Opinion
No. CR-01-553994-S
April 1, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SUPPRESS
On August 31, 2001, the defendant, Troy McKoy, was arrested and charged with Loitering in violation of § 7-148 of the Hartford Municipal Code and Carrying a Pistol Without a Permit in violation of General Statutes § 29-35 (a) when a warrantless search of his person by a Hartford police officer uncovered a gun in his waistband. The defendant has moved to suppress the weapon. He claims his seizure and subsequent warrantless search on the evening in question was unreasonable under the fourth and fourteenth amendments to the United States constitution and article first, §§ 7 and 9 of the constitution of Connecticut. The state argues that the search and seizure were legal pursuant to a valid investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 1300 (1968).
The fourth amendment to the United States constitution provides in relevant part: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . ." The fourth amendment to the United States constitution is made applicable to the states by the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Article first, § 7 of the constitution of Connecticut 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."
Article first, § 9 of the constitution of Connecticut provides: "No person shall be arrested, detained or punished, except in cases clearly warranted by law."
I FINDINGS OF FACT
An evidentiary hearing on the defendant's motion was held on November 18, December 3 and December 17, 2002. The state introduced the testimony of three police officers and photos of the area where the defendant was arrested. The defendant introduced the testimony of two individuals who were present when the defendant was arrested. Based on the credible and relevant evidence produced during the hearing, the following facts are found by a fair preponderance of the evidence:
On August 31, 2001, four police officers, Richard Medina and Glendaly Garcia of the Hartford police department, and state troopers Stanley Domijan, Jr. and Jose Lopez were engaged in a "proactive" patrol in the city of Hartford. As Domijan described it, a "proactive" policing unit consists of officers teaming up as a group and initiating their own actions on the streets, rather than waiting to respond to complaints or dispatch calls. Domijan testified that this kind of patrol unit would "roll in" when the officers saw groups congregating, especially in areas known as "hot spots." A hot spot, in Hartford police department parlance, is a designated notorious area, based on past criminal activity, complaints, and community concerns. Over 70 percent of the geographical area of Hartford's north end is comprised of designated hot spot locations by the Hartford police. The purpose of approaching groups congregating in hot spots is to investigate whether or not loitering, trespassing or other "quality of life" crimes, notably illegal drug activity or prostitution, are taking place. Medina testified that the members of the community response patrol division get out there and look for things other law enforcement officers might not see. Domijan noted that these community response patrols often use unmarked police vehicles so officers can get in closer to suspicious activity before being recognized as the police, which would give people time to disperse. These aggressive activities are part of the concept known as community policing.
The cooperation of the state police was in response to a recent increase in violent crime in the city, most notably the shooting of a child caught in the crossfire of a suspected drug-related shooting.
See a discussion of community policing strategies in State v. Donahue, 251 Conn. 636, 651, n. 1, 742 A.2d 755 (1999). (McDonald, J., dissenting).
On August 31, 2001, the four officers were assigned to patrol an area that included Garden, Enfield and Capen Streets, one of the "hot spots" in Hartford's north end, as part of the community response division. They were all in uniform and were traveling in an unmarked patrol vehicle. At approximately 8:30 P.M. that evening, these officers were traveling north on Garden Street in their vehicle, when Garcia looked left toward Capen Street, and spotted a group of "four to six" individuals about half a block away standing near a small black sedan. Garcia did not recognize any of these individuals or note any particular identifying characteristics. Garcia mentioned to the other officers in the car that there was a group hanging out on the corner. Domijan didn't get a look at the group. Medina glanced over and thought he saw three to four individuals "hanging around."
The officers then continued to proceed up Garden Street in their car to an area known as Nelton Court, near Westland and Garden Streets, and lost sight of the individuals Garcia noticed on Capen Street. They made no arrests at Nelton Court, but Domijan recalled they spent about a half hour there "detaining people." When they finished their business at Nelton Court, the officers started to head toward the city's Asylum Hill neighborhood, but as they drove down Enfield Street, Garcia got a glimpse of the same location on Capen Street where she had first noticed the group of "four to six" individuals at 8:30. Garcia told the other officers, "They're still on that corner," although she admitted that she could not say for certain that the individuals she noticed at 8:30 were the same individuals standing on Capen Street a half hour later.
