Opinion
CR170176287
09-24-2018
STATE of Connecticut v. Liz DIAZ
UNPUBLISHED OPINION
OPINION
Vitale, Judge
The defendant, Liz Diaz, stands charged in an information with Carrying a Pistol without a Permit, in violation of Connecticut General Statutes § 29-35(a), Weapons in a Motor Vehicle, in violation of Connecticut General Statutes § 29-38, and two counts of Violation of the State Narcotics and Drug Act, in violation of Connecticut General Statutes § § 21a-279(a)(1) and 21a-278(b).
The charges arise out of events that are alleged to have occurred on May 23, 2017 in the area of Bassett Street in New Haven during a motor vehicle stop effectuated by members of the New Haven Police Department. On January 8, 2018, and on March 9, 2018, the defendant filed a motion to "suppress evidence seized in connection with [said] motor vehicle stop" pursuant to the "Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article First, § § 7 and 9 of the Connecticut Constitution and Connecticut Practice Book § 41-12."
On June 28, 2018, the court conducted a hearing on the Motion. The defendant presented the testimony of the defendant Liz Diaz and Officer Javier Montalvo of the New Haven Police Department. The defendant’s testimony was confined merely to the issue of standing. Officer Montalvo was the only witness as to the circumstances of the motor vehicle stop and search at issue.
Following the hearing, the court afforded counsel for the Defendant and the State the opportunity to submit briefs in support of their respective claims with respect to the defendant’s motion. The Defendant submitted a brief dated August 16, 2018 and the State filed a brief in response on August 27, 2018.
The court heard oral argument on the motion on September 6, 2018.
In reaching its conclusions, the court has fairly and impartially considered all of the evidence received at the hearing, evaluated the credibility of the witnesses; assessed the weight, if any, to be given specific evidence and measured the probative force of conflicting evidence; reviewed all exhibits, relevant statutes, and case law; and has drawn such inferences from the evidence, or facts established by the evidence, that it deems reasonable and logical.
To the extent it is necessary to further amplify, the court’s credibility determinations for each witness were made, inter alia, on the basis of the conduct, demeanor, and attitude of the witnesses as well as all the other factors relevant for each witness with respect to the credibility evaluation. See Lapointe v. Commissioner of Corrections, 316 Conn. 225, 268-71, 112 A.3d 1 (2015). Additionally, any other evidence on the record not specifically mentioned in this decision that would support a contrary conclusion, whether said evidence was contested or uncontested by the parties, was considered and rejected by the court. See State v. Edmonds, 323 Conn. 34 (2016).
For the reasons set forth below, the Motion is hereby denied.
Although the defendant’s written motion appears to raise a state constitutional claim, she has not presented a separate analysis of his claims under the state constitution. As a result, the court’s analysis is confined to federal constitutional claims. See State v. Faust, 237 Conn. 454, 465 n.10 (1996).
I. Findings of Fact
Based on the evidence and the reasonable and logical inferences therefrom, the court finds the following facts:
On May 23, 2017, at approximately 5:32pm Officer Javier Montalvo and his partner Officer Taylor were on patrol in a marked police vehicle. It was "fairly light" outside. The officers were patrolling an area in New Haven that included Bassett Street, and one of their responsibilities that day was "crime suppression." Montalvo was "always" assertive with respect to his responsibilities as a police officer on patrol.
While traveling east on Bassett Street in his marked police vehicle, Montalvo’s attention was drawn to a Grey BMW that was traveling west bound on Bassett Street. The BMW contained an operator and a front seat passenger who was later identified as the defendant Liz Diaz. Montalvo observed that the operator, later identified as Derek Small, did not appear to have his seat belt fastened, and further observed that the vehicle did not possess a front "registration plate" as required by law. At the time of the events at issue, Small and Diaz were living together and shared a child in common. Montalvo thereafter made a "u-turn" and maneuvered his vehicle so that he was then traveling west behind the Grey BMW.
