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In Edmonds, the defendant's initial encounter with law enforcement originated as a result of an investigation into potential criminal activity.
Summary of this case from State v. PompeiOpinion
No. 19389.
09-13-2016
STATE of Connecticut v. Michael EDMONDS.
Bradford Buchta, assistant public defender, with whom, on the brief, was Nicole Donzello, senior assistant public defender, for the appellant (defendant). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Marc R. Durso, assistant state's attorney, for the appellee (state).
Bradford Buchta, assistant public defender, with whom, on the brief, was Nicole Donzello, senior assistant public defender, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Marc R. Durso, assistant state's attorney, for the appellee (state).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
McDONALD, J. The defendant, Michael Edmonds, appeals from the judgment of the Appellate Court affirming his conviction, following a conditional plea of nolo contendere, of one count of possession of narcotics with intent to sell in violation of General Statutes § 21a–277 (a), and one count of failure to appear in the first degree in violation of General Statutes § 53a–172. See State v. Edmonds, 151 Conn.App. 763, 765, 96 A.3d 607 (2014). On certification to this court, the defendant contends that the Appellate Court improperly concluded that: (1) the trial court, Rodriguez, J., in denying the defendant's motion to suppress narcotics evidence, correctly determined that the defendant was not seized until police officers performed a patdown search for weapons; and (2) the record was inadequate to review the defendant's claim that he was unreasonably seized, in violation of the federal and state constitutions, when two police cruisers simultaneously descended upon him from opposite directions in a small private parking lot behind a Subway restaurant and a uniformed officer verbally commanded him to stop. We agree with both of the defendant's claims and conclude that the evidence the defendant sought to suppress was seized in violation of the fourth amendment to the United States constitution and article first, §§ 7 and 9, of the constitution of Connecticut. We therefore reverse the judgment of the Appellate Court.
We granted the defendant's petition for certification to appeal limited to the following two issues: (1) “Did the Appellate Court properly determine that the record was not adequate for appellate review of the defendant's claim that he was seized when Sergeant Ronald Mercado commanded him to stop?”; and (2) “Did the Appellate Court properly determine that the defendant was not seized until police officers conducted a patdown search of the defendant's person?” State v. Edmonds, 314 Conn. 925, 100 A.3d 855 (2014). Because the certified questions are inextricably linked with the related issue of whether the officers' seizure of the defendant was reasonable, and because the defendant briefed that question extensively and the state—while declining to brief the question before this court—briefed it before the Appellate Court and argued it at oral argument before this court, we address it herein as well. See Montoya v. Montoya, 280 Conn. 605, 617 n. 11, 909 A.2d 947 (2006).
The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”
Article first, § 7, of the Connecticut constitution provides in relevant part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures....”
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
Although we have determined that, under certain circumstances, the relevant provisions of the state constitution provide broader protection from unreasonable search and seizure than does the fourth amendment; see, e.g., State v. Oquendo, 223 Conn. 635, 649–50, 613 A.2d 1300 (1992) ; our analysis and resolution of the present appeal would be the same under either constitution. We recognize, however, that the defendant's claim that he was seized the moment that two police cruisers approached him from opposite directions in the parking lot, and before he was ordered to stop, is cognizable only under the constitution of Connecticut, because the United States Supreme Court has held that the fourth amendment is not implicated until a suspect actually submits to a show of authority by the police or is physically detained. California v. Hodari D., 499 U.S. 621, 628–29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).
Before setting forth the relevant facts and procedural history, we begin by observing that the standard of appellate review governing allegedly unconstitutional police searches and seizures differs from the standard that governs appellate review of other types of similarly fact intensive questions. It is well established that we must “undertake a more probing factual review” of allegedly improper seizures, so that we may come to “an independent legal determination of whether a reasonable person in the defendant's position would have believed that he was not free to leave.” State v. Burroughs, 288 Conn. 836, 843, 844 n. 5, 955 A.2d 43 (2008). “A proper analysis of this question is necessarily fact intensive, requiring a careful examination of the entirety of the circumstances in order to determine whether the police engaged in a coercive display of authority....” Id., at 846, 955 A.2d 43. Although we must, of course, defer to the trial court's factual findings, “our usual deference ... is qualified by the necessity for a scrupulous examination of the record to ascertain whether [each] finding is supported by substantial evidence....” (Citation omitted; internal quotation marks omitted.) Id., at 843, 955 A.2d 43. Furthermore, in reviewing the record, we are bound to consider not only the trial court's factual findings, but also the full testimony of the arresting officers; in particular, we must take account of any undisputed evidence that does not support the trial court's ruling in favor of the state but that the trial court did not expressly discredit. See State v. DeMarco, 311 Conn. 510, 520 and n. 4, 88 A.3d 491 (2014) ; id., at 543, 88 A.3d 491 (Palmer, J., dissenting).
In the present case, the trial court's oral decision, as supplemented by the undisputed testimony of the arresting officers, reveals the following relevant facts. On the evening of Friday, January 28, 2011, Officers Elson Morales and Joseph Lawlor of the Bridgeport Police Department (department) were patrolling in the vicinity of Madison Avenue and Capitol Avenue. The officers had been assigned to patrol there because a large number of teenagers were expected to attend a basketball game at nearby Central High School and teenagers tended to congregate on Madison Avenue after such games, clogging traffic.
Only three witnesses testified at the suppression hearing: two of the three arresting officers, and a sergeant with the Bridgeport Police Department (department) called by the defense for the limited purpose of establishing that the department's computer aided dispatch system had not recorded any incidents at the location of the defendant's arrest during the four months preceding the defendant's arrest.
The officers testified that this area of Bridgeport is plagued by a high rate of violent crime. Both officers conceded, however, that the department considers essentially the entire city of Bridgeport to be a high crime area. There was no testimony that the crime rate in the neighborhood of Madison Avenue and Capitol Avenue is any higher than in other areas of Bridgeport.
At approximately 7 p.m., the two officers were driving northbound on Madison Avenue in a marked police cruiser when they stopped at a red light at the intersection of Madison and Capitol Avenues. As they waited for the light to change, they briefly observed a man, later identified as the defendant, who is black, standing alone in the parking lot at 944 Madison Avenue, behind a Subway sandwich restaurant located on the corner. Although it is not evidenced in the record, it may reasonably be assumed—and the state conceded at oral argument before this court—that the Subway restaurant would have been open for dinner at that hour.
The officers offered three reasons why the defendant aroused their suspicions at that time. First, Morales testified that, at the time the officers observed the defendant, “[i]t was pre-dark, it was starting to get dark.” He indicated that the defendant “was loitering in the rear in the shadows ....” (Emphasis added.)
The trial court does not appear to have credited Morales' testimony that, at 7 p.m. on January 28, 2011, in Bridgeport, it was just “starting to get dark.” And for good reason. On that particular winter evening, the sun had set two hours earlier, at 5:04 p.m., and even the twilight had long since passed. Moreover, there was undisputed testimony that no lights illuminated the Subway parking lot at that time. Accordingly, the only reasonable inference is that anyone standing outside the Subway restaurant at dinnertime on that particular evening necessarily would have been standing in the “shadows.”
