Opinion
No. SO1S-CR10-169457 S
August 25, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SUPPRESS
This action comes before the court on the motion of the Defendant, Luis Nieves, to suppress certain evidence seized during a roadside stop for a motor vehicle infraction on the date of January 24, 2010. The targeted material includes certain physical evidence taken at the time of the arrest, specifically various packages containing substances alleged to be heroin, as well as certain statements made during the stop. For the reasons stated hereafter, this motion is granted in part and denied in part.
On June 10, 2010, the court conducted an evidentiary hearing. At the hearing, the state admitted that the materials the subject of the motion were seized without warrant and that, accordingly, it bore the burden to demonstrate a valid exception to the warrant requirement applicable under both the federal and state constitutions. At the hearing, the only evidence submitted was the testimony of Trooper Matthew Funchion (the "Trooper") of the Connecticut State Police (CSP) and an audio and video recording of the traffic stop, search and arrest, taken from a dashboard camera located in the Trooper's vehicle.
Findings of Fact and Legal Discussion
Based on the evidence submitted by the parties and the stipulations of counsel, the court makes the following findings of fact, conclusions of law and determinations:
On January 24, 2010, the Trooper was patrolling a segment of I-95 located in southern Fairfield County while in uniform and operating a CSP patrol car. The vehicle, while not marked per se, has a "light bar" across the roof and is a model quickly recognized by motorists as a police vehicle. This section of I-95 is a fully divided interstate highway with three lanes of travel in each direction. Along the stretch patrolled by the Trooper that day, I-95 is a major commuting route passing through both urban and suburban areas and is generally congested. The vehicle stop occurred on the "eastbound" direction, technically northbound under the interstate highway system.
At approximately 1:30 p.m., the defendant was a passenger in a vehicle headed east. The vehicle was occupied by one other person, the driver. The Trooper, who had been parked alongside but set back from the roadway, stated this vehicle caught his attention due to a sudden lane change as it passed by him. The Trooper followed. Within one to two miles, the Trooper had come to be directly behind the defendant's vehicle in the left lane of traffic. The Trooper testified that while the defendant's vehicle was traveling with the flow of traffic and not speeding, he believed the driver was following too closely to the vehicle ahead of him. He decided to stop the vehicle for that reason.
The Trooper testified that shortly before he initiated the traffic stop, the defendant, who was seated as a passenger, had noticed the CSP car directly behind and signaled the driver to pull to the right. While the Trooper agreed that most drivers seeing a CSP car behind them in the left hand lane promptly pull to the right, he testified the defendant's actions were suspicious. Once the Trooper activated his light bar, the driver promptly and safely pulled into the "breakdown" lane of the road alongside the exit ramp for the Darien service area. Other than the passenger's gesturing for the driver to pull to the right, the Trooper denied seeing any furtive or "concealing" gestures or other suspicious actions on the part of either occupant at any time.
At the stop, the driver produced his license, registration and insurance certificate and answered that he was the owner of the car. The defendant, upon request, also produced identification. The Trooper testified that both the driver and the defendant were at all times compliant and non-threatening. The Trooper testified that the defendant seemed unusually nervous, though he admitted that many motorists and passengers pulled over are nervous to some degree.
At the officer's direction, the driver exited the vehicle and accompanied the Trooper to the rear. He then answered very detailed questions from the Trooper as to where they were coming from, how long they had been there, where they were headed, how he knew the passenger, and a series of questions as to whether or not specific drugs or any weapons were in the vehicle. After answering all such questions and denying any illicit drugs or weapons, the driver volunteered that he did have his prescribed medication, "Suboxone" (i.e. Buprenorphine), in the car. None of the questions asked of the driver appeared to be related to the charge of following too closely. All the questions the Trooper asked of the driver, including the request for consent to search his vehicle, were ones the Trooper stated he asked on most motor vehicle stops.
The Trooper stated that he recognized Suboxone as a drug commonly prescribed by health care providers for persons being treated for opiate addition. He asked the driver if he was a former addict, which was admitted, followed by whether the driver had injected or snorted heroin during his addiction. When told that the driver had injected, the Trooper asked if there were any needles in the car, which the driver denied.