At that point, Montalvo was unaware of the identities of the occupants of the BMW, their destination, or connection, if any, to Bassett Street. However, Montalvo was aware that the BMW generally matched the description of a vehicle that had been involved in a shooting three weeks prior "in the same area."
Montalvo also observed that Mr. Small the operator, failed to obey a red traffic control signal at the intersection of Bassett and Newhall Streets. Montalvo thereupon activated his police vehicle’s overhead lights directing the BMW to pull over. Montalvo’s initial intention was to address the above described motor vehicle infractions. Small "pulled over" the BMW as directed and stopped.
Montalvo and Taylor exited their police vehicle and approached the BMW. Montalvo approached the driver’s side where Mr. Small was seated, and Taylor approached the front passenger side where the defendant was seated. After explaining to Small the reason for the stop, Montalvo requested Small’s license, registration and insurance cards. Small provided the requested documents to Montalvo. Montalvo thereupon delivered the documents to Officer Taylor, who then walked back to the patrol car. Taylor did so in order to conduct a "name check" on Small as well as verify his motor vehicle documents. Montalvo remained on the driver’s side of the BMW while Taylor conducted the "name check."
The name check lasted no more than two minutes, whereupon Taylor returned to the BMW and informed Montalvo that the documents were all in order. Taylor reported that there were "no active warrants" for Small. However, Taylor had learned and reported that Small was then on probation. As a result, Montalvo decided to inquire further of Small without at that point taking any action with respect to the motor vehicle infractions. Small admitted to Montalvo that he was currently on probation. Montalvo then asked Small whether "there was anything else in the vehicle [he] should know about." Following that question Small did not make eye contact with Montalvo and Montalvo observed that Small’s hands were shaking. Small’s apparent nervousness prompted Montalvo to then order Small to exit the vehicle.
There was no evidence elicited as to the nature of the offense or conviction underlying the probation.
As noted previously with regard to the Grey BMW, Montalvo’s attention to the occupants was heightened due to a prior shooting near Bassett Street three weeks earlier involving a vehicle with a similar description. Small was told to walk to the rear of the vehicle where Taylor performed a weapons "pat down" on him. Montalvo’s attention was directed now to both Officer Taylor, as he conducted a "pat down" of Small, and the defendant, who remained in the front passenger seat. Montalvo had a clear and unobstructed view of Diaz from his vantage point near the driver’s side window. While Taylor conducted the pat down of Small, Montalvo observed the defendant’s right hand "reach" toward the vehicle’s center console. He observed her place her right hand between the passenger seat and the center console. Montalvo requested that Diaz remove her hand from that location and make her hands visible to him. Although Diaz complied, she then turned her body away from Montalvo "as if she was trying to conceal something." Her back was now toward Montalvo. The defendant’s conduct during the vehicle stop changed once Small was told to exit the vehicle. As a result of the defendant’s actions inside the vehicle, which occurred while Small was being "pat down" for weapons by Officer Taylor, Montalvo became concerned for his safety and that of Officer Taylor. He told Diaz to exit the vehicle. Montalvo was concerned Diaz could be in possession of a weapon on her person, and also wanted to ensure that no weapons were present in the vehicle that could jeopardize the officers’ safety.
Montalvo opened the passenger door to afford the defendant egress from the vehicle, initially intending to conduct a weapons "pat down" of her person. As he did so, Montalvo observed in plain view a small black purse. The observation was made without touching or manipulating the purse or anything in the vehicle. The purse was unzippered and Montalvo was able to view its contents in plain view. The purse was located on the passenger side "door handle," which would have been located inferentially near the defendant’s right leg as she was seated in the vehicle. Montalvo saw within the purse, in plain view, and without manipulating the purse, a plastic wrap tied in a knot containing a "white rock substance." Based on his training and experience, Montalvo immediately recognized the substance to be suspected crack cocaine.
