Opinion
SO1SCR150186356S
07-21-2016
State of Connecticut v. Ernest Smith
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON THE CO-DEFENDANTS' MOTIONS TO SUPPRESS CERTAIN EVIDENCE
John F. Blawie, J.
Introduction
Ernest Smith, Victor Strong, Anwar Carter and Jisceton Cobb have each been arrested and charged with conspiracy to commit larceny in the first degree, in violation of Connecticut General Statutes § § 53a-48 and 53a-122, and possession of burglar tools, in violation of § 53a-106. The state alleges that these four men had formed a criminal conspiracy, and were in the process of an after-hours attempt to steal some luxury sport utility vehicles off the lot of a new car dealer, Land Rover Darien. That business location had become the focus of some additional patrols by the Darien police, because in the months preceding the arrest of the defendants, that same dealership had also been the target of several other late night break-ins and intrusions. These were commercial burglaries in which the chain link fence and gate locks had been cut by unknown persons in order to gain access to a fleet of new Land Rovers and Range Rovers.
The state claims that the defendants' planned larceny was interrupted when a Darien police officer on routine patrol in that part of town happened to come upon the scene around 1:15 a.m. The four men were first seen either in or around a black Mercedes Benz with Pennsylvania plates backed into a space behind a closed restaurant, and right next to the chain link fence enclosing the Darien Land Rover property. Further police investigation that night revealed that in an area behind the Mercedes holding the defendants, a portion of the Darien Land Rover fence had been cut. During a warrantless search by the Darien police, a pair of bolt cutters and other items allegedly constituting burglar's tools were found inside the car occupied by the defendants.
Three of the four co-defendants, Smith, Strong and Carter, filed separate motions to suppress the tools and other evidence found inside the car. While there are some differences in the wording of each of these motions, all three are claiming that the warrantless search of the Mercedes by the Darien police was unreasonable and unlawful, and that any search and seizure was conducted in derogation of their constitutional rights under both the United States and Connecticut Constitutions. Counsel for Strong and Carter also submitted briefs in support of their respective positions. The state objects to each of the three motions to suppress, and maintains that Smith, Strong and Carter all lack the standing to object to any warrantless search of the Mercedes, as none of the co-defendants are the registered owners of the car. Alternatively, the state argues that even if any one of the defendants can meet his burden to prove that he has standing to contest, this search of the vehicle by police was entirely proper. The state maintains that this was a lawful " Terry stop"; that is, a permissible warrantless search of an automobile pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. The state points to the totality of the facts and circumstances known to the Darien police at the time as fully justifying the decision to search the car.
Since none of the defendants have provided an independent analysis of any state constitutional claim under State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), this court will confine itself to the federal constitutional claims raised. See State v. Santos, 318 Conn. 412, 414 n.1, 121 A.3d 697 (2015).
The court held an evidentiary hearing on the motions to suppress, during which it heard from the investigating police officers, who were subject to both direct examination by the state, as well as cross examination by separate counsel for co-defendants Smith, Strong and Carter. This memorandum of decision is the result. The court makes the following findings of fact and conclusions of law, with additional facts and circumstances discussed as they are germane to the legal issues raised by the parties.
Facts
On June 4, 2015, police officer John Murphy was working a midnight shift, and was patrolling the town of Darien in his marked Ford Explorer. Around 1:15 am, officer Murphy was in the vicinity of Land Rover Darien, a new car dealer then located at 90 Post Road (it has since moved to another location in town). Land Rover Darien consisted of a building housing its showroom, service and parts departments, as well as a large outdoor parking lot for its inventory. Land Rover Darien was completely enclosed by a chain link perimeter fence approximately 6-7 high, and the only entrance/exit point for vehicles consisted of a gate in one section of the fence that could be locked when the business was closed. The car dealership was bordered by I-95, and it also shared a long, common border fence with an adjoining business known as Bertucci's Restaurant, located at 54 Post Road, Darien. Due to some prior late night burglaries and criminal mischief reported at Land Rover Darien earlier in 2015, including at least one case which was investigated by Officer Murphy himself, police had made this business the focus of additional patrols. The state introduced evidence of those prior incidents at this location as highly relevant to the decision by law enforcement to conduct a warrantless search of this car when it was found at this same location at 1:15 a.m.