The Trooper then asked the driver if he consented to have his vehicle searched, and the driver consented. The Trooper then announced he was going to frisk the driver for weapons and proceeded to do so, without cuffing the driver. The Trooper described the driver as very cooperative during this process. At no point during the interaction did the driver refuse or decline to answer the questions put to him by the Trooper. While there was no advice to the driver of his right to refuse or decline any of the Trooper's requests, there was no evidence that the Trooper attempted, by tone or otherwise, to intimidate the driver in any way. Other than what might be the inherent intimidation associated with such a situation, there was no evidence of any additional coercion in the questioning or request for permission to search the vehicle.
Accordingly, the court finds the consent to search the vehicle given by the owner/driver was voluntary and consensual.
The Trooper then approached the defendant, who had remained in the passenger seat until that point. He asked the defendant similar detailed questions as to his activities earlier in the day, the origin of the trip, and its destination. The Trooper said the two stories did not match and this made him suspect criminal activity of some kind. The court notes, however, that the questions asked by the Trooper to the driver and the defendant were phrased differently enough to account for different answers and would not thus indicate criminal activity.
Telling the defendant that the driver had consented to a search, the Trooper ordered the defendant from the vehicle and told him he would be checked for weapons. The Trooper described how he patted down for weapons. The Trooper performed the process from the rear on the uncuffed defendant. Using one hand on each side, he "slid" his open hand down the defendant's side. While gliding down the defendant's bulky winter jacket, he felt an envelope which contained "rigid" items which were "articulated" in places. Within four seconds of commencing the pat-down, the Trooper located and began questioning the defendant about the item to be seized.
The Trooper twice asked the defendant what the item was and received no response. When there was no response, the Trooper stated he squeezed and manipulated the object. At that point, the Trooper was suspicious the envelope could contain needles, but denied suspecting any drugs. The Trooper then asked the defendant if he had "something he should not have," to which the defendant answered, "yes." The Trooper then removed the envelope from the defendant's inside jacket pocket and noticed that one corner of the envelope was torn open. He looked inside and saw what appeared to be packaged heroin. The envelope removed from the defendant's inside coat pocket was found to contain twenty-nine to thirty packets, which later field tested positive for heroin.
The Trooper then placed the defendant in handcuffs, read the defendant his " Miranda" rights, and asked if the envelope was heroin, to which the defendant replied "yes." With the defendant secured, the driver was then handcuffed as well, told that he was being detained not arrested, and read his "Miranda" rights. The driver, at that point and thereafter, made statements incriminating the defendant as to the defendant's use and possession of the heroin found in the car.
After requesting and receiving backup, the Trooper began his search of the vehicle. Subsequently two other groups of suspected heroin were recovered by the Trooper. Two small opened packets of heroin were found on the console, under gloves, after the driver told the Trooper to look there. Another group of ten bags of heroin were located under the front passenger, i.e., the defendant's seat.
The defendant first claims that the entire motor vehicle stop was simply a pretext and all evidence should be suppressed as a result. He claims that there was no evidence of any traffic offense, and the offense alleged was a minimal one, which, once the stop was made, the Trooper made no effort to pursue or investigate. The defendant also points to the fact that the driver was immediately ordered out of the car and both occupants were extensively questioned about matters unrelated to any moving violation, to demonstrate this pretext. This claim will be considered first.
"A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop. The classic example . . . occurs when an officer stops a driver for a minor traffic violation in order to investigate a hunch that the driver is engaged in illegal drug activity." State v. Parker, 84 Conn.App. 739, 744-45 (2004), cert. denied, 272 Conn. 912 (2005), quoting United States v. Guzman, CT Page 17011 864 F.2d 1512, 1515 (10th Cir. 1988), overruled on other grounds, United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995) (en banc).