Montalvo then directed the defendant to the rear of the BMW to conduct the weapons "pat down" of her person. Having located suspected contraband in an area within the dominion and control of the defendant, Montalvo conducted the "pat down" of the defendant using the back of his hand. Near the area of her "crotch," Montalvo felt a hard "foreign" object. Montalvo asked the defendant what the hard object was, and she said "nothing," and thereupon offered nothing else about it. Montalvo summoned a female police officer who later completed the "pat down" search, and subsequently discovered the "hard object" to be a loaded Titan .25 caliber pistol. The female officer was requested approximately 5:45 p.m. Approximately five minutes had elapsed from the time of the initial stop of the vehicle to Montalvo’s request that Diaz exit the vehicle. The firearm and suspected narcotics were seized, but the purse itself was not. The K-9 officer was either dispatched or arrived at 5:58 p.m., which was in either case after the suspected narcotics were observed in the vehicle, and after the defendant was already under arrest. The vehicle in which the defendant was a passenger, a Grey 2013 BMW, was registered in the name of Daryl Small. On May 23, 2017, the defendant and Small were not married but were residing together at a residence in East Haven. The defendant "utilized" the BMW, but acknowledged that Small "sometimes" drove it. The defendant primarily used the car. The evidence did not further describe the purposes for which the defendant or Small used the vehicle, or the frequency with which it was used by either. The vehicle was purchased from an automobile dealer in Stratford, and was financed through "Capital One." Because the defendant did not have an optimal credit rating, Small was designated as the "main owner" on the loan that financed the vehicle, and the defendant was a "co-signer." Although the defendant was the "co-signer" on the loan, she nevertheless made the payments on the loan to "Capital One" via electronic transfer from an account in her name at T.D. Bank North.
Although the BMW was characterized as the only vehicle the defendant "owned," there was no evidence as to any other vehicles registered to Small. As previously noted, the BMW was registered to Small, although Small and the defendant were co-signers on the loan that afforded the purchase, and the defendant "utilized" the vehicle. Additional evidence will be provided when necessary.
II.
Discussion
(A) Standing
Before addressing the substance of the defendant’s claims, the threshold issue of standing to contest the search of the motor vehicle must be resolved.
"Standing is a fundamental requirement of jurisdiction ... [it] is the legal right to set the judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he or she has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy." State v. Kinch, 168 Conn.App. 62, 68-69, cert. denied 323 Conn. 930 (2016) (Internal citations omitted).
In State v. Brito, 170 Conn.App. 269, cert. denied 324 Conn. 925 (2017) the court noted that "[a] person may not object to the introduction of evidence resulting from an illegal search unless he first proves that he was the victim of that search ... One is a victim of a search when it violates his reasonable expectation of privacy in the area searched ... An individual has a reasonable expectation of privacy if he subjectively believes that the area will remain private, and that belief is one that society is willing to recognize as reasonable ... [a] passenger in a motor vehicle, who fails to demonstrate a possessory interest in the car itself or in any of the seized evidence, has no reasonable expectation of privacy in the area of the vehicle searched, and thus, he is precluded from contesting the validity of the search. The "reasonable expectation of privacy test" is a necessary component of an analysis under the fourth amendment to the federal constitution and analysis under article first, § 7, of the state constitution. The burden of proving the existence of a reasonable expectation of privacy rests on the defendant ... Absent such an expectation, the subsequent police action has no constitutional ramifications." State v. Brito, supra, 283-84 (Internal citations and quotations omitted.) See also State v. Kalphat, 285 Conn. 367, 375, 939 A.2d 1165 (2008) (defendant must establish facts necessary to demonstrate reasonable expectation of privacy); State v. Kinch, supra, 168 Conn.App. 73 (burden of proving existence of reasonable expectation of privacy rests with defendant).
During oral argument on the motion, the state conceded, and in fact did not brief, the issue of standing. In view of the state’s concession that the defendant established standing to contest the search in question, the court need not address the issue of standing further.
