Summary
In Kelly, the Supreme Court held that detaining a criminal suspect's companion absent any particularized suspicion was constitutionally permissible.
Summary of this case from Connecticut v. SmithOpinion
No. 18849.
2014-08-12
STATE of Connecticut v. Jeremy KELLY.
Timothy H. Everett, assigned counsel, with whom, on the brief, were Blake Holler, Victoria Mueller, New London, and Nicole Vaswig, certified legal interns, for the appellant (defendant). Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robert Diaz, assistant state's attorney, for the appellee (state).
Timothy H. Everett, assigned counsel, with whom, on the brief, were Blake Holler, Victoria Mueller, New London, and Nicole Vaswig, certified legal interns, for the appellant (defendant). Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robert Diaz, assistant state's attorney, for the appellee (state).
Richard Emanuel, New Haven, and Leonard M. Crone filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
Michael A. Blanchard, New London, Sandra J. Staub and Amy Breglio, legal intern, filed a brief for the American Civil Liberties Union Foundation of Connecticut as amicus curiae.
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and VERTEFEUILLE, Js.
The listing of justices reflects their seniority status on this court as of the date of oral argument.
The defendant, Jeremy Kelly, was convicted, on a conditional plea of nolo contendere; see General Statutes § 54–94a;
of possession of narcotics with intent to sell in violation of General Statutes § 21a–277 (a). The defendant entered his plea following the trial court's denial of his motion to suppress cocaine that the police had discovered after stopping him incident to the detention of another individual, who the police reasonably believed was armed and dangerous and who was the subject of an arrest warrant, while the two men were walking together on a public street. The defendant appealed to the Appellate Court, and that court affirmed the trial court's judgment. State v. Kelly, 129 Conn.App. 109, 126, 19 A.3d 223 (2011). We granted the defendant's petition for certification to appeal, limited to the following issues: “[1] Whether the Appellate Court properly held constitutional the warrantless seizure of the defendant on a public street because he was in the company of a person believed to be an individual wanted for [a] violation of probation and [2] [W]hether the Appellate Court, in doing so, properly relied on facts not [expressly] found by the trial court when it denied the defendant's motion to suppress....” State v. Kelly, 302 Conn. 920, 28 A.3d 338 (2011). We agree with the Appellate Court that the trial court properly determined that the police were authorized to stop and briefly detain the defendant, as a reasonable safety measure, in connection with the lawful detention of the individual he was accompanying, because the police reasonably believed that that other individual was armed and dangerous. With respect to the second certified question, that issue has been rendered moot by virtue of an articulation, which the trial court issued in response to this court's order following oral argument, explaining that it had credited certain suppression hearing testimony on which the Appellate Court relied in its recitation of the facts. Because we conclude that the protective stop of the defendant passes muster under both the federal and state constitutions, we affirm the judgment of the Appellate Court.
.General Statutes § 54–94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”
The opinion of the Appellate Court sets forth the following facts, which were based on testimony adduced at the evidentiary hearing on the defendant's motion to suppress. “On March 27, 2007, Detective William Rivera of the Hartford [P]olice [D]epartment received information from a reliable confidential informant that ... Pedro Gomez, [who resided] in the area of Brown Street in [the city of] Hartford, was in possession of a firearm. Having also discovered that Gomez was the subject of an outstanding arrest warrant for [a] violation of probation, Rivera and Lieutenant Jose Angeles of the [D]epartment of [C]orrection drove to the area in an unmarked car [while] dressed in plain clothes. They had a description of Gomez as a Hispanic male of medium complexion with short hair, twenty to twenty-two years of age, between 130 and 150 pounds and between five feet, five inches and five feet, seven inches tall. The informant also had alerted Rivera that [Gomez] sometimes ... disguised himself by wearing a dark wig.
“At approximately 11 a.m., the officers observed two men, later identified as the defendant and Rafael Burgos, walking and talking together on the sidewalk. There was a gas station on the corner that was a known location for drug dealing, and Rivera suspected that the men had just left that location. As the officers approached, they determined that Burgos fit the description of Gomez. As Burgos and the defendant walked into the driveway at 13–15 Brown Street, they made eye contact with the officers, and Burgos moved his foot as if he was going to run. Both men continued to walk slowly toward the rear of the building, looking backwards. Angeles noticed that the defendant was clutching his waistband. Stopping his vehicle in front of the driveway, Rivera displayed his badge and stated ‘I'm a police officer’ and ‘come to the vehicle.’ Angeles also displayed his badge. Burgos replied, ‘for what?’ and the defendant stated, ‘I live here.’ Burgos and the defendant continued walking up the driveway. Rivera then pulled the car into the driveway east of 13–15 Brown Street. The officers did not activate [the] vehicle's lights or siren and had not drawn their firearms.
“As Angeles began to step out of the vehicle, he ordered the men to ‘stop, stop, come here.’ At that point, [Burgos and the defendant] fled. The defendant ran behind the house. Rivera drove the car to the front of 13–15 Brown Street and observed the defendant run around the front of the house and up the street, still clutching his waistband, while Angeles chased him on foot. Rivera drove alongside them up the street and then turned into a driveway to block the defendant's path. The defendant changed course, and Rivera began chasing him on foot. Rivera saw the defendant drop a clear plastic bag containing a white substance [that subsequently was determined to be cocaine]. When the defendant tripped and fell, Rivera tackled him and handcuffed him after a thirty second struggle. Rivera seized the bag that the defendant had dropped and also seized another clear plastic bag containing a large amount of a white, rock like substance from the defendant's clenched hand.” (Footnote omitted.) State v. Kelly, supra, 129 Conn.App. at 112–13, 19 A.3d 223. The white substance seized from the defendant's hand also was determined to be cocaine.
Thereafter, the defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes (Rev. to 2007) § 21a–278 (b), possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a–279 (d), possession of narcotics in violation of General Statutes § 21a–279 (a), interfering with an officer in violation of General Statutes (Rev. to 2007) § 53a–167a, and criminal trespass in the third degree in violation of General Statutes (Rev. to 2007) § 53a–109. The defendant moved to suppress the cocaine, claiming that he had been unlawfully seized because Rivera and Angeles had no reason to believe that the defendant had committed or was committing a criminal offense, and the discovery of the cocaine was the fruit of that illegal seizure.
Following an evidentiary hearing on the defendant's motion to suppress, the trial court denied the motion. In support of its decision, the trial court explained that, because Rivera and Angeles reasonably believed that Burgos was Gomez, they were justified in stopping Burgos in light of the outstanding arrest warrant for Gomez. The trial court further found that, because that warrant was for the offense of “felony ... possession of a firearm,” the officers were authorized to briefly detain the defendant, as a legitimate safety precaution, incident to the lawful stop of Burgos.
The trial court reasoned that, when the police lawfully stop a suspect who they reasonably believe may be armed and dangerous, and that suspect is accompanied by a companion, the police also must be permitted to temporarily restrict the companion's freedom of movement lest they place themselves at risk that the companion will “[step] back ... and open fire” on them. In reaching its conclusion, the trial court analogized the companions of a suspect on a public street to passengers in a vehicle driven by a suspect, who, under Brendlin v. California, 551 U.S. 249, 255–58, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), lawfully may be detained incident to the lawful stop of the driver. The trial court concluded that, because the officers had justifiably detained the defendant for safety reasons, the defendant could not prevail on his claim that the cocaine seized by the police following his detention was the fruit of unconstitutional police conduct.
We note that the trial court's finding that Gomez had an outstanding warrant for the offense of “felony ... possession of a firearm” was incorrect. Rather, the undisputed testimony, elicited from Angeles, reflects that Gomez was the subject of an “[a]ctive felony warrant for ... a violation of probation....” As we explain more fully hereinafter, however, this error is harmless because the trial court subsequently issued an articulation that included a correction of its erroneous finding concerning the nature of the offense alleged in the warrant. See part II of this opinion.
The defendant subsequently entered a plea of nolo contendere to the crime of possession of narcotics with intent to sell in violation of § 21a–277 (a), conditioned on his right to appeal from the trial court's denial of his motion to suppress. See State v. Kelly, supra, 129 Conn.App. at 114, 19 A.3d 223. The trial court rendered judgment of conviction in accordance with the plea and sentenced the defendant to nine years imprisonment, suspended after three and one-half years, and three years probation. Id.
The defendant appealed to the Appellate Court from the judgment of the trial court, claiming, inter alia, that the police had detained him in violation of the fourth amendment to the United States constitution
The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The fourth amendment's protection against unreasonable searches and seizures is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
of the Connecticut constitution. Id. Specifically, the defendant argued that the officers had seized him in violation of Terry v. Ohio, 392 U.S. 1, 27, 30–31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Donahue, 251 Conn. 636, 643–45, 742 A.2d 775 (1999) ( Terry stop permitted under article first, §§ 7 and 9, of state constitution), cert. denied, 531 U.S. 924, 121 S.Ct. 299, 148 L.Ed.2d 240 (2000); because they lacked a reasonable and articulable suspicion that he had committed or was about to commit a crime.
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
See State v. Kelly, supra, 129 Conn.App. at 118, 19 A.3d 223. The defendant also asserted that the trial court's conclusion that the officers had stopped him as a reasonable safety measure was flawed for a second reason, namely, that it was based on the clearly erroneous factual finding that Gomez was the subject of an outstanding warrant for felony possession of a firearm when, in actuality, the testimony adduced at the suppression hearing established that the warrant was for a violation of probation that had been imposed for an unspecified felony conviction.
In Terry, the United States Supreme Court held that police may detain an individual when the following three conditions are met: “(1) the officer must have a reasonable suspicion that a crime has occurred, is occurring, or is about to occur; (2) the purpose of the stop must be reasonable; and (3) the scope and character of the detention must be reasonable when considered in light of its purpose.” State v. Cyrus, 297 Conn. 829, 837, 1 A.3d 59 (2010).
During the pendency of his appeal before the Appellate Court, the defendant moved for an articulation by the trial court of several of its factual findings. After the trial court denied the motion, the defendant filed a motion for review with the Appellate Court, which granted the motion in part and ordered, inter alia, that the trial court identify the offense alleged in the outstanding warrant for Gomez. In its articulation, the trial court reiterated that the warrant was for felony possession of a firearm.