In addressing claims of pretextual stops, Connecticut follows the ruling of the United States Supreme Court and has abandoned any inquiry into the officer's subjective intent, looking only to determine if the officer has an objectively justifiable basis to make the stop. See State v. Parker, supra, 84 Conn.App. 745 (relying on Whren v. United States, 517 U.S. 806, 809-13 (1996), for proposition that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"). The court's function, thus, is simply to determine whether sufficient evidence of probable cause was objectively present, for the Trooper to detain the vehicle for the stated offense.
The Trooper testified that he stopped the vehicle in question for following too closely. Following a vehicle "more closely than is reasonable and prudent," absent an intent to harass or intimidate the driver in front, is a violation of General Statutes, § 14-240(a); an infraction pursuant to General Statutes § 14-240(d). Here, there was no evidence or claim of an intent to intimidate on the part of the driver and the video in evidence did not reflect such. The evidence before the court on this issue is a limited portion of the dashboard video and the Trooper's testimony, including an estimate of the distance between defendant's vehicle and that in front. In making the objective determination called for by Parker, the court recognizes that, given the rather flexible parameters established by the statute (following "more closely than is reasonable and prudent") and the modern realities of vehicular travel on this section of I-95 (where few vehicles travel an entirely prudent distance apart) the determination of probable cause for this infraction often calls for the kind of experienced judgment and discretion officers are more likely to posses than judges. Nonetheless, the court has exercised its duty to objectively determine probable cause, and finds that the video evidence and the Trooper's consistent testimony are sufficient to, and do, establish probable cause for the initial detention of the vehicle and its occupants.
The defendant next claims that even if the initial stop was supported by probable cause, the evidence shows the trooper quickly ceased any activity related either to processing or investigating the motor vehicle infraction. The defendant points to the Trooper's conduct in ordering the driver from the vehicle, extensive questioning unrelated to operation of the vehicle and requests to search the car. Of course, an officer's authority to detain a person, even when initially justified by law, is not without limits. Whether an officer's continued detention of a person is consistent with constitutional limits is a deeply factual question dependent on the particular facts and circumstances of the particular case. As a broad rule, the detention should be no longer than is required under the particular circumstances of the case. State v. Mitchell, 204 Conn. 187, 197, cert. denied, 484 U.S. 927 (1987). The events occurring after the initial stop, while not relevant to the issue of probable cause, may well be relevant to determine the continuing reasonableness of the detention.
Connecticut has recognized the right of an officer to order a person out of a vehicle, even when the stop is simply for an infraction. State v. Dukes, 209 Conn. 98, 122 (1988). The relocation of the driver here to the rear of the car also appeared to allow the Trooper to move safely away from the edge of the exit lane and did not appear to substantially lengthen the detention here. The extensive questioning of both occupants did appear to be unrelated to the infraction at issue, but courts have allowed officers latitude to inquire into matters and possible crimes unrelated to the stop. United States v. Childs, 277 F.3d 947, 954 (2000), cert. denied, 537 U.S. 829 (2002); State v. Story, 53 Conn.App. 733, 741, cert. denied, 251 Conn. 901 (1999). Moreover, these events occurred in a relatively short time span; about three minutes. The court does not find that either this duration or the content of the exchange rendered the continuation of the stop unreasonable. It is significant to the court's decision here that, at least prior to the defendant's refusal to answer the questions as to what was in the envelope, neither civilian ever expressed any concern about the length of the stop, expressed a desire to resume their travel, objected to the questioning or exercised their right to remain silent. Accordingly, although under different facts even this short a detention might lead to a different conclusion, here the court does not find that the continued detention ever became unreasonable or excessive.
The defendant next complains that even if the stop does not taint all evidence seized during the stop, all evidence seized as a result of the search or pat-down of the defendant must be suppressed. In the recent case of Arizona v. Johnson, 129 S.Ct. 781 (2009), the Supreme Court addressed the admissibility of evidence seized as a result of the stop and frisk of a passenger during a routine motor vehicle stop. Its holding addresses the seizure of the packets of heroin taken from the defendant as a result of the pat-down administered by the Trooper. Johnson determined that in such an instance, both of the two conditions imposed by Terry v. Ohio, 392 U.S. 1 (1969), must be met. 129 S.Ct. at 781-82. First, the investigatory stop must be justified. It has long been recognized that this first requirement is satisfied whenever an officer has probable cause to detain a vehicle for a moving violation, and is, thus, satisfied here.
