Opinion
No. CR07-100764S
September 8, 2008
MEMORANDUM OF DECISION RE MOTION TO SUPPRESS AND DISMISS
BACKGROUND
The defendant was charged with the theft of a firearm, carrying a pistol without a permit, larceny third; carrying a dangerous weapon and possession of burglary tools on March 21, 2007. By motion dated July 17, 2008, the defendant filed a motion to suppress and a motion to dismiss. The defendant contends that evidence seized from the defendant at the time of his arrest as well as an incriminating statement given after his arrest should be suppressed. While not expressly stated in this motion, the defendant claim centers upon an illegal stop and evidence seized from the fruit of said stop. He claims that the stop violated his State and Federal constitutional rights. A hearing was held on August 6, 2008 with simultaneous briefs submitted on August 22, 2008.
FACTS
The court finds the following facts. During the early months of 2007, a rash of residential burglaries occurred in the Norwich/Bozrah area near Wawecus Hill Road, Briar Hill Road (Norwich) and South Road (Bozrah). One such burglary occurred in the early afternoon on February 14, 2007 at 12 Wawecus Hill Road at a home owned by Mr. and Mrs. Barnowski. Mrs. Barnowski was preparing to leave her home on a clear, cold day. She saw a person wearing a black or blue colored sweatshirt with hood pulled over the head with dark pants walking in front of her home. The individual was of an unknown race but appeared to have the upper body shape of a man. She left home and returned approximately one hour later finding her home broken into with several items of personal property stolen including her husband's .38 caliber hand gun.
Two days prior to the break-in, Mrs. and Mr. Barnowski had seen a similar looking person walking by their home between 12:00 p.m. and 2:00 p.m. He described him as a suspicious looking person with a dark colored hooded sweatshirt with the hood pulled over his head. He was looking down in a manner that was not consistent with the normal people seen walking on their street in their rural neighborhood. Their view was clear and unobstructed and a distance of 90 to 100 feet.
After the break-in on February 12th, the Barnowskis supplied information to a trooper from the Connecticut State Police of the burglary, description of the individual seen on February 10 and 12 and the items stolen which included cash, a flashlight and the handgun. The trooper in turn disseminated the information to local police departments including the Norwich Police.
During the time period of the Barnowski burglary, other burglaries were occurring in the street areas in question. Trooper French, who was investigating those crimes, developed a similar description from another source or witness. A Mr. Carr of 273 Old Salem Hill Road, Bozrah, gave a statement on March 19, 2007 indicating that he observed a person described as a mixed male Hispanic and white wearing snow camo pants, a white jacket with a black hood or sweatshirt underneath with the hood over his face. Defendant's Exhibit A. Mr. Carr's home was broken into by an unknown burglar. Mr. Carr also described the individual as having his hood on and his face was down. Mr. Carr saw the man shortly after his home was broken into in and around the time the Barnowski home was burglarized. That information was also supplied to the Norwich Police Department by the State Police.
During the lunch hour of March 21, 2007, Mrs. Barnowski saw an individual matching the description of the person she saw walking by her house on February 10 and 12. She contacted her husband who contacted the Norwich Police Department. Officers Dolan and Camp were dispatched to the area in question. Each officer was aware that the individual matching the description had been seen in the Wawecus Hill Road area during the time that the previous burglaries had occurred and that a handgun had been stolen.
Both officers observed the defendant walking on Carey Lane in Norwich after directions as to his whereabouts supplied by Mrs. Barnowski. He was wearing a black hooded sweatshirt with the hood pulled over his head. He had his hands in the pockets of his sweatshirt.
Officer Dolan ordered the defendant to remove his hands from his sweatshirt pocket and the defendant complied. He then advised the defendant that he was not under arrest and that he was detained. The officer then handcuffed the defendant for his and the officer's safety. Officer Dolan then began to pat him down for weapons. Immediately while patting him down, Dolan saw a handgun in his sweatshirt pocket. The defendant told the officer that he was not properly licensed nor legally permitted to carry the gun. The defendant was then advised of his rights and placed under arrest.
ARGUMENT
The defendant claims that Officers Dolan and Camp had no legal justification to stop him on March 21, 2007. The State claims that the police had a reasonable and articulable suspicion which justified their conduct.
APPLICABLE LAW
When a reasonable and articulable suspicion exists, the detaining officer may conduct an investigative stop of the suspect in order to confirm or dispel his suspicions. Terry v. Ohio, [ 392 U.S. 1, 30-31 (1968)]. During the course of a lawful investigatory detention, if the officer reasonably believes that the detained individual might be armed and dangerous, he or she may undertake a patdown search of the individual to discover weapons.