On appeal, the Appellate Court concluded that the trial court properly had denied the defendant's motion to suppress. Id., at 124, 19 A.3d 223. The Appellate Court commenced its analysis by rejecting the defendant's claim that his seizure violated the fourth amendment, explaining that, “[u]nder federal law, a person is seized by a show of authority only if he submits to it; California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); which did not occur in the present case. Accordingly, the first seizure under the fourth amendment occurred when Rivera tackled the defendant. By the time that physical force was applied, Rivera had probable cause to believe that the defendant was engaged in criminal conduct when he fled and visibly tossed away a plastic bag [containing a white substance] while being pursued.” State v. Kelly, supra, 129 Conn.App. at 117 n. 6, 19 A.3d 223.
With respect to the defendant's claim that his seizure violated article first, §§ 7 and 9, of the state constitution, the Appellate Court relied on State v. Oquendo, 223 Conn. 635, 649–50, 613 A.2d 1300 (1992),
in concluding that the defendant was seized for state constitutional purposes when Rivera and Angeles drove up alongside him, displayed their badges, and Rivera told him to approach the vehicle. See id., at 116–17, 613 A.2d 1300. The Appellate Court also concluded, however, that, even though Rivera and Angeles lacked reasonable and articulable suspicion to believe, at the time of that encounter, that the defendant was engaged in criminal activity, they nevertheless lawfully had detained him because the stop was reasonable, and therefore justified, under the state constitution. See id., at 122–24, 613 A.2d 1300. Like the trial court, the Appellate Court analogized the defendant's detention to the legitimate detention of a vehicle's passengers incident to the stop of the driver; see Brendlin v. California, supra, 551 U.S. at 255–58, 127 S.Ct. 2400; observing that, “[i]n the context of a traffic stop, the United States Supreme Court has taken the unprecedented step of authorizing seizures that are unsupported by any individualized suspicion whatsoever and [has] held that, during a traffic stop, an officer may also order any passenger out of the car as a precautionary [safety] measure.” State v. Kelly, supra, 129 Conn.App. at 119, 19 A.3d 223. The Appellate Court also likened the stop of a suspect's companion on a public street to the suspicionless detention of the occupants of a residence during the execution of a search warrant, which the United States Supreme Court declared to be constitutionally permissible in Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). See State v. Kelly, supra, at 122, 19 A.3d 223. The court ultimately concluded that, in light of the state's “weighty interest in promoting the safety of its police officers”; (internal quotation marks omitted) id., at 118, 19 A.3d 223; and the minimal intrusion on the defendant's liberty interest; id., at 123, 19 A.3d 223; it was reasonable for the officers to briefly detain the defendant for safety purposes incident to their investigative stop of Burgos.
In Oquendo, this court held that, in contrast to fourth amendment jurisprudence, “a consensual encounter becomes a seizure [under article first, § 7, of the Connecticut constitution] if, on the basis of a show of authority by the police officer, a reasonable person in the defendant's position would have believed that he was not free to leave.” State v. Oquendo, 223 Conn. at 653, 613 A.2d 1300.
Id., at 124, 19 A.3d 223. Accordingly, the Appellate Court affirmed the trial court's judgment of conviction.
In reaching its conclusion, the Appellate Court relied on certain testimony that the state had adduced at the suppression hearing but which the trial court initially did not expressly credit or otherwise mention. In particular, the Appellate Court's conclusion was predicated on testimony that the police were reliably informed that Gomez was in possession of a firearm and that he was the subject of an outstanding arrest warrant for a violation of probation. State v. Kelly, supra, 129 Conn.App. at 112, 19 A.3d 223. In focusing on that testimony, the Appellate Court essentially disregarded the trial court's erroneous finding that there was an outstanding warrant for Gomez for felony possession of a firearm. See footnote 2 of this opinion. As we discuss in this opinion, during the pendency of the present appeal, the trial court issued an articulation indicating that it also had credited the same testimony on which the Appellate Court's recitation of the facts was predicated. See part II of this opinion.
Id., at 126, 19 A.3d 223.
On appeal to the Appellate Court, the defendant also asserted that the trial court improperly allocated the burden of proof to him for purposes of the motion to suppress when, in fact, it is the state's burden to establish that a warrantless search or seizure is constitutionally permissible. See State v. Kelly, supra, 129 Conn.App. at 125–26, 19 A.3d 223. The Appellate Court rejected that claim; id., at 126, 19 A.3d 223; and it is not at issue in this certified appeal.
This certified appeal followed. Following oral argument, this court, sua sponte, ordered the trial court to issue an articulation addressing two questions. First, “[u]pon reconsideration, and notwithstanding its finding that ... Gomez was wanted for a felony firearms violation, did the trial court credit the testimony adduced at the hearing on the defendant's motion to suppress that there was an outstanding felony violation of probation warrant for Gomez?” Second, “[d]id the trial court credit the testimony that the police had received information from a reliable informant that Gomez might well be in possession of a firearm?” The trial court answered both questions in the affirmative.
In the present appeal, the defendant does not seriously contest the conclusion of the Appellate Court that he was not seized for fourth amendment purposes until the police had probable cause to arrest him and, therefore, that his seizure did not violate the federal constitution.
See State v. Kelly, supra, 129 Conn.App. at 117 n. 6, 19 A.3d 223. Relying on the fact that he was seized under the state constitution when the officers approached him and told him to stop, the defendant claims, rather, that the Appellate Court incorrectly concludedthat article first, §§ 7 and 9, permit the police to detain an individual on a public street, even if the officers have no reason to believe that the individual has committed or is committing a criminal offense, if that individual is accompanied by a person whom the police have lawfully detained, and the police reasonably suspect that that other person is armed and dangerous. The defendant also claims that the Appellate Court, in concluding that the trial court correctly determined that Rivera and Angeles were justified in detaining the defendant, improperly relied on facts that the trial court had not expressly found. With respect to the defendant's first claim, we conclude that the state constitution permits the kind of brief, protective stop that occurred in the present case and, further, that the evidence supported the trial court's determination that the stop of the defendant was lawful. We also reject the defendant's second claim because it has been rendered moot by virtue of the trial court's response to this court's order for an articulation. We address each of the defendant's claims in turn.
Indeed, the defendant would have no reasoned basis on which to disagree with that determination by the Appellate Court.
I
The defendant contends that the Appellate Court incorrectly concluded that it is permissible under the state constitution for the police to briefly detain the companion of a suspect, incident to the lawful stop of that suspect, even though the police lack reasonable suspicion to believe that the companion himself has engaged or is engaging in criminal behavior. In support of this contention, the defendant argues that the state constitution does not permit the warrantless “seizures of citizens in public places except upon a particularized showing of suspicion of criminal activity” and that the mere geographic proximity of a companion to a suspect, however potentially dangerous that suspect may be, is insufficient, without more, to justify the stop of the companion. The state disagrees, asserting that, although no preexisting framework for evaluating the reasonableness of a state intrusion into a suspect's liberty under article first, §§ 7 and 9, expressly authorizes the suspicionless detention of a suspect's companion, such action is reasonably necessary, and therefore permissible under the state constitution, for the protection of the investigating officer when, as in the present case, that officer has lawfully stopped the suspect and has a reasonable concern for his safety. The state further asserts that “the governmental interests involved in ‘companion’ situations consistently will be so strong that this court should recognize a bright line rule to the effect that, when reasonable and articulable suspicion supports a stop of a suspect, the police reasonably may stop the companion of the suspect....”
Although we decline to adopt the bright line rule proposed by the state, we agree with the state that, when officers lawfully detain a suspect who they reasonably believe poses a threat to their safety, article first, §§ 7 and 9, permit the officers to briefly detain the suspect's companion for protective purposes.
The state also contends that the defendant's seizure was lawful because Rivera and Angeles had a reasonable suspicion that the defendant himself was engaged in criminal conduct when they ordered him to approach their car. We need not address this claim in light of our determination that the brief detention of the defendant incident to the lawful stop of Burgos constituted a reasonable safety precaution.
The defendant's claim requires us to examine the scope of the rights afforded by the Connecticut constitution. “It is well-established that federal constitutional and statutory law establishes a minimum national standard for the exerciseof individual rights and does not inhibit state governments from affording higher level of protection for such rights.” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). In determining the contours of the protections provided by our state constitution, we employ a multifactor approach that we first adopted in Geisler. The factors that we consider are “(1) the text of the relevant constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of [the] constitutional [framers]; and (6) contemporary understandings of applicable economic and sociological norms.” (Internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709, 716 n. 6, 924 A.2d 809 (2007). In addition, as we previously have noted, these factors may be “inextricably interwoven,” and “not every [such] factor is relevant in all cases.” State v. Morales, 232 Conn. 707, 716 n. 10, 657 A.2d 585 (1995).
As to the first Geisler factor, namely, the relevant constitutional text, “this court repeatedly has observed that the language of article first, § 7, of the state constitution closely resembles the language of the fourth amendment to the federal constitution.”
State v. Davis, 283 Conn. 280, 306, 929 A.2d 278 (2007). In light of this textual similarity, it is not surprising that, with respect to the second Geisler factor, namely, this state's precedent, we consistently have recognized that, “in determining whether article first, § 7, has been violated, we employ the same analytical framework that would be used under the federal constitution.” (Internal quotation marks omitted.) Id., at 310, 929 A.2d 278. Indeed, although we previously have held that, in some circumstances, article first, § 7, provides greater protections than those afforded under the federal constitution,
See footnotes 3 and 4 of this opinion.
we also have observed that the standards governing our analysis for purposes of article first, § 7, “mirror those set forth by the United States Supreme Court ... with regard to [federal] fourth amendment analysis....” (Citation omitted.) State v. Oquendo, supra, 223 Conn. at 654, 613 A.2d 1300. Accordingly, we next consider the third Geisler factor, namely, relevant federal precedent, to determine whether the fourth amendment permits the protective stop of a suspect's companion when the police reasonably believe that the suspect is armed and dangerous. Because reasonableness is the touchstone of both the fourth amendment and article first, § 7, persuasive federal precedent applying that standard is particularly relevant to our state constitutional inquiry.
See, e.g., State v. Oquendo, supra, 223 Conn. at 649–50, 652, 613 A.2d 1300 (declining to adopt, for purposes of state constitution, fourth amendment principle that seizure of individual does not occur until individual submits to show of authority); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990) (declining to recognize, for purposes of state constitution, good faith exception applicable to fourth amendment exclusionary rule).
Consequently, our discussion of federal precedent is significantly more extensive than our discussion of the other, less relevant Geisler factors.
