Opinion
No. H14H-CR10-0642594-S
May 3, 2011
Memorandum of Decision — Motion to Suppress Tangible Evidence
This is a Motion to Suppress in which the above cited defendant alleges that a search of his vehicle and home, and subsequent seizure of items of contraband therefrom, violated his state and federal constitutional rights. After considering the evidence produced at a hearing, the court finds the following facts to have been proven.
Facts
Two individuals had committed armed robberies in the area of Sterling Street in Hartford. On June 10, 2010, after receiving information from a confidential informant that those robbery suspects had returned, Hartford detectives Plourde and Kashmanian began surveillance in the Sterling Street area. As the Hartford police officers were waiting for the robbery suspects, they received a call and an offer of assistance from federal Drug Enforcement Agent Borysevicz.
From their vantage point, the Hartford officers could see a small grocery store located on the corner of Sterling and Homestead. The officers were aware that the store was the scene of regular marijuana trafficking. During their surveillance the officers observed activity that indicated ongoing marijuana sales. They also observed Mark Williams, a suspect known to the officers. Williams left the Sterling and Homestead area under suspicious circumstances carrying what the officers believed to be contraband.
Detectives Plourde and Kashmanian followed the Williams vehicle. After Williams failed to stop his vehicle at a red light, Detectives Plourde and Kashmanian approached the vehicle. The prior observations, together with Mr. Williams' furtive conduct at the scene of the motor vehicle stop, eventually led to Williams' arrest.
While the Hartford police were conducting the Williams surveillance and arrest, Agent Borysevicz and his partner, Federal Bureau of Investigation Agent Aldenburg, remained in the Sterling Street area. These federal agents were not at that location in conjunction with any designated joint task force. They had no operational plan for that date. They were not sworn as municipal or state officers nor were they a part of any joint state/federal or municipal task force.
At approximately the same time that Detectives Plourde and Kashmania had stopped the Williams vehicle, Agent Borysevicz observed a Honda arrive at 56 Sterling Street, a private multi-family residence. The federal agents did not recognize the Honda or its driver. Sometime thereafter a Federal Express truck arrived at 56 Sterling Street. Another unknown individual took delivery of a package and immediately retreated to the interior of 56 Sterling. The driver of the Honda remained outside the Sterling Street residence.
Sometime after these events the defendant arrived at 56 Sterling Street. Agent Borysevicz saw the defendant drive his BMW up the 56 Sterling Street driveway. He could not see the BMW after it entered the driveway. Agent Borysevicz saw the defendant's car leave 56 Sterling Street. He did not know the location of the Federal Express package at the time the defendant arrived at 56 Sterling Street. He did not see the defendant remove any packages from 56 Sterling Street. He did not know the identity of any of the individuals involved. Standing alone, there was nothing suspicious about the fact that the BMW left the 56 Sterling Street address.
Agent Borysevicz believed based on "23 years training and experience" that he had observed a controlled drug delivery. His belief was based upon the following facts: a package was delivered; a person accepted the package; the package left the point of delivery. There had never been any reported drug activity at 56 Sterling Street. There is no evidence that law enforcement had reports of any police activity at the house. The agents did not know the identity of any of the persons living at that address. Agent Borysevicz relied in part on the fact that he had seen drug transactions in the north end of Hartford.
When asked what he considered suspicious about the Federal Express package, Agent Borysevicz relied that it was the "[t]otality of the circumstances." Although he testified that the size and shape of the box was consistent with that used in marijuana deliveries, he also admitted that the box was only one-half of the size of containers that he normally observed in drug packaging scenarios. He also acknowledged that it was an ordinary cardboard box.
The federal agents followed the defendant as he left 56 Sterling Street. When the defendant turned left on Lenox Street, he failed to use his turn signal. Agent Borysevicz stopped the defendant's car on Sigourney Street. He asked the defendant for his license, registration, and insurance card. The defendant immediately complied.
Agent Borysevicz never looked at the documents the defendant had provided. He admitted that when he stopped the defendant, his purpose was a drug arrest. Agent Borysevicz acknowledged the defendant was not free to leave the area.
Without looking at the motor vehicle documents, Agent Borysevicz questioned the defendant concerning his travel. He also asked the defendant if he had any weapons. The defendant responded that he had driven from Albany Avenue. He denied making any stops in route.
Although he did not observe any contraband and did not suspect any weapons, Agent Borysevicz asked the defendant for consent to search the BMW. There was no contraband in the passenger section of the car. Agent Borysevicz then asked for permission to search the trunk. There the federal agents found a closed cardboard box similar to that they had seen delivered to 56 Sterling Street. Inside that box were two five-gallon plastic containers. In the containers the federal agents found marijuana.
At no time did the federal agents advise the defendant of his constitutional rights concerning the vehicle search.