The second requirement of Terry, which goes to the frisk, i.e., a reasonable and articulable suspicion that the person detained may be armed and dangerous, does not appear to be diminished in any regard, however. "To justify a patdown of the driver or a passenger during a traffic stop, however . . . the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." State v. Johnson, supra, 129 S.Ct. 784. See also, State v. Mann, 271 Conn. 300, 311 (2004) (stating that Terry doctrine limited to beliefs based "on specific and articulable facts that the person . . . is armed and dangerous"), cert. denied, 544 U.S. 949 (2005). The state has failed to present any evidence to demonstrate a reasonable and articulable suspicion on the part of the Trooper that the defendant was armed and dangerous at the time he was ordered to submit to a pat-down for weapons.
First, the court finds that the earliest point in time at which the Trooper harbored any suspicion that the defendant might possess a possible weapon was when the Trooper's manipulation of the envelope within an inside pocket of the defendant's jacket raised a suspicion that the envelope might contain needles. This point occurred as a result of the pat-down and cannot be asserted to support the need for one. This discovery also arguably went beyond the permissible scope of a Terry frisk, as it involved the manipulation of the contents of the not yet threatening item. See Minnesota v. Dickerson, 508 U.S. 366, 378 (1993) (stating that the officer cannot engage in "squeezing, sliding and otherwise manipulating the contents of the defendant's pockets"); but see, State v. Dukes, supra, 209 Conn. 122 (1988) (stating that at traffic stop officer has right to go beyond mere pat-down to search for weapons to protect own safety).
Second, when asked why he conducted the pat-downs, especially the pat-down of the defendant, the Trooper stated that he intended to begin a search of the vehicle, at which time he would become more vulnerable. Without belittling that concern, such does not meet the standard called for under the law of an articulable suspicion that the individual to be frisked is armed and dangerous. The state's argument that generalized suspicion of some crime being afoot flowing from discrepancies in the answers the Trooper received also does not satisfy this distinct requirement. In fact, neither occupant consented to being frisked by the Trooper and it was never expressed that consent to a search of the vehicle would involve any pat-down. Even if it were possible to draw such an inference, the officer's authority to search the vehicle was entirely dependent on permission from the owner/driver, not the defendant. The driver's permission to search the car cannot serve as a basis for a waiver of the defendant's right to be free from unreasonable and unwarranted intrusion of his constitutional rights. For these reasons, the court finds the pat-down of the defendant was not authorized by law and evidence seized as a result thereof should be excluded under the exclusionary rule.
The finding that the search of the defendant's person was not authorized by law is not dispositive of the issues raised by the defendant's motion. The defendant has moved for the suppression of all evidence seized at the time of his arrest. This would include not only the twenty-nine to thirty packets of heroin seized from the defendant's inside breast pocket, but also the two bags of heroin taken from the console of the vehicle and the ten bags of heroin taken from under the front passenger seat. For clarity of discussion, the court will separately discuss this as evidence seized from the vehicle and from the defendant's jacket as different considerations apply to each.
Connecticut recognizes two exceptions to the exclusionary rule: when evidence is obtained from an independent and untainted source; Murray v. United States, 487 U.S. 533, 536-39 (1988); State v. Cobb, 251 Conn. 285, 233 (1999), cert. denied, 531 U.S. 841 (2000); and when evidence improperly seized would have ultimately, indeed inevitably, been seized by a lawful means. Nix v. Williams, 467 U.S. 431,448 (1984); State v. Badgett, 200 Conn. 412, 432-22, cert. denied, 479 U.S. 940 (1986). The court will consider each of these doctrines separately.
