Opinion
No. FST-CR08-0232620-T
April 3, 2009
MEMORANDUM OF DECISION RE MOTIONS TO SUPPRESS
I. NATURE OF PROCEEDINGS
Before the court are the defendant's motions to suppress physical evidence, identifications and statements, dated October 23, 2008. The court held an evidentiary hearing thereon, and makes the following findings of facts and reaches the following conclusions of law for purposes of this decision.
II. FINDINGS OF FACT
On or about April 26, 2008, in the early morning hours shortly after 4:00 a.m., two Fairfield University students were awoken by an intruder in the bedrooms of their separate residences at Lantern Point in the Fairfield Beach area of town. Both incidents occurred within a brief period of time and in houses that were in a cluster, or immediate proximity to one another. The two occurrences shared a collection of similar details. In each instance the student was a female, who had been sleeping and awakened to discover the intruder standing near her. The intruder appeared to be a male, and was wearing a dark-colored jacket with lighter-colored pants. The jacket had a hood which was drawn around the face, thereby obscuring it from good view. In the first instance the victim screamed for help and when the intruder fled she secured herself in her bedroom. In the second instance the victim screamed and chased the intruder to the outside of her residence.
The victim of the first incident immediately called the Fairfield police. They promptly responded to the Fairfield Beach area and to the victim's residence. While the police were there, they became aware of an assistance call by the second victim. However, the police were unable to locate the intruder at the scene.
Officer Bryan Staffey was one of the officers dispatched to the investigation. The officer was enroute in his patrol car minutes after he received a priority dispatch of a residential burglary in progress at Lantern Point. This dispatch related to the first incident; the second incident had not yet been reported to him. As he was on Fairfield Beach Road and within an eighth of a mile from the Lantern Point area, Officer Staffey observed a single car approaching in the opposite direction from that same area. The officer had seen no other traffic during his approach. The two vehicles grew near at a speed of about fifteen miles per hour. This car was well-illuminated by the officer's spotlights. Officer Staffey noticed that the operator, a black male, was sweating profusely. Due to these observations and all the surrounding circumstances, Officer Staffey believed that the individual may have been involved in the beach area intrusion. Therefore, upon passing by this car, the officer did a u-turn, approached the vehicle from behind, and pulled it over. The location of the stop was about one-half mile from the area of the two incidents.
The defendant was the operator of the vehicle and its only occupant. Officer Staffey requested him to produce his license and registration, and he did. Officer Staffey then asked the defendant where he had been coming from, and the defendant gave an answer which the officer knew was at odds with the defendant's directional travel. The dispatch advised that the intruder had worn a puffy black jacket. The defendant was wearing a black windbreaker. Based upon this additional information Officer Staffey then asked the defendant to exit the car and radioed for additional assistance.
Other police officers, including Officer Buccherati, and Officer Zdru, arrived minutes later. Officer Zdru had responded to the first victim. He brought her with him to the area of the roadside stop in an effort to determine if she could identify the defendant. Zdru cautioned her that the police had detained an individual wearing clothing similar to what she had described, but that did not mean the person was the intruder. The victim said she could not make a definite identification, but that the defendant and intruder had similar builds, and their clothing was similar in color.
The officers asked the defendant if they could search the passenger compartment of his car, and he assented. The officers saw nothing of any evidentiary value. They then asked for permission to search the trunk, and again the defendant agreed. In the trunk the officers found a laptop computer and another heavier, or puffier dark-colored jacket. The police then showed the victim the laptop. She identified it as being the very same one that she had reported as missing from another person's bedroom in the residence just after the incident. The police then arrested the defendant on charges related to the two beachside intrusions. The entire period of time between the detention of the defendant until his arrest was approximately fifteen minutes.
Officer Staffey then asked the defendant about the presence of the laptop in the trunk. The defendant first denied knowing anything about it. However, the defendant then said that earlier that night he had been approached by an unknown man who had threatened him if the defendant did not give him the keys to his car. The defendant said that the man took his car but then returned it to the defendant, together with a laptop, a short time later. At about the same time, another officer who had assisted the second victim likewise brought her to the stop point to see if she could make any identification. The officer gave her an admonition similar to that given to the first victim. She, too, said she could not be sure, but that both the intruder and the defendant had the same dark skin color and medium build. She also identified the jacket taken from the trunk as appearing to be the same one worn by her intruder.
Further facts, including other statements alleged to have been made by the defendant, will be set forth herein as necessary.
