Opinion
No. CR 100141309
July 18, 2011
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SUPPRESS
The defendant is charged by way of information with two counts, DRINKING WHILE DRIVING in violation of General Statutes § 53a-213 and OPERATING A MOTOR VEHICLE WHILE UNDER SUSPENSION in violation of General Statutes § 14-215. The defendant on or about February 7, 2011, filed a motion to suppress and memorandum in support of the same. On March 25, 2011, the court, Nazzaro, J., conducted an evidentiary hearing on the motion. On April 8, 2011, the prosecution filed a memorandum in opposition to the motion to suppress. For the reasons set forth below, the motion to suppress is denied.
Section 53a-213(a) states in relevant part: "A person is guilty of drinking while operating a motor vehicle when he drinks any alcoholic liquor while operating a motor vehicle upon a public highway of this state or upon any road of any specially chartered municipal association or of any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or in any parking area for ten cars or more, or upon any private road on which a speed limit has been established in accordance with the provisions of section 14-218a or upon any school property."
Section 14-215(a) states in relevant part: "No person to whom an operator's license has been refused, or, except as provided in section 14-215a, whose operator's license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked."
After a review of the evidence, briefs, and argument by the parties, the court makes the following findings.
FINDINGS OF FACT
On March 20, 2010, Trooper Craig Brezniak of the Connecticut State Police was on Northeast Patrol in the Town of Windham. The trooper had been on the job for about two years and on this day was assigned out of Troop K in Colchester, Connecticut. He was on patrol the evening shift from 3 to 11 p.m. Traffic was heavy in the four-lane roadway of this busy commercial area which included a number of eateries and a gas station. While in his cruiser on Boston Post Road, Trooper Brezniak was approached by a motorist who pulled up to the peace officer and advised him that "he had just observed a vehicle pulling out of the parking lot of the Willimantic Bowling Alley proceeding west on Boston Post Road." The concerned individual informed the trooper that he obtained the license plate of the operator and the make and model of the car, which was a Toyota Camry. The vehicle had a Connecticut plate number 394WLH. The witness explained he was concerned for public safety. The witness observed the operator drinking from a red and white can which he assumed was a Budweiser beer. This took place or was observed at approximately 4 p.m. The trooper knew the bowling alley served beer. Concerned for public safety (of those in the environment of this neighborhood), the trooper credibly testified that he left the motorist without noting his identity. Trooper Brezniak testified the motorist was a man who appeared shocked at what he observed and pointed in the direction of what he saw, "almost prompting me to get out quickly." The trooper made no attempt to determine the identity of the concerned citizen or register the citizen's license plate or any other identifying characteristics of the citizen's vehicle.
The trooper then dashed off in an attempt "to locate the vehicle and person as soon as possible." He proceeded west on the Boston Post Road. As he approached the intersection of State Route 66 and Tuckie Road, the trooper observed a white Toyota Camry which matched the citizen's description. The trooper followed the Camry for a distance. The trooper activated his lights and siren. He observed the sedan then pull into a parking lot.
Here, the parties agree essentially on the facts. While the trooper followed the vehicle, he did not observe anything unusual about the motorist or his operation of the car. The trooper observed no violations of any equipment or motor vehicle laws. The trooper made an investigatory stop and identified the motorist as Lawrence Bagley. The trooper observed an open can of Budweiser beer. This observation was consistent with the information relayed to the officer by the concerned motorist. He asked the operator if he had been drinking. The driver indicated in fact he drank beer "some two minutes before." This admission also corroborated the reported observation of the unidentified concerned citizen. The trooper then asked Bagley to exit his vehicle and submit to a series of roadside sobriety tests which Bagley essentially passed. Trooper Brezniak concluded Bagley was not intoxicated. However, while researching Bagley's motor vehicle history, the trooper discovered Bagley's license was under suspension. He then issued a summons to Bagley charging him with the instant offenses.
LEGAL DISCUSSION
The defendant moves to suppress all evidence seized on March 20, 2011, including any tangible evidence and any statements made by the defendant as fruits of an illegal search. He argues that the seizure of his vehicle and subsequent arrest violated his rights under the Federal and Connecticut Constitutions because "the report from an unidentified motorist lacked sufficient indicia of reliability to create the requisite level of reasonable and articulable suspicion to justify an investigatory stop."
"Under the fourth amendment to the United States [C]onstitution and Article One, §§ 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. Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 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). 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 . . .
"[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, supra, 392 U.S. 21 . . . In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. When reviewing the legality of a stop, a court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom . . . A recognized function of a constitutionally permissible stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime . . . State v. Lipscomb, 258 Conn. 68, 75-76, 779 A.2d 88 (2001); see also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ([a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time).
"In addition, [e]ffective crime prevention and detection . . . [underlie] the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, supra, 392 U.S. 22. Therefore, [a]n investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal . . . In evaluating the validity of such a stop, courts must consider whether, in light of the totality of the circumstances, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity . . .
"When . . . an officer's decision to detain a suspect briefly is based on information received from an informant, the task of the reviewing court is akin to a probable cause determination. In the probable cause context, we have recently departed from the `two pronged test' of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in favor of the `totality of the circumstances' approach of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh. denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983) . . . Just as we made clear in Barton that the informant's `veracity,' `reliability,' and `basis of knowledge' remain `highly relevant' . . . [t]hese factors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard . . . [A] deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability . . . The police are not required, however, to corroborate all of the information provided by a confidential informant . . ." (Citations omitted; internal quotation marks omitted.) State v. Clark, 297 Conn. 1, 9-11, 997 A.2d 461 (2010).