B. Whether Reasonable and Articulable Suspicion Existed
"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, 267 Conn. 495, 503 (2004). "Any inquiry into the permissible justification for, and boundaries of, a particular investigatory detention and pat-down search is necessarily fact bound." State v. Trine, 236 Conn. 216, 224 (1996).
"An officer making a traffic stop may order passengers to get out of the car pending completion of the stop ... passengers have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made." Maryland v. Wilson, 519 U.S. 408, 412-13 (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. Upon doing so, he prudently may prefer to ask that an occupant exit the vehicle ..." State v. Dukes, 209 Conn. 98, 122 (1988). State v. DelValle, 109 Conn.App. 143, 150 n.1, cert. denied 289 Conn. 928 (2008).
"In the context of a traffic stop, the United States Supreme Court has [authorized] seizures that are unsupported by any individualized suspicion whatsoever and held that, during a traffic stop, an officer may also order any passenger out of the car as a precautionary measure." State v. Kelly, 129 Conn.App. 109, 119 (2011); aff’d. 313 Conn. 1(2014) "[A] Terry stop is also justified to detain a motor vehicle when there exists a reasonable and articulable suspicion of a traffic violation." State v. Thomas, 98 Conn.App. 542, 549 cert. denied 281 Conn. 910 (2007). The court concludes that the police had a reasonable and articulable suspicion that traffic violations had been committed by the operator of the vehicle in which the defendant was a passenger. See Connecticut General Statutes § § 14-100a, 14-299 and 14-18.
"It is well established that an officer’s subjective intent in pulling over a motorist is irrelevant to the question of whether the officer’s conduct violates the constitution." State v. Willoughby, 153 Conn.App. 611, n.11 (2014).
C. Duration of Investigative Stop
"Whether an officer’s continued detention of a person is consistent with constitutional limits is a deeply factual question dependent on the particular facts and circumstances of the particular case." State v. Nieves, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CR10 169457 (August 25, 2010, Wenzel, J.) Our Supreme Court addressed the proper analysis for considering the constitutionality of the detention of a motorist during a routine traffic stop in State v. Jenkins, 298 Conn. 209 (2010); see also State v. Sward, 124 Conn.App. 546 (2010).
In State v. Jenkins, our Supreme Court stated that "[c]ourts considering the constitutionality under the fourth amendment of a police officer’s interaction with a motorist during a routine traffic stop apply the principles developed under the line of case law implementing the central holding of Terry v. Ohio, [ 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] ... Under Terry, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ... the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions." Jenkins, supra, 222-23.
Although a police officer cannot detain a motorist indefinitely, "the Supreme Court has rejected attempts to impose a hard-and-fast time limit on Terry stops, in favor of a reasonableness inquiry where, [i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it 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 ... A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing." State v. Sward, supra, 124 Conn.App. at 553. Therefore, "judicial review of routine traffic stops goes beyond a strict stopwatch test; reasonableness is not measured solely by the temporal duration of the stop alone but, rather, requires scrupulous consideration of the reasonableness of the officers’ actions during the time of the stop." Id.
The court in State v. Sward, supra, further explained that "[a] lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave ... An officer’s inquiries into matters unrelated to the justification for the traffic stop, [the United States Supreme Court] has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop." Id. at 554. (Emphasis in original; internal citations omitted.)
"Thus, questions permissible under Terry during a routine traffic stop include inquiries about whether the car or driver are carrying contraband, as well as concomitant requests for consent to search the vehicle ... These inquiries are permissible even if they are irrelevant to the initial purpose of the stop, namely, the traffic violation, so long as they do not measurably extend the stop beyond the time necessary to complete the investigation of the traffic violation and issue a citation or warning. Consideration of that time period necessarily includes the completion of tasks attendant to the traffic stop, including a check of the driver’s license, vehicle registration, and criminal history, and the writing of the citation or warning, as well as background question about the destination and purpose of the driver’s trip ... Indeed, given that complications with respect to these tasks may well result in an extension of the time of detention without rendering it unreasonable under the fourth amendment, [w]hether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops." State v. Jenkins, supra at 237-38.