III. CONCLUSIONS OF LAW
The defendant has moved to suppress the following: 1) any evidence that resulted from the original detention of the defendant; 2) any physical evidence seized from the defendant's vehicle, 3) any identification evidence by the victims, and; 4) any statements made by the defendant. The court will address these claims in order.
At the hearing on these motions the state represented that Officer Kim Dowling took a final statement from the defendant at the police department. It was agreed by counsel and the court that evidence concerning that statement would not be presented at the time of the hearing. Therefore, the court makes no ruling concerning the suppression of that final statement.
a. SUPPRESSION OF ANY EVIDENCE THAT RESULTED FROM THE ORIGINAL DETENTION OF THE DEFENDANT
The parties agree, and the record supports a finding, that Officer Staffey initially detained the defendant when he directed him to pull over and stop on Fairfield Beach Road. The defendant claims that any evidence that resulted from the detention should be suppressed on the grounds that the detention was unlawful.
"When a reasonable and articulable suspicion exists, the detaining officer may conduct an investigative stop of the suspect in order to confirm or dispel his suspicions. Terry v. Ohio, [ 392 U.S. 1, 24 (1968)] . . ." State v. Wilkins, 240 Conn. 489, 495 (1997); State v. Kyles, 221 Conn. 643, 660-61 (1992); State v. Lamme, 216 Conn. 172, 184 (1990) (principles underlying constitutionally permissible Terry stops apply in the analysis under article first, § 9, of the state constitution). "Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion." State v. Torres, 230 Conn. 372, 379 (1994). The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. State v. Daeria, 51 Conn.App. 149, 155 (1998).
In this case Officer Staffey was justified in conducting an investigatory stop of the defendant. Officer Staffey had information that a serious crime, a nighttime residential burglary, was either in progress or had just occurred. He was responding to an area that was not especially accessible and, at the point he stopped the defendant's vehicle, was an extremely short distance from the crime scene. The vehicle appeared to be coming from the general area of the scene. At the early morning hour involved, the road was devoid of any traffic except the defendant's vehicle. As Officer Staffey saw and passed the vehicle, he noticed that the operator was sweating profusely. On the basis of these facts the investigatory detention of the defendant was justified.
Following the stop, Officer Staffey asked the defendant for his license and registration, and where he had been coming from. During the course of a Terry stop, the police may request identification or inquire about a suspect's activities without advising the suspect of his Miranda rights. State v. Gregory, 56 Conn.App. 47, 54 (1999). Here, the defendant's answer did not appear genuine to Officer Staffey based upon his knowledge of the area and the direction of the defendant's travel. Officer Staffey also noted that the defendant was wearing a black windbreaker, which was similar to fellow officers' reports concerning the intruder's clothing. These factors justified further detention of the defendant. State v. Torres, 197 Conn. 620, 628 (1985).
While the evidence varied somewhat regarding a precise description of the windbreaker or jacket, the court finds that the different descriptions were sufficiently similar to warrant a continued detention of the defendant. See Kyles, supra, at 661, fn.10. Minor inconsistencies in the witnesses' description of the perpetrator's clothing, without more, are insufficient to undermine a determination of reliability. State v. Santos, 104 Conn.App. 599, 620, fn.22 (2007), cert. denied, 286 Conn. 901 (2008).
The stop must be of temporary duration and last no longer than is reasonably necessary to effectuate the purpose of the detention, taking into consideration whether the police diligently pursue a method of investigation that is likely to confirm or dispel their suspicions quickly, and whether they are acting in a swiftly developing situation. State v. Aversa, 197 Conn. 685, 692-93 (1985); State v. Ortiz, 47 Conn.App. 333, 340 (1997). In this particular case other officers arrived within minutes of Officer Staffey radioing in for assistance. These included Officer Zdru who was transporting the first victim to the scene. The detention of a suspect to effectuate a viewing by witnesses to a crime has been deemed to be a permissible investigative technique. State v. Mitchell, 204 Conn. 187, 199 (1987), cert. denied, 484 U.S. 927 (1987). The continuation of the investigation for purposes of a possible identification by the victim was proper. A period of approximately fifteen minutes, from the original detention of the defendant until his actual arrest, was justified and reasonable under all the circumstances. United States v. Sharpe, 470 U.S. 675, 685-87 (1985) (refusing to place a rigid time limitation on investigative stops; each case must be assessed on its own particular facts and circumstances). Further, inasmuch as the defendant was promptly arrested after the first victim identified the laptop computer taken from the vehicle's trunk, the lapse of additional time for purposes of the second victim's identification would be immaterial for purposes of this motion.