Hartford detectives eventually arrived at Sigourney Street. These officers took defendant into custody. Sometime thereafter the defendant's wife arrived and removed their BMW from Lenox Street.
After securing the defendant's consent, Detective Plourde went to the defendant's home. There he found money, empty pails and a cardboard box similar to that entered into evidence for this motion.
Applicable Law A. Agent Borysevicz Has Authority to Stop the Defendant's Car
The first question before this court is the scope of Agent Borysevicz's arrest authority under state and federal law. The defendant suggests that Agent Borysevicz, as a federal officer, did not have the ability to stop the defendant's car and issue a traffic citation for a state motor vehicle violation.
The right to make an arrest is regulated by statute. Any arrest not authorized by statute is illegal. State v. Traub, 150 Conn. 169, 172, 187 A.2d 230 (1963). Under Connecticut law, "peace officers" have specified law enforcement authority. These include arrest without a warrant "when the person is taken or apprehended in the act or on the speedy information of others . . ." Connecticut General Statutes § 54-1f.
Connecticut General Statutes § 53a-3(9), provides that a peace officer is a member of the Division of State Police within the Department of Public Safety or an organized local police department, a chief inspector or inspector in the Division of Criminal Justice, a state marshal while exercising authority granted under any provision of the general statutes, a judicial marshal in the performance of the duties of a judicial marshal, a conservation officer or special conservation officer, as defined in section 26-5 a constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18, 29-18a or, an adult probation officer, an official of the Department of Correction authorized by the Commissioner of Correction to make arrests in a correctional institution or facility, any investigator in the investigations unit of the office of the State Treasurer or any special agent of the federal government authorized to enforce the provisions of Title 21 of the United States Code.
Neither party contests the fact that the defendant's failure to signal before turning left onto Sigourney Street was a traffic offense that could be the basis for an arrest. Agent Borysevicz had statutory authority to effectuate that arrest. See, generally, United States v. Barrett, 496 F.3d 1079, 1092 (10th Cir. 2007) (DEA agents searched the defendant's home; Evans v. Solomon, 681 F.Sup.2d 233 (E.D.N.Y. 2010) (federal park service officer effectuated a traffic stop in New York City); United States v. Samuels, 681 F.Sup. 233 (E.D.N.Y. 2010) (DEA Agent traffic stopped the defendant's car after noticing a defective tail light).
The defendant suggests that the traffic stop was pretextual, and therefore the subsequent search unlawful. The constitution does not prohibit law enforcement officials from stopping a motorist for a traffic violation even if the officer is really concerned with other criminal activity. Whren v. United States, 517 U.S. 806, 812-13 (1996). Therefore the initial traffic stop was lawful.
B. The Defendant Was Seized by Federal Agents Subsequent to the Traffic Stop
Since the traffic stop was justified at its inception, the focus now shifts to the search itself. Were the agent's subsequent actions, including his retention of the defendant's motor vehicle documents and the request to search the vehicle, reasonably related to the circumstances that had justified the motor vehicle stop? First, [the court] 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 [the court concludes] that there was such a seizure, [the court] 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 federal agents conducting the search of the defendant's car needed either lawful authority or the defendant's consent. "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant, 556 U.S. 129 S.Ct. 1710, 1716 (2009) (internal citations omitted). The defendant claims that this traffic stop constituted an unlawful seizure.
A person has been seized when an officer restrains that person's movement by physical force or a show of authority. United States v. Mendenhall, 446 U.S. 544, 557-58 (1980), State v. Clark, 297 Conn. 1, 8, 997 A.2d 461 (2010). This court must determine whether "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975 (1988); State v. Burroughs, 288 Conn. 836, 844-45, 955 A.2d 43 (2008).
The right to make a forcible stop, here a traffic stop, does not justify a subsequent unreasonable detention. In United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637 (1983), the United States Supreme Court noted that "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation." "[T]he scope of the detention must be carefully tailored to its underlying justification." Florida v. Royer, 460 U.S. 491, 500 (1983); Commonwealth v. Helm, 456 Pa.Super. 370, 376, 690 A.2d 739 (1997).
Simply stated,
[T]he officer's purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention . . . Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot.
CT Page 11073 Henderson v. State, 416 Md. 125, 146 5 A.3d 1072 (2010) (citations omitted).
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." Delaware v. Prouse, 440 U.S. 648 (1979). The determination of the reasonableness of an investigative detention requires a dual inquiry: first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." United States v. Brown, 405 F.Sup. 1291, 1296 (D.Utah 2005) (citations omitted). The stop must "last no longer than is necessary to effectuate the purpose of the stop." Id.
Once the purpose of the traffic stop is completed, further detention for purposes of questions unrelated to the initial traffic stop is impermissible except in narrow circumstances. One is consent.