The fourth amendment, like article first, § 7,
proscribes only “unreasonable”searches and seizures. U.S. Const., amend. IV; accord Conn. Const., art. I, § 7. A search or seizure is presumptively unreasonable when it is conducted without a warrant issued upon probable cause. See, e.g., Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Nevertheless, several categories of searches and seizures have been deemed reasonable, and therefore lawful, even when officers lack probable cause or a warrant. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) ( “neither a warrant nor probable cause ... is an indispensable component of reasonableness in every circumstance”). For instance, under Terry, officers may temporarily seize an individual if they have a reasonable and articulable suspicion that he is involved in criminal activity. See Terry v. Ohio, supra, 392 U.S. at 30–31, 88 S.Ct. 1868. As the court stated in Terry, “we deal here with an entire rubric of police conduct—necessarily swift action predicated [on] the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the [f]ourth [a]mendment's general proscription against unreasonable searches and seizures.” Id., at 20, 88 S.Ct. 1868. After balancing the state's legitimate interests in crime prevention and detection against a suspect's liberty interest; see id., at 21–25, 88 S.Ct. 1868; the court concluded that, when an officer has a reasonable basis for suspecting that an individual is committing or has committed a criminal offense, it is constitutionally permissible for the officer to briefly detain the individual for investigative purposes. Id., at 30–31, 88 S.Ct. 1868. An accompanying patdown search is similarly justified if the police also have a reasonable basis to believe “that the person stopped is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009); see Terry v. Ohio, supra, at 27, 30, 88 S.Ct. 1868. This latter action does not violate the fourth amendment because of the “immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” Terry v. Ohio, supra, at 23, 88 S.Ct. 1868.
We note that the defendant asserts that article first, § 9, of the state constitution provides protections greater than those afforded under article first, § 7, because article first, § 7, grants rights to the “people,” whereas article first, § 9, uses the singular term “person” in describing its protections. We reject the defendant's claim with respect to the alleged import of this minor linguistic difference in the two provisions because, as we previously have observed, “in the search and seizure context, article first, § 9, is our criminal due process provision [and] does not provide protections greater than those afforded by either the fourth amendment or its coordinate specific state constitutional provision, article first, § 7.” State v. Jenkins, 298 Conn. 209, 259 n. 39, 3 A.3d 806 (2010).
Since Terry, the United States Supreme Court has made it clear that an individual's mere geographic proximity to “premises where an authorized narcotics search is taking place” does not itself justify a patdown search of that individual because that proximity, without more, is insufficient to create a reasonable suspicion that he is armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); see also United States v. Jaramillo, 25 F.3d 1146, 1152 (2d Cir.1994) (“[t]he sole fact that an individual as to whom the officers have no reasonable and articulable factual suspicion of wrongdoing happens to be in a public place where another person possesses a weapon or contraband does not provide a basis for a Terry-type search if the possessor is a person with whom the searched individual has no known connection”). Courts have applied this reasoning in concluding that the mere geographic proximity between an individual who officers reasonably suspect has committed or is committing a crime and his companion does not alone rise to the level of reasonable suspicion of criminal activity by the companion. See, e.g., United States v. Black, 707 F.3d 531, 539 (4th Cir.2013); United States v. Navedo, 694 F.3d 463, 468–69 (3d Cir.2012); People v. Trapier, 47 App.Div.2d 481, 483–84, 367 N.Y.S.2d 276 (1975).
The mere fact that the suspicionless detention of a suspect's companion cannot be justified under Terry does not resolve the issue before us, however, because such a detention otherwise may be reasonable for fourth amendment purposes. Indeed, the United States Supreme Court has used the same balancing approach that it applied in Terry in concluding that certain warrantless searches and seizures pass muster under the fourth amendment even though they are not supported by probable cause or reasonable suspicion. For example, in Michigan v. Summers, supra, 452 U.S. at 692, 101 S.Ct. 2587 the court reasoned that Terry's mandate of individualized suspicion is inapplicable to the detention of the occupants of a dwelling incident to the execution of a search warrant for those premises. See id., at 701–705, 101 S.Ct. 2587. In reaching its conclusion that such a seizure is permissible, the court explained that the state's interests in preserving evidence, preventing flight, and protecting officer safety outweighed the occupants' liberty interests. See id., at 702–703, 101 S.Ct. 2587; see also Maryland v. Wilson, 519 U.S. 408, 413–15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (balancing state's interest in officer safety against individual's liberty interest and holding that officers, while performing traffic stop, may lawfully order passengers to exit vehicle, despite lack of suspicion that they are dangerous or engaged in criminal activity); cf. Maryland v. Buie, 494 U.S. 325, 333–36, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (balancing interests in officer safety and individual privacy and concluding that, when police enter premises to arrest suspect pursuant to warrant, and police have reasonable belief that potentially dangerous companions of suspect may be hiding nearby, police may conduct protective sweep of premises incident to execution of arrest warrant). Furthermore, we have used the same balancing test that the United States Supreme Court employed in Terry and Summers in concluding that an individual's suspicionless detention may be reasonable under the Connecticut constitution. See, e.g., State v. Mikolinski, 256 Conn. 543, 550, 554, 557, 775 A.2d 274 (2001) (applying reasonableness balancing test in holding that suspicionless sobriety checkpoints operated pursuant to neutral criteria are permissible under article first, §§ 7 and 9, of state constitution).
The Eleventh Circuit Court of Appeals recently applied this balancing approach in determining that the detention of the companions of two suspects “was reasonable, in light of the substantial risks to the officers' safety,” despite a lack of individualized suspicion that the companions were involved in criminal activity. United States v. Lewis, 674 F.3d 1298, 1309 (11th Cir.2012). In Lewis, two police officers encountered four men in a parking lot, one of whom was the defendant, Omar Oneil Lewis. Id., at 1300. During a conversation with the men, the officers asked them whether they were carrying firearms. Id. Two of the men, not including Lewis, responded in the affirmative, and the police then brandished their weapons and ordered all four men to sit on the ground with their hands showing. Id., at 1300–1301. The officers subsequently discovered a semiautomatic pistol underneath a vehicle parked near Lewis, whom they arrested and charged with carrying a concealed firearm. Id., at 1301. The District Court subsequently granted Lewis' motion to suppress the pistol, reasoning that the police had illegally seized Lewis when they ordered him to the ground at gunpoint because, at the time, they lacked reasonable and articulable suspicion to believe that he had committed or was committing a criminal offense, and the pistol was a fruit of that unlawful seizure. Id., at 1301–1302. The Eleventh Circuit reversed the District Court's ruling, concluding that, “for safety reasons, officers may, in some circumstances, briefly detain individuals about whom they have no individualized reasonable suspicion of criminal activity in the course of conducting a valid Terry stop as to other related individuals.” Id., at 1306. In balancing the safety interests of the officers against Lewis' liberty interest, the court concluded that it was reasonable for the police “to control the movements of nearby associates and exercise command over the situation once the officers had reasonable suspicion of criminal activity that warranted further investigation.” Id., at 1308. In arriving at this conclusion, the court focused on the specific dangers associated with firearms, explaining that “the very rationale underpinning Terry—the protection of officer safety and the safety of others nearby, especially from the dangers posed by firearms—[was] presented by the facts of [the] case.” Id., at 1309.
We agree with Lewis that, for purposes of the reasonableness requirement of the fourth amendment, the state's interest in officer safety is sufficiently compelling that, when officers have a reasonable concern for their safety while lawfully detaining a suspect, it is permissible for the officers to briefly detain the suspect's companion as a precautionary measure. As the court in Lewis recognized, “individualized suspicion is not an absolute prerequisite for every constitutional search or seizure.” Id., at 1305; see also Samson v. California, 547 U.S. 843, 855 n. 4, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (“[t]he touchstone of the [f]ourth [a]mendment is reasonableness, not individualized suspicion”). Although the protective stop of a companion authorized by Lewis does not meet the requirements for a Terry stop, ultimately, the determination of whether such a stop is reasonable for fourth amendment purposes entails a balancing of “the need to search [or seize] against the invasion which the search [or seizure] entails.” (Internal quotation marks omitted.) Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868; see also State v. Wilkins, 240 Conn. 489, 503, 692 A.2d 1233 (1997) (reasonableness is evaluated by measuring state's “intrusion on the individual's interests against its promotion of legitimate ... governmental interests” [internal quotation marks omitted] ). In evaluating the reasonableness of the protective stop of a suspect's companion, we therefore must consider the state's interest in officer safety in light of the companion's liberty interest.
To be sure, the fourth amendment guarantees all persons the right to be free from unwarranted police interference while on a public street, as in the present case, or elsewhere. A protective stop of the kind that occurred here, however, represents a relatively limited intrusion into that interest. A protective stop typically will be of short duration, and, unless the officer has reason to believe that the subject of the stop is armed, ordinarily, there will be no need for an accompanying patdown for weapons.
On the other side of the ledger, the state has a weighty interest in ensuring officer safety when an officer stops a suspect who he reasonably believes is armed and dangerous. Should an officer determine that it is necessary to detain a suspect in furtherance of a criminal investigation, the officer may well encounter one or more persons accompanying the suspect, and the presence of those companions both increases the possibility of interference with the officer's investigation and, as the Appellate Court observed, multiplies the sources of potential harm to the officer. See State v. Kelly, supra, 129 Conn.App. at 122–23, 19 A.3d 223. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.” Terry v. Ohio, supra, 392 U.S. at 23, 88 S.Ct. 1868. Consequently, the fourth amendment permits “swift action by police officers who, while conducting lawful investigations, find themselves in a position of imminent peril.” State v. Mann, 271 Conn. 300, 315, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1711, 161 L.Ed.2d 527 (2005). Such action is permissible when, as the state contends occurred in the present case, an officer reasonably believes that, in order to avoid or defuse a potentially dangerous situation, he must take control of that situation by temporarily maintaining the status quo.
We note that some courts have adopted the so-called automatic companion rule, under which officers may conduct a patdown search of the companion of a lawfully detained suspect even though the officers lack a reasonable suspicion to believe that the companion is armed and dangerous. See, e.g., United States v. Poms, 484 F.2d 919, 922 (4th Cir.1973); United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir.1971); State v. Clevidence, 153 Ariz. 295, 298, 736 P.2d 379 (App.1987). But see United States v. Bell, 762 F.2d 495, 499 (6th Cir.) (rejecting automatic companion rule and stating that it did “not believe that the Terry requirement of reasonable suspicion ... ha[d] been eroded to the point that an individual may be frisked based [on] nothing more than an unfortunate choice of associates” [citation omitted] ), cert. denied, 474 U.S. 853, 106 S.Ct. 155, 88 L.Ed.2d 128 (1985). Although we need not reach this issue for purposes of the present appeal, it is questionable whether such a rule would satisfy the reasonableness requirement of the fourth amendment. See Arizona v. Johnson, supra, 555 U.S. at 326–27, 129 S.Ct. 781 (under Terry, patdown search of suspect who has been lawfully stopped on basis of reasonable and articulable suspicion cannot also be frisked unless police reasonably suspect that suspect is armed and dangerous).