Those incidents were as follows:
1. January 11, 2015--A door to the dealership was pried open after hours and the wire to the door alarm was cut. The locking mechanism for the gate in the fence was also dismantled/unscrewed by the perpetrators, and it was replaced by Land Rover Darien after this incident. Two new cars were stolen off the lot that evening, using keys taken from inside the building. These were two 2015 Range Rover Sport HSE's, each valued at approximately $70,000. Those cars were never recovered, and no arrests were ever made.
2. March 6, 2015--The chain link perimeter fence surrounding Land Rover Darien was found to have been cut in the area behind an adjacent business, Bertucci's Restaurant. Security footage from the dealership property taken at 3:14 a.m. shows a male suspect in a hooded jacket make his way from that area of the fence to a Range Rover parked in the lot. From that vehicle, the suspect removed all four wheel rims and tires, valued at almost $6,000, leaving the car resting on bricks. The suspect is believed to have exited the Land Rover Darien lot with the wheels through the same cut in the fence onto Bertucci's property. The rims and tires were never recovered, and no arrests were ever made.
3. March 13, 2015--Land Rover Darien acted quickly to repair the damage to their fence caused by the thief who had used the cut in the fence to steal the tires and rims the previous week. On this particular morning, police were called back to Land Rover Darien. The facilities manager for the dealership had now discovered a large, fresh cut in their chain link perimeter fence, a cut that was not present when the fence was thoroughly inspected just two days earlier. Management at the dealership discussed with Darien police the possibility of hiring private security during the overnight hours to thwart future burglaries. While no new property was reported stolen at this time, the cut fence was classified as an act of criminal mischief. No arrests were ever made.
In light of these recent unsolved crimes targeting the car dealership, Darien police Lt. William Duignan testified that as of the day of the search of the car occupied by the defendants, Land Rover Darien was considered a " hot spot of crime" in town. Because of this, the lieutenant stated that his department " promoted and pushed officers to do self-initiated security checks of the property." At the time, Lt. Duignan supervised officer Murphy, who was a 26-year veteran of the Darien Police Department. Officer Murphy was working midnights and because he was in the area of Land Rover Darien at the time, he decided to swing through the parking lot of Bertucci's Restaurant to do a security check on the dealership property like he had done in the past on his shift. This restaurant parking lot wraps around Bertucci's, and it is roughly in the shape of the letter " U, " with entrance/exits on both sides of the building itself which allow access to the Post Road. The property of Land Rover Darien was located all along the rear of the Bertucci's parking lot, with parking spaces for approximately 24 cars of Bertucci's patrons to park perpendicular to the chain link fence. In the area where the defendants were first spotted, a row of tall shrubs or bushes separated the Bertucci's parking lot from the perimeter fence of Land Rover Darien.
Officer Murphy pulled behind Bertucci's on Thursday morning, June 4, 2015 at approximately 1:15 a.m. At this hour, Bertucci's had been closed for the evening for over two hours, and officer Murphy explained that the town of Darien itself was pretty much shut down by that time as well. He saw a black Mercedes Benz with Pennsylvania plates that was backed into a space next to the fence enclosing Land Rover Darien. From where this car was parked, it was not visible from the Post Road, and it could only be seen once officer Murphy went around to the rear of the Bertucci's parking lot. Moreover, the Mercedes was found in the same area where the fence had recently been cut by someone to gain access to the dealership in order to steal tires and rims. Officer Murphy also saw a man later identified as defendant Anwar Carter emerging from the bushes behind the car as officer Murphy approached.
