Opinion
No. F02B-CR08-0231300 S
November 26, 2008
MEMORANDUM OF DECISION
On March 3, 2008, the defendant, Jeffrey Rodriguez, ("Defendant" or "Rodriguez"), was arrested and charged with two counts of sale of illegal drugs and two counts of possession of controlled substances with intent to sell within fifteen hundred feet of a school, public housing project or child day care center, in violation of Sections 21a-278(b) and 21a-278a(b) of the Connecticut General Statutes. On October 16, 2008, the defendant moved to suppress any and all evidence of narcotics seized from defendant or his co-defendant, Joshua Milks, on March 3, 2008, as a result of what he alleges was an unlawful arrest by the Bridgeport Police Department. Specifically, the defendant claims that the police officers conducted a warrantless arrest without probable cause.
PROCEDURAL BACKGROUND
On October 3, 2008, the court conducted an evidentiary hearing and heard testimony from two police officers, called by the state, namely Officer David Riehl and Lieutenant Christopher Lamaine of the Bridgeport Police Department. The defendant chose not to testify but called a single witness, Ramiz Majeed. During the hearing, defendant's attorney requested that the court have an opportunity to view defendant's vehicle, a Nissan Maxima, then in police custody. The state objected on the grounds that the lighting conditions, angle of view into the car could not be replicated and viewing the car itself would not assist the court. The court inquired whether pictures of the vehicle that the parties agreed to admit would be an acceptable alternative, while preserving the record. Both parties agreed to consider that alternative and the matter was continued to October 27, 2008 to address that issue and for oral argument.
On October 27, 2008, the defendant sought to introduce 11 photographs of the vehicle, which were taken by the police department personnel. The state objected to the introduction of the photographs on the basis that they did not accurately depict what the officers on the scene were able to observe. The court overruled the objection on the basis that the objection focused on the weight of the evidence rather than its admissibility. Both parties filed memoranda of law in support of their respective positions relating to the motion to suppress on October 16, 2008. The defendant filed a reply brief on October 20th and the state its response on October 22nd. At the conclusion of the hearing on October 27th, the court heard oral argument from counsel.
FINDINGS OF FACT
The court finds the following facts by a fair preponderance of the evidence. Officer Riehl has been a member of the Bridgeport Police Department for eighteen and a half years. Since November of 2004, he has been assigned to the Tactical Narcotics Team and he currently serves as a surveillance or case officer. He has received training in advanced narcotics investigation through the HIDTA and attended numerous other courses including, management of informants and narcotics surveillance. During his tenure on the police force, he has conducted approximately 440 narcotics investigations involving surveillance and witnessed hundreds of hand-to-hand narcotics transactions.
On March 3, 2008, at approximately 10:30 am, Officer Riehl and other members of the narcotics team were conducting surveillance of a vehicle on Boston Avenue in the east side of the city. The vehicle turned onto Bell Street, one-way street that runs South from Boston Avenue and stops at Ogden Street. The vehicle pulled over and Officer Riehl discontinued surveillance and continued south on Bell Street. Bell Street is a residential street with parking on both sides of the street. Assuming cars are parked on both sides of the street, there is only room for one car to fit down the center of the street. After passing the vehicle under surveillance, Officer Riehl encountered a black Subaru stopped in the center of the street blocking his passage. He stopped his undercover vehicle approximately three feet from the Subaru. It was a bright and normal day with no adverse weather conditions.
Officer Riehl first observed the driver of the Subaru speaking with the occupant of a Nissan Maxima, defendant's vehicle, parked on the left side of the street parallel to the Subaru. He then observed the driver of the Subaru open his door and, leaning over with his right hand into the window of the Maxima, hand paper currency to the occupant of the Nissan Maxima. Officer Riehl could see the side of the head and back of the occupant of the Nissan Maxima as he reached over and accepted the money. He then observed the occupant of the Maxima hand an item or items to driver of the Subaru. The Subaru then proceeded south on Bell Street. Based on his training and experience having observed hundreds of hand-to-hand narcotics transactions and observing the specific manner in which this exchange took place, Officer Riehl became suspicious and believed he had observed a drug transaction. The area where this activity occurred is one where Officer Riehl and others had conducted several narcotics arrests in the past. Further, it is not uncommon for the narcotics team to observe hand-to-hand narcotics transactions in an open public setting in the middle of the day.