The court found, rather, that “[i]t was dark outside....”
See Time and Date AS, “Bridgeport, CT, USA—Sunrise, Sunset, and Daylength, January 2011,” available at http://www.timeanddate.com/sun/usa/bridgeport?month=1&year=2011 (last visited June 1, 2016); see also State v. Morris, 47 Conn. 179, 180 (1879) (“[t]he time of the rising or setting of the sun on any given day belongs to a class of facts ... of which courts will take judicial notice”).
Second, both officers testified that the defendant aroused their suspicions because he was “loitering” in the Subway lot. In the police report they completed the evening of the incident, the officers wrote that “we observed a heavy set black male wearing a tan colored hooded sweatshirt loitering behind the Subway [s]andwich [s]hop....” In the section of the report entitled “Point of Illegal Entry/Means of Attack,” the officers entered: “Loitering near Subway.”
During the suppression hearing, however, both officers acknowledged that, at the time they first observed the defendant and decided to question him, they had no reason to believe that he was in violation of Bridgeport's loitering ordinance. Bridgeport Municipal Code § 9.04.010 provides: “Any person who, without permission or legitimate purpose, loiters upon the property of another or upon city-owned property, and who upon command of any police officer or person in charge of city-owned property fails to quit such property, shall be punished as provided in Chapter 1.12 of this code.” In this case, there were no signs indicating “no loitering” posted at that location, and the officers had no information that the defendant was on Subway's property without permission or legitimate purpose, nor that he had been commanded to leave by a police officer or city official. Indeed, the officers readily conceded that the defendant might have been a resident of one of the apartment units located above the Subway restaurant. In addition, the period during which the officers were stopped at the red light, and had an opportunity to observe the defendant and conclude that he might be loitering, lasted only a few seconds. During that brief period, and given the poor lighting conditions, the officers were unable to determine even the defendant's skin color. All they could see was a “silhouette and just a vague color of his jacket.”
Third, the officers testified that their suspicions were aroused because the Subway restaurant had been robbed multiple times in the past, including within the past year. There was undisputed testimony, however, that no incidents of any sort had been reported in the Bridgeport police logs for that Subway location during the preceding four months. Nor did the officers receive any calls with respect to that location on the date in question.
In any event, after having observed nothing more than a nondescript individual standing outside a Subway restaurant for a few seconds at 7 p.m. on a Friday evening, the officers decided to interrupt their patrol of the high school traffic situation to question him. They testified that they intended to ask him why he was in the parking lot, and whether he lived in one of the apartment units above the Subway restaurant.
There was no testimony suggesting that either Morales or Lawlor had any reason to believe that the defendant was armed or dangerous, nor that any sort of criminal activity was underway or recently had transpired at that location. Nevertheless, before stopping to talk to the defendant, they decided to radio their supervisor, Sergeant Ronald Mercado, for backup. Morales testified that “[w]e wanted to try to attempt to [identify] the party and we wanted [Mercado] to cover us.” Later in the hearing, Morales reiterated that the two officers contacted Mercado because “we wanted cover.”
The small parking lot in which the defendant was standing formed an L shape around the rear of the rectangular Subway building. There were only two entrances/exits to the lot. The small end of the L exited onto Capitol Avenue, and the large end onto Madison Avenue. Otherwise, the lot was enclosed by the Subway building on the street corner side, and by various commercial buildings on the opposite side. The lot was private property. The defendant, who was standing in the middle of the lot, was the only person in the lot at the time of the incident.
After Mercado reached the location to provide the requested “cover” for Morales and Lawlor, the three officers in two patrol cars entered the Subway lot from opposing directions and converged on the defendant simultaneously in the middle of the lot, near a staircase leading to the apartments located above the Subway shop. Morales and Lawlor entered the lot from the Capitol Avenue entrance, while Mercado entered through the Madison Avenue entrance. Both vehicles were marked police cruisers. All three officers were in uniform, and armed. The record does not reveal whether they activated the cruisers' light bars or sirens as they approached the defendant.
The precise sequence of events from the time the officers entered the Subway lot until they frisked the defendant is less clear. In their signed police report, the officers provided the following account: “We ... drove into the rear parking lot of [the] Subway [s]andwich [s]hop when the [defendant] turned away from us when he observed our patrol unit, Sergeant Mercado drove in from the Madison [Avenue] entrance and stopped the [defendant].... [The defendant] immediately stated ‘I didn't rob nobody!’ He kept moving his hands around in a nervous manner and yelling ‘this is embarrassing!’ while continuing to state his innocence.”
The officers' testimony at the suppression hearing, together with the trial court's subsequent factual findings, injected some ambiguity into three elements of the police report account of events: (1) whether Mercado entered the lot precisely at the same time as Morales and Lawlor; (2) the circumstances under which the defendant was stopped; and (3) the timing and nature of the defendant's nervous hand movements.
First, with respect to the timing of the two cruisers entering the lot and approaching the defendant, Morales' testimony mirrored and expanded upon the account in the officers' police report: “As we entered from Capitol [Avenue] into the rear parking lot of Subway we observed the [defendant] still in the shadow of the parking lot. He immediately—when he saw our car, it's a marked unit, he immediately turned around and started walking away. That's—at the time when we went to go around the L shape of—toward Madison [Avenue] Sergeant Mercado entered in his marked unit and was able to stop the [defendant].” Morales later summarized this sequence of events by stating that the two cruisers “pulled in” at “about the same time” and arrived at the defendant's location in the middle of the lot at approximately the same time. Lawlor's testimony was consistent with that of Morales on this point. He testified that when he and Morales entered the lot from Capitol Avenue, the defendant immediately turned and started to walk away, and that Mercado entered the lot from Madison Avenue “shortly thereafter.” The trial court found, however, that “[t]he two officers and ... Mercado entered the parking lot at the same time and through the only two entrances into the eatery's parking lot.... As soon as the two officers arrived ... the defendant started to immediately walk away from the officers....” (Emphasis added.) Because the police report, Morales, and Lawlor all indicated that Morales and Lawlor entered the lot from Capitol Avenue shortly before Mercado entered from Madison Avenue, and the record contains no evidence to the contrary, we must understand the court's finding that the two cruisers entered at the same time to mean that the two cruisers arrived at the lot at approximately the same time, and that, as the defendant began to walk away from the first cruiser, Mercado entered and the two simultaneously converged on his position in the middle of the lot.
Second, with respect to when the defendant was stopped, Morales' testimony was again consistent with the police report. In response to direct questioning by the trial court to clarify the sequence of events, Morales indicated that Mercado made the first contact with the defendant as he attempted to walk away from the cruiser driven by Morales and Lawlor, and that Mercado stopped the defendant “[b]y verbally commanding him to stop.” Morales indicated that Mercado also “might have been” the one who began to question the defendant after he was stopped, although Morales was unsure.