Darien police officers provided the state with a great deal of relevant, real time, on-scene video from June 4, 2015. The footage was received into evidence on DVDs and played at the hearing on the motions to suppress. The videos were captured by the dashboard camera mounted in officer Murphy's car, as well as videos from the cars of the various Darien police officers who also responded to the scene after he called for backup. The videos were also paused at various times during the hearing to allow police witnesses to explain to counsel why they took each step they did during this investigation. Police headlights and other vehicle " take down" lights clearly illuminate the car and its occupants in the parking lot. The footage clearly shows each of the four defendants, and their respective positions inside and outside the car at various times, starting with the time when they were first seen by Officer Murphy at 1:14 a.m. The films also show the various actions different police officers took in succession, including the actual search of the car itself. These films makes the court's findings of fact that much more certain, minimizing if not eliminating the necessity to discern where the truth may lie, a more challenging task in the absence of such unequivocal evidence. The videos also strengthen the inferences that a reasonable man in the place of these police officers would draw from these circumstances. If that test of reasonableness is satisfied, the motions to suppress must be denied.
Officer Murphy explained that because of the way the dashboard video camera system operates in his police car, it activates and records automatically whenever the overhead lights are turned on. The camera is also able to capture video that was recorded approximately 30 to 60 seconds prior to any activation of the overhead lights. This feature proved highly relevant for purposes of ruling on this motion to suppress, for the court was able to watch video of the officer's car as it first approached and then pulled behind the back of Bertucci's, followed by the moment that he first encountered the defendants. As previously noted, Carter may be seen just as he is emerging from the bushes next to the fence and behind the Mercedes. The bushes are seen moving from the motion of Carter having passed through them. Carter may then be seen handing something to a backseat passenger, and there are other furtive movements by the occupants. Initially it appeared that there were two individuals in the car along with Carter, but then a fourth person could be seen inside the car. The driver's seat was empty. At this point, defendant Victor Strong exited the back seat and Carter got into the back where Strong had been sitting, while Strong got immediately into the empty driver's seat and attempted to drive off. Officer Murphy ordered Strong to stop the car, and he also called for backup to assist, as he was unsure of what he might be dealing with. This is a strictly commercial area, with all the businesses in that area closed at 1:15 a.m. He was also fully aware of the unsolved criminal activity targeting Range Rover Darien in the previous weeks and months, wanted to determine exactly what might be the true circumstances of the defendants' presence there at that hour.
Officer Murphy approached the car and spoke to Strong, who was still behind the wheel. Strong stated that they were on their way from the Philadelphia area to New Haven via I-95 to visit a woman, and also said that their reason for stopping there was because his friend had to go to the bathroom. Officer Murphy found the explanation strange, because if the men were actually traveling from Philadelphia en route to New Haven on I-95, they had exited the highway instead of choosing to utilize the far more convenient 24-hour rest area which they would have had to have just passed on I-95 only half a mile away from that location.
All four occupants of the Mercedes were removed from the car and patted down for weapons. While none were found on their person, two box cutters were located in the back seat. Officer Daniel Gorton saw a pair of tin snips next to two pairs of folded work gloves located under the rear passenger seat. Three screwdrivers were also found inside the car. A radio request to dispatch for record checks on the co-defendants revealed that Smith, Strong and Carter were all convicted felons. Strong showed a prior Pennsylvania arrest in the 1990's for murder, while Smith's record included convictions in Pennsylvania, New York, Maryland, Illinois and California. Carter's record showed convictions in Pennsylvania, New Jersey and Delaware. Due to the odor of burnt marijuana emanating from the car, a drug sniffing K-9 was called to the scene, with negative results.