To conclude otherwise would enable a suspect's companion to walk away from the officer, and out of his line of sight, while the officer is confronting the armed and dangerous suspect. If the companion is allowed to walk away, he easily could be out of the officer's view in a few short steps, and, in order to keep track of the companion—whose relationship to the suspect provides strong reason for the officer to keep the companion in his sight until the officer gains sufficient command of the situation—the officer would have to divert his attention from the suspect. This is an untenable position in which to place the officer, who must be able to devote his full attention to the dangerous suspect. We therefore reject the dissent's contention that, instead of briefly detaining the defendant, the police “had to request that the defendant leave while they detained the suspect.” We are fully persuaded, rather, that the officer, and not the companion, must be permitted to control the situation by detaining the companion briefly for the purpose of avoiding the potentially catastrophic consequences that might result if the officer were denied the right to keep the companion in his sight while dealing with the suspect. Notably, the dissent does not explain how an officer may reasonably ensure his safety if he is unable to monitor the activities of the companion while he is confronting the dangerous suspect.
As we have indicated, our analysis comports with the reasoning of the United States Supreme Court that, in certain circumstances implicating police safety, it is constitutionally permissible for the police to detain an individual, even in the absence of particularized suspicion that the individual has engaged in criminal conduct. For example, the detention of a suspect's companion on a public street bears important similarities to the lawful detention of a vehicle's passengers incident to the stop of the driver. See Brendlin v. California, supra, 551 U.S. at 256–57, 127 S.Ct. 2400. In the same manner that a traffic stop curtails the freedom of a passenger, so, too, does the protective stop of a suspect's companion. Nevertheless, in the case of a traffic stop, an officer may detain the vehicle's passengers because “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” (Internal quotation marks omitted.) Id., at 258, 127 S.Ct. 2400. Indeed, in the context of a traffic stop, the state's overriding interest in officer safety has been deemed to provide sufficient justification for the officer to order the passengers out of the vehicle without any individualized suspicion that those passengers pose a threat or otherwise were involved in conduct warranting their removal from the vehicle. See Maryland v. Wilson, supra, 519 U.S. at 413–15, 117 S.Ct. 882; cf. United States v. Vaughan, 718 F.2d 332, 334–36 (9th Cir.1983) (applying balancing test used by United States Supreme Court in Summers and concluding that brief, protective detention of passenger, who repeatedly attempted to walk away from vehicle, was lawful). Furthermore, the protective stop of a suspect's companion is analogous to a traffic stop of a vehicle with one or more passengers in that “a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing.” Brendlin v. California, supra, at 257, 127 S.Ct. 2400.
In addition, as the Appellate Court explained; see State v. Kelly, supra, 129 Conn.App. at 120, 19 A.3d 223; the holding in Michigan v. Summers, supra, 452 U.S. at 705, 101 S.Ct. 2587 permitting the detention of a dwelling's occupants during the execution of a search warrant at the dwelling provides further support for the conclusion that the protective stop of a suspect's companion incident to the lawful stop of the suspect does not violate the fourth amendment when the investigating officer has a reasonable concern for his safety. An officer who detains a suspect accompanied by a companion faces safety concerns similar to those that are present during the execution of a search warrant, especially when, as in the present case, the officer has reason to believe that the suspect is armed and dangerous: the companion's physical proximity to the officer and the suspect makes it very easy for the companion to interfere with the police investigation and to cause harm to the officer. The state's interest in mitigating this risk is substantial in both contexts and justifies police action without individualized suspicion. As this court previously has recognized, “the notion is abhorrent that police who are investigating a crime and suddenly find themselves at risk are precluded from acting reasonably in response to that risk merely because they have not yet established” the requisite level of cause to believe that a crime has been committed.
(Internal quotation marks omitted.) State v. Mann, supra, 271 Conn. at 318, 857 A.2d 329.
The defendant and the dissent indicate that Summers provides little or no support for the conclusion that a protective stop is permissible under the fourth amendment because the court in Summers observed that the search warrant itself provided an objective basis for believing that the dwelling's occupants were involved in criminal activity, and that belief provided a basis for the detention of the occupants. See Michigan v. Summers, supra, 452 U.S. at 703–704, 101 S.Ct. 2587 (“The existence of a search warrant ... provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral magistrate rather than an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home. The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of [the] occupant.” [Footnote omitted.] ). This, however, was only one of several justifications for the detention of the occupants in Summers, the holding of which was predicated on balancing the various “special law enforcement interests” implicated when a search warrant is executed, including officer safety, and the relatively limited intrusion on the occupants' liberty interests occasioned by the detention. See id., at 699–704, 101 S.Ct. 2587. Indeed, the court in Summers made it clear that the “central inquiry under the [f]ourth [a]mendment” is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security,” not individualized suspicion. (Internal quotation marks omitted.) Id., at 700 n. 11, 101 S.Ct. 2587.
We do recognize that some of the factors on which the court in Summers relied to support its conclusion that it is constitutionally permissible for the police to detain the occupants of a dwelling while executing a search warrant are not present in the case of a protective stop of the companion of a lawfully detained and potentially dangerous suspect. For example, when executing a search warrant for a dwelling, “[a] neutral and detached magistrate [has] found probable cause to believe that the law was being violated in that house and [has] authorized a substantial invasion of the privacy of the persons who [reside] there.” Michigan v. Summers, supra, 452 U.S. at 701, 101 S.Ct. 2587. In addition, the detention of the dwelling's occupants usually is less intrusive than the scope of the judicially authorized search itself. Id. The fact that these considerations are not present in the case of a protective stop of a suspect's companion, however, does not render protective stops per se unreasonable; rather, it is reason for concluding that the permissible degree to which the state may intrude on a companion's personal liberty must be correspondingly circumscribed. Consequently, a protective stop must be limited, in both time and manner, to the minimum intrusion necessary for officers to reasonably ensure their safety. In addition, the propriety of the protective stop is contingent on the constitutional validity of the underlying seizure of the suspect, and the state must point to specific facts that support the conclusion that the safety concerns of the police officer involved in the protective stop were objectively reasonable.
When these requirementshave been met, a protective stop is significantly less intrusive than the detention of a dwelling's occupants authorized by Summers; indeed, in stark contrast to a protective stop, a detention incident to the execution of a search warrant potentially could last for hours and could involve the use of significant physical restraints on the individual's liberty. See, e.g., Muehler v. Mena, 544 U.S. 93, 96, 100, 102, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (reasonable to handcuff defendant for two to three hours during execution of search warrant); see also State v. Read, 132 Conn.App. 17, 21, 29 A.3d 919 (execution of search warrant lasted approximately eight to ten hours), cert. denied, 303 Conn. 916, 33 A.3d 740 (2011). Furthermore, unlike the preventive detention of a suspect's companion, the police need not have a reasonable concern for their safety when detaining the occupant of a dwelling in accordance with Summers.
Thus, contrary to the assertion of the dissent, our decision does not give rise to any “unconscionable ramifications....” In support of this assertion, the dissent posits a number of hypothetical scenarios and suggests that, in each such situation, the state might seek to rely on our holding in the present case to justify the detention of persons based solely on their proximity to an armed and dangerous suspect. The dissent's concern appears to be based on the fact that “[t]here simply is no definition of who is a ‘companion’ in the majority opinion.” Although the present case does not require us to define “companion”—because the defendant makes no claim that he and Burgos were not companions—it suffices to say that the police may detain a person in the belief that that person is accompanying an armed and dangerous suspect only if that belief is based on reasonable and articulable facts. In other words, the police must reasonably believe that the person is accompanying the suspect. Because the police must abide by this reasonableness standard, the dissent's concern that our decision might somehow authorize the police to detain one or more persons merely because of their proximity to the suspect, and without regard to whether the facts give rise to the justified belief that any such person or persons were accompanying the suspect, is unfounded.
See Michigan v. Summers, supra, at 703–704, 101 S.Ct. 2587.
The defendant asserts that, in contrast to the duly authorized search of the dwelling in Summers and the lawful stop of the vehicle in Brendlin, the police have no such preexisting and independent justification for initiating an intrusion into the liberty interest of a suspect's companion. According to the defendant, this distinction leads to the conclusion that an officer may detain the companion only if he has an individualized and reasonable suspicion that the companion has committed or is committing a criminal offense. Contrary to the defendant's claim, the protective stop of the companion is indeed dependent on prior, lawful police action: in the same manner that an officer lawfully detains the passengers of a motor vehicle when he has sufficient cause to stop the driver; see Brendlin v. California, supra, 551 U.S. at 255–58, 127 S.Ct. 2400; the protective stop of a suspect's companion is predicated on, and justified by, the lawful stop of a suspect who the police reasonably believe is armed and dangerous.
In addition, although we disagree generally with the dissent's analysis of the relevant case law, we are particularly puzzled by the dissent's reliance on Ybarra v. Illinois, supra, 444 U.S. at 85, 100 S.Ct. 338 and its progeny. In Ybarra, the court held that the police were not entitled to search a person who merely was present in a bar that was the subject of a search warrant. Id., at 88, 94, 96, 100 S.Ct. 338. Subsequently, however, in Michigan v. Summers, supra, 452 U.S. at 705, 101 S.Ct. 2587 the court made it clear that the police are authorized to detain a person who, like the defendant in Ybarra, is present on the premises during the execution of a search warrant for those premises. Because our decision in the present case permits only the brief detention of the defendant and does not entail or authorize a search of the defendant, Ybarra, in contrast to Summers, has little or no bearing on the outcome of the present case. Perhaps even more important, however, the dissent, in asserting that Ybarra provides the “appropriate framework” for purposes of the present case, ignores the fact that, as the United States Supreme Court made clear in Summers and, thereafter, in Wilson and Buie, a person may be detained without particularized suspicion of criminal activity when the detention is reasonable, and therefore justified for fourth amendment purposes, in the interest of officer safety. As we explained, in determining the constitutional propriety of such an intrusion, we must balance the state's interest in police safety against the individual's liberty interest, with due regard for the nature and extent of the intrusion. In the present case, the dissent fails to explain why the state's interest in the safety of the investigating officers did not outweigh the relatively minimal intrusion into the defendant's liberty interest. We note, finally, that the dissent's reliance on United States v. Navedo, supra, 694 F.3d at 463, is similarly misplaced because the court in that case simply concluded that the detention of the defendant, Alexander Navedo, was impermissible under Terry and never considered the argument—because the government did not make it—that Navedo's detention was a reasonable protective stop. See id., at 468–69.