Lawlor testified that it was Morales who “made contact with [the defendant] first,” spoke to the defendant, and “handl[ed] more of the contact,” while Lawlor himself observed the interaction. During that portion of the suppression hearing, however, Lawlor was not asked—and did not testify—about Mercado's role in the stopping and questioning of the defendant. Lawlor also did not testify as to how the defendant came to be stopped when he began to walk away from the first cruiser, and the trial court made no findings in this regard.
Third, the record contains three accounts of the defendant's nervous hand movements. The police report states that, after Mercado stopped the defendant and he denied having robbed anyone, “[the defendant] kept moving his hands around in a nervous manner and yelling ‘this is embarrassing!’ while continuing to state his innocence.” Morales offered a far more detailed account at the suppression hearing. He testified that, after the officers exited their cars and the defendant denied having robbed anyone, and as the three officers approached him on foot, the defendant moved his hands in a nervous manner while he stood facing the officers, and repeatedly stated that he felt embarrassed. These hand movements entailed “going on the side, behind him fixing his pants,” and were accompanied by complaints about a bad back. Morales variously described these movements as “tussling with his pants”; “tussling with his belt buckle ... the belt area of his pants”; and “fidgeting with his hands ... moving his belt, his upper part of the pants....” Morales testified that when the officers then ordered the defendant to keep his hands where the officers could see them, the defendant refused to comply with those orders, which led the officers to pat him down for their safety. Lawlor, by contrast, testified without elaboration that the defendant moved his hands toward his waistband at the outset, as he turned to walk away from the approaching patrol car.
When the trial court asked Morales whether the fidgeting hand motions occurred at the same time as the defendant professed his innocence, Morales responded ambiguously: “[n]o, I believe that was before.” (Emphasis added.)
The trial court found on this question that, “as the defendant started to immediately walk away from the officers, he was observed by ... Morales and ... Lawlor to engage in movements around his waistband as he walked. While the police exited their vehicles and approached the defendant, he spontaneously yelled out ‘I didn't rob anyone’ and he kept saying that he was embarrassed.” Although there was no evidence in the record to support the court's finding that Morales witnessed suspicious hand motions at the outset, while the officers were still in their vehicle pulling into the lot, the court was free to credit Lawlor's testimony that he witnessed such motions at that time. The court made no findings with respect to Morales' testimony that the defendant later defied the officers' commands to keep his hands in plain view, after the officers had stopped him.
In any event, it is clear that, soon after they entered the lot, exited their cruisers, and approached the defendant, the officers decided to pat the defendant down for their safety. Although they testified that they were concerned that he might have been carrying a weapon, the only fact they were able to articulate in support of that concern was that the defendant moved his hands near his waistband as he turned away from them. In fact, the officers did not find any weapons on the defendant when they frisked him. They did discover a bundle containing heroin, however, and arrested him.
The defendant moved to suppress the narcotics evidence, contending that its discovery was the fruit of an illegal search and seizure, in violation of the state and federal constitutions. The trial court denied the defendant's motion and the defendant subsequently entered a plea of nolo contendere to the counts of possession of narcotics with intent to sell and failure to appear in the first degree, conditional on his right to appeal the denial of his motion to suppress pursuant to General Statutes § 54–94a. Consistent with the plea agreement, the court, Arnold, J., imposed a total effective sentence of ten years imprisonment, execution suspended after four years, and three years probation.
The defendant appealed to the Appellate Court, arguing that he was seized when the police converged on him in the Subway parking lot or, at the very latest, when Mercado commanded him stop. State v. Edmonds, supra, 151 Conn.App. at 766, 96 A.3d 607. The defendant further argued that at neither of those times did the police possess a reasonable and articulable suspicion that he was involved in criminal activity, as required to justify a nonarrest seizure under Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). State v. Edmonds, supra, at 766, 96 A.3d 607. The Appellate Court rejected the defendant's claim that he was seized at the outset, when the officers converged on him in the Subway lot. Id., at 772–73, 96 A.3d 607. The court also concluded that (1) the defendant had not preserved his claim that Mercado's verbal command to stop constituted a seizure, and (2) the record was inadequate to review that claim under the test for the review of unpreserved constitutional claims that we established in State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). State v. Edmonds, supra, at 769–71, 96 A.3d 607. Accordingly, the Appellate Court upheld the trial court's implicit finding that the defendant was not seized until Morales performed the patdown search. Id., at 773, 96 A.3d 607. Finally, the Appellate Court concluded that, at that time, the police had a reasonable and articulable suspicion sufficient to detain and frisk the defendant. Id., at 775, 96 A.3d 607. Accordingly, the court affirmed the judgment of the trial court. Id., at 776, 96 A.3d 607. We granted the defendant's petition for certification and this appeal followed. See footnote 1 of this opinion. Additional facts and procedural history will be set forth as necessary.
Under Golding, a criminal defendant can prevail on an unpreserved claim of constitutional error if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Footnote omitted.) State v. Golding, supra, 213 Conn. at 239–40, 567 A.2d 823 ; see also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ).
In part I of this opinion, we consider whether the Appellate Court properly concluded that the defendant was not seized until the officers patted him down for weapons and that certain of his claims in that regard are unreviewable. In part II, we consider whether, at the time of the defendant's seizure, the police officers possessed a reasonable and articulable suspicion of criminal activity, whether the purpose of the seizure was reasonable, and whether the scope and character of the seizure was reasonable in light of its purpose.
I
“[W]hen 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 officers] 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 officers] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 516, 903 A.2d 169 (2006). With respect to the former inquiry, the defendant argues that he was seized at the moment the two marked police cruisers converged on him from opposite directions in the small Subway parking lot, and no later than the time at which Mercado commanded him to stop. The state, by contrast, contends that the Appellate Court properly affirmed the implicit conclusion of the trial court that the defendant was not seized until the officers patted him down for weapons. We agree that the defendant was seized no later than when Mercado commanded him to stop.
Because we conclude, taking all of the relevant circumstances into account, that the defendant was seized without reasonable justification when Mercado commanded him to stop, we need not consider the defendant's alternative theory that he was seized at the outset, when the officers converged on his position in the center of the parking lot.
A
We begin by setting forth the legal test used to determine when a person is seized for purposes of the federal and state constitutions. “[A] person is seized when, by means of physical force or a show of authority, his freedom of movement is restrained.... The key consideration is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.... The inquiry is objective, focusing on a reasonable person's probable reaction to the [officers'] conduct.” (Citations omitted; footnotes omitted; internal quotation marks omitted.) State v. Burroughs, supra, 288 Conn. at 844–46, 955 A.2d 43 ; accord United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In situations in which the police have not applied any physical force, we must conduct “a careful [fact intensive] examination of the entirety of the circumstances in order to determine whether the police engaged in a coercive display of authority....” State v. Burroughs, supra, at 846, 955 A.2d 43.
See footnotes 2 and 3 of this opinion.