If, during the course of such a search, the officer legitimately uncovers incriminatory evidence that establishes probable cause to arrest the suspect, he may do so. See State v. Kyles, 221 Conn. 661-62 (1992). During the course of a Terry stop, the police may request identification or inquire about a suspect's activities without advising the suspect of his/her Miranda rights. State v. Torres, 197 Conn. 620, 628 (1985); State v. Gregory, 56 Conn.App. 47, 54 (1999).
"Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. State v. Torres, 230 Conn. 372, 379 (1994). The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. State v. DaEria, 51 Conn.App. 149, 155 (1998). When the police have received information from a third party, they must make some effort to corroborate the allegation of criminal activity. State v. Hammond, 257 Conn. 610, 623-34 (2001); State v. Burroughs, 99 Conn.App. 413, 424-25, cert. granted on other grounds, 282 Conn. 909 (2007).
This standard contains two elements:
1. an assessment based upon all of the circumstances, including objective observations made by the detaining officer, information received from police reports if such are available, and consideration of the modes of operation of certain kinds of law-breakers, from which a trained law enforcement officer draws inferences and makes deductions based upon professional experience and expertise.
2. the assessment must raise a suspicion that the particular individual or individuals being stopped are, or are about to be, engaged in wrongdoing. State v. Scully, 195 Conn. 668, 674-75 (1985); see State v. Kyles, 221 Conn. 643, 659-60 (1992); State v. Cofield, 220 Conn. 38, 44-47 (1991); State v. Aillon, 202 Conn. 385, 399-401 (1987); State v. Davis, 85 Conn.App. 755, 761 (2004).
The trial court must consider the totality of the circumstances confronted by the police when approaching the defendant. State v. Gregory, 74 Conn.App. 248, 257 (2002). The court cannot look at each fact in isolation but in totality when determining the validity of the stop. Proximity in time and place to a crime is highly significant in determining the existence of a reasonable and articulable suspicion to justify an investigatory detention. State v. DaEria, 51 Conn.App. 149, 158 (1998).
"A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom." State v. Oquendo, 223 Conn. 635, 654 (1992). The determination is a question of fact. State v. Anderson, 24 Conn.App. 438, 441, cert. denied, 219 Conn. 903 (1991). The court may not rely on any facts that arose after the seizure. State v. Daeria, 51 Conn.App. 149 (1998).
ANALYSIS
The defendant argues that the actions of the police officers in question were not based upon a reasonable and articulable suspicion when they stopped him in March 2007. The defendant relies heavily on the Supreme Court analysis in State v. Oquendo, supra. He claims that they lacked reasonable suspicion because they had no objective basis to stop him. The state, to the contrary, based upon a totality of circumstances analysis, distinguishes Oquendo from the present controversy.
In State v. Oquendo, the court reviewed the facts found by the trial court which can be summarized as follows. The defendant had been walking with a woman down a street in a primarily residential neighborhood at 12:50 a.m. when he was observed by a police officer, B. There had been a recent series of burglaries in the neighborhood, and B. recognized the woman as a person who had recently been arrested on larceny and burglary charges. B. noticed that, in spite of the fact that it was a warm August night, the defendant was wearing a winter jacket, and he knew that burglars often wear heavy clothes to protect themselves from injury when they break windows. He stopped the cruiser near the pair and asked them what they were doing. When he asked the defendant to approach and to bring with him the duffel bag he was carrying, the defendant fled. During the flight, the defendant discarded the duffel bag, which was later found to contain cocaine the next morning, a search of the area produced evidence linking the defendant to a homicide and related crimes.
Based upon the above facts, the Supreme Court held that the trial court improperly denied the defendant's motion to suppress the contents of the duffel bag and B.'s identification of the defendant as the person who discarded the bag. The court concluded that the defendant was illegally seized, in violation of Article First, Seven and Nine of the State Constitution when B. was acting on a hunch rather than a reasonable and articulable suspicion when he asked the defendant to approach the cruiser with the duffel bag. The court also found that defendant could not be held to have abandoned the duffel bag when he discarded it during B.'s unlawful pursuit, therefore the contents of the bag and the identification were the fruits of an illegal seizure and should have been suppressed.