Using his nextel phone, Officer Riehl requested assistance from the narcotics team. Officer Riehl informed the narcotics team members that he believed he had witnessed a drug transaction and would follow the alleged purchaser in the Subaru. He called for assistance to stop the Nissan Maxima to investigate further. Lieutenant Lamaine was the first on the surveillance team to enter Bell Street. Prior to leaving the scene, Officer Riehl directed Lieutenant Lamaine to the Nissan Maxima, defendant's vehicle.
Lieutenant Lamaine has been a member of the Bridgeport Police Department for seventeen years and assigned to the narcotics division for the past six years. He has also received extensive training on narcotics investigations, including surveillance. He has served as patrol officer, sergeant, and lieutenant. Lieutenant Lamaine has conducted surveillance on hundreds of narcotics cases. He currently serves as commanding officer of the narcotics division.
On March 3, 2008, Lieutenant Lamaine, who was wearing plain clothes and driving an unmarked car, was conducting surveillance along with the rest of the narcotics team on Boston Avenue near Bell Street. After receiving Officer Riehl's call that he had just observed what he believed to be an hand-to-hand drug transaction, Lieutenant Lamaine turned onto Bell Street and observed Officer Riehl's vehicle as it was pulling out. He pulled his unmarked car in a 45 degree angle in front of the Nissan Maxima.
Lieutenant Lamaine exited his vehicle and approached the defendant's car with his gun drawn. As he approached the defendant's car, he could see through the windshield and the driver's side window into the defendant's vehicle. While the windows had some tint, given the time of day, lighting conditions and Lieutenant's closeness to the vehicle, he observed the defendant holding money and a plastic bag containing smaller bags with a white powder he believed to be drugs. He identified himself and asked the driver to show his hands. The defendant did not show his hands as requested and Lieutenant Lamaine observed him try to hide those items. Other officers arrived on the scene to assist Lieutenant Lamaine and some of those officers may have also drawn their weapons. A subsequent search of both vehicles revealed the presence of narcotics in both that were similar in packaging. Both the occupant of the Nissan Maxima, the defendant in this case, and the driver of the Subaru were charged with possession and sale of illegal drugs.
Additional facts found by the court are set forth below where necessary.
DISCUSSION I. Applicable Law
While an arrest requires probable cause, an investigative stop requires only reasonable and articulable suspicion. "Under the fourth amendment of the United States Constitution and Article First, sections 7 and 9 of our State Constitution, a police officer is permitted `in appropriate circumstances and in an appropriate manner' to detain an individual for investigative purposes, if the officer believes, based on a `reasonable and articulable suspicion' that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest under limited circumstances." State v. Lipscomb, 258 Conn. 68, 75, 779 A.2d 68(2001) citing, Alabama v. White, 496 U.S. 325, 330-31, 110 L.Ed.2d 301 (1990); Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d. 889 (1968), State v. Mitchell, 204 Conn. 187, 194-95, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S.Ct. 293, 98 L.Ed.2d. 252 (1987). Whether an investigatory stop is constitutional requires a two-prong test.
First the court must determine whether a seizure occurred. A seizure occurs when "by means of physical force or a show of authority, his freedom of movement is restrained." State v. Burroughs, 288 Conn. 836, 844 (2008). It calls for an objective inquiry of whether a reasonable person under the circumstances "would have believed that he was not free to leave." Id. at 846; see also, State v. Ostroski, 186 Conn. 287, 291 (1982); United States v. Mendenhall, 446 U.S. 544, 554 (1980).
Secondly, the court must determine whether the officer had reasonable and articulable suspicion of criminal activity to justify the seizure. "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." Lipscomb, supra, 258 Conn. 75, quoting, State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994), State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d. 1005 (1981). In making this assessment, the court should consider, "the specific information available to the officer at the time of the initial intrusion and any rational inferences to be derived therefrom," to determine if particularized and objective basis for suspecting the particular individual stopped of criminal activity. Lipscomb, supra, 258 Conn 76.