At this point, Medina, the driver, turned the unmarked police car around in the direction of the group and quickly drove onto Capen Street. He did not put on any emergency sirens or lights. As the officers approached, they could see approximately four to six men standing on the public sidewalk and in front of 250 Capen Street, which is a two- or three-family dwelling adjacent to a daycare center located at the corner of Enfield and Capen streets.
The defendant had arrived about five to ten minutes earlier and was visiting a friend, LaTanya Flake, that evening. Flake is the second floor tenant of the residence at 250 Capen Street. She often sits outside on hot summer nights in the front yard. That evening, when the police arrived, she was in a chair adjacent to a portion of the driveway of 250 Capen Street, near the top of the steps that lead up from the driveway, on a small sidewalk that leads to the front porch. All of the men the officers noticed as they approached were acquaintances of hers. When the police exited their vehicle, the defendant was standing in the driveway, directly adjacent to and below the area where Flake was sitting. Defense witness Charles Thomas Jr., who knew the defendant, was standing in the driveway, right next to the defendant, but he testified that some of the others were standing on the sidewalk.
Medina stopped the police vehicle so it angled into and across Capen street, near a Honda Accord that was parked on Capen Street just to the right of the driveway adjacent to 250 Capen, and the four uniformed officers quickly exited the vehicle. Flake described their approach as "startling." As soon as they exited the vehicle, Domijan called out, "State police!" He then hurried to a point where he felt he could prevent anyone from running away. Although the individuals standing outside 250 Capen Street started to disperse, no one was running away. Domijan told the men to "grab the fence." Medina also issued a verbal command to the men to show their hands and get up against the fence that bordered the property of the adjacent daycare center property. They did not ask any of the men present why they were there or how long they had been there. They did not talk to Flake to ascertain whether they were visitors. They did not first order them to disperse. All three officers' stated intention in immediately ordering the men up against the fence upon exiting the unmarked police vehicle was to issue summonses to all of them for loitering. The officers ordered the men to get up against the fence to conduct pat down searches of the men for the officers' personal safety and to check for identification. According to Domijan, the fence was the only well-lit area since the unmarked patrol vehicle's lights were directed onto the fence. Absent this illumination, the area was "extremely dark," Domijan recalled.
Domijan testified, "No, at that point, with us coming onto the scene, every individual that was loitering on the corner was going to be detained for the purpose of issuing a summons for loitering." However, Garcia admitted no citations for loitering would have been issued if she'd known the men were visiting the premises. Garcia unconvincingly testified that the officers also stopped to investigate what she called loud music emanating from the parked Honda Accord. Her testimony as to whether or not she first heard loud music emanating from the same vehicle as the unmarked car drove up Garden Street was conflicting. Domijan and Medina did not recall hearing any loud music. Medina said he didn't hear any music until he was just three to four feet away from the Accord. Flake said the music was soft. Section 23-1 (c) (1) of the Hartford Municipal Code prohibits "unreasonable or excessive noise" in excess of certain decibel levels or that which is "plainly audible" from a distance of at least 100 feet away. None of the evidence establishes that the officers had a "reasonable and articulable" suspicion to detain any of the men for a violation of the city noise ordinance. Garcia may have asked the men who owned the car, but when none of them admitted ownership, she didn't pursue it further. Although the officers had a cell phone, no one called in a check on the vehicle. In fact, Garcia admitted that when the officers exited their vehicle, "we were going to address the loitering issue." (Flake did know who owned the vehicle, but no one asked her. She testified that the owner was not present when the police arrived.)
As the officers exited and shouted their commands, they saw the defendant walking slowly up the driveway of 250 Capen Street, looking back over his shoulder when he heard the officer's shouts. He was fifteen or twenty feet up into the driveway. Medina walked up the driveway until he reached the defendant and ordered him to come down to the fence. The defendant did not resist. Medina put his hands on the defendant's waistband and escorted him over to the fence where the other individuals already were being lined up. Medina jokingly asked those being searched if they had any weapons, such as "aircraft carriers" or "rocket launchers," and the defendant told Medina he had a gun. Medina patted him down, located the weapon, and shouted, "Gun!" Domijan then pulled out his service revolver and assumed a more defensive posture, although everyone continued to cooperate. All the men were handcuffed for additional safety. The defendant was arrested and placed in the cage of a marked police cruiser that had arrived on the scene after the arrival of the first four officers in the unmarked car. The other men present were issued summonses for loitering.