Factors to be considered in determining whether police conduct projects coercion include, but are not limited to: the number of officers and vehicles involved; whether the officers are uniformed; whether the officers are visibly armed or have their weapons drawn; whether the vehicles involved are marked police cruisers, whether the vehicles' sirens and emergency lights are activated, and whether the vehicles' headlamps or spotlights illuminate the defendant; whether the defendant is alone or otherwise appears to be the target of police attention; the nature of the location, including whether it is public or private property; whether the defendant is surrounded or fully or partially blocked in by the police; the character of any verbal communications or commands issued by the police officers; whether the officers advise the detainee of his right to terminate the encounter; the nature of any physical contact; whether the officers pursue after an initial attempt by the defendant to leave; whether the officers take and retain possession of the defendant's papers or property; and any other circumstance or conduct that bespeaks aggressiveness or a show of force on the part of the police, or suggests that the defendant is under suspicion or otherwise not free to leave. See United States v. Griffith, 533 F.3d 979, 983 (8th Cir.2008) ; State v. Burroughs, supra, 288 Conn. at 846–47, 955 A.2d 43 ; State v. Thomas, 291 Kan. 676, 683, 246 P.3d 678 (2011) ; 4 W. LaFave, Search and Seizure (5th Ed.2012) §§ 9.2(a) and 9.4(a). Although it is true that “not all personal intercourse between [the police] and citizens involves seizures of persons”; (internal quotation marks omitted) Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) ; and that law enforcement officers must be free to engage in “healthy, mutually beneficial intercourse with the public”; State v. Burroughs, supra, at 853, 955 A.2d 43 ; it is equally true that use of coercion beyond that inherent in any police-citizen encounter transforms these sorts of informal, voluntary interactions into seizures. 4 W. LaFave, supra, at § 9.4(a), p. 601.
B
In support of its conclusion that the defendant was not seized until the officers frisked him for weapons, the Appellate Court offered the following analysis: “The facts found by [the trial court] and our independent review of the record demonstrate nothing more than a benign police presence in the Subway parking lot. The court's oral decision portrays an unremarkable scene of three uniformed officers approaching the defendant as part of a routine investigation to obtain identification and determine his purpose for being in the lot. In addition to the facts set forth in the court's oral decision, the record does not contain any evidence suggestive of threatening or coercive police conduct. For instance, there is no evidence that the police engaged their lights or sirens when they entered the Subway parking lot, that they brandished their weapons, or that they impeded the defendant's ability to move, either physically or verbally.... We conclude, therefore, that the defendant was not seized when the police approached him because a reasonable person in the defendant's position would not have believed that it was impermissible to leave the scene.” (Citations omitted.) State v. Edmonds, supra, 151 Conn.App. at 772–73, 96 A.3d 607.
Our own independent review of the record reveals anything but an unremarkable instance of benign community-police dialogue. On the contrary, we do not believe that any reasonable person, finding himself or herself in the position of the defendant, would have felt free to simply disregard the approaching officers and leave the scene. Numerous circumstances of the present case support this conclusion.
From the perspective of the defendant, the incident began when two police cruisers suddenly converged on him from opposite directions, effectively blocking off his only means of egress from the small Subway parking lot. It is well established that, when law enforcement officials block a suspect's vehicle so as to prevent him from driving off, they have, by that fact alone, executed a fourth amendment seizure. See, e.g., Pane v. Gramaglia, 509 Fed.Appx. 101, 103 (2d Cir.2013) (citing authorities); State v. Clark, 297 Conn. 1, 8, 997 A.2d 461 (2010) ; State v. Januszewski, 182 Conn. 142, 147, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981), overruled in part on other grounds by State v. Hart, 221 Conn. 595, 609, 605 A.2d 1366 (1992) ; 4 W. LaFave, supra, at § 9.4(a), pp. 596–97 n. 122. Both this court and our sister courts have applied the same reasoning with respect to pedestrians, concluding that a seizure occurs when the police maneuver or park their vehicles, or approach a pedestrian on foot, in such a way as to block the pedestrian's path or effectively close off any avenue of escape. See, e.g., United States v. Berry, 670 F.2d 583, 597 (5th Cir.1982) (“blocking an individual's path or otherwise intercepting him to prevent his progress in any way is a consideration of great, and probably decisive, significance”); State v. Januszewski, supra, at 147, 438 A.2d 679 (pedestrian constructively seized where police blocked his vehicle from leaving parking lot); State v. Allen, Docket No. 02CA0059, 2003 WL 21276146, *3 (Ohio App. June 4, 2003) (defendant held seized where officers effectively blocked only exit from hallway), review denied, 100 Ohio St.3d 1424, 797 N.E.2d 92 (2003) ; State v. Ingram, 82 Ohio App.3d 341, 345, 612 N.E.2d 454 (1992) (seizure when two officers blocked defendant's exits from where he sat on porch railing).
We recognize that, in the present case, the officers did not fully block in the defendant, who presumably could have walked past one of the two police cruisers onto Capitol Avenue or Madison Avenue. Even under such circumstances, however, when officers have only partially blocked the available exits, courts have not hesitated to find a seizure when a reasonable person would conclude that the police have positioned their bodies or vehicles so as to effectively surround the suspect or thwart his egress. See, e.g., United States v.
Smith, 794 F.3d 681, 685 (7th Cir.2015) (pedestrian in alleyway held seized when two officers “positioned their bicycles at a [forty-five degree] angle to him, obstructing his intended path forward”); State v. Burroughs, supra, 288 Conn. at 847, 955 A.2d 43 (important factors include whether individual's movement was restrained or he was otherwise isolated in some manner, such as when cruiser parks in close proximity); J.N. v. State, 778 So.2d 440, 441–42 (Fla.App.2001) (pedestrian suspected of loitering held seized when exiting alley and approached on either side by three uniformed officers in marked patrol cars); State v. Epperson, 237 Kan. 707, 714, 703 P.2d 761 (1985) (suspects held seized when officer “cut off their avenue of escape” by parking cruiser so that his open car door blocked lane of travel in which suspects' vehicle was parked [internal quotation marks omitted] ); Swift v. State, 393 Md. 139, 149, 156, 899 A.2d 867 (2006) (defendant walking on public road held seized when police officer pulled marked cruiser directly in front of him, “blocking his path”).
Although there is no Connecticut authority directly on point, given the unique factual circumstances of the present case, State v. Rustad, Docket No. 58691–2–I, 2008 WL 555945 (Wn.App. March 3, 2008), a decision of the Washington Court of Appeals, is instructive. In that case, two officers, driving separate marked patrol cars, were responding to a “911 hang-up call” from a “ ‘known drug house’ ” at approximately 10:30 p.m. when they noticed a suspicious vehicle begin to turn into that home's driveway. Id., at *1. When the officers shined their flashlights at the vehicle, it instead continued down the street. Id. The officers then spotted that same vehicle in the rear of a nearby parking lot. Id. The officers entered the lot and parked thirty to forty feet away from the vehicle, near the only road providing entry to or exit from the area, and partially blocking that exit. Id. Their spotlights were aimed at the vehicle, but they did not activate their emergency lights or sirens. Id. One officer then approached the passenger side of the defendant's vehicle, while his partner “stood guard at the rear of the vehicle.” Id. Both officers were uniformed and armed, although their weapons remained holstered. Id., at *2. Under those circumstances, the court concluded that the officers' actions constituted a seizure. Id. Specifically, the court concluded that, although the defendant was not physically detained, “a reasonable person would not feel free to leave or otherwise terminate the encounter” because the officers “largely, though not fully, blocked any exit the [defendant's vehicle] may have had from the parking area and back onto the road....” Id.