In an effort to corroborate Strong's explanation for the defendants' presence near Land Rover Darien, Sgt. Mark Cirillo and Lt. Duignan searched the area behind the Mercedes for evidence of a wet spot where Carter told them he had just relieved himself, but none was found. However, behind the car the officers did discover that at a fence pole, the metal ties holding together two sections of the chain link fence surrounding Land Rover Darien had been freshly cut. One tie was found on the ground, while the other was still partially attached to the pole, with fresh shards of metal visible. In addition to the box cutters, tin snips and screwdrivers found in the passenger compartment, a large pair of bolt cutters were found in the trunk of the car, along with a printed register receipt showing that the bolt cutters had just been purchased at the Home Depot located in Bensalem, Pennsylvania at 9:30 p.m. on June 3, 2015, approximately 4 hours beforehand. Granted, bolt cutters and metal snips have some innocent, law abiding uses among the trades. However, given this scenario, their possession here in close proximity to the freshly cut fence by these defendants support an inference entirely consistent with guilt. An inference that such tools were essential if the conspiracy to steal from Land Rover Darien was to achieve its intended purpose.
Analysis
The state argues that none of the three co-defendants have standing to assert a fourth amendment violation over anything found during the warrantless search of the Mercedes, because neither Smith, nor Strong, nor Carter had an expectation of privacy in the car in which the bolt cutters and other evidence was found. The state's claim as to a lack of standing must be addressed first, for if standing cannot be demonstrated, these motions to suppress must be denied outright, without reaching the merits of any other claims under the fourth amendment. See generally State v. Long, 268 Conn. 508, 531, 847 A.2d 862 (2004). " As a preliminary matter, we set forth the applicable principles of law that govern our analysis. In order to challenge a search or seizure on fourth amendment grounds, a defendant must show that he has a reasonable expectation of privacy in the place searched . . . Absent such an expectation, the subsequent police action has no constitutional ramifications . . . In order to meet this rule of standing . . . a two-part subjective/objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable . . . This determination is made on a case-by-case basis . . . Whether a defendant's actual expectation of privacy . . . is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances . . . Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing . . . and the trial court's finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law." (Citations omitted; internal quotation marks omitted.) State v. Vallejo, 102 Conn.App. 628, 635-36, 926 A.2d 681 (2007).
For purposes of attempting to demonstrate standing, co-defendants Carter and Strong testified at the hearing on the motion to suppress (Smith did not testify). The owner of the Mercedes was not called to testify by the defendants, but Carter said that he is the brother of Tiffany Williams, a resident of Pennsylvania and the registered owner of the Mercedes. Carter stated that his sister had loaned him the car and allowed him to use it for general purposes, which included permission for him to drive it to Connecticut on June 4, 2015. Carter also testified that his codefendants Smith and Strong were not friends of Williams, but that he himself gave them permission to be in the car with him that day. Strong testified that he was in the back seat of the Mercedes when officer Murphy first arrived on scene, and Carter was outside the car. Strong admitted that he was the person who then moved into the driver's seat and attempted to drive away when he was ordered to stop. Strong stated he did not have permission from Williams to drive the car. Strong stated that he was then told by Darien police to step out of the car for " officer safety." He also stated that he told the police they did not have permission to search the car. The state does not dispute that none of the defendants consented to the search.
The court credits Carter's representations that he had his sister's permission to be in possession of her vehicle, thus establishing an objective expectation of privacy. See State v. Boyd, 57 Conn.App. 176, 187, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162, (2000) (objective expectation of privacy stems from place where " society is prepared, because of its code and values and its notions of custom and civility, to give deference to a manifested expectation of privacy" [internal quotation marks omitted]). Carter did not have to be the owner of his sister's car in order to have a subjective expectation of privacy in it, as well as an objective expectation of privacy. See Vallejo, supra, 102 Conn.App. 636-37. Being in a familial relationship with the owner of the car and driving it with her permission, Carter does indeed have standing to invoke his fourth amendment rights. The court will therefore review the defendant's claims. However, as to the co-defendants Strong and Smith, the court finds that they have both failed to meet their burden of proving standing. Even assuming arguendo that all three defendants could demonstrate standing, as to the search of this car under these facts and circumstances, the court's fourth amendment analysis as to Strong and Smith would be no different.