Thus, federal cases construing the fourth amendment's reasonableness requirement strongly support the conclusion that it is reasonable under article first, §§ 7 and 9, of the state constitution for the police to stop a suspect's companion, as a reasonable safety measure, when the police,having lawfully detained the suspect, reasonably believe that the suspect is armed and dangerous. We therefore turn to the remaining Geisler factors, none of which supports the defendant's claim.
As to the fourth Geisler factor, namely, persuasive sister state precedents, state courts invariably have concluded that a police officer, while lawfully detaining a suspect, also may briefly stop the suspect's companion when that stop is justified by considerations of officer safety. See, e.g., Trice v. United States, 849 A.2d 1002, 1006 (D.C.2004) (“[d]espite the general rule, immediate safety concerns may justify police in stopping, or stopping and frisking, a person based on his association with someone else whom the police reasonably suspect of criminal activity”), cert. denied, 543 U.S. 1078, 125 S.Ct. 934, 160 L.Ed.2d 820 (2005); Commonwealth v. Rucker, Massachusetts Superior Court, Docket No. 06–00530, 2006 WL 4323674 (Mass.Sup. November 27, 2006) (“when an officer legitimately comes into contact with the companion of the target of a Terry stop, particularly when the stop is related to a crime of violence or involves firearms, [he] may [stop and] frisk the suspect's companion if [he] consider[s] [the companion] dangerous, even if [he does] not have reasonable, articulable grounds to stop [the companion] for suspicion of criminal activity”); State v. Drury, 358 S.W.3d 158, 163 (Mo.App.2011) (“[p]rotective detention is reasonable when it is for a limited duration, and when the individual's presence could create a risk of harm to the officer, the individual detained, or the public at large, even if the officer has no reason to believe the individual would intentionally cause harm”), transfer denied, Missouri Supreme Court, Docket No. SC92290 (Mo. March 6, 2012); State v. Sparr, 13 Neb.App. 144, 153–55, 688 N.W.2d 913 (2004) (officer's actions were reasonable when, while seizing driver of one vehicle that already was stopped, he detained driver of nearby vehicle as safety precaution); see also United States v. Maddox, 388 F.3d 1356, 1367–68 (10th Cir.2004) (permitting protective stop of arrestee's companions incident to his arrest when officers had reasonable safety concerns), cert. denied, 544 U.S. 935, 125 S.Ct. 1689, 161 L.Ed.2d 504 (2005); cf. People v. Samples, 48 Cal.App.4th 1197, 1206–1207, 56 Cal.Rptr.2d 245 (1996) (using balancing test and concluding that, after defendant parked his vehicle without prompting, officers acted reasonably in detaining him incident to seizure of his passengers, whom officers reasonably suspected had engaged in sale of narcotics, because state's interest in officer safety outweighed relatively minor limitation on defendant's liberty), review denied, California Supreme Court, Docket No. S056442 (Cal. December 18, 1996). Indeed, neither the defendant nor the dissent has identified a single case in which a court, either federal or state, has determined that such a protective stop of the companion was unreasonable.
Nevertheless, the defendant contends that the final potentially relevant Geisler factor, namely, sociological and policy considerations,
supports his claim that the state constitution precludes the protective stop of a suspect's companion. In essence, the defendant claims that permitting the police to conduct such a stop will lead to abuse by overzealous officers. We do not believe that any such risk outweighs the state's strong interest in officer safety. Moreover, to the extent that the defendant's concern may have some legitimacy, our courts are well equipped to address any claim of police impropriety with respect to the protective stop of a suspect's companion and to enforce the conditions that we have placed on such detentions by ensuring that the failure of the police to abide by those conditions in any given case does not go unremedied.
The defendant does not contend that the fifth Geisler factor, the historical underpinnings of article first, § 7, provides support for his claim.
Thus, our review of the Geisler factors leads to only one conclusion: the defendant cannot prevail on his claim that the state constitution categorically bars the police from detaining a suspect's companion as a precautionary safety measure. On the contrary, it is reasonable, and therefore permissible, under article first, §§ 7 and 9, of the state constitution, for officers to briefly detain a suspect's companion incident to the lawful stop of the suspect when the officers reasonably believe that the suspect presents a threat to their safety.
Finally, the state maintains that the interest in officer safety is so weighty that we should go further and adopt a bright line rule pursuant to which it always is permissible for an officer to detain a suspect's companion, whenever the suspect is detained, regardless of whether the officer is reasonably concerned for his safety. We decline the state's invitation to adopt such a broad rule because we do not believe that it is necessary for the protection of the police, and, consequently, we are doubtful that it would satisfy the constitutional reasonableness requirement. For example, under the state's proposed standard, an officer could lawfully detain a suspect's companion even if the officer had no reason to believe that either the suspect or the companion posed any threat to the officer's safety. Similarly, an officer would be free to automatically detain a suspect's young child or a group of obviously disinterested bystanders, merely because of their physical proximity to the suspect, even though the officer could not articulate a rational justification for the detention.
Although it is true that an officer invariably may detain the passengers of a car incident to the stop of the driver; see Brendlin v. California, supra, 551 U.S. at 255–58, 127 S.Ct. 2400; because of the nature of such a stop; see, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (recognizing “the inordinate risk confronting an officer as he approaches a person seated in an automobile”); there will be some circumstances when it is not reasonable for an officer to detain a suspect's companion incident to the stop of the suspect. Consequently, we do not agree with the state that the generalized interest in police safety inevitably outweighs the companion's liberty interest. We are persuaded, rather, that permitting the protective stop of a suspect's companion when the officer has reason to be concerned for his safety strikes an appropriate balance between the competing state and individual interests.
We recognize, of course, that there frequently are safety risks when an officer detains a suspect in a public setting, and that the protective stop of the suspect's companion often will be warranted. Moreover, in posing the foregoing examples, we do not suggest that any particular category of companion necessarily is immune from a protective stop. Our point, rather, is simply that, when an officer detains a suspect's companion incident to the stop of the suspect, the officer must have a legitimate reason for doing so.
II
The defendant next claims that the Appellate Court incorrectly concluded that the trial court properly had found that Detective Rivera and Lieutenant Angeles were justified in detaining the defendant because they had a reasonable concern for their safety. In support of this claim, the defendant asserts that the trial court's conclusion was based on clearly erroneous factual findings and, further, that the Appellate Court ignored those erroneous findings and improperly upheld the trial court's ruling on the basis of facts that the trial court never found.
The record reveals the following additional facts and procedural history that are relevant to this issue. At the hearing on the defendant's motion to suppress the cocaine seized by the police following his detention incident to the stop of Burgos, Rivera testified that, shortly before the defendant's arrest, a confidential informant, who previously had provided accurate information about individuals in possession of firearms, told the police that Gomez, who lived in the Brown Street area of Hartford, likely was carrying a firearm. After receiving this information, Rivera discovered that “there was an outstanding felony violation of probation warrant” for Gomez. At the hearing, the defense conceded that the officers lawfully had stopped Burgos because they reasonably believed that he was Gomez and had a reasonable and articulable suspicion that Gomez had committed a criminal offense.
At the conclusion of the suppression hearing, the trial court made the following factual findings. “This [case] involves a series of events that happened on Brown Street, in Hartford, in the midday hours of March 27, 2007. The Hartford police had a warrant for ... Gomez. And this warrant was a felony warrant for possession of a firearm. The police also had reason to believe that ... Gomez was located in the Brown Street area of Hartford. The police went to this address—or went to this location—and saw walking on the street two gentlemen, one of whom, although neither person was ... Gomez—it happened that one person matched a physical description given to the police of ... Gomez. And they did not have a photograph; they just had a physical description.” (Emphasis added.) Thereafter, however, the Appellate Court, in upholding the trial court's denial of the defendant's motion to suppress, relied in part on testimony adduced at the suppression hearing establishing, first, that Gomez was the subject of an outstanding warrant for a violation of probation and, second, that the police had received information from a reliable confidential informant that Gomez was carrying a firearm. State v. Kelly, supra, 129 Conn.App. at 112, 19 A.3d 223. Finally, while this appeal was pending, and in response to this court's order for an articulation, the trial court stated that it had credited the officers' testimony that there was an outstanding felony violation of probation warrant for Gomez, and that a reliable informant had told the police that Gomez was in possession of a firearm.
We agree with the defendant that the trial court's initial finding concerning the charge in the outstanding arrest warrant for Gomez, that is, felony possession of a firearm, was unsupported by the record because the unchallenged testimony adduced by the state established that Gomez was the subject of a warrant for an “outstanding felony violation of probation....” As we have explained, however, in the trial court's articulation, which it issued during the pendency of the present appeal, the court reconsidered that initial finding and stated that it credited the suppression hearing testimony that Gomez had an outstanding felony warrant for a violation of probation. The trial court also stated that it credited the testimony that the officers had received information from a reliable confidential informant that Gomez likely was in possession of a firearm. In light of these factual findings by the trial court, the defendant's claim that the Appellate Court improperly relied on certainerroneous factual findings is moot.
Furthermore, as the Appellate Court explained, the evidence was sufficient to support a reasonable belief by Rivera and Angeles that Gomez was armed and dangerous. Finally, the defendant himself conceded that Rivera and Angeles lawfully had stopped Burgos because they reasonably believed that he was Gomez, for whom they had an arrest warrant, when they observed Burgos on Brown Street. For the reasons set forth in part I of this opinion, the facts also support the conclusion of the trial court and the Appellate Court that Rivera and Angeles reasonably detained the defendant, as a legitimate safety precaution, incident to the stop of Burgos, even though they lacked any individualized suspicion to believe that the defendant himself was involved in criminal activity or was armed and dangerous.