Indeed, the theory that the police seize an individual when they knowingly surround him or obstruct his free passage is firmly rooted in our state constitution and federal common law. In State v. Oquendo, 223 Conn. 635, 650–51, 613 A.2d 1300 (1992), in construing article first, §§ 7 and 9, of the constitution of Connecticut, we emphasized that, at common law, “no man [could] be restrained of his liberty; be prevented from removing himself from place to place, as he [chooses]; be compelled to go to a place contrary to his inclination, or be in any way imprisoned, or confined, unless by virtue of the express laws of the land. 1 Z. Swift, [A System of the Laws of the State of Connecticut (1795) ] p. 180.... Moreover, every detention or confinement of the person in any shape, including the forcible detention of a person in the street, constituted an imprisonment.” (Citation omitted; emphasis altered; internal quotation marks omitted.) A review of the case law construing certain maritime provisions of a 1790 act, which prohibited the “confine[ment of] the master of any ship or other vessel”; An Act for the Punishment of Certain Crimes against the United States, c. 9, § 12, 1 Stat. 115 (1790); makes clear that, at both the time that Chief Justice Swift wrote his two volume treatise, A System of the Laws of the State of Connecticut, in 1795 and 1796, and when the relevant provisions of the state constitution were adopted in the early nineteenth century, an individual was deemed to be illegally “confined” not only when he was physically restrained or imprisoned, but also under circumstances in which he was surrounded and thereby intimidated into believing that he could not freely move. See, e.g., United States v. Huff, 13 F. 630, 641 (C.C.W.D.Tenn.1882), and authorities cited therein; United States v. Hemmer, 26 F. Cas. 259, 260 (C.C.D.Mass.1825) ( No. 15345).
To the extent that the state relies on State v. Benton, 304 Conn. 838, 43 A.3d 619 (2012), and State v. Burroughs, supra, 288 Conn. 836, 955 A.2d 43, for the proposition that blocking in or surrounding a defendant does not support a finding of seizure, that reliance is misplaced. In Benton, three young males suspected of possible involvement in gang related violence were riding their bicycles on a public street in New Haven. State v. Benton, supra, at 841, 43 A.3d 619. Two officers on foot patrol stepped into the road approximately twenty to twenty-five feet ahead of the three cyclists. Id. At that point, the defendant's two companions reversed direction and rode off. Id. The defendant also veered away and attempted to pedal off, but the officers physically apprehended him. Id. In concluding that the officers had not seized the defendant at the moment they initially stepped into the road, we relied on the facts that (1) the officers entered the road twenty to twenty-five feet away from the defendant, (2) they occupied less than one quarter of the two lane road, and (3) they stepped into the road in such a way as to indicate that they might merely have intended to advertise a police presence, or to observe the cyclists, rather than to stop them. Id., at 845–47, 43 A.3d 619. In addition, the fact that both of the defendant's companions decided to ride off in another direction, and did so, indicated that they were not in fact blocked in by the officers' conduct. See id., at 841, 43 A.3d 619. Accordingly, Benton is readily distinguishable from the present case, in which the arrival of a second police presence, from the opposite direction, closing off the only available means of egress from the lot, thwarted the defendant's initial attempt to walk away from Morales and Lawlor as they approached him.
Burroughs provides even weaker authority for the state's position, because in that case the police did nothing whatsoever to discourage or hinder the defendant from leaving the scene. In Burroughs, a single police cruiser pulled up behind a vehicle that was parked at night in an industrial area, without activating the cruiser's emergency lights or sirens. State v. Burroughs, supra, 288 Conn. at 840, 852, 955 A.2d 43. Two officers exited the cruiser and walked up to the driver's and passenger's sides of the parked vehicle to determine whether the occupants needed assistance. Id. Under those circumstances, we concluded that there was no significant show of police authority sufficient to indicate that the defendant and his passenger were not free to leave. Id., at 851–52, 955 A.2d 43. Importantly, nothing barred the defendant in Burroughs from simply driving off in the direction his vehicle was facing. By contrast, if a second police cruiser had entered the scene and pulled in front of the defendant's vehicle, boxing him in, he would not have been free to leave. That is precisely what happened here.
Beyond the fact that two marked police cruisers converged on the defendant from opposite directions, effectively blocking him from exiting the lot, several other aspects of the present case would indicate to a reasonable person in the defendant's position that he was not free to leave. First, the defendant was the only person in the parking lot at the time the police entered. Whereas an individual standing in a crowded area or traveling a public road has no reason to assume that a sudden police presence is directed toward him, in the present case it would have been apparent to the defendant that the two cruisers and three officers who suddenly approached were there for him. See State v. Oquendo, supra, 223 Conn. at 653, 613 A.2d 1300. Second, and relatedly, it is important that the Subway lot was private property, where police would not be expected to routinely patrol. See Parker v. Commonwealth, 255 Va. 96, 102, 496 S.E.2d 47 (1998).
A third, critical consideration is the fact that, as the defendant turned to walk away from the marked police cruiser driven by Morales and Lawlor, he was confronted by a second cruiser, driven by Mercado, which had entered from the opposite direction, appearing to thwart his passage. There is a common trope in espionage and other action genre films in which the protagonist turns to retreat upon confronting an enemy, only to see more would-be captors appear from the other direction. At that point, he, along with the audience, realizes that he is trapped. Both courts and commentators have applied this basic intuition in the search and seizure context, recognizing that cornering or “pursuing a person who has attempted to terminate the contact by departing” sends a clear signal that the person is not free to leave. 4 W. LaFave, supra, § 9.4(a), p. 586; see, e.g., United States v. Beauchamp, 659 F.3d 560, 566–67 (6th Cir.2011) ; In re D.J., 532 A.2d 138, 141 (D.C.App.1987), abrogated for federal constitutional purposes by California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ; Commonwealth v. Depina, 456 Mass. 238, 242, 922 N.E.2d 778 (2010) ; Commonwealth v. Lewis, 535 Pa. 501, 506, 509, 636 A.2d 619 (1994) ; Parker v. Commonwealth, supra, 255 Va. at 102, 496 S.E.2d 47.