If the officer returns the license and registration and does not otherwise restrain the motorist, the encounter can become consensual. United States v. Brown, 405 F.Sup. at 1299. "Whether an encounter can be deemed consensual depends on whether the police conduct would have conveyed to a reasonable person that he or she was not free to decline the officer's requests or otherwise terminate the encounter and proceed on his or her own way." Id. at 1300.
The government contends that the agents' actions were authorized insofar as the defendant consented to the search of his vehicle. "Consent to search may, but does not necessarily, dissipate the taint of a fourth amendment violation." United States v. Jenson, 462 F.3d 399, 405 (5th Cir. 2006); To determine whether consent was validly given, we ask (1) whether consent was voluntary and (2) whether it was an independent act of free will. Jenson at (citations omitted). The government bears the burden regarding consent. United States v. Jenson, 462 F.3d 399, 405 (5th Cir. 2006); United States v. Brown, 405 F.Sup. 1291, 1296 (D.Utah 2005). Acquiescence is not consent. Bumpers v. North Carolina, 391 U.S. 543 (1968).
In the present case the defendant was not free to leave. The government did not return his license, registration or insurance information before the agents requested consent to search. They did not inform the defendant that he was free to go. To the contrary, Agent Borysevicz testified that the defendant was not free to leave. This defendant was not advised of any of his constitutional rights. The two federal agents present at the scene of a motor vehicle stop negate the state's suggestion that the siltation was not coercive. Any consent given was not an independent act of free will.
This court finds under these facts that the consent was induced by the illegal detention. The government has failed to meet its burden of proving that the defendant's consent was independently given.
Since there was no consent to search in the present case, the federal agents needed reasonable, articulable suspicion that the defendant was engaged in criminal activity in order to further detain the defendant and then search his vehicle. Terry v. Ohio, 392 U.S. 1, 30 (1968); United States v. Smith, 396 F.3d 579, 583 (4th Cir. 2005). Although reasonable suspicion is a less demanding standard than probable cause, "[t]he officer . . . must be able to articulate something more than an inchoate and unparticularized suspicion or hunch." United States v. Sokolow, 490 U.S. 1, 7 (1989).
[I]n justifying [a] 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 . . . 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. Staton, 120 Conn.App. 497, 506, 992 A.2d 348 (2010).
[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." (Internal quotation marks omitted.) State v. Lipscomb, 258 Conn. 68, 76, 779 A.2d 88 (2001). Nevertheless, there must be something tangible that prompts the reasonable, articulable suspicion. While such a detention does not require probable cause, it does require something more than an inchoate and unparticularized suspicion or hunch. United States v. Foster, CT Page 11075 634 F.3d 243, 247 (4th Cir. 2011).
Here there is no evidence that the defendant had a prior criminal history, no concrete factor to establish a reasonable suspicion that he has engaged in criminal activity. He came from a private residence that had never been the scene of criminal activity. The actions prior to the defendant's arrival at Sterling Street, the delivery of a package, were a common event. The package was not the size usually used for drug deliveries. The defendant was cooperative, not evasive. At the traffic stop the defendant did not attempt to flee; he was not noticeably nervous.
Whether the Defendant has engaged in "evasive conduct" is of importance in determining the legality of a detention. Nervous and furtive behavior in itself would not have been a sufficient basis; the defendant did not engage in this type of conduct. See State v. Carty, 170 N.J. 632, 640, 790 A.2d 903 (2002).
There is no evidence that the Stewart Street and Sigourney Street areas were high crime areas. Although location in a high crime area might be relevant in some circumstances, the mere fact this event occurred in the North End of Hartford is not. Mere residence in a densely populated part of the city of Hartford cannot be a factor supporting reasonable suspicion. See United States v. Brown, 405 F.Sup.2d 1291 (D.Utah 2005) (fact a car was rented in California does not support probable cause); United States v. White, 670 F.Sup.2d 462 n. 9 (W.D.Va 2009) (government did not provide evidence that the particular location in Philadelphia was a high crime area; judge would not presume this fact).
In the present case, the federal agent based his suspicion concerning a Federal Express delivery to a location that had never been the subject of criminal activity. They were not familiar with any of the principles involved in the delivery. They did not see the package for a significant period of time. Nevertheless, Agent Borysevicz relied on his experience, and solely that, when asked why he suspected the defendant. That experience was not enough. The agent could not add certainty to his instinct; he never saw any contraband nor did he see any drug transactions. The factors mentioned by Agent Borysevicz were nothing more than unparticularized suspicion that something might be happening.
A purpose of the Fourth Amendment is to "prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure." United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074 (1976). Agent Borysevicz's success cannot change the fact that he conducted a nonconsensual search without a reasonable, articulable suspicion that criminal activity had occurred.
The Motion to Suppress is Granted.