Our Supreme Court has emphasized "that in evaluating the duration of a traffic stop, the reviewing court still must consider the stop through the lens of the time reasonably necessary to effectuate the initial purpose of the traffic stop, and expansions of the stop beyond that time are constitutionally impermissible in the absence of an independent basis of objectively reasonable, articulable suspicion ... [J]udicial review of routine traffic stops goes beyond a strict stopwatch test; reasonableness is not measured solely by the temporal duration of the stop alone but, rather, requires scrupulous consideration of the reasonableness of the officers’ actions during the time of the stop." (Citations omitted; emphasis added.) State v. Jenkins, supra, 298 Conn. At 242; see New Mexico v. Leyva, 149 N.M. 435, 442, 250 P.3d 861 (2011) ("[t]he length of the detention should be reasonably limited to the time it takes to complete the underlying justification for the stop ... [T]he temporal limitations of a Terry stop generally require an investigating officer return a driver’s documents and permit the driver to depart as soon as the reason for the traffic stop has been completed ... unless, of course, the officer has developed reasonable suspicion to conduct an investigation into other criminal activity ..." (Citation omitted; internal quotation marks omitted): see also United States v. Loya, 528 F.3d 546, 553 (8th Cir. 2008) ("[a]n officer may expand the scope of a traffic stop beyond the initial reason for the stop and prolong the detention if the driver’s responses and the circumstances give rise to a reasonable suspicion that criminal activity unrelated to the stop is afoot").
In other words, where an officer’s actions and inquiries into matters unrelated to the justification for the traffic stop measurably extend the duration of the stop, that stop becomes unreasonably prolonged where the officer lacks an independent reasonable suspicion to inquire into those unrelated matters.
"With respect to whether the results of the initial stop aroused further suspicion warranting a prolonged inquiry, [t]he police officer’s decision ... must be based on more than a hunch or speculation ... In justifying the 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." (Internal quotation marks omitted.) State v. Jenkins, supra, 298 Conn. at 244-45. "Because a reasonable and articulable suspicion is an objective standard, we focus 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 ... 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 ... [N]ervous, evasive behavior ... is a pertinent factor in determining reasonable suspicion ... [P]olice officers may reasonably act upon observation of a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation." (Citations omitted; internal quotation marks omitted.) State v. Miller, 137 Conn.App. 520, 538-39, cert. denied, 307 Conn. 914 (2012).
Part of the totality of circumstances that a court considers "are those inferences and deductions made by officers under the particular circumstances, since law enforcement officials are trained to cull significance from behavior that would appear innocent to the untrained observer." (Internal quotation marks omitted.) State v. Nash, 278 Conn. 620, 635 (2006). The United States Supreme Court has stated that reviewing courts "must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing ... This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." (Citation omitted; internal quotation marks omitted.) United States v. Arvizu, 534 U.S. 266, 273 (2002).
"It would be error for [a] court to dismiss or discount observations or factors noted and relied upon by police officers merely because, separately, those observations or factors are amenable to an innocent explanation ... Even though each of a series of acts might perhaps appear innocent, a court must not consider them insufficient to form the basis for a reasonable suspicion if, when taken together, collectively, they amount to reasonable suspicion." (Citation omitted.) State v. Merritt, Superior Court, judicial district of New Haven, Docket No. CR05 0039563 (June 7, 2005, Robinson, J.); see United States v. Arvizu, supra, 534 U.S. at 273-74.
In Muehler v. Mena, 544 U.S. 93 (2005), the United States Supreme Court held that the police did not violate the fourth amendment rights of a woman detained "two to three" hours in handcuffs during the execution of a search warrant by questioning her about her immigration status. The court stated that "this court has held repeatedly that mere police questioning does not constitute a seizure." Id. at 94.