Other factors that would have indicated to a reasonable person in the defendant's position that he was not free to leave were the fact that he was approached by multiple uniformed police officers; see State v. Benton, supra, 304 Conn. at 846, 43 A.3d 619 ; driving multiple marked patrol cars; see State v. Burroughs, supra, 288 Conn. at 847, 955 A.2d 43 ; in a dark, unlit space. See United States v. Smith, supra, 794 F.3d at 685. Moreover, although there is no indication whether the cruisers' sirens and emergency lights were activated, we must at least assume, because the incident occurred approximately two hours after sunset, that the officers had illuminated their headlamps, and, therefore, that the defendant would have been illuminated in the glare of those headlamps as the cruisers approached him in the unlit lot. See Commonwealth v. Helme, 399 Mass. 298, 303, 503 N.E.2d 1287 (1987) ; State v. Pierce, 173 Vt. 151, 153, 787 A.2d 1284 (2001). These factors, therefore, further support the conclusion that a reasonable person, standing alone in a dark and private parking lot, who suddenly found himself blocked in by marked police cruisers, would not have felt free to leave.
Lastly, if we had any remaining doubt as to whether a reasonable person in the defendant's position would have felt free to disregard the three officers and leave the scene as they approached, those doubts are dispelled by the fact that Mercado, upon entering the Subway lot, commanded the defendant to stop. As a result of this command, the defendant, who initially sought to turn away from the first cruiser driven by Lawlor and Morales, stopped and submitted to police authority.
It is well settled that a reasonable citizen would not feel free to disregard a verbal command to stop issued by an armed, uniformed police officer. See State v. Benton, supra, 304 Conn. at 844 n. 4, 43 A.3d 619 (state conceded that police officer's command to stop constitutes seizure for purposes of state constitution); State v. Oquendo, supra, 223 Conn. at 647–48 n. 8, 613 A.2d 1300 (similar); State v. Williamson, 10 Conn.App. 532, 540, 524 A.2d 655 (order to halt, standing alone, constituted seizure), cert. denied, 204 Conn. 801, 525 A.2d 965 (1987) ; see also United States v. Stover, 808 F.3d 991, 995 (4th Cir.2015) (command to halt is example of police conduct that conveys to reasonable person that he is not free to leave); In re Martin H., Docket No. B151148, 2002 WL 1732650, *3 (Cal.App. July 25, 2002) (“when an officer commands a citizen to stop, this constitutes a detention because the citizen is no longer free to leave” [internal quotation marks omitted] ); Blake v. State, 939 So.2d 192, 195 (Fla.App.2006) (“[i]f ... the officer phrases his or her inquiries as commands, this action would indicate that the individual was not free to leave”); M. Raymond, “The Right to Refuse and the Obligation to Comply: Challenging the Gamesmanship Model of Criminal Procedure,” 54 Buff. L.Rev. 1483, 1493 (2007) (“[P]olice commands or orders create seizures. The quintessential command is the order to stop....” [Footnotes omitted.] ). Accordingly, having considered all of the relevant circumstances and all of the undisputed evidence in the record, we are compelled to conclude that a reasonable person in the defendant's position would not have felt free to leave the scene, and that the defendant was seized no later than when Mercado successfully commanded him to stop.
C
We next consider the state's assertion, which the Appellate Court found persuasive, that the defendant's claim that he was seized no later than when Mercado commanded him to stop is unreviewable on appeal. The state contends that we must determine either that the defendant was seized at the outset, when the officers converged on him in the middle of the parking lot, or later, when they patted him down for weapons. We disagree, and conclude that the defendant's full argument is preserved for appellate review and that we are not barred from considering any of the undisputed testimony in the record. The following additional procedural history is relevant to our evaluation of the state's argument. The defendant filed with the trial court what fairly may be characterized as a boilerplate motion to suppress evidence. The motion alleged only that: (1) “certain items seized by law enforcement officer(s) or his agent(s) ... were not seized pursuant to a search and seizure warrant”; and (2) “[t]he search and seizure violated the laws and constitutions of the United States and of the [s]tate of Connecticut in that ... [t]he search and seizure was unreasonable.” No memorandum of law setting forth specific legal theories or arguments accompanied the motion, and the state neither filed an objection to the motion nor sought any clarification or specification as to the grounds or theories on which the defendant objected to the search and seizure. In fact, neither party presented its theory of the seizure issue prior to the opening of testimony at the suppression hearing. At the suppression hearing, the state proceeded first with its case, consistent with its burden of proving that the officers' warrantless search and seizure of the defendant was constitutional. See State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S.Ct. 551, 145 L.Ed.2d 428 (1999). The state called and examined two witnesses—Officers Morales and Lawlor—whom defense counsel cross-examined broadly about the circumstances surrounding the defendant's arrest. The prosecutor indicated that he had intended to call Sergeant Mercado as well, but that Mercado was on vacation in Florida and, therefore, unavailable to testify.
When the prosecutor completed his redirect questioning of Morales, the trial court intervened to ask the officer a series of questions to clarify the timeline of events. The court specifically asked Morales one-half dozen questions about the circumstances under which Mercado had stopped the defendant from walking away, and twice asked Morales to confirm that Mercado did so by verbally commanding the defendant to stop. After questioning Morales in this area, the court gave the prosecutor an opportunity to ask Morales follow-up questions.
After the state rested, the defendant briefly called one witness to establish a lack of recent criminal activity at the Subway in question. The court then invited the state to present its closing argument, and the prosecutor for the first time offered the state's theory of the search and seizure. It was only then, at the very end of the hearing, after the witnesses had been excused, both sides had rested, and the state had presented its argument, that the court invited defense counsel to argue her theory of the case.
Defense counsel began by advising the court that the court's primary duty was to determine when the defendant was seized, if at all. At varying times, she argued that the defendant was seized: (1) when the police cruisers surrounded him in the lot; (2) when the three officers exited their cruisers and approached the defendant; or (3) when the police patted him down. At other times, however, defense counsel framed the issue more broadly. Near the end of the hearing, for example, she argued that the “bottom line” was that the defendant “was seized the minute that those police officers turned around and did a U-turn, came into the parking lot and stopped [the defendant ]....” (Emphasis added.)
Despite the fact that defense counsel correctly advised the trial court that the court was obliged to determine whether a seizure occurred between the time that the officers entered the lot and when they verbally stopped the defendant, the trial court made no express findings in that regard. Instead, the court appears to have assumed that the frisk was the event of constitutional significance, and to have concluded that a seizure was justified at that time.
On appeal, the state argues that (1) the defendant failed to preserve his argument that a seizure occurred when Mercado commanded the defendant to stop, (2) the record is inadequate for us to review this allegedly unpreserved claim, and (3) the state relied to its detriment on the fact that the defendant opted not to raise this argument at the suppression hearing. All of the state's arguments are without merit.