Prior to stopping at 250 Capen Street that evening, none of the officers had received any specific complaints that evening regarding a group of individuals standing anywhere on Capen Street. None of them knew who resided at 250 Capen Street. They had no knowledge of any complaints with respect to that specific location or the adjacent daycare center. There were no complaints that evening of drug sales or other criminal behavior, including loitering, in the area, or that anyone in that area had a weapon. None of the officers had any prior knowledge of the specific identities of the men they detained, so they had no knowledge whether any of them had criminal histories or were known to be armed or dangerous. None of them was able to identify any of the men they detained as being the same persons Garcia had observed a half hour earlier as they sped up Garden Street, and at that time, Garcia did not notice any members of the earlier group actually obstructing or impeding pedestrians on the sidewalk. None of them observed any of the individuals they detained actually impeding or obstructing the free passage of any other person on the public sidewalk on Capen Street. None of them saw any pedestrians even attempt to pass by the area of the sidewalk where they claim the men were loitering.
II DISCUSSION OF LAW
The first step in analyzing a claim of illegal search and seizure is to determine whether or not the defendant was in fact seized. In this case, it is undisputed that the defendant was seized prior to the search and discovery of the gun. The testimony of all three officers indicated their perspectives that he was not free to leave or terminate their encounter once they had initiated their contact by exiting the unmarked police car and issuing verbal commands to stop and line up against the fence. Medina testified that if the defendant had tried to leave at that time he would have been in trouble. In addition to the officers' testimony, the testimony of Thomas, an individual standing next to the defendant when the police arrived who was also ordered up against the fence, indicated that he did not feel free to leave." [A] person [is defined] as seized under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained . . . In determining whether a seizure has occurred, so as to invoke the protections of our state constitution . . . a court is to consider whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." State v. Hill, 237 Conn. 81, 87, 675 A.2d 866 (1996) (internal quotation marks omitted). Unquestionably, when four uniformed officers approach swiftly and spread out and position themselves to prevent anyone from leaving while simultaneously issuing verbal commands to get up against a fence, no reasonable person would feel free to leave.
In State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992), our Supreme Court determined that article first, §§ 7 and 9 of the Connecticut constitution afford greater protection to the citizens of this state than does the fourth amendment of our federal constitution in the determination of what constitutes a seizure. Rejecting the idea that physical force on the part of the officer or some submission to a show of authority should be deemed essential to create a seizure, as held by the United States Supreme Court in California v. Hodari D., 469 U.S. 221, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1990), our Supreme Court stated, "Under our state constitution, what starts out as a consensual encounter becomes a seizure, if, on the basis of a show of authority by the police officer, a reasonable person in the defendant's position would have believed he was not free to leave." State v. Oquendo, supra, 223 Conn. 653 (internal citation omitted). Even if the defendant felt free to leave as he turned and walked slowly up the driveway, perhaps thinking the police weren't interested in him but rather someone else in the group, he certainly knew he wasn't free to leave when Medina approached him, grabbed his pants and ushered him down the driveway to the fence where the other men had been lined up. In view of all the circumstances, the defendant clearly was seized without a warrant prior to the discovery of the gun.
Having concluded that the defendant was seized, the court must now decide whether the defendant's seizure was legally justified. It was not.
Subject to only a few well recognized exceptions, a search or seizure without a warrant issued on probable cause is per se unreasonable. U.S. Const., amend. IV; Conn. Const. Art. I, §§ 7 and 9; State v. Clark, 255 Conn. 268, 291, 764 A.2d 1251 (2001); State v. Trine, 236 Conn. 216, 235, 673 A.2d 1098 (1996). Exceptions to the warrant requirement "have been jealously and carefully drawn and the burden is on the state to establish the exception." State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160, cert. denied, 479 U.S. 904, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). A police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. Terry v. Ohio, supra, 392 U.S. 21; State v. Oquendo, supra, 223 Conn. 654; State v. Lamme, 216 Conn. 172, 184, 579 A.2d 184 (1990); State v. Trine, supra, 236 Conn. 223. If during the course of a lawful investigatory detention, the officer reasonably believes that the detained individual might be armed and dangerous, the officer may undertake a patdown search of the individual limited to a search to discover weapons. The officer cannot conduct a general exploratory search for whatever evidence of criminal activity the officer might find. Terry v. Ohio, supra, 392 U.S. 30; State v. Trine, supra, 236 Conn. 223-24; State v. Wilkins, 240 Conn. 489, 495-96, 692 A.2d 1233 (1997); State v. Williams, 157 Conn. 114, 118, 249 A.2d 245 (1968), cert. denied, 395 U.S. 927, 89 S.Ct. 1783, 23 L.Ed.2d 244 (1969); State v. Gregory, 74 Conn. App. 248, 261, 812 A.2d 106 (2002).