Applying the applicable law, as articulated in Muehler and followed by our Supreme Court in Jenkins and elsewhere, the court concludes that the police did not unlawfully extend the traffic stop.
The defendant argues that "the scope and duration of the initial investigative detention [should have been] limited to the issuance of a traffic ticket." To the contrary, the entire traffic stop conducted by police meets the reasonableness inquiry articulated in Jenkins.
The defendant was a passenger in a motor vehicle that was stopped as the result of motor vehicle violations. Once the vehicle was stopped, it took police "less than a minute" to exit their vehicle and approach the defendant’s vehicle. Darryl Small, the operator, retrieved his license, registration, and insurance card as requested and delivered said items to Officer Montalvo. Montalvo then handed the documents to Officer Taylor who returned to the patrol vehicle to verify them as well as to conduct a "name check" on Mr. Small. The attention of police was heightened due to the similarity of the vehicle to one involved in a shooting approximately three weeks earlier in the same area. The process undertaken by Officer Taylor took "a minute or two minutes." While Taylor was engaged in said process, Montalvo was standing by the driver’s side door of the vehicle in close proximity to Mr. Small. Officer Taylor thereupon informed Montalvo that Mr. Small was on probation, and his motor vehicle documents and license were valid. Mr. Small confirmed, when asked, that he was currently on probation. Montalvo then asked Small "whether there was anything else in the motor vehicle I should know about." See State v. Jenkins, supra at 237-38. Montalvo observed that Small did not make eye contact, was nervous, and his hands were shaking. Montalvo was aware that a grey BMW was involved in a shooting three weeks prior "in the same area." Small was then asked to exit the vehicle. The police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly in a swiftly developing situation. The results of the initial stop aroused further suspicion warranting additional inquiry, based on the reaction of Small to police knowledge of his probationary status and his behavior when asked whether "there was anything else in the motor vehicle [police] should know about." Once Small had exited the vehicle, Montalvo observed the defendant Liz Diaz, who had remained in the vehicle, place her right hand between the front passenger seat and the center console. "Danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car." Maryland v. Wilson, supra at 414. Montalvo observed further that the defendant "turned her body as if to hide something" when Montalvo told her to "remove her hand from the location into a place where I can see them." (sic).
"Our case law is clear ... that a furtive movement may be a factor in determining whether there exists reasonable suspicion to believe that a detained individual is armed." State v. Willoughby, 153 Conn.App. 611, n.12 (2014) (Internal citations omitted).
Fearing that the defendant was armed, or was attempting to conceal a weapon inside the vehicle, the defendant was told to "lift her hand" and exit the vehicle.
"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger ... and in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." State v. Nash, supra, 278 Conn. at 630.
Under the totality of the circumstances, the court concludes that Montalvo had a reasonable and articulable suspicion to believe the defendant posed a danger of being armed or had access to a weapon within the vehicle. See State v. Butler, 296 Conn. 62 (2010).
Officer Montalvo was aware that the defendant’s vehicle matched the description of a vehicle involved in a shooting three weeks earlier that had occurred in the same area. Small, the driver of the vehicle in which the defendant was a passenger, was then on probation and was acting nervously when questioned by Montalvo. This behavior by Small appeared to coincide with questioning by Montalvo as to whether the vehicle "contained anything" police should worry about. Once Small was asked to exit the vehicle, the defendant, who had not to that point been acting in a way that aroused suspicion, placed her right hand between the front passenger seat and center console, areas that can reasonably be inferred were capable of secreting a firearm. When Montalvo demanded that the defendant immediately "show her hands," the defendant complied, but raised a further reasonable and articulable suspicion by moving her body and turning her back as if hiding something. Montalvo again demanded the defendant "show her hands" and told her to exit the vehicle. The conduct by the defendant in first placing her hand between the front passenger seat and center console as Small was being "pat down," and later turning her back to Montalvo when she removed her hand, created under the totality of the circumstances an objectively reasonable belief that she may be armed and dangerous. Approximately five minutes had elapsed from the time the defendant’s vehicle was stopped and the time she was told to exit the vehicle.