First, we disagree with the conclusion of the Appellate Court that the defendant's claim that he was seized no later than when Mercado commanded him to stop is unpreserved and, therefore, can only be reviewed on appeal if it satisfies the Golding test. State v. Edmonds, supra, 151 Conn.App. at 770, 96 A.3d 607. At the suppression hearing, defense counsel advised the trial court that it must determine precisely when the defendant was seized. Counsel, who did not bear the burden of proof on this issue and had just heard the officers' account of the events in question for the first time, offered three specific possibilities, ranging from the moment the officers entered the lot to the moment they approached the defendant on foot to the moment they frisked him. But defense counsel also argued that the constitutionally relevant time period was of longer duration: the “minute” during which the officers turned around, entered the lot, and “stopped” the defendant. Because the only explicit testimony as to how the defendant was stopped was Morales' testimony that Mercado verbally commanded him to stop, we have no difficulty concluding that that command is fairly encompassed by the seizure theory that defense counsel articulated at the suppression hearing. As the Appellate Court has recognized, “[c]losing arguments of counsel ... are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear.... [S]ome leeway must be afforded to the advocates in offering arguments....” (Internal quotation marks omitted.) State v. McCleese, 94 Conn.App. 510, 517–18, 892 A.2d 343, cert. denied, 278 Conn. 908, 899 A.2d 36 (2006).
Accordingly, this case is readily distinguishable from State v. Brunetti, 279 Conn. 39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007), in which the defendant, who had taken the lead during the suppression hearing; id., at 48 n. 14, 901 A.2d 1 ; and consistently argued that his father's consent to search was invalid, shifted gears on appeal and began to argue for the first time that his mother's opposition precluded a valid consent search. Id., at 48–49, 53, 901 A.2d 1.
Second, even if we agreed that the defendant's argument is unpreserved, we would disagree with the state—and the Appellate Court—that the record is inadequate to review that argument. The state contends that the record is inadequate because: (1) the trial court made no express findings with respect to Mercado's verbal command to stop; and (2) the testimony of Morales and Lawlor as to this point allegedly conflicts. The first contention is of little moment, as it is well established that, when reviewing the constitutionality of an alleged seizure, we must parse the entire record, and not only the trial court's express findings. State v. Burroughs, supra, 288 Conn. at 843–44, 955 A.2d 43. If there is uncontested testimony by the state's own witness indicating that Mercado seized the defendant before the defendant made any incriminating statements, and if the trial court did not affirmatively decline to credit that testimony, then it is fairly considered in the context of a constitutional analysis. This is especially true in light of the fact that the trial court clearly failed to focus on the constitutional import of any of the events that transpired prior to the patdown, suggesting that we can read little into the court's failure to make express findings with respect to those events.
The primary question, therefore, is whether Morales' testimony on this point is uncontested. Morales clearly testified, on multiple occasions, that it was Mercado who “stopped” the defendant. The police incident report—which Morales authored, for which Lawlor provided assistance, and which an unidentified supervisor reviewed and signed —is in full agreement, stating that “when the [defendant] turned away from us when he observed our patrol unit ... Mercado drove in from the Madison [Avenue] entrance and stopped [him]....” The trial court itself questioned Morales at some length to clarify this testimony. In response, Morales specified that Mercado verbally commanded the defendant to stop.
It is unclear whether the supervisor's signature is that of Mercado or another supervisor.
For his part, Lawlor testified only that Mercado arrived shortly after Morales and he entered the lot, and that he could not recall where Mercado had parked. He gave no indication of what role Mercado played in the incident, if any, nor whether Mercado spoke to the defendant or issued any commands. When asked whether all three officers approached the defendant, Lawlor replied: “I don't recall at what specific time but we approached him.” Nothing in Lawlor's testimony, then, directly contradicted Morales' testimony that Mercado ordered the defendant to stop as, or before, the defendant made any incriminating statements.
In fact, the state's argument that Lawlor offered conflicting testimony is based entirely on the following brief colloquy between the prosecutor and Lawlor:
“Q. Okay. Now, when you exited the vehicle did you make contact with the individual that was hanging out in back of the Subway?
“A. Well, contact was made.
“Q. By who? “A. By—Officer Morales made contact with him first.
“Q. Okay. And then who made contact with him second?
“A. I was there, but Officer Morales was handling more of the contact first.
“Q. So is it a fair assessment to say that Officer Morales spoke to the individual and you just kind of observed what was going on?
“A. Yes.”
During this colloquy, no mention is made of Mercado and, in particular, there is no discussion of any role that Mercado might have played before Morales and Lawlor exited their vehicle. In fact, Lawlor's entire testimony during this portion of the hearing is limited to the roles that he and Morales played in the events in question, and he is not asked about Mercado's role until much later. In context, then, there simply is no reason to interpret Lawlor's brief reference to the fact that, after he and Morales exited their vehicle, Morales made the first contact with the defendant, to mean that Lawlor disagreed with Morales' testimony that Mercado initiated the stop. Indeed, the failure of either party to seek clarification of Lawlor's testimony as to this point suggests that this testimony was not interpreted to conflict with Mercado's testimony or with the officers' incident report. The most reasonable reading of the testimony, therefore, is that Lawlor was merely indicating that, of the two partners, it was Morales who interacted with the defendant. Accordingly, we are not precluded from considering Morales' uncontradicted testimony with respect to the time of seizure.
Third, we are not persuaded by the argument that the state relied to its detriment on a belief that Mercado's verbal command to stop was not relevant to the case. As we already have explained, that issue clearly was raised at the suppression hearing. The trial court, sua sponte, questioned Morales about the command at some length, and afforded the prosecutor an opportunity to pursue the issue on redirect. Defense counsel later argued that the “bottom line” was that the defendant was seized during the minute in which the officers stopped the defendant. That the state opted to largely ignore the constitutional significance of the period during which the officers entered the lot and confronted the defendant, and instead focused almost exclusively on the reasonableness of the patdown search, was a strategic decision, and not the result of trial by ambuscade.
Nor is there any indication that the state declined to call Mercado as a witness out of a belief that his role in the encounter was somehow irrelevant. Rather, the prosecutor indicated at the suppression hearing that he had intended to call Mercado as a witness but that Mercado was on vacation in Florida at the time. Accordingly, we reject the state's argument that, in determining when the defendant was seized, we may not consider the undisputed testimony of the state's own witness, as corroborated by the officers' official incident report, that Mercado, upon entering the parking lot, restrained the defendant by issuing a verbal command to stop.
II
Having concluded that the defendant was seized no later than when Mercado commanded him to stop, we next consider whether the seizure was legal. It is well settled that a Terry stop is constitutionally permissible only if three conditions are met: “(1) the officer[s] 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.” State v. Cyrus, 297 Conn. 829, 837, 1 A.3d 59 (2010) ; see also United States v. Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.... [That] is the central teaching of this [c]ourt's [f]ourth [a]mendment jurisprudence.” [Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.] ). For an officer's suspicion of criminal activity to be objectively reasonable, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion....” (Emphasis added; internal quotation marks omitted.) State v. Cyrus, supra, at 838, 1 A.3d 59. In the present case, we agree with the conclusion of the trial court that, from the time Morales and Lawlor first observed the defendant standing in the Subway lot until they and Mercado converged on his location, the officers had no reasonable, articulable suspicion that he was engaged in criminal conduct. We further conclude that the two additional factors that arose as the officers were approaching—that the defendant turned to walk away, and that his hands moved near his waist as he did so—also do not support a reasonable and articulable suspicion of criminal activity. Accordingly, we conclude that the warrantless seizure was illegal.