An inquiry into the permissible justification for, and boundaries of, a particular investigatory detention and patdown search is necessarily fact bound. State v. Trine, supra, 236 Conn. 224; State v. Edwards, 214 Conn. 57, 71-72, 570 A.2d 193 (1990). "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 the level of suspicion. The police officer's decision must be based on more than a hunch or speculation . . . In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Trine, supra, 236 Conn. 225; State v. Gant, 231 Conn. 43, 65, 646 A.2d 835 (1994). Reasonable and articulable suspicion is an objective standard that does not focus on the actual state of mind of the police officer. State v. Gregory, supra, 74 Conn. App. 257. "Good faith on the part of the arresting officer is not enough . . . If subjective good faith alone were the test, the protection of the Fourth Amendment would evaporate, and the people would be `secure in their persons, houses, papers and effect,' only in the discretion of the police." Terry v. Ohio, supra, 392 U.S. 22; quoting Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
"In a close case . . . the balance ought to be struck on the side of the freedom of the citizen from governmental intrusion. To conclude otherwise would be to elevate society's interest in apprehending offenders above the right of citizens to be free from unreasonable stops." State v. Oquendo, supra, 223 Conn. 656-57.
The police in this case justify their detention of the defendant as necessary to issue him a summons for loitering. When they alighted from their unmarked vehicle that evening, they had no intention of investigating whether or not loitering was occurring; they already had concluded that the group of men standing there had committed that violation. They never asked any of the men present why they were there, how long they had been there or whether or not they knew anyone who lived on the premises. They admit they intended to seize the men as soon as they exited their unmarked police car. Other than stopping to issue summonses to the men for violations of the city's loitering ordinance, they had no other reasonable or articulable suspicion that the defendant or any of the men they detained had committed or were committing any other crime or offense.
Although the law does allow a seizure without a warrant if the officer has a reasonable and articulable suspicion that a crime is being or has been committed, these police officers erroneously concluded that the defendant had violated the City of Hartford's loitering ordinance. They had no reasonable or articulable basis for this conclusion because their definition of the elements of the offense of loitering does not comport with actual law.
Section 25-8 of the Hartford Municipal Code, "Loitering," states, in pertinent part: "(a) As used in this section, "to loiter" means standing around, moving slowly about, spending time idly, sauntering, delaying, lingering or lagging behind; (b) It shall be unlawful for any person or group of persons to loiter on the streets, sidewalks, crosswalks, walks in public parks or any other public area so as to impede and interfere with the use of the street, sidewalk, crosswalk, walk in a public park or other public area by any other person. Any police officer may order any person violating this subsection to cease and desist from interfering with the right of any other person to use the streets, sidewalks, crosswalks, walks in public parks or any other public area." (See General Statutes § 7-148 (c) (7) (F) (i) which authorizes municipal authorities to prohibit loitering on public property.)
Domijan, the state trooper, whom the state describes as its "most objective" witness, in the early portion of his testimony, did seem to understand the necessary elements of loitering; however, his statutory interpretation changed after the luncheon recess. T., 12/3/02, pages 23 and 46.
The law which allows seizures without a warrant most certainly requires that the individual be engaged in or about to engage in actual criminal conduct, not innocent conduct which a misinformed police officer believes is criminal conduct.
Courts, on strong policy grounds, have generally refused to excuse a police officer's mistake of law. See People v. Teresinski, 26 Cal.3d 457, 162 Cal.Rptr. 44, 605 P.2d 874 (1980), vacated on other grounds, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143; W. LaFave, Search Seizure (3rd Ed.) Sec. 9.4(b), p. 150.