"Although anyone who gives information to the police in confidence might be called a `confidential informant,' the term is usually employed in a more restricted sense to describe a person who is himself in the underworld, so that he is particularly well placed to know its secrets. Courts have properly distinguished between such `confidential informants' and the average citizen who, as a victim or a witness, happens to have information useful to the police. Such `citizen informers' are considered more deserving of credibility than are underworld informers, and courts have accordingly tended to examine the basis and sufficiency of a citizen informer's information more closely than his credibility." State v. Barton, 219 Conn. 529, 542 n. 10, 594 A.2d 917 (1991). "[A] `citizen informer' . . . is more deserving of belief that the typical informant from a criminal milieu . . . It is generally agreed . . . that a comparable showing is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or witness." State v. Daley, 189 Conn. 717, 723-24, 458 A.2d 1147 (1983).
In support of his motion, the defendant relies upon the case of Alabama v. White, 496 U.S. 25, 110 S.Ct 2412, 110 L.Ed.2d 301 (1990), and argues that the information given to Trooper Brezniak by the unidentified motorist lacked a sufficient indicia of reliability to meet the minimal level of reasonable and articulable suspicion to justify an investigatory stop because it was equivalent to an uncorroborated anonymous tip. "In White, the police received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel . . . Standing alone, the tip would not have justified a Terry stop . . . Only after police observation showed that the informant had accurately predicted the woman's movements . . . did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine . . . Although the Court held that the suspicion in White became reasonable after police surveillance, we regarded the case as borderline." Florida v. J.L., 529 U.S. 266, 270-71, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).
The facts of this case are distinguishable, however, from Alabama v. White. In White, the police received an anonymous telephone tip. Conversely, in this case the information was provided by a citizen to Trooper Brezniak face-to-face. As a result, Trooper Brezniak had more reason to believe that the information was credible, since "when an informant relates information to the police face to face, the officer has an opportunity to assess the informant's credibility and demeanor." United States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000); see also United States v. Forte, 412 F.Sup.2d 258, 262 (W.D.N.Y. 2006). "Moreover, citizens who personally report crimes to the police expose themselves to accountability for lodging false complaints. Illinois v. Gates, [ supra, 462 U.S. 233-34.]" (Internal quotation marks omitted.) United States v. Forte, supra, 412 F.Sup.2d 262. As stated above, in Connecticut a citizen informant is more deserving of belief than the typical informant. "[I]f an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary." State v. Clark, supra, 291 Conn. 14.
Additionally, in this case although the male citizen informer was unidentified, it was not because he refused to give his name to the trooper. Rather, Trooper Brezniak never asked for his name due to the urgency of the situation. "Both the Supreme Court and the Second Circuit have recognized the difference between in-person informants and anonymous telephone calls. See Florida v. J.L., [ supra, 529 U.S. 276.] (Kennedy, J., concurring) (`If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring.'); and United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) (`[A] face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false')." (Internal quotation marks omitted.) United States v. Forte, supra, 412 F.Sup.2d 262-63. Further, in contrast to White where the anonymous tipster did not explain the basis of his or her knowledge, here the citizen informer explained that he himself had recently observed the driver of a Toyota Camry with license plate 394WLH drinking a Budweiser, and then pointed in the direction of where he had made these observations. On this basis, the court finds that the information provided to Trooper Brezniak was credible and reliable.
Further, under the totality of the circumstances the trooper had reasonable suspicion to justify his investigatory stop of the defendant's vehicle. In this case, Trooper Brezniak received reliable information from a citizen informer who approached his vehicle and said that he had just observed a Toyota Camry with license plate 394WLH pull out of the Willimantic Bowling Alley parking lot and that the white male driver was drinking a Budweiser. The citizen informer also told Trooper Brezniak that the Toyota was traveling westbound on Boston Post Road. Trooper Brezniak then promptly proceeded west on Boston Post Road in the direction the man had described. As the trooper approached the intersection of State Route 66 and Tuckie Road, he observed a white Toyota Camry that fit the description given by the citizen informer with the same license plate number, pull into a parking lot. At that point, the court finds that based upon the totality of the circumstances, Trooper Brezniak had reasonable suspicion to conduct a Terry stop of the defendant's vehicle.
In the course of this analysis, the court tactitly considers the possibility that a peace officer, similar to any fact witness, might testify falsely as to the existence of an unidentified concerned citizen. This court views as remote any chance for a floodgate of cases that involve conjured and non-existent concerned citizen informants. The court notes that any trial court hearing evidence in the context of a motion to suppress sits as a finder of fact including judging the credibility of a peace officer or state trooper. An accused, such as in this case, always has available his counsel's skills for effective cross examination to test the veracity of an encounter with an anonymous concerned citizen. Doubtless, it is preferable for a peace officer to obtain a witness's name and identity where possible. The court recognizes, however, in the legitimate zeal to act swiftly on credible information in an emerging situation to thwart and contain a present risk to public safety, officers, such as in this case, may not record the identity of such a concerned citizen. Trial courts are more than capable of evaluating the totality of the circumstances of such scenarios on a case-by-case basis. So the risk that cases may swell with unnamed concerned citizen informants, again, is remote, at best.
Pursuant to both the Connecticut Constitution and the United States Constitution, there was no unreasonable or unlawful intrusion or search or seizure upon Bagley or his vehicle. For the foregoing reasons, the motion to suppress is denied.