The defendant also claims that the Appellate Court improperly relied on other facts that, although the subject of testimony at the suppression hearing, the trial court never expressly found. Those facts are that the defendant clutched at his waistband, that Gomez sometimes disguised himself by wearing a wig, and that the stop of Burgos and the defendant occurred near a gas station located in an area known for drug dealing. See State v . Kelly, supra, 129 Conn.App. at 112–13, 19 A.3d 223. For purposes of resolving the issue presented by this appeal, however, it is irrelevant whether the Appellate Court relied on those facts because other facts that the trial court found and on which the Appellate Court relied, namely, that the police had a felony arrest warrant for Gomez and had been told by a reliable informant that Gomez likely was carrying a firearm; id., at 112, 19 A.3d 223; were sufficient to support the conclusion that Rivera and Angeles had a reasonable belief that Gomez was armed and dangerous.
III
In sum, we agree with the Appellate Court that “the interest in the officers' safety during the investigatory stop of Burgos outweighed the defendant's personal liberty interest in not being inconvenienced. To mitigate the risk of harm, the officers exercised command of the entire scene, including the defendant. See, e.g., Michigan v. Summers, supra, 452 U.S. at 702–703, 101 S.Ct. 2587. When making a ‘split second’ decision, an officer is ‘not required to calculate the probability that the defendant would proceed in a certain way before taking reasonable steps to protect himself and his fellow officers.’ State v. Mann, supra, 271 Conn. at 328, 857 A.2d 329. For example, when making a suspicionless detention of a passenger during a traffic stop, a police officer ‘surely [is] not constitutionally required to give [the defendant] an opportunity to depart the scene after he exit[s] the vehicle without first ensuring that, in so doing, [he is] not permitting a dangerous person to get behind [him].’ Arizona v. Johnson, [supra, 555 U.S. at 334, 129 S.Ct. at 788]. Similarly, for example, in determining the reasonable duration of an investigative stop, a court ‘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.’ United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). The risk in the present case was significant, and the incremental intrusion was minimal.” State v. Kelly, supra, 129 Conn.App. at 124, 19 A.3d 223. Accordingly, the protective stop of the defendant incident to the stop of Burgos did not violate the defendant's rights under the state constitution, and, therefore, the Appellate Court properly upheld the trial court's ruling that the defendant is not entitled to suppression of the cocaine that the police had seized following his detention.
The judgment of the Appellate Court is affirmed. In this opinion ROGERS, C.J., and NORCOTT, ZARELLA and VERTEFEUILLE, Js., concurred.
EVELEIGH, J., with whom McDONALD, J., joins, dissenting.
I respectfully dissent. When commenting on the power of government, Benjamin Franklin once said that “[t]hose who would give up essential [l]iberty, to purchase a little temporary [s]afety, deserve neither [l]iberty nor [s]afety.” 6 Papers of Benjamin Franklin (L. Labaree ed., 1963) p. 242. Today, with the issuance of the majority opinion, I share Franklin's concerns.
In this case, we are asked to strike the balance between the rights of the police to be as safe as possible in the performance of their essential duties and the rights of citizens to be protected from unreasonable searches and seizures. I disagree with the majority's conclusion in part I of its opinion that, “when officers lawfully detain a suspect who they reasonably believe poses a threat to their safety, article first, §§ 7 and 9, permit the officers to briefly detain the suspect's companion for protective purposes.” The majority strikes that balance, under the circumstances of this case, on the side of the police. In my view, there must be more indicia than “guilt by association” before the police can infringe upon fourth amendment rights. Accordingly, I respectfully dissent.
I agree with the majority that the police, under certain circumstances, have the right to perform a protective sweep in order to ensure their safety. Indeed, if the defendant, Jeremy Kelly, had been walking with the suspect and refused to leave when the suspect was stopped, I would agree with the majority that the police could have detained the defendant for their own protection. I part ways with the majority, however, on the premise that the police had an automatic right to detain the defendant. In my view, if they had been walking together, the police had to request that the defendant leave while they detained the suspect. Under the facts of this case, the situation becomes more of a police contrivance. The defendant was walking away from them and they ordered him to stop and come to them. If they had not said anything the defendant would have proceeded on his way while they detained the suspect and this situation would have never occurred. Therefore, in my view, the police have manufactured this safety excuse in order to justify a search that had its genesis in the initial illegal stop of the defendant.
I agree with the facts and procedural history set forth in the majority opinion. I do, however, highlight certain facts that are essential to my analysis and on which the majority and I agree. First, the defendant “was seized for state constitutional purposes when [Detective William] Rivera and [Lieutenant Jose] Angeles drove up alongside him, displayed their badges, and Rivera told him to approach their vehicle.” Second, Rivera and Angeles lacked reasonable and articulable suspicion that the defendant himself was engaged in criminal activity.
I agree with the majority that, on appeal to this court, the defendant claims that his seizure violated article first, §§ 7 and 9, of the Connecticut constitution and “does not seriously contest the conclusion of the Appellate Court that he was not seized for fourth amendment purposes until the police had probable cause to arrest him and, therefore, that his seizure did not violate the federal constitution.” Therefore, “[t]he defendant's claim requires us to examine the scope of the rights afforded by the Connecticut constitution.”
As the majority properly noted, “[i]n determining the contours of the protectionsprovided by our state constitution, we employ a multifactor approach that we first adopted in State v. Geisler, [222 Conn. 672, 684, 610 A.2d 1225 (1992) ]. The factors that we consider are ‘(1) the text of the relevant constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of [the] constitutional [framers]; and (6) contemporary understandings of applicable economic and sociological norms.’ ... State v. Dalzell, 282 Conn. 709, 716 n. 6, 924 A.2d 809 (2007).” Like the majority, we agree that persuasive federal precedent is particularly relevant to our state constitutional inquiry.
I would conclude that Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), and United States v. Jaramillo, 25 F.3d 1146 (2d Cir.1994), are analogous to the present case and provide the appropriate framework for considering the defendant's claim because those cases involve the search of an unsuspicious person in a public place.
First, in Ybarra v. Illinois, supra, 444 U.S. at 87–89, 100 S.Ct. 338 the United States Supreme Court considered the motion to suppress evidence obtained during the search of a bar patron by law enforcement officers who were executing a search warrant. The search warrant authorized the search of the bar and one of its bartenders. Id., at 88, 100 S.Ct. 338. During the search, seven or eight officers arrived at the bar, “announced their purpose and advised all those present that they were going to conduct ‘a cursory search for weapons.’ ” Id. One of the officers then engaged in a patdown search of each of the patrons at the tavern. Id. The other officers engaged in an extensive search of the premises. Id. At the time of the search Ventura Ybarra was in front of the bar standing by a pinball machine. Id. During the first patdown of Ybarra, the officer felt what he described as “ ‘a cigarette pack with objects in it.’ ” Id. The officer did not remove the object from Ybarra's pocket, but continued patting down the other patrons. Id. After patting down the other patrons, the officer went back to Ybarra and frisked him again. Id., at 89, 100 S.Ct. 338. During the second search of Ybarra, which took place between approximately two and ten minutes after the first, the officer removed the cigarette pack from Ybarra's pocket. Id. Inside the pack he found six tinfoil packets, which later turned out to be heroin. Id.
The United States Supreme Court rejected the state's claim that it does not violate the fourth amendment “to permit evidence searches of persons who, at the commencement of the search, are on ‘compact’ premises subject to a search warrant, at least where the police have a ‘reasonable belief’ that such persons ‘are connected with’ drug trafficking and ‘may be concealing or carrying away the contraband.’ ” Id., at 94, 100 S.Ct. 338. Instead, the court focused on the following: “Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale.” Id., at 90–91, 100 S.Ct. 338.
On the basis of the foregoing, the United States Supreme Court clarified that “a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id., at 91, 100 S.Ct. 338. Furthermore, the court in Ybarra further concluded that “[t]he initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this [c]ourt has invariably held must form the predicate to a patdown of a person for weapons.” Id., at 92–93, 100 S.Ct. 338. Accordingly, the United States Supreme Court concluded that “the searches of Ybarra and the seizure of what was in his pocket contravened the [f]ourth and [f]ourteenth [a]mendments.” Id., at 96, 100 S.Ct. 338.
Second, I find the reasoning and rationale of the Second Circuit Court of Appeals in United States v. Jaramillo, supra, 25 F.3d at 1146, to be instructive in the present case. In Jaramillo, the defendant sought to exclude a firearm from evidence on the ground that it had been obtained in violation of his rights under the fourth amendment. Id., at 1147. The firearm was obtained during a raid by law enforcement officers at a bar. Id. During the course of the raid, one patron took a handgun from his waistband and tossed it into the lap of another person seated at his table and that person tossed the handgun onto the floor. Id. As the officer approached those two people and ordered them against the wall, the defendant emerged from the bathroom. Id., at 1147–48. When the defendant emerged from the bathroom, the officer grabbed him and placed him up against the wall. Id., at 1148. When the officer patted down the defendant, he discovered a firearm underneath the leg of his pants. Id.
The Second Circuit reviewed Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, concluding that “any invasion of a person's [f]ourth [a]mendment interests must be justified at least by ‘specific and articulable facts' directed to the person whose interests are to be invaded.” United States v. Jaramillo, supra, 25 F.3d at 1151. The Second Circuit then relied on the Supreme Court's analysis in Ybarra, and concluded that the cases “stand for the proposition that a Terry-type patdown is permissible with respect to persons who are believed, on the basis of specific and articulable facts, to have behaved suspiciously or with respect to persons who own, occupy, or enter upon private premises on which the officers have the right to conduct a search or make a security check; but such a patdown is not permissible with respect to a person in a public place where the officers have no specific and articulable facts on which to base a suspicion of that person in particular.” Id., at 1152. The Second Circuit then concluded “[w]e think it plain that the present case is governed by Ybarra, which involved the search of an unsuspicious person in a public tavern, rather than the Terry v. Ohio [supra, at 1, 88 S.Ct. 1868] and Michigan v. Long [463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) ] line of cases, which involved searches of persons engaging in suspicious behavior, or the Michigan v. Summers [452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) ] and United States v. Barlin [686 F.2d 81, 87 (2d Cir.1982) ] line of cases, which involved detentions or pat-downs in connection with permissible searches of private homes.” United States v. Jaramillo, supra, at 1152–53.
Applying that rationale to the facts of Jaramillo, the Second Circuit determined that the government had failed to show that there was any reasonable articulable suspicion to Jaramillo in particular, where the agents did not know him, had no information about him, and where Jaramillo did not make any suspicious statements or threatening gestures. The Second Circuit also pointed to the fact that there was no evidence that Jaramillo had any connection to the man who tossed the gun. Id., at 1153. Accordingly, the Second Circuit concluded that the motion to suppress should have been granted. Id., at 1154.