The first exception arises where evidence is obtained from an independent source. With regard to the evidence taken directly from the vehicle during its search, a defendant must demonstrate some expectation of privacy with regard to the place searched. Rakas v. Illinois, 439 U.S. 128, 143-44 (1978), rehearing denied, 439 U.S. 1122 (1979). Here, no such expectation was presented. The defendant has no automatic standing under either the federal or state constitutions, even with regard to possessory offenses. United States v. Salvucci, 448 U.S. 83, 95 (1980); State v. Davis, 283 Conn. 280, 300-01 (2007). As a general rule, a passenger in a motor vehicle has no expectation of privacy in the interior of the vehicle. State v. Thomas, 98 Conn.App. 542, 550-51 (2006), cert. denied, 281 Conn. 910 (2007). Thus, the defendant, who was neither the owner nor the driver of the vehicle searched, has no standing to complain of the search of the vehicle, particularly in light of the owner/driver's express consent to a search thereof.
The fact that the vehicle search occurred after the frisk and discovery of drugs in the defendant's jacket does not change this result. Permission to search the vehicle had been requested and given before the frisk and the Trooper had embarked upon a clear path towards the search. Indeed, the evidence is that the defendant's frisk was the result of the Trooper's plan to immediately commence the search and the Trooper was clearly proceeding to effect that search regardless of any discovery of suspected drugs on the person of the defendant. With regard to all items seized from the interior of the vehicle, the court finds that such would qualify for an exception under the independent discovery doctrine. Based on the locations of the evidence seized within the vehicle, on the front console and under the passenger's seat, the court concludes that the discovery of such drugs was inevitable during even a cursory search of the vehicle.
With regard to the evidence taken from the pocket of the defendant's jacket, the court finds such evidence also qualifies for admission under the inevitable discovery exception to the warrant requirement. Given the court's finding that the discovery of suspected drugs within the vehicle would have occurred regardless of the defendant's being frisked, the court further concludes that the discovery of suspected drugs within the defendant's jacket was also inevitable. While possession of the heroin located on the console would have likely lead to the arrest of both occupants, the court finds that upon discovery of the substantial amount of heroin located directly under the passenger's seat, the arrest of the defendant for possession and the discovery of heroin on his person was inevitable. For these reasons, the court concludes that the all evidence seized both within the vehicle and within the defendant's jacket, as well as other physical information concerning its location and packaging, is admissible and will not be suppressed. The court makes this finding with the high level of confidence as discussed below.
These findings and conclusions do not exhaust the subject of the motion. The defendant also moves to suppress all oral statements made, which statements flow from the frisk and arrest of the defendant. When considering a suppression motion, the court, upon finding a constitutional violation, must suppress not only evidence and statements which were directly taken as a result of the violation, but also all evidence tainted by the violation. State v. Brunetti, 279 Conn. 39, 72 (2006), cert. denied, 549 U.S. 1212 (2007). The standard of proof for the state under the inevitable discovery doctrine is not merely a more probable than not standard, but rather that the court must find "with a high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the [state's] favor." United States v. Rodriguez, 2006 WL 2860633 (D.Conn. 2006); United States v. Heath, 455 F.3d 52, 60 (2d Cir. 2006). Moreover, "a statement not yet made is, by its very nature, evanescent and ephemeral. Should the conditions under which it was made change, even but a little, there could be no assurance the statement would be the same." CT Page 17016 United States v. Vasquez de Reyes, 149 F.3d 192, 196 (3d Cir. 1998).
As an alternate sequence of events significantly changes the conditions leading up to the statements following the unauthorized frisk, the court cannot find that any statements made pursuant to the frisk would have been inevitably discovered. The court, further, finds that the intervening advisement of rights does not itself eliminate the taint of such violations. Although the court has found the discovery of the physical evidence to have been inevitable, it does not find that the statements made by the defendant or the driver after the defendant's frisk were inevitable.
Accordingly, the court finds that all statements, other than the acknowledgment of rights, made by either the defendant or the driver, between the commencement of the defendant's frisk and the conclusion of the search of the vehicle are to be suppressed. Any statements made outside this period are not suppressed and all statements may be used on cross examination or as otherwise allowed by law.
The Defendant's Motion is granted in part and denied in part, in conformity with this memorandum.
Done this 25th day of August 2010.