The defendants all claim that this search of the car was unlawful and improper, and denied them their fourth amendment protections against unreasonable search and seizure. In this Terry stop encounter between these citizens and local law enforcement, it is essential to understand and to properly apply the fourth amendment. " The fourth amendment, like article first, § 7, proscribes only unreasonable searches and seizures . . . A search or seizure is presumptively unreasonable when it is conducted without a warrant issued upon probable cause . . . Nevertheless, several categories of searches and seizures have been deemed reasonable, and therefore lawful, even when officers lack probable cause or a warrant . . . For instance, under Terry [ v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], officers may temporarily seize an individual if they have a reasonable and articulable suspicion that he is involved in criminal activity . . . As the court stated in Terry, we deal here with an entire rubric of police conduct--necessarily swift action predicated [on] the on-the-spot observations of the officer on the beat--which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the [f]ourth [a]mendment's general proscription against unreasonable searches and seizures . . . After balancing the state's legitimate interests in crime prevention and detection against a suspect's liberty interest . . . the court concluded that, when an officer has a reasonable basis for suspecting that an individual is committing or has committed a criminal offense, it is constitutionally permissible for the officer to briefly detain the individual for investigative purposes." (Citations omitted; footnote omitted, internal quotation marks omitted.) State v. Kelly, 313 Conn. 1, 16-17, 95 A.3d 1081 (2014) (quoting from National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 [1989], and Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967]).
Therefore, a recognized exception to the fourth amendment's warrant requirement involves these types of investigative stops by police. Recall that the defendants appeared to switch drivers and attempted to leave the scene when officer Murphy first encountered them in the car backed up against the fence to Land Rover Darien, and also saw Carter emerging from the bushes. Warrantless on-the-scene automobile searches are often necessary, because obtaining a warrant would be impracticable in light of the inherent mobility of automobiles, and the latent exigency that that such mobility creates. See State v. Williams, 311 Conn. 626, 88 A.3d 534 (2014). The Mercedes was parked at the scene of the earlier perimeter breaches in which the fence had been cut, and any evidence inside the automobile was in an inherently mobile state. " [W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions." State v. Jenkins, 298 Conn. 209, 233, 3 A.3d 806 (2010). The court finds that officer Murphy's belief that criminal activity may have been afoot at Land Rover Darien at the time was a reasonable conclusion to reach in light of both the unusual conduct he observed near the fence that evening and his extensive experience. The law also makes no probative distinction between direct and circumstantial evidence. " As we frequently have observed, [i]ntent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom." (Internal quotation marks omitted.) State v. Nash, 316 Conn. 651, 672, 114 A.3d 128 (2015).
" When considering the validity of a Terry stop, our threshold inquiry is twofold . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred." (Citations omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004). " The law in this area is well settled. A stop pursuant to Terry v. Ohio [ supra, 392 U.S. 30-31] . . . is legal if three conditions are met: (1) the officer must have a reasonable suspicion that a crime has occurred, is occurring, or is about to occur; (2) the purpose of the stop must be reasonable; and (3) the scope and character of the detention must be reasonable when considered in light of its purpose . . . The United States Supreme Court has further defined reasonable suspicion . . . as requiring some minimal level of objective justification for making the stop." (Citations omitted; internal quotation marks omitted.) State v. Cyrus, 297 Conn. 829, 837, 1 A.3d 59 (2010). " 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." (Internal quotation marks omitted.) State v. Clark, 297 Conn. 1, 10, 997 A.2d 461 (2010).
" Because a reasonable and articulable suspicion is an objective standard, we focus 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." (Internal quotation marks omitted.) Cyrus, supra, 297 Conn. 837. " [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 . . . 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." (Internal quotation marks omitted.) State v. Barone, 154 Conn.App. 543, 556, 107 A.3d 490 (2015). In Barone, the Appellate Court held that when investigating an anonymous tip, an officer's observation that the defendant driver remained stopped for a long period of time at a stop sign when no other cars were at the intersection gave the officer sufficient suspicion to justify a Terry stop on the basis of driving under the influence. Id.