The Third Circuit Court of Appeals and Fourth Circuit Court of Appeals have also recently relied on and applied the rationale of Ybarra on facts similar to the present case. First, in United States v. Navedo, 694 F.3d 463, 468–69 (3d Cir.2012), the Third Circuit determined that the seizure of an individual, Alexander Navedo, who police had seen talking with another individual who was in possession of a handgun was impermissible under the fourth amendment. The court relied on the fact that “police did not have any information from any source that would have supported a reasonable suspicion that Navedo was involved in firearms trafficking or that he intended to purchase a gun from [the suspect who was seen holding the gun]. As we have just noted, the officers knew of nothing that would have suggested Navedo was connected to any prior criminal activity. His residence at 315 Park Avenue was not even the focus of police surveillance. That surveillance was aimed at the building at 323 Park Avenue. A shooting had been reported at that address, and the shooting was not even that recent. The stop here appears to be based on nothing more than an attempt to transfer the reasonable suspicion the police had as to [the suspect] onto Navedo.” (Footnote omitted.) Id.
Second, the Fourth Circuit also found a seizure of a companion without reasonable suspicion related to that individual to violate the fourth amendment in United States v. Black, 707 F.3d 531, 539 (4th Cir.2013). In reaching its conclusion, the court reasoned as follows: “Here, the totality of the factors outlined by the [D]istrict [C]ourt—an individual's presence at a gas station; prior arrest history of another individual; lawful possession and display of a firearm by another; [the defendant's] submission of his [identification] showing an out-of-district address to [the police officer], all of which occurred in a high crime area at night—fails to support the conclusion that [the police officer] had reasonable suspicion to detain [the defendant].” Id.
I would conclude that the facts of the present case are most similar to Ybarra and its progeny, because the present case involves the detention of an unsuspicious person in a public place. Like the defendants in Ybarra, Jaramillo, Navedo, and Black, the defendant in the present case did not engage in any suspicious behavior and the police did not have any specific information about him or know the nature of his relationship with the suspect.
The majority indicates that “we are particularly puzzled by [this] dissent's reliance on Ybarra v. Illinois, supra, 444 U.S. at 85, 100 S.Ct. 338 and its progeny.... Because our decision in the present case permits only the brief detention of the defendant and does not entail or authorize a search of the defendant....” (Emphasis in original.) I respectfully disagree. Summers involved a premises search in a private home whereas Ybarra involved a public place, a tavern. The Supreme Court noted in Summers that “[t]he connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.” Michigan v. Summers, supra, 452 U.S. at 703–704, 101 S.Ct. 2587. Further, many of the cases cited in this opinion namely: the Second Circuit's decision in Jaramillo, the Third Circuit's decision in Navedo, and the Fourth Circuit's decision in Black, all concerned detentions of nonsuspects in public places. All of these cases were decided after both Ybarra and Summers and they all engaged in a Ybarra-type analysis while citing Ybarra. Navedo actually involved a case where the police had observed Navedo's companion with a gun on the front porch of a multiunit building located in a mixed residential and industrial neighborhood. United States v. Navedo, supra, 694 F.3d at 477. When the police approached the two men, the suspect ran in one direction and Navedo ran up the stairs to his home with one officer pursuing him. As he chased Navedo, the officer yelled “[p]olice” and “stop.” Id., at 466. After climbing two flights of stairs, Navedo reached the third floor and attempted to open the door to his apartment. Id. He was then tackled by the officer. Id. The officer testified that the door had been opened at the time he tackled Navedo, and he observed a shotgun, two long rifles on the bed, one of the floor, and a stock of ammunition on the floor. Id. Navedo was charged with illegally possessing the weapons that were recovered from inside his apartment, and those weapons were admitted against him to support the sole count upon which he was tried and convicted. Id., at 467. The Third Circuit opined that “[t]he reasonable suspicion required under Terry is specific to the person who is detained. The circumstances ‘must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.’ United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The Supreme Court has never viewed Terry as a general license to detain everyone within arm's reach of the individual whose conduct gives rise to reasonable suspicion. Rather, the [c]ourt has stressed that ‘this demand for specificity in the information upon which police action is predicated, is the central teaching of this [c]ourt's [f]ourth [a]mendment jurisprudence.’ Id. [quoting Terry v. Ohio, supra, 392 U.S. at 21 n. 18, 88 S.Ct. 1868]”.... (Emphasis omitted.) United States v. Navedo, supra, at 468. The Third Circuit further stated that “[a]lthough the [c]ourt in Ybarra was discussing probable cause to arrest rather than the reasonable suspicion for a stop under Terry, the [c]ourt's pronouncement is equally applicable to this situation. See Brown v. Texas, 443 U.S. 47, 49–52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).” United States v. Navedo, supra, at 469. In words that apply equally to the present case, the Third Circuit further stated that “[w]e do not suggest that the officers had to sit idly by without approaching and investigating merely because they could not be certain about what was transpiring. However, given the limitations on investigative detentions under Terry, and the [c]ourt's clear pronouncement in Cortez, they could not detain Navedo merely because their reasonable suspicions justified a brief investigative detention of [the suspect].” Id., at 468. “[A] person whom police approach is free to avoid a potential encounter with police by leaving the scene, and the rate of acceleration of the person's gate as [he or she leaves] is far too ephemeral a gauge to support a finding of probable cause, absent some other indicia of involvement in criminal activity.” Id., at 474. Thus, the court held that the police had no reason to suspect that Navedo was himself involved in criminal activity, and even if they had appropriately formed such a suspicion, they would have been entitled only to detain and investigate, not arrest. The court, therefore, concluded “that the police lacked probable cause to arrest Navedo under the circumstances here and that the District Court erred in denying his motion to suppress the physical evidence that was seized following that arrest.” Id. The majority maintains that “neither the defendant nor the dissent has identified a single case in which a court, either federal or state, has determined that such a protective stop of the companion was unreasonable.” In my view, Navedo supports the conclusion that the stop in the present case was unreasonable. In fact, Navedo is a much stronger case for the state's position in view of the presence of a gun observed by the police, yet the state's argument was rejected in Navedo. As articulated by the trial court in the present case, there was no indication of firearms in the violation of probation warrant, and no firearms were observed at the scene.
The majority maintains that, in the present case, “the dissent fails to explain why the state's interest in the safety of the investigating officers did not outweigh the relatively minimal intrusion into the defendant's liberty interest.” In my view, without some justification, there can be no “minimal intrusion” into a liberty interest. When we engage in such semantics, I believe that we begin the process of eroding essential constitutional rights.
I would agree with the majority that the police would have been entitled to detainthe defendant if they had asked him to leave while they detained his companion, and he refused. The refusal to leave alone, in my view, would have been enough to constitute reasonable suspicion of the defendant. Under the facts of this case, however, the police contrived this situation and then used the safety reason as an excuse for the detention. The defendant was walking in the driveway of a house. Instead of asking only the suspect to stop, the police ordered both to halt. It was at this stage that the defendant was seized. The police were several feet away when they issued this order. The defendant responded that he lived in the house.
The police had no authority to yell halt to the defendant.
I note that the record in the present case is not clear as to whether the defendant, in fact, lived in the house.
This is not a situation where the police received information that two people had committed a crime nearby a short time ago and they had a good description of one such that it would be reasonable to detain the other. Nor, is it like the case cited by the majority, Trice v. United States, 849 A.2d 1002, 1004 (D.C.2004), in which the police received information that there had been a stabbing at a local hospital and two minutes later saw two men, including one who fit the description of the suspect, walking near the location of the stabbing. In that type of case, the companion's presence with a suspect in such geographic and temporal proximity creates a reasonable suspicion of the companion, as either a participant in or a witness to criminal activity. Id., at 1008. In finding the search of the companion permissible in Trice, the court reasoned as follows: “As he was walking with [the suspect, Tyrone Trice] appeared to be the companion of a potentially violent, fleeing criminal and not a mere bystander. Moreover, given the recency of the crime, it was reasonable to think that if [the suspect] committed it, his companion Trice likely was aware of that fact and was a witness if not also an accomplice or an accessory after the fact.” Id.
None of the facts that allowed for the seizure of the companion in Trice are involved in the present case. The police only had information that Pedro Gomez was wanted for a violation of probation charge. There was no information that the crime had happened recently so as to make the defendant either a witness or accomplice or accessory after the fact. Therefore, unlike Trice, the present case involves a stop predicated solely on the basis of association. As the Fifth Circuit Court of Appeals has noted, “[l]est there be any doubt, we state here that ‘reasonable suspicion’ must be specifically directed to the person to be searched. While in narrowly limited circumstances the degree of suspicion as to an already suspicious individual may be somewhat enhanced by virtue of suspicious activity by a closely linked traveling companion at the border ... the fourth amendment does not permit any automatic or casual transference of ‘suspicion.’ ” (Citation omitted; footnote omitted.) United States v. Afanador, 567 F.2d 1325, 1331 (5th Cir.1978).
The majority acknowledges that the seizure of the defendant in the present case is impermissible under Terry v. Ohio, supra, 392 U.S. at 1, 88 S.Ct. 1868, and its progeny. I agree.
Nevertheless, the majority explains that “[t]he mere fact that the suspicionless detention of a suspect's companion cannot be justified under Terry does not resolve the issue before us, however, because such a detention otherwise may be reasonable for fourth amendment purposes. Indeed, the United States Supreme Court has used the same balancing approach that it applied in Terry in concluding that certain warrantless searches and seizures pass muster under the fourth amendment even though they are not supported by probable cause or reasonable suspicion.” The majority then relies on Michigan v. Summers, supra, 452 U.S. at 693–94, 101 S.Ct. 2587 (holding that, for purposes of fourth amendment, police executing search warrant for home may detain occupants during search), Maryland v. Buie, 494 U.S. 325, 327–28, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (while effecting arrest of suspect in his home pursuant to arrest warrant, officer may conduct warrantless protective sweep of all or part of premises), and Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (“an officer making a traffic stop may order passengers to get out of the car pending completion of the stop”). I respectfully disagree with the majority's reliance on these cases. I take each in turn.
First, I do not agree that the United States Supreme Court did not require reasonable suspicion regarding the defendant in Michigan v. Summers, supra, 452 U.S. at 692, 101 S.Ct. 2587. To the contrary, I would conclude that the United States Supreme Court determined that the state established specific and articulable facts directed to the defendant in Summers by virtue of the fact that he was an occupant in the home for which the police had a warrant. Id., at 703, 101 S.Ct. 2587.