"[A] suspect’s reaction to police may be one factor considered in the totality analysis" State v. Nash, supra at 636. "[Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." State v. Tuck, 90 Conn.App. 872, 879-80 (2005). See also United States v. Paulino, 850 F.2d 93, 94 (2d Cir. 1988). (movement of backseat passenger "as if placing an object on the floor" established reasonable cause to lift floor mat as part of protective search) cert. denied 490 U.S. 1052 (1989) ). "[T]he fear of a person’s gaining immediate control of weapons does not limit itself to the time of the stop, but extends through the entire interaction between him and the officer[s]. In Michigan v. Long, the United States Supreme Court identified a purpose of protective searches to be the concern that if the suspect is not placed under arrest, he will be permitted to ... [go free], and he will then have access to any weapons ... [i]n [a] no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed." State v. Butler, supra, 296 Conn. at 71-72. (Internal citation and quotations omitted.)
The inquiry by Officer Montalvo to Small following the review of his motor vehicle documents and "name check" was permissible pursuant to Jenkins, supra and other cases. The reaction by the defendant to the further inquiry by police of Small provided an objectively reasonable articulable suspicion to conduct an investigation into other criminal activity. The stop was not unreasonably prolonged. The defendant was told to exit the vehicle approximately five minutes after the vehicle was initially stopped, and only because of her behavior inside the vehicle while Small was being patted down outside of the vehicle. "Michigan v. Long, permits an officer to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is dangerous and might access the vehicle to gain immediate control of weapons." State v. Butler, supra at 71. A female officer was requested at approximately 5:45 p.m., approximately fifteen minutes following the initial stop, following the defendant’s refusal or inability to explain the hard object located near her crotch area during a brief "pat down."
The suspected narcotics were located as the defendant exited the vehicle to allow Montalvo to conduct a weapons pat down of her person and a protective sweep of the vehicle’s passenger compartment. Although the defendant had been asked to exit the vehicle and move to the rear, she was not under arrest at the time "pat down" and protective vehicle search were initially to occur. See Butler, supra, and Michigan v. Long, 463 U.S. 1032 (1983). The court concludes, based on the foregoing analysis, that Montalvo was lawfully in a position to observe the suspected contraband first hand, and the incriminating character of the items viewed was readily apparent. State v. Ortiz, 182 Conn.App. 580 (2018). Once the contraband was discovered in a location over which the defendant, it can be reasonably inferred, had dominion and control, probable cause for her arrest existed. Montalvo could not be certain whether a K-9 officer "arrived" or was "dispatched" to the scene at 5:58 p.m. In either case, it was after the defendant was told to exit the vehicle and probable cause for her arrest existed.
Under the totality of the circumstances the conduct of the police did not measurably extend the duration of the stop. An objectively reasonable and articulable suspicion existed on the part of Officer Montalvo, that his safety or that of Officer Taylor was in danger. A reasonably prudent person in the circumstances would be warranted in that belief given the defendant’s conduct inside the vehicle as her boyfriend, then on probation, was being "pat down" by Officer Taylor. As a result, the defendant was lawfully subject to a "pat down" search for weapons, and the passenger area the lawful subject of a protective sweep. Nevertheless, once the passenger door was opened and contraband was observed in plain view in the area where the defendant had been seated, probable cause for the defendant’s arrest existed, and the subsequent pat down was also permitted as a search incident to arrest. State v. Delossantos, 211 Conn. 258, 266 (1989); State v. Clark, 255 Conn. 268, 291 (2001).
For the foregoing reasons, the Motion to Suppress is denied.