In State v. Peterson, 320 Conn. 720, 135 A.3d 686 (2016), the defendant was stopped and his vehicle searched on the basis of prior information and the arresting officer's observation of the defendant carrying a white, " weighted" plastic bag. The white plastic bag was found in the vehicle and contained two ziplock bags of marijuana. The Supreme Court held that " [i]n 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 . . . " [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" (Citations omitted; internal quotation marks omitted.) Id. " Consequently, [w]e do not consider whether the defendant's conduct possibly was consistent with innocent activity but, rather, whether the rational inferences that can be derived from it reasonable suggest criminal activity to a police officer." (Internal quotation marks omitted.) Id. " The totality of the information available to the police that [the defendant] was an admitted marijuana trafficker, carrying a weighted plastic bag, and had pulled into the driveway of a drug location where police had seen him recently engage in conduct consistent with drug activity, it was not logically and legally incorrect for the trial court to find that the police had a reasonable and articulable suspicion that the defendant was there to deliver drugs and that the plastic bag did not contain innocuous items." Id.
The Appellate Court has held that the nature of the crime under investigation, the reaction of the suspect to the approach of police, and the " [p]roximity in the time and place of the stop to the crime" are all significant in determining whether the detention of the defendant was supported by reasonable and articulable suspicion. (Internal quotation marks omitted.) State v. Miller, 137 Conn.App. 520, 539, 48 A.3d 748, cert. denied, 307 Conn. 914, 54 A.3d 179 (2012).
In State v. Houghtaling, the Appellate Court held that the defendant's quick departure from the scene was properly considered as a factor raising a reasonable and articulable suspicion. " The court recognized that multiple officers testified about the expedited manner in which the work van [which the defendant was driving] departed. Moreover, the officer's explanation as to why leaving the property quickly would arouse police suspicion was drawn from his training and experience. [The officer] testified that '[b]ecause of our training and experience with the way people typically are affiliated with these organizations, if they see things that are not in [the] order in which they left them; they will typically err on the side of safety and flee the area believing that law enforcement has caught onto their business.' It is inaccurate for the defendant to argue that the officer articulated no inferences of deductions from his training and experience to justify a stop . . ." (Internal quotation marks omitted.) State v. Houghtaling, 155 Conn.App. 794, 814, 111 A.3d 931, cert. granted, 317 Conn. 919, 118 A.3d 62 (2015).
Although certiorari has been granted in Houghtaling as noted, the Supreme Court has not yet issued its decision.
The Houghtaling court also found the defendant's proximity to an ongoing felony investigation to be a valid consideration in support of the officer's reasonable suspicion determination. " We find it significant, however, that the officers were engaged in the investigation of an evident ongoing felony at the time they conducted an investigatory stop of the van so that there was a direct and immediate spatial and temporal link between the apparent felony and the defendant's presence in the van. The investigation of this evident felony in progress leads us to conclude that the situation presented is distinguishable from those cases in which it has been determined that the police lacked a reasonable and articulable suspicion." Houghtaling, supra, 155 Conn.App. 816-17.
Recall that Strong testified he was asked to step out of the car for the sake of ensuring officer safety. Although Terry requires a " particularized and objective basis" that a " particular person" is suspected of criminal activity; Clark, supra, 297 Conn. 10; " in certain circumstances implicating police safety, it is constitutionally permissible for the police to detain an individual, even in the absence of particularized suspicion that the individual has engaged in criminal conduct." Kelly, supra, 313 Conn. 1095 (2014).