Indeed, in Michigan v. Summers, supra, 452 U.S. at 703–704, 101 S.Ct. 2587 the United States Supreme Court specifically addressed the reasonable suspicion the officers had directed to the defendant. The United States Supreme Court reasoned as follows: “It is also appropriate to consider the nature of the articulable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant. We have already noted that the detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant. The existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral magistrate rather than an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home. The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.” (Emphasis added; footnote omitted.) Id.
Second, in Maryland v. Buie, supra, 494 U.S. at 325, 110 S.Ct. 1093 the United States Supreme Court did not state that a reasonable suspicion about a companion was unnecessary. Indeed, Buie did not even involve a companion, but instead was a motion by the defendant, for whom the officers had a valid warrant for his arrest, to suppress evidence that was found in the basement of his home during a protective sweep of the home incident to his arrest. Id., at 328, 110 S.Ct. 1093. While in the defendant's home to execute the warrant for his arrest, the defendant eventually emerged from the basement. Id. In response, the police entered the basement to do a protective sweep, in case there was anyone else in the basement. Id. The defendant filed a motion to suppress the evidence found in the basement on the ground that the police violated the fourth amendment by entering the basement without a warrant after arresting the defendant. Id.
Although Buie did not deal with whether the police needed a reasonable suspicion about a companion, the United States Supreme Court did address whether the police needed a reasonable suspicion to enter the basement. In doing so, the United States Supreme Court, specifically stated as follows: “We conclude that the [f]ourth [a]mendment would permit the protective sweep undertaken here if the searching officer possesse[d] a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed] the officer in believing ... that the area swept harbored an individual posing a danger to the officer or others.” (Citations omitted; internal quotation marks omitted.) Id., at 327, 110 S.Ct. 1093. The United States Supreme Court further explained that, “[w]e agree with the [s]tate ... that a warrant was not required. We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.
“We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” (Footnotes omitted.) Id., at 334–36, 110 S.Ct. 1093. In allowing for the protective sweep, the United States Supreme Court reasoned that “unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Id., at 333, 110 S.Ct. 1093.
Third, I also disagree with the majority's reliance on Maryland v. Wilson, supra, 519 U.S. at 408, 117 S.Ct. 882 which involved whether passengers in a motor vehicle could be required to exit the vehicle. In Wilson, a state trooper stopped a motor vehicle for speeding and not having a regular license plate. Id., at 410, 117 S.Ct. 882. Once the car stopped, the driver voluntarily exited the vehicle and appeared very nervous. Id. The trooper ordered the driver back into the vehicle and asked him to provide the rental papers. Id., at 410–11, 117 S.Ct. 882. During this time, the trooper noticed that the front seat passenger, Jerry Lee Wilson, was sweating and also appeared extremely nervous. Id. While the driver was seated in the vehicle looking for the rental papers, the trooper ordered Wilson out of the car. Id., at 411, 117 S.Ct. 882. When Wilson exited the vehicle, a bag filled with crack cocaine fell to the ground. Id. Wilson was then arrested and charged with possession of cocaine with intent to distribute. Id. Wilson filed a motion to suppress the evidence, claiming that the trooper violated the fourth amendment when he ordered Wilson out of the vehicle. Id.
In Wilson, the United States Supreme Court balanced the serious dangers presented to officers during motor vehicle stops with the minimal additional intrusion on passengers of an already stopped vehicle. Id., at 413–14, 117 S.Ct. 882. The United States Supreme Court reasoned that “as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their 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. The United States Supreme Court, therefore, concluded as follows: “[D]anger 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. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” Id., at 414–15, 117 S.Ct. 882.
In concluding that the trooper did not violate Wilson's fourth amendment rights by ordering him out of the vehicle, the United States Supreme Court noted that Wilson was “subjected to no detention based on the stopping of the car once he had left it.” Id., at 415 n. 3, 117 S.Ct. 882. The United States Supreme Court refused to address the state's request that they “go further and hold that an officer may forcibly detain a passenger for the entire duration of the stop.” Id.
On the basis of the foregoing, I disagree that the United States Supreme Court precedent supports the majority's position. These cases are distinguishable from the facts of the present case in that the subject of the search in these cases is a car or a house—a confined area—and the subjects are detained for: (1) police safety; (2) to prevent the removal of evidence; and (3) their known association to the subject of a warrant. In the present case, the defendant was detained in an open area where police could have avoided the safety issue by letting the defendant proceed on his way, there was no possibility that the defendant would have been able to remove evidence, and the police did not have knowledge of his relationship with the suspect beyond the fact that they were walking together for a brief period of time.
As the Second Circuit reasoned, “[t]he difference lies in the fact that while it is obviously reasonable to believe that individuals in a private home or vehicle have some connection with one another, it is not reasonable to assume that all of the persons [in a public place] have such a connection. The sole fact that an individual as to whom the officers have no reasonable and articulable factual suspicion of wrongdoing happens to be in a public place where another person possesses a weapon or contraband does not provide a basis for a Terry-type search if the possessor is a person with whom the searched individual has no known connection.” United States v. Jaramillo, supra, 25 F.3d at 1152.
I also disagree with the majority's reliance on United States v. Lewis, 674 F.3d 1298, 1309 (11th Cir.2012), as support for its holding in the present case. As the majority explains, in Lewis, two police officers encountered four men in a parking lot, one of whom was the defendant, Omar Lewis. Id., at 1300. When asked if they were carrying firearms, two of the men, not including Lewis, responded in the affirmative. Id. One of the men responded that he had a handgun on his person. Id. The majority neglects, however, to mention an important fact—one of the men indicated that there was a handgun in the backpack in the open trunk of a car parked nearby. Id. The car was in such close proximity that one of the police officers could see the top of the backpack. Id. It was only at this point that the officers drew their weapons, ordered all four men to sit down on the ground and show their hands, thereby seizing them for purposes of the fourth amendment. Id., at 1301.
In concluding that the seizure of the men in the parking lot was reasonable, the Eleventh Circuit Court of Appeals determined that “[t]he officers faced substantial, immediate danger when confronted with the known possession of two firearms.” (Emphasis added.) Id., at 1306. In applying the balancing test, the Eleventh Circuit reasoned that “[t]he reasonableness of the officers' conduct under the totality of the circumstances was heightened greatly by the admitted presence of two firearms, which posed a serious risk to the safety of the officers as well as the other individuals present in the crowded parking lot.” Id., at 1308.
Although I agree with the majority that the Eleventh Circuit “focused on the specific dangers associated with firearms....” I disagree that the safety concerns present in Lewis are applicable to the present case. In Lewis, the police officers were faced with the known possession of two firearms in a crowded parking lot, one of which was on the person of a suspect and one that was “well within the reach of all four individuals at the time the officers drew their weapons.” United States v. Lewis, supra, 674 F.3d at 1309. In the present case, nothing in the record indicates that the police officers had a reasonable belief that the suspect was armed at the point they encountered him on the street.
In determining whether the officers in the present case had a reasonable concern for their safety, that distinction is dispositive. In Lewis, the Eleventh Circuit was clear that “under the totality of the circumstances ... the officers were entitled to control the scene and exercise command over the situation in the course of briefly detaining [the individual who admitted to carrying a handgun on his person] for further investigation. A brief detention of all four associated individuals was reasonable, in light of the substantial risks to the officers' safety.” Id. Under the totality of the circumstances in the present case, I would conclude that the detention of the defendant was not reasonable because the state did not demonstrate a substantial risk to the officers' safety.
In fact, the trial court initially found that the suspect had an outstanding warrant for the offense of “felony ... possession of a firearm,” which was incorrect. The trial court, in response to this court's articulation request, corrected its erroneous finding to the effect that the suspect was the subject of an “active felony warrant for violation of probation.”
I also disagree with the majority's reliance on Commonwealth v. Rucker, Superior Court of Massachusetts, Essex County, Docket No. 06–00530, 2006 WL 4323674, at *4 (November 27, 2006) (“when an officer legitimately comes into contact with the companion of the target of a Terry stop, particularly when the stop is related to a crime of violence or involves firearms, [he] may [stop and] frisk the suspect's companion if [he] consider[s] [the companion] dangerous, even if [he does] not have reasonable, articulable grounds to stop [the companion] for suspicion of criminal activity”), State v. Drury, 358 S.W.3d 158, 163 (Mo.App.2011) (“[p]rotective detention is reasonable when it is for a limited duration, and when the individual's presence could create a risk of harm to the officer, the individual detained, or the public at large, even if the officer has no reason to believe the individual would intentionally cause harm”), State v. Sparr, 13 Neb.App. 144, 153, 688 N.W.2d 913 (2004) (officer's actions were reasonable when, while seizing driver of one vehicle that was already stopped, he detained driver of nearby vehicle as safety precaution), and United States v. Maddox, 388 F.3d 1356, 1367–68 (10th Cir.2004) (permitting protective detention of arrestee's companions incident to his arrest when officers have reasonable safety concerns), cert. denied, 544 U.S. 935, 125 S.Ct. 1689, 161 L.Ed.2d 504 (2005). In each of these cases, the officers were able to point to particularized facts about the companion that amounted to a reasonable fear for their safety related to the presence of the companion. In the present case, the officers do not allege any particularized facts about the defendant that caused them to reasonably fear for their safety, only facts related to the suspect. Accordingly, I find the majority's reliance on these cases to be misplaced.
I agree with the majority that the police have a legitimate interest in protecting themselves. There must be, however, some restrictions placed on the intent. In my view, there are several potential unconscionable ramifications to the majority opinion. For instance, if a suspect with an outstanding warrant is talking to his neighbor's family near the property line, can the police now detain the entire family as part of the encounter with the suspect? If the suspect is waiting at a bus stop with six other strangers, can they all be detained?
If the same suspect is observed leaving a house and stopped in the front yard, can the police now seize everyone in the house to ensure that no one will shoot them while they question the suspect? What if the suspect is detained in a neighborhood known to have a high incident of crime, can the police now seize everyone in the entire neighborhood to ensure their safety while they detain the suspect? There simply is no definition of who is a “companion” in the majority opinion. I would require more than mere “guilt by association.” Ever mindful of Franklin's admonition, we cannot use the omnipresent specter of safety as a guise to authorize government intrusion. Therefore, I respectfully dissent.