State and federal courts have uniformly invalidated vagrancy laws that do not join the term "loitering" with a second specific element of the crime. Vagrancy statutes cannot "improperly criminalize status rather than conduct." Recently, in Chicago v. Morales, 527 U.S. 41, 51, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), the Supreme Court struck down a city ordinance that prohibited criminal street gang members from loitering in public places. Under the Chicago ordinance, if a police officer observed a person whom he reasonably believed to be a gang member loitering in a public place with one or more persons, he was to order them to disperse.
See Papachristou v. City of Jacksonville, 406 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (striking down city ordinance which forbid, inter alia, "persons wandering or strolling around from place to place without any lawful purpose or object," and "common nightwalkers"); State v. Richard, 108 Nev. 626, 836 P.2d 622 (1992) (striking down statute that made it unlawful "for any person to loiter or prowl upon the property of another without lawful business with the owner or occupant thereof"); Commonwealth v. Williams, 395 Mass. 302, 479 N.E.2d 687 (1985) (declaring unconstitutional on its face a Boston ordinance which prohibited sauntering and loitering "in such a manner as to obstruct . . . travelers . . ."); People v. Bright, 526 N.Y.S.2d 66, 520 N.E.2d 1355 (1988) (striking down a New York law that provided that "[a] person is guilty of loitering when he [l]oiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence"); State v. Bloss, 62 Haw. 147, 613 P.2d 354 (1980) (striking down a statute prohibiting loitering near pinball machines).
The police officers in this case so broadly interpret Hartford's loitering ordinance that they essentially define loitering as merely standing in a public place, without more. If the language of the Hartford ordinance is constitutionally permissible as applied to the facts of this case, the officer on the scene must objectively observe the commission or intent to commit the defined, impermissible act of "impeding and interfering with the use of . . . the sidewalk . . . by any other person." Hartford Municipal Code, § 25-8 (b).
The defendant is not challenging the validity of the Hartford loitering ordinance in this case, but rather its misapplication by the police.
A loitering statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. If the Hartford ordinance is interpreted to merely prohibit loitering that does not reflect intentional impeding or interfering with others' use of the sidewalk, it impermissibly permits a "standardless sweep [that] allows policemen, prosecutors and juries to pursue their personal predilections." Smith v. Goguen, 415 U.S. 566, 575, 39 L.Ed.2d 605, 94 S.Ct. 1242 (1974); Kolender v. Lawson, 461 U.S. 352, 358, 75 L.Ed.2d 903, 104 S.Ct. 1855 (1983). Lack of specificity must be avoided so as not "to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of the police and prosecution, although not chargeable with any particular offense." Winters. v. New York, 333 U.S. 507, 540, 92 L.Ed. 840, 68 S.Ct. 665 (1948) (Frankfurter, J., dissenting).
Loitering statutes have been upheld and survived attacks on grounds of constitutional vagueness only when they prohibit loitering for a specific illegal purpose. See, e.g., People v. Smith, 44 N.Y.2d 613, 497 N.Y.S.2d 462, 378 N.E.2d 1032 (1978) (prohibiting loitering for the purpose of prostitution); State v. City Court of Tucson, 21 Ariz. App. 489, 520 P.2d 1166 (1974) (prohibiting loitering for the purpose of begging); Tacoma v. Luvene, 118 Wash.2d 826, 827 P.2d 1374 (1991) (upholding ordinance criminalizing loitering with purpose to engage in drug-related activities); and People for Superior Court, 46 Cal.3d 381, 758 P.2d 1046 (1988) (upholding ordinance criminalizing loitering for the purpose of engaging in or soliciting lewd act).
In Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 21, 15 L.Ed.2d 176 (1965), an ordinance similar to the Hartford loitering ordinance was upheld. The Birmingham ordinance provided in part "[it] shall be unlawful for any person or any number of persons to so stand, loiter or walk upon any street or sidewalk in the city so as to obstruct free passage over, on or along said street or sidewalk." The Supreme Court upheld the ordinance, noting that the Alabama Appellate Court had construed the ordinance as "`directed at obstructing the free passage over on or along a street or sidewalk by the manner in which a person accused stands, loiters or walks thereupon . . . [T]here must also be a showing of the accused's blocking free passage . . .' Middlebrooks v. City of Birmingham, 42 Ala. App. 525, 527, 170 So.2d 424 (1965)." Id., 91.