In Kelly, the Supreme Court held that detaining a criminal suspect's companion absent any particularized suspicion was constitutionally permissible. Kelly involved the warrantless seizure of the defendant on a public street, because at the time he was in the company of someone wanted for violating their probation. The defendant argued that officers lacked reasonable and articulable suspicion that a crime had been or was about to be committed. The Supreme Court disagreed, and in finding the stop to be lawful, it analogized the stop to the lawful detention of a vehicle's passengers, incident to police pulling over and stopping the driver of the vehicle. See Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). According to the court, " for purposes of the reasonableness requirement of the fourth amendment, the state's interest in officer safety is sufficiently compelling that, when officers have a reasonable concern for their safety while lawfully detaining a suspect, it is permissible for the officers to briefly detain the suspect's companion as a precautionary measure . . . [I]ndividualized suspicion is not an absolute prerequisite for every constitutional search or seizure . . . Although the protective stop of a companion . . . does not meet the requirements for a Terry stop, ultimately, the determination of whether such a stop is reasonable for fourth amendment purposes entails a balancing of 'the need to search [or seize] against the invasion which the search [or seizure] entails.'" (Citations omitted; internal quotation marks omitted.) Kelly, supra, 313 Conn. 20-21.
The Kelly court found that the need for a police officer to perform a limited stop of the defendant was a reasonable safety measure, one which outweighed any limited intrusion upon the defendant's rights that the stop itself entailed. Id., 28. The Kelly court reasoned that " the fourth amendment guarantees all persons the right to be free from unwarranted police interference while on a public street, as in the present case, or elsewhere. A protective stop of the kind that occurred here, however, represents a relatively limited intrusion into that interest. A protective stop typically will be of short duration, and, unless the officer has reason to believe that the subject of the stop is armed, ordinarily, there will be no need for an accompanying patdown for weapons. On the other side of the ledger, the state has a weighty interest in ensuring officer safety when an officer stops a suspect who he reasonably believes is armed and dangerous. Should an officer determine that it is necessary to detain a suspect in furtherance of a criminal investigation, the officer may well encounter one or more persons accompanying the suspect, and the presence of those companions both increases the possibility of interference with the officer's investigation . . ." Id., 21-22
Further, the Appellate Court has held that " [a] police officer, after stopping a vehicle for a motor vehicle violation, may lawfully direct an occupant to step out of the vehicle . . . Furthermore, [i]f, 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 to discover weapons . . . In ascertaining whether reasonable suspicion existed for the patdown search, the totality of the circumstances--the whole picture--must be taken into account." (Citations omitted; internal quotation marks omitted.) State v. Willoughby, 153 Conn.App. 611, 623-24, 102 A.3d 1118 (2014). The court concludes that the facts and circumstances known to the Darien police sufficiently justified a reasonable believe that the defendants may have been armed and dangerous.
" A traffic stop is a 'seizure' within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief." State v. Allardyce, Superior Court, judicial district of Hartford, Docket No. CR10-0642594-S, (May 3, 2011, Dewey, J.). In State v. Jenkins, the defendant driver was initially stopped by a police officer for making an abrupt lane change without signaling, a stop which progressed to a search of the car for drugs. " From the time that the officer initiated the stop, until the defendant consented to the search of his vehicle, only ten to fifteen minutes had passed . . . In all, the entire stop lasted at most twenty minutes." (Citations omitted; footnote omitted.) State v. Sward, 124 Conn.App. 546, 551, 5 A.3d 965 (2010). The Supreme Court held that the officer's conduct " did not measurably or unreasonably prolong [the] traffic stop of the defendant." Jenkins, supra, 298 Conn; 246.
" A Terry stop does not give law enforcement officers carte blanche to stop and detain citizens indefinitely or unreasonably because, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops. While it is clear that the brevity of the invasion of the individual's [f]ourth [a]mendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion . . . we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes . . . Thus, the Supreme Court has rejected attempts to impose 'a hard-and-fast time limit' on Terry stops, in favor of a reasonableness inquiry where, [i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to 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 . . . A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing . . .
" The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave . . . An officer's inquiries into matters unrelated to the justification for the traffic stop, this [c]ourt has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Jenkins, supra, 298 Conn. 232-36.
