Jenkins, supra, 104 Conn.App. 420-21. The officer became suspicious of drug activity because the driver's license was from New Jersey and the car was rented in Pennsylvania. Id. After learning that the license was valid and there were no outstanding warrants, the officer prepared a traffic violation. Id. Although all of his concerns had been dispelled, the officer requested that the driver step out of the vehicle, inquired about narcotics possession and requested consent to search his vehicle. Id. As the Court noted in Jenkins, the officer's inquiry into whether the defendant was engaged in narcotics activity "occurred at a time when the stop reasonably should have ended" and the officer had no additional information but rather was proceeding on "anything more than a mere hunch." Id. at 432-34.
Unlike Jenkins, the officer in this case could point to specific and articulable facts, namely defendant's slurred speech, smell of alcohol and glassy eyes, which taken together with rational inferences from those observations, reasonably warranted the expanded scope of the stop and continued detention of the defendant. This was not a hunch but new specific information and suspicion obtained during the course of and prior to the completion of a valid investigatory stop.
CONCLUSION
For the reasons noted above, the defendant's motion to suppress is denied.