The defendant correctly argues that the "so as" clause in the Hartford ordinance is not superfluous language. In his concurring opinion in Shuttlesworth, Justice Douglas noted, "There was no such `obstructing' here, unless petitioner's presence on the street was itself enough. Failure to obey such an order, when one is not acting unlawfully certainly cannot be made a crime in a country where freedom of locomotion . . . is honored." Shuttlesworth v. Birmingham, supra, 382 U.S. 96 (internal citation omitted).
If the police in Shuttlesworth could not constitutionally order someone to disperse based on mere presence on a sidewalk, then the police in this case could not seize the defendant to cite him for loitering due to what they perceived to be his mere presence on the sidewalk.
This case is similar to the facts in Commonwealth v. Pierre, 53 Mass. App. 215, 218-09, 757 N.E.2d 1131 (2001), where the Appeals Court of Massachusetts found a stop of a juvenile for a violation of a loitering ordinance, followed by a pat down search that discovered a knife on the juvenile's person, was not justified. "[T]here was no evidence that the youths were obstructing, hindering, or preventing others from passing by, as required by the ordinance . . ." Prima facie, mere sauntering or loitering on a public way is lawful and the right of any man, woman, or child. Commonwealth v. Carpenter, 325 Mass. 519, 521, (1950)." Even though the officer in Pierre was instructed to pay special attention to the area because some residents and business owners complained of groups of alleged gang members hanging out on the streets, he was not responding to a particular call or disruption that evening. He conducted the pat-down search even after inquiring why the group was there, to which he was told that one of the individuals lived in the building in front of which they were standing.
The Springfield loitering ordinance, 8.244.020(A) states that "no person shall congregate, stand, loaf or loiter upon any street, sidewalk, bridge or crossing so as to obstruct the same, hinder or prevent persons passing or attempting or desiring to pass thereon." Commonwealth v. Pierre, supra, 53 Mass. App. 219, fn. 1. (emphasis added).
In this case, there is no evidence of a key and necessary element of loitering — impeding or interfering with another person's use of the sidewalk. The testimony of the officers established they had not received any complaints that the defendant or anyone else was interfering with or impeding the use of the sidewalk that evening. None of the officers had personally observed anyone in the first group they observed at 8:30 P.M., the defendant or anyone else in the second group that they rounded up that evening interfering or impeding with anyone trying to pass by or use the sidewalk in front of 250 Capen Street. None of them observed any pedestrians trying to walk by either group. The officers testified only that they observed the defendant, whom they did not recognize, standing on the sidewalk for a few seconds. That is all they can say they observed with respect to the defendant, even though with respect to that they may have been mistaken due to their haste and the darkness of their surroundings. The police had no reasonable or articulable suspicion that the defendant was committing, had committed or was about to commit the offense of loitering. To conclude otherwise ignores a constitutionally required element of the loitering violation.
Domijan testified that it was extremely dark and that he saw 5 or 6 men standing on the sidewalk. He admitted he didn't at first notice the demarcation between the sidewalk and the driveway to 250 Capen Street. Medina admitted it was possible some of the men were not standing on the public sidewalk. Garcia couldn't say specifically all the men were on the sidewalk. She said there were four to six men on the sidewalk. Medina said there were 6. The lights of the unmarked police car were illuminating the street, not the sidewalk area when the officers alighted from the vehicle.
Permitting police investigative stops under the sparse facts present in this case would encourage inappropriately intrusive police practices. The problems that police and the community may face in high crime "hot spots" should not be used as an excuse to deny individuals living, working or visiting in the area from the protections afforded by our constitution. "A history of past criminal activity in a locality does not justify the suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality." State v. Donahue, supra, 251 Conn. 647, quoting State v. Oquendo, supra, 233 Conn. 655, n. 11.