" Thus, questions permissible under Terry during a routine traffic stop include inquiries about whether the car or driver are carrying contraband, as well as concomitant requests for consent to search the vehicle . . . These inquiries are permissible even if they are irrelevant to the initial purpose of the stop, namely, the traffic violation, so long as they do not measurably extend the stop beyond the time necessary to complete the investigation of the traffic violation and issue a citation or warning. Consideration of that time period necessarily includes the completion of tasks attendant to the traffic stop, including a check of the driver's license, vehicle registration, and criminal history, and the writing of the citation or warning, as well as background questions about the destination and purpose of the driver's trip . . . Indeed, given that complications with respect to these tasks may well result in an extension of the time of detention without rendering it unreasonable under the fourth amendment, [w]hether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops." (Citations omitted; internal quotation marks omitted.) Jenkins, supra, 298 Conn. 237-38.
The Supreme Court has emphasized " that in evaluating the duration of a traffic stop, the reviewing court still must consider the stop through the lens of the time reasonably necessary to effectuate the initial purpose of the traffic stop, and expansions of the stop beyond that time are constitutionally impermissible in the absence of an independent basis of objectively reasonable, articulable suspicion . . . [J]udicial review of routine traffic stops goes beyond a strict stopwatch test; reasonableness is not measured solely by the temporal duration of the stop alone but, rather, requires scrupulous consideration of the reasonableness of the officers' actions during the time of the stop." (Citations omitted; emphasis added.) Jenkins, supra, 298 Conn. 242.
The defendants argue that length of this stop exceeded the scope of a valid Terry stop. The court disagrees. It is true that when a police officer's actions and inquiries into matters unrelated to the justification for the initial traffic stop measurably extend the duration of the stop, the officer must have an independent reasonable suspicion for the inquiry. However, in this case, the court finds that all of the actions and inquiries of the Darien police were in fact directly related to the justification for the initial stop of the defendants. " With respect to whether the results of the initial stop aroused further suspicion warranting a prolonged inquiry, [t]he 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." (Internal quotation marks omitted.) Jenkins, supra, 298 Conn. 244-45.
In addition to the automobile exception to the fourth amendment, the state also argues that the search of the vehicle in this case was permissible as a search incident to the lawful arrests of the defendants. The court agrees. " We briefly summarize the relevant precedent regarding law enforcement's ability to search a motor vehicle incident to the arrest of an occupant. In the seminal case of Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the United States Supreme Court held that when police make an arrest, it is reasonable to search . . . the arrestee's person and the area within his immediate control . . . When the police lawfully arrest the occupant of a motor vehicle, officers may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile . . . [and] any containers found within the passenger compartment . . . In line with the majority of jurisdictions, we applied [New York v .] Belton, [453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)] broadly . . . permitting a contemporaneous search of the entire passenger compartment of an automobile, whether or not the arrestee actually had control over the area." (Citations omitted; internal quotation marks omitted.) Garcia v. Commissioner of Correction, 147 Conn.App. 669, 674, 84 A.3d 1 (2014).
Conclusion
The actions the Darien police took here were predicated upon substantial direct and circumstantial evidence. This warrantless search of this car does not offend the fourth amendment because it was not an unreasonable one. In other words, this was not an unreasonable or unlawful over-reaction by local police to a hapless group of interstate travelers, men who just happened to have pulled over late one night in an ill-advised commercial location that was closed for the evening, simply for the driver to relieve himself. The evidence demonstrates that as to the defendant Anwar Carter, the Darien police had ample reasonable and articulable suspicions together with rational inferences from cold hard facts that justified the warrantless search of this automobile. In light of the totality of the circumstances, the Darien police had a particularized and objective basis for suspecting the occupants of this vehicle of criminal activity. Alternatively, the search of the vehicle was proper as incident to the lawful arrest of Carter. Co-defendants Ernest Smith and Victor Strong have not met their burden of proving they have standing to challenge the search. However, even assuming arguendo that Smith and Strong do have standing, they cannot point to any evidence that would warrant a different conclusion as to them. Accordingly, the defendants' motions to suppress are each denied.
IT IS SO ORDERED.