The original detention of the defendant was based upon a reasonable and articulable suspicion that the defendant may have been involved in a crime, and its scope and duration were reasonably necessary to effectuate its purposes.
b. SUPPRESSSION OF ANY PHYSICAL EVIDENCE SEIZED FROM THE DEFENDANT'S VEHICLE
The defendant next claims that the any physical evidence seized from the defendant's vehicle was done unlawfully and must be suppressed. The items in question were a dark jacket and laptop computer seized from the trunk of the defendant's vehicle. There is no claim that the police seized these items pursuant to a warrant. However, the state claims the seizure was lawful because the defendant gave his consent to the search of the trunk.
A consent to a warrantless search is an exception to the requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); State v. Zarick, 227 Conn. 207, 226 (1993). The state has the burden of proving consent, and that burden is not satisfied by showing no more than acquiescence to a claim of lawful authority. The state must affirmatively establish by a preponderance of the evidence that the consent was in fact freely and voluntarily given. See State v. Jones, 193 Conn. 70, 79 (1984). Whether a consent to search was voluntary is a factual question, to be determined from the totality of the circumstances. No one factor is controlling. State v. Torres, 197 Conn. 620, 627 (1985); State v. Martinez, 49 Conn.App. 738, 743, cert. denied, 247 Conn. 934 (1998).
In this case the state has clearly sustained its burden of proof that the defendant freely and voluntarily gave his consent to the search of both the passenger compartment and trunk of his vehicle. The defendant was standing outside of his vehicle, as Officer Staffey had requested. The defendant was not restrained. There has been no showing that the officers used any show of force or otherwise compelled the defendant to consent to a search. They were in the process of continuing an investigative detention, and a search of the vehicle was useful for that reason. They asked for permission to search both the passenger compartment and trunk, and the defendant agreed. In the trunk the officers found a laptop computer and another, heavier or puffier dark-colored jacket. Both items were seized, and the first victim positively identified the laptop as belonging to another resident of the home. The defendant was then arrested. The law is well-established that if, during the course of such a search, the police legitimately uncover incriminatory evidence that establishes probable cause to arrest the suspect, they may do so. See Kyles, 221 Conn. at 661-62 (1992).
The defendant maintains that he did not understand the purpose of his detention or of the search and that, therefore, his consent was not voluntary. Non-custodial consent need not be predicated upon a law enforcement warning showing that it had been intentionally given with an understanding that such consent could be effectively and freely withheld. Schneckloth, 412 U.S. 218, 248-49 (1973); see State v. Bryant, 19 Conn.App. 626, 630-31, cert. denied, 212 Conn. 821 (1989) (a valid consent to search does not require a prior advisement or appraisal of the consenting person's fourth amendment rights). Therefore, the officers were under no obligation to explain their purposes. Similarly, there is no requirement that the defendant's consent be in writing, as suggested by the defendant. State v. Fields, 31 Conn.App. 312, 325, cert, denied, 226 Conn. 916 (1993).
c. SUPPRESSION OF ANY IDENTIFICATION EVIDENCE BY THE VICTIMS
The defendant's third claim is that the victims' out-of-court identification of the likeness of certain features and clothing shared by the intruder and the defendant was unlawful and should be suppressed. As noted before, the first victim said she could not make a definite identification, but that the defendant and intruder had similar builds, and their clothing was similar in color. The second victim said that both the intruder and the defendant had the same dark skin color and medium build and, again, their clothing was alike. However, neither victim was able to make an identification of the defendant, either out-of court or in-court, as the perpetrator.
The defendant carries the initial burden of showing that the identification resulted from an unconstitutional procedure. State v. Pollitt, 205 Conn. 132, 162 (1987); State v. Cubano, 203 Conn. 81, 93 (1987). In determining whether a pretrial identification procedure violated a defendant's due process rights, the inquiry is two-pronged. Manson v. Brathwaite, 432 U.S. 98, 114-16 (1977); State v. Figueroa, 235 Conn. 145, 155 (1995). The court must first examine whether the particular identification procedure employed was unnecessarily suggestive. If it was not, the inquiry is over. State v. Boscarino, 204 Conn. 714, 726 (1987). However, if the procedure was unnecessarily suggestive, the court must determine whether the identification was nevertheless reliable in light of the totality of the surrounding circumstances. State v. Howard, 221 Conn. 447, 453 (1992); State v. Ramsunar, 204 Conn. 4, 10, cert. denied, 484 U.S. 955 (1987).