Apart from the claimed loitering violation, the state argues that the police were justified in detaining the defendant because his attempt to "flee" the scene and other "furtive movements" observed by them as they approached the group of men created a reasonable and articulable suspicion that the defendant was engaged in criminal activity. The state relies on Illinois v. Warden, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). However, the Chicago police in Illinois v. Warden were converging on an area known for narcotics trafficking when they spotted the defendant, holding an "opaque" bag, who broke into a full run into an alley and was not stopped until one of the patrol cars intercepted him. The police in this case define a "hot spot" as any area where there have been past complaints of numerous "quality of life" crimes; not just specifically drug trafficking. In fact, none of the three officers testified that they specifically know the immediate vicinity of 250 Capen Street is a known drug trafficking area. They referred to a hot spot comprising the general neighborhood of Enfield, Garden and Capen Streets, which includes a number of locations other than the corner involved here. There was no indication from the officers' testimony that they believed the defendant was involved in a narcotics transaction, or that loiterers are often armed and dangerous. Here, in the absence of any complaints pertaining to the location that evening, the officers decided to seize all the men standing near 250 Capen Street for loitering, without further investigation, based on nothing but their cursory observations in the dark. Based on their few seconds of observation, the officers did not have reasonable and articulable suspicion that the defendant, or any of these men, were loitering, and they certainly didn't have reasonable and articulable suspicion that anyone was armed and dangerous. Medina testified he jokingly asked the individuals after they were lined up against the fence if they had any "rocket launchers." None of the officers testified that they noticed any suspicious bulges in the defendant's clothing. Medina admitted on cross examination that he didn't believe any of these individuals were armed, including the defendant, even after he claims he observed the defendant acting nervously and attempting to flee. Medina did not forcibly grab or handcuff the defendant to get him to the fence. He did not draw his weapon before he escorted the defendant to the fence. He may have exerted a slight touch on a portion of the defendant's waistband — that was all because the defendant was cooperative.
In this case, despite the strained and inconsistent testimony of Garcia to assert the contrary, the defendant did not try to flee nor did he engage in any obviously furtive movements. At the most, the officers observed the defendant leave the sidewalk and walk slowly up the driveway looking over his shoulder when the unmarked vehicle approached. (The more credible testimony, that of the lay witnesses, Flake and Thomas, is that the defendant was standing in the driveway when the unmarked car approached and that he just stood there and made no effort to walk away.) The defendant looked over his shoulder in response to the officers' verbal commands, and responded cooperatively when told to follow Medina. Medina indicated he was able to walk slowly toward the defendant to apprehend him. Walking and/or looking backwards over one's shoulder do not constitute furtive movements, nor do they constitute flight. In fact, Medina was emphatic that the defendant's only suspicious activity justifying his seizure was his loitering.
The state's argument, relying on Illinois v. Warden, ignores Connecticut precedents, citing article 1, §§ 7 and 9 of our constitution, which have been interpreted to be more protective of our citizens than the fourth amendment as interpreted by the United States Supreme Court. State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). See also State v. Donahue, supra, 254 Conn. 645; State v. Oquendo, supra, 223 Conn. 649; State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990); State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988).
The defendant argues that this case is similar on the facts to State v. Oquendo, a case in which the police seized an individual who was located in an area where burglaries had occurred. Oquendo, accompanied by another person with a prior conviction for burglary, was wearing a winter jacket on a warm day and carrying a duffel bag. He ran from the police when they approached. The Supreme Court rejected the state's argument that Oquendo's flight, when viewed in conjunction with the officer's other observations, provided the officer with the requisite level of suspicion to seize the defendant. State v. Oquendo, supra, 223 Conn. 655.
Flight alone is not a reliable or conclusive indication of guilt without other circumstances to make its import less ambiguous. It is not even clear the defendant immediately knew the approaching unmarked vehicle, in the dark, was the police before the police observed him. If he did walk away, this would not be an irrational act if it appeared trouble from a non-law enforcement source was afoot. Even if the defendant immediately recognized the police, it is not uncommon for men who are entirely innocent to try to leave the scene through fear of being apprehended as guilty parties, from an unwillingness to serve as witnesses, or to avoid being hassled by the police. In fact, some of the other men present, not just the defendant, tried to disperse but were prevented from doing so by the officers. Assuming for argument's sake that the few steps the defendant may have taken up the driveway before being ordered to stop amounted to flight, there must be circumstances present and unexplained at the inception of the stop, which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.