The "scope of [an investigative] detention must be carefully tailored to its underlying justification [and the] investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." State v. Jenkins, 104 Conn. 417, 426, 934 A.2d 281 (2007), quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Thus, an investigative stop that is initially justified may become unconstitutional if unduly prolonged or intrusive beyond what would be necessary to complete the investigation for which the stop was initiated. Jenkins, supra, 104 Conn. 426. Whether a stop impermissibly exceeds its initial scope requires a "fact-bound inquiry." Id.; see also Mitchell, supra, 204 Conn. 197. "If the officers suspicions are confirmed or further aroused" the detention may be prolonged and the scope expanded as circumstances require. Mitchell, supra, 204 Conn. 197.
"The United States Supreme Court has acknowledged that there may be "difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest. Obviously if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop." Id. at 198. In determining whether the detention is too long to justify it as an investigative stop, the court should "examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Id., quoting, United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).
II. Whether Police Conduct Amounted to an Arrest or Investigatory Stop
The defendant claims that Lieutenant Lamaine's actions constituted an arrest requiring probable cause, rather than an investigative stop. Relying on United States v. Ceballos, 654 F.2d 177 (2d Cir. 1981), the defendant points to Lieutenant's use of a weapon when approaching the defendant to establish that the officers were conducting an arrest and not an investigative stop. The state does not dispute that a seizure occurred when Lieutenant Lamaine approached and blocked the Nissan Maxima. While not in a marked cruiser, Lieutenant Lamaine approached the vehicle with weapon drawn and, after observing defendant holding what he believed to be narcotics, requested the driver show him his hands. Under the circumstances presented here there is no question that a seizure occurred once the defendant's car was blocked by Lieutenant Lamaine's vehicle and the defendant was not free to leave. See State v. Donahue, 251 Conn. 636, 643, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S.Ct. 299, 148 L.Ed.2d 240 (2000) (seizure occurred once the officer activated his red, yellow, and blue flashers and pulled the defendant's vehicle); Mitchell, supra, 204 Conn. 200 (seizure of defendants and thirty-nine minute detention until they could participate in an identification line-up was a valid investigative stop).
The presence of a weapon in and of itself is not determinative of whether Lieutenant's conduct amounted to an arrest or an investigative stop. See State v. Cofield, 220 Conn. 38, 48, 595 A.2d 1349 (1991) (Officer conducting an investigatory stop of vehicle suspected of selling narcotics, approached the vehicle with his gun drawn because he "believed himself to be entering a life threatening situation"). The Appellate Court in Cofield, noted that "while the presence of a gun does not automatically convert an investigatory stop to an arrest, State v. Holloman, 20 Conn.App. 521, 526, 568 A.2d 1052, cert. denied, 214 Conn. 805, 573 A.2d 317 (1990); State v. Wylie, 10 Conn.App. 683, 687, 525 A.2d 528, cert denied, 204 Conn. 807, 528 A.2d 1154 (1987); it is at least evidence of authority strong enough to lead a reasonable person to believe that he was not free to leave." State v. Cofield, 22 Conn.App. 10, 16 (1990). In a case decided after Ceballos, the Second Circuit noted "[a]s we have stated in the past, `there is no hard and fast rule concerning the display of weapons' in investigative stops . . . [i]nstead we must look at `the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, [and] the reaction of the suspect to the approach of the police.'" see United States v. Nargi, 732 F.2d 1102, 1106 (2d Cir. 1984) (citations omitted).
Contrary to defendant's claim, the Burroughs case also does not support a different finding. In Burroughs, the presence or absence of guns was a factor the Court considered in determining whether the stop constituted a seizure and thus an investigative stop, not an arrest. State v. Burroughs, 288 Conn. 836, 849 (2008). In that case, the absence of the use of weapons by the officers lead the court to conclude that the initial stop did not amount to a Terry stop requiring reasonable articulable suspicion. Id.