The rationale for the trial court's decision to deny the motion to suppress was that the investigating stop occurred at some point after B. exited his cruiser and began questioning the defendant and his female companion. The trial court found that B. had based his conduct on the knowledge of recent burglaries in the area, his recognition of the female companion's recent arrest for burglary and larceny, his experience that burglars often wear heavy outer garments and the female's response to her questions. The trial court further found that the defendant's flight had provided B. with additional grounds to stop the defendant. The Supreme Court concluded to the contrary and held, in part as follows:
Although burglaries had been reported in the general area of B.'s patrol, B. had not received any report that a burglary had been committed in that area on the evening of August 29, 1988, nor did he possess information linking the defendant or Williams to a particular burglary in the area. Moreover, although B. testified that the manner of dress of the defendant and Williams fit the profile of burglars, he acknowledged that homeless people often dress in a similar manner and carry items with them. The fact that Williams was known to B. as a recent arrestee for larceny and burglary could not supply B. with reasonable suspicion about the defendant. In addition, the fact that B. did not recognize the defendant from his familiarity with "street people" in Wallingford could not provide justifiable grounds for a stop. Finally, while Williams may have given false answers to B.'s questions, her responses did not provide B. with a reasonable suspicion regarding the defendant's activities.
We are persuaded that B.'s suspicion that the defendant had been or was about to be engaged in criminal activity was not constitutionally sound. We also reject the state's argument, and the trial court's conclusion, that the defendant's flight, when viewed in conjunction with B.'s other observations, provided B. with the requisite level of suspicion to seize the defendant. While a suspect's flight may, in certain cases, be considered in determining whether there existed a reasonable and articulable basis of suspicion; see State v. Rodriguez, 14 Conn.App. 574, 578, 542 A.2d 342 (1988); police conduct that provokes flight precludes the consideration of this factor. See, e.g., State v. Williamson, 10 Conn.App. 532, 540, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987). As the Appellate Court has warned: "Were it otherwise, the officer could use the suspicious conduct that he himself induced as evidence that the defendant was acting suspiciously." State. v. Oquendo, 223 Conn. at 635, 636 (1992).
This court, in the present controversy, as argued by the state, finds under the totality of the circumstances test important factors that lead to the conclusion that the police officers had a reasonable and articulable suspicion in stopping the defendant. The police officers Dolan and Camp were sent out to locate an identifiable individual who was seen in the area prior and subsequent to the specific burglaries in the same general locale by at least three individuals. The descriptions supplied by the witnesses Mr. and Mrs. Barnowski and Mr. Carr, while not exact, were significantly similar describing a male with dark clothes, a hooded sweatshirt, looking down with hands in his pockets. The police were also aware that a .38 caliber hand gun was stolen and that the perpetrator may be armed and dangerous. Mrs. Barnowski identified the individual in March 2007 as the same individual who had walked by her home on February 10 and February 12 after the burglary of her home. Mrs. Barnowski further followed the suspect after she contacted her husband who contacted the Norwich Police Department who dispatched the officers to the scene. She pointed the individual, matching her previous description to the officer who made the investigatory stop.
An exact description of the subject by the witnesses is not required. The police are not required to confirm every description of the alleged perpetrator. What must be taken into account is the strength of those points of comparison which do match up and whether the nature of the descriptive factors which do not match is such that an error as to them is not improbable. State v. Daeria, 51 Conn.App. 149 (1998), State v. Rodriguez, 239 Conn. 235, 245-47 n. 18 (1996).
This court concludes that the police officers in question had a reasonable and articulable suspicion prior to stopping the defendant on the date in question. The facts of the case are distinguishable from the State v. Oquendo fact pattern. Complaints and descriptions of a male walking before and after burglaries in the same locale, walking in a suspicious manner with hood pulled over his head, hands in his pocket, staring toward the ground were given to the police. Evidence that a handgun was stolen and the possibility that the burglar was armed and potentially dangerous was also circulated to the police authorities.
The police were not acting on a hunch as was the case in the State v. Oquendo case. The police were supplied with a description of an individual who may have broken into the Carr residence on March 19, 2007. The police then received a call on March 21, 2007 from Mr. Barnowski based upon his wife's phone call that she saw the defendant who fit her previous description was in the area in question, generating the police response leading to the stop, frisk and subsequent arrest of the defendant. The actions of the police in the present controversy are based on a reasonable and articulable suspicion that the defendant may have been involved in the burglaries in question. To conclude otherwise would result in raising the bar to a higher standard than reasonable suspicion and to further thwart the ability of police officers to investigate crime.
ORDER
The defendant's motion to suppress and dismiss dated July 17, 2008 is hereby denied.