The victims' identifications of the defendant, to the extent stated, are one-on-one or "show-up" identifications. Generally, as the state concedes, they are inherently and significantly suggestive because they convey the message that the police believe the suspect is guilty. State v. Tatum, 219 Conn. 721, 727 (1991). However, the state claims that in this case the "existence of exigencies" precludes the procedure from being unnecessarily suggestive. See State v. Ledbetter, 275 Conn. 534, 549 (2005). Such procedures will not always constitute impermissible suggestiveness and may be appropriate where the exigencies of the circumstances make an immediate viewing necessary to either hold the defendant or release him and continue on with the investigation with a minimum of delay. State v. Austin, 244 Conn. 226, 248 (1998).
The court agrees with the state that, based on the exigent circumstances, the identifications were not unnecessarily suggestive. The police admonished both victims that the person who had been stopped may not have been involved in any crime. When the victims viewed the defendant, he was standing outside his vehicle. Neither victim saw him in handcuffs or otherwise restrained. Also, as the state notes, it is not insignificant that neither victim could, in fact, positively identify the defendant. This fact does not support the defendant's argument that the identifications were suggestive.
Further, the court finds that the identifications (to the extent indicated) were generally reliable under the circumstances. Both victims observed the intruder at an extremely close range. In both instances, they were able to view the intruder long enough to provide some degree of detail to the descriptions they gave. As noted in State v. Sims, 12 Conn.App. 239 (1987) "[t]he victim's description of the defendant's clothing, while not exceptionally detailed, was accurate enough for the police to suspect the defendant. The description was certainly close enough to the mark to permit a jury to assess its ultimate correctness," Sims, at 243. Also, the time interval between the occurrences and the identifications was brief. State v. Santos, 104 Conn.App. 599, 620 (2007), cert. denied, 286 Conn. 901 (2008).
d. SUPPRESSION OF ANY STATEMENTS MADE BY THE DEFENDANT
The defendant's final claim relates to statements alleged to have been made by him to the police at different points in time, both at the scene and later at the Fairfield Police Department.
As stated previously, at the scene and prior to his arrest the defendant made statements to Officer Staffey when the officer questioned him about where the defendant had been coming from prior to his vehicle being pulled over. The motion to suppress that statement is denied. The defendant was not then in custody; he was being lawfully detained for investigative purposes. See pp. 5-7. Police action in detaining a suspect under these circumstances does not transform an investigative detention into an arrest. State v. Mitchell, 204 Conn. 187, 199 (1987), cert. denied, 484 U.S. 927 (1987).
Also at the scene, there came a later time during the investigation when the defendant was arrested and taken into custody. The court finds that this occurred immediately after the first victim identified the laptop seized from the trunk of the vehicle. It was only at this point that Officer Staffey asked the defendant about the presence of the laptop and the defendant responded. See p. 3. This was custodial interrogation. The defendant had not yet been advised of his Miranda rights. The Fifth Amendment's protection against self-incrimination requires the exclusion of any statement made by an accused during custodial interrogation, unless he has been advised of his rights and has voluntarily waived them. Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Miranda warnings are independently required under article first, § 8, of the Connecticut constitution. State v. Barrett, 205 Conn. 437, 447 (1987). Therefore, that statement of the defendant must be suppressed.
Shortly afterwards while still at the scene the defendant was so advised and, without further questioning by Officer Staffey, he continued the same narrative. However, since the initial statement was not voluntary, the state must show a break in the course of events between the violation and the making of the statement that is sufficient to attenuate the taint of the violation. See State v. Shifflett, 199 Conn. 718, 740-42 (1986). In this instance the timeline between the initial post-arrest questioning through the defendant's narrative was quick and uninterrupted. The court cannot say that this narrative was sufficiently attenuated from the initial custodial responses. See State v. Schroff, 206 Conn. 182, 197-98 (1988). Therefore, the defendant's statements at the scene following his arrest are suppressed.
The defendant made certain statements to Officer Staffey at the Fairfield Police Department. Officer Staffey asked the defendant about the jacket found with the computer in the car trunk. The defendant said that he had changed jackets when the unidentified male returned his car. The court does find that these statements were made in response to Officer Staffey's questions after he had, for the second time, advised the defendant of his rights. However, the state has not shown that the defendant made a knowing, voluntary and intelligent waiver. State v. Stanley, 223 Conn. 674, 686 (1992). Those statements are also suppressed.
In conclusion, the defendant's motion to suppress physical evidence is denied, the motion to suppress identification evidence is denied, and the motion to suppress statements is granted in part and denied in part, in accordance with this decision, So ordered.