The level of intrusiveness in this case was justified by the fact that the defendant was believed to be selling narcotics from his vehicle. While the defendant relies heavily on Ceballos, that case is distinguishable from this case. In Ceballos, the officers conducting surveillance could not observe the defendant once he entered the building under surveillance. Ceballos, supra, 654 F.2d 179. They could therefore not determine if he went into the apartment from which they suspected narcotics were being sold. Id. The only conduct the officers could observe was the defendant entering the building empty-handed and a short time later exiting the building carrying a brown bag. Id. Unlike Ceballos, the officer in this case actually observed the defendant engage in what he believed, based on his training and experience, was a hand-to-hand narcotics transaction and proceeded to conduct an investigative stop of both vehicles. See also United States v. Jones, 759 F.2d 633, 640 (8th Cir. 1985) (In distinguishing Ceballos, the court noted that among the factors to consider in determining whether the force used turns a stop into an arrest is "the nature of the crime and whether there is reason to believe the suspect might be armed, [and] the strength of the officers' articulable, objective suspicions"). The level of suspicion that prompted the investigative stop here was far greater than in the Ceballos case.
Another distinction between this case and the Ceballos case is the location and timing of the stop. In Ceballos, the officers did not conduct an investigative stop immediately after observing the suspicious conduct but rather followed the defendant's vehicle and stopped it at some distance away from the surveillance area. The Second Circuit in Ceballos, noted that "no attempt was made by the officers to make a Terry stop of Ceballos while he was on the street, bag in hand, before he got into his automobile." 654 F.2d at 180. In this case, the officers conducted an investigative stop immediately after observing what Officer Riehl believed was a hand-to-hand narcotics transaction, rather than waiting until the defendant left the area.
The use of the weapon by Lieutenant Lamaine did not turn the investigative stop into a de facto arrest. Lieutenant Lamaine was conducting a stop of an individual that was believed to have just completed a narcotics sale from his vehicle. His approach of the vehicle with a weapon drawn is not unreasonable in light of the recognized connection between weapons and drug dealing. See Cofield, 220 Conn. 38. Defendant's claim, if adopted by this court, would prohibit officers from taking protective measures in conducting potentially dangerous stops unless they first had probable cause to arrest an individual observed to be and suspected of engaging in illegal drug transactions. See State v. Holloman, supra, 20 Conn.App. 526 (Officers "need not defer . . . protective measures to the point of peril"). (Citations omitted.) Under the specific circumstances of this case, the use of the weapon did not turn an otherwise investigative stop into an arrest.
In Ceballos, the court noted that the use of the weapon was not justified simply because the defendant was in an automobile because the officers could have conducted the investigative stop on the street before he entered his vehicle. See Ceballos, supra, 654 F.2d at 184. In this case, there was no such earlier opportunity for the officers to stop the defendant outside of his vehicle and, as such, under potentially less dangerous conditions. See also United States v. Jones, 759 F.2d 633, 640 (8th Cir. 1985) (Distinguishing Ceballos, court notes that a factor to consider is whether there was "a need for immediate action by the officers and lack of opportunity for them to have made the stop in less threatening circumstances").
III. Reasonable and Articulable Suspicion to Initiate Investigatory Stop
Defendant claims that, even if the police's conduct amounted to an investigative stop, Lieutenant Lamaine lacked reasonable and articulable suspicion to initiate the stop because Officer Riehl did not observe furtive conduct. The exchange of money, defendant claims, could have been a payment of a loan or purchase of a raffle ticket for a bachelor party, a piece of candy or a stick of gum and did not give rise to a level of suspicion to warrant an investigative stop. However, given the similarities between the transaction he observed and the hundreds of drug transactions he had observed and investigated in the past, Officer Riehl's suspicions were more than a mere hunch. A reasonable person, with his knowledge and information, observing the same conduct would have reasonable and articulable suspicion to justify an investigative stop.
In view of this court's findings and ruling, the court need not reach defendant's motion to suppress evidence seized from his co-defendant's vehicle. The court questions defendant's standing to move to suppress evidence seized from his co-defendant's vehicle when he has not established he had an expectation of privacy regarding that vehicle.
Further, within seconds of exiting his vehicle and approaching the defendant's vehicle, Lieutenant Lamaine observed the defendant holding money and a bag, which he believed, based on his knowledge and experience of how narcotics are packaged, to contain narcotics, all of which further confirmed the officers' suspicions. At that point, given Officer Riehl's prior observations, Lieutenant Lamaine had not only reasonable and articulable suspicion to further detain the defendant, he had probable cause to arrest the defendant.
CONCLUSION
For the reasons noted above, the defendant's motion to suppress is denied.