This case is dissimilar from other cases involving a defendant's flight, such as State v. Williamson, 10 Conn. App. 532, 540 A.2d 965, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987), and State v. Jennings, 19 Conn. App. 265, 562 A.2d 545 (1989). In this case, when the officers approached the scene, they had no reasonable or articulable suspicion that criminal activity was in progress, so the defendant's departure from the scene cannot be said to have "caused the general suspicion of illegal activity to become particularized upon himself." State v. Williamson, supra, 542. In Williamson, the police knew that the restaurant from which the defendant ran as they approached was a known location for narcotics transactions. Arrests had been made for such offenses in the past. Moreover, it was a known past practice of persons engaged in such criminal activity to yell "Police!" or some other form of alert, causing certain individuals to then run through the local business establishments and out the rear entrances. The defendant in Williamson behaved in a manner approximating these previously observed behaviors. In Jennings, the police were responding to information that drug sales were in progress in a specific apartment complex, one previously known as an area where drug sales had occurred. Before the defendant was ordered to stop, he was observed looking back over his shoulder toward the marked police car, drawing a brown paper bag, ". . . a hallmark of the narcotics business," from his jacket pocket and discarding it. State v. Jennings, supra, 19 Conn. App. 269.
The state urges this court to find the defendant's attempt at departure sufficient to form the basis of a "reasonable and articulable suspicion" even if there was no initial basis for the loitering stop. However, flight alone does not give rise to such a conclusion unless there already exists a significant degree of suspicion concerning a particular person. "Were it otherwise, anyone who does not desire to talk to the police and who either walks or runs away from them would always be subject to arrest." United States v. Sharpe, 105 S.Ct. 1567, 1586-87, 470 U.S. 707, 84 L.Ed.2d 605, n. 3 (1985) (Brennan, J. dissenting). When an officer without reasonable suspicion or probable cause approaches an individual, the individual has the right to ignore the police and go about his business. Any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 556, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The departure of a person from an imminent and unwarranted intrusion, as is the case here, should not bootstrap an illegal detention into one that is legal. The Oquendo court rejected the implication in California v. Hodari D. that the chain of causation is broken when a suspect flees from an unlawful seizure, thereby allowing the admission into evidence of items subsequently discovered. Such reasoning encourages illegal seizures. State v. Oquendo, supra, 223 Conn. 660; 1 W. LaFave, Search and Seizure, (3rd Ed.) Sec. 9.3(d), fn. 148. "While a suspect's flight may, in certain cases, be considered in determining whether there existed a reasonable and articulable basis of suspicion . . . police conduct that provokes flight precludes the consideration of this factor . . ." "As the Appellate Court [in State v. Williamson] 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, supra, 233 Conn. 656 (internal citations omitted). The state in this case wrongfully argues that such a result is permissible.
Having concluded that the seizure of the defendant was unlawful, the court does not have to consider the defendant's final claim, raised during closing argument, that the pat down search of a defendant when the officers only intended to issue him a summons for loitering was unjustified. Accordingly, the court will not address the issue of the validity of searches incident to citations, which has not been addressed by Connecticut appellate courts.
In State v. Dukes, supra, 209 Conn. 122-23, our Supreme Court did state that a search incident to a lawful custodial arrest of a traffic offender, limited to that which, under the circumstances is necessary to the discovery of weapons, is appropriate. See also State v. Trine, supra, 236 Conn. 236. However, in Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), the United States Supreme Court declared that a full search of a defendant's car was not justified subsequent to an officer's stopping him for speeding and issuing a citation where the officer had no reason to believe that the speeder was armed and dangerous.
Conclusion
Prior to the discovery of the gun in the possession of the defendant, he had been illegally seized by police officers who had no warrant and no reasonable and articulable basis for detaining him. If the police obtain physical evidence as the result of the warrantless seizure of a person without reasonable and articulable suspicion, in violation of the Fourth Amendment and the constitution of Connecticut, article first, §§ 7 and 9, the "fruit of the poisonous tree" doctrine requires that the evidence be suppressed as the product of the unlawful seizure. State v. Hammond, 257 Conn. 610, 626, 778 A.2d 108 (2001); State v. Greenfield, 228 Conn. 62, 67, 634 A.2d 879 (1993); State v. Oquendo, supra, 223 Conn. 659-60; State v. Dukes, supra, 209 Conn. 110.
Accordingly, the motion to suppress is granted.
KELLER, J.