It is undisputed that, prior to the time the officers entered the lot to question the defendant, he did not make any suspicious statements or nervous gestures. He was just standing outside at night. It is well established that the fact that a citizen chooses to stand outside at the dinner hour, in a neighborhood plagued by crime, does not warrant any reasonable and articulable suspicion that he himself is engaged in criminal activity. See State v. Santos, 267 Conn. 495, 508–509, 838 A.2d 981 (2004) (presence of individual in high crime area at night not sufficient to justify seizure), abrogated on other grounds by State v. Burroughs, 288 Conn. 836, 844 n. 5, 955 A.2d 43 (2008) ; State v. Hammond, 257 Conn. 610, 625, 778 A.2d 108 (2001) (relying on United States v. Gray, 213 F.3d 998, 1001 [ (8th Cir.2000) ], for proposition that standing on street in high crime area before 10 p.m. in cold weather insufficient to justify Terry stop); see also United States v. Blair, 524 F.3d 740, 751 (6th Cir.2008) (10:30 p.m. is “not late enough to arouse suspicion of criminal activity,” even in high crime area); People v. Bower, 24 Cal.3d 638, 645, 597 P.2d 115, 156 Cal.Rptr. 856 (1979) (time of 8:37 p.m., “while falling during darkness in winter, is simply not a late or unusual hour nor one from which any inference of criminality may be drawn”); People v. Bower, supra, at 645, 156 Cal.Rptr. 856, 597 P.2d 115 (cautioning that “high crime area justification is easily subject to abuse” [internal quotation marks omitted] ); Commonwealth v. Helme, supra, 399 Mass. at 298, 302, 503 N.E.2d 1287 (stop not justified where defendant's car was parked with interior lights on and engine running at 12:30 a.m. in parking lot outside pub that was open for business). Compare 4 W. LaFave, supra, at § 9.5(e), pp. 691–92 (not suspicious for individual to stand outside residential or commercial establishment in evening), with id., at p. 688 n. 180 (listing cases finding reasonable suspicion that suspect was casing for possible burglary where suspicious conduct took place after midnight outside closed or abandoned establishments), and id., at § 9.5(g), p. 741 n. 346 (similar). Quite simply, “[t]oo many people fit this description for it to justify a reasonable suspicion of criminal activity.” (Internal quotation marks omitted.) United States v. Gray, supra, 213 F.3d at 1001.
Nor does standing in a private lot for a few seconds constitute loitering, particularly without any indication that the person is engaged in otherwise improper conduct or has been asked to leave the premises. See Bridgeport Municipal Code § 9.04.010; see also Wainwright v. New Orleans, 392 U.S. 598, 604, 88 S.Ct. 2243, 20 L.Ed.2d 1322 (1968) (Warren, C.J., dissenting from dismissal of writ of certification as improvidently granted); United States v. James, 62 F.Supp.3d 605, 612 (E.D.Mich.2014) ; State v. Grace, 28 Kan.App.2d 452, 459, 17 P.3d 951 (2001).
In the present case, Morales and Lawlor saw an otherwise nondescript man—if they could even discern that the vague “silhouette” they saw was male—standing outside a restaurant and apartment building for a few seconds at 7 p.m., in a city with a generally high crime rate. This particular location had not reported any criminal activity for at least the prior four months, and no incidents had been reported in the area that evening. There are 1001 legitimate reasons why a man might pause for a moment outside an open eatery at the dinner hour. He might have been meeting friends, family, or colleagues for supper; waiting for his children to come out of the restroom; reviewing the menu; checking to see if a friend was inside; pondering whether he was in the mood for sandwiches or fish; taking a smoke break; making a private call; or just getting a breath of fresh air. This was not a case where the defendant looked into a store window one dozen times without entering; see Terry v. Ohio, supra, 392 U.S. at 6, 88 S.Ct. 1868 ; staked out a store for an extended period of time, from an unusual location; see State v. Thurlow, 485 A.2d 960, 963 (Me.1984) ; or paid particular attention to a store's cash registers. See Mosley v. State, 289 Md. 571, 572, 425 A.2d 1039 (1981). Quite simply, the officers were unable to articulate anything remarkable, let alone suspicious, about this particular individual that would differentiate him from any of the myriad other citizens who might have paused for a moment in any residential or commercial area of Bridgeport that evening, or that would suggest that he was preparing to commit a crime. As Justice Glass explained in his dissenting opinion in State v. Cofield, 220 Conn. 38, 50, 595 A.2d 1349 (1991), “[m]any of our less fortunate citizens are forced to establish their homes in or near locales of criminal repute, or they travel to such places to call upon friends or engage in an infinite range of innocuous human activities.... [T]he crime rate of a particular area cannot transform otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual.” (Citation omitted; internal quotation marks omitted.)
In fact, the defendant's conduct in this case was far less suspicious than conduct that has been held to be insufficient, as a matter of law, to justify a seizure. In State v. Donahue, 251 Conn. 636, 639, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S.Ct. 299, 148 L.Ed.2d 240 (2000), for example, the police observed an individual idle his car at 1:50 a.m. in a vacant lot outside a closed social club, on a street that “ ‘had experienced a dramatic increase in criminal activity in the previous four to six weeks....' ” Notwithstanding that “ ‘[i]ndividuals would often park their vehicles at the commercial establishments along [that particular street] and then walk through [a] cemetery into [a] housing project to engage in [drug dealing and prostitution]’ ”; id.; we concluded that the circumstances did not give rise to a reasonable and articulable suspicion of criminal activity. Id., at 648, 742 A.2d 775. Allowing the police to execute a seizure without any information linking that particular individual to any particular crime, we reasoned, would permit law enforcement to improperly profile entire neighborhoods and communities as criminal. Id., at 648 and n. 11, 742 A.2d 775. “This court,” we concluded, “cannot permit such a suspension of constitutional protections.” Id., at 648, 742 A.2d 775.
Looking to other jurisdictions, the most similar case to the present case appears to be People v. Revoal, 269 P.3d 1238 (Colo.2012) (en banc). In that case, the police observed an individual standing outside a closed Subway shop at 11:30 p.m., in an area that had experienced a recent history of robberies. Id., at 1239. They observed the individual look to the left and to the right, as if watching for something, and then walk to a dark area across the lot, behind an open liquor store. Id. When he saw their patrol car approaching, the individual turned and walked in the opposite direction. Id. Considering all of these circumstances, the Supreme Court of Colorado unanimously concluded that the officers did not have a reasonable suspicion sufficient to justify an investigatory stop. Id. In the present case, under circumstances even less suspicious than those in Revoal and Donahue, we likewise conclude that there was no legitimate reason for Morales, Lawlor, and Mercado to seize the defendant at the time they entered the Subway lot.
The only events of potential constitutional significance that transpired between the time the two cruisers entered the lot and the time that Mercado successfully commanded the defendant to stop are: (1) the fact that the defendant turned to leave when the police arrived; and (2) the fact that the defendant's hand moved near his waistband as he turned. These factors, taken together with those previously discussed, also do not provide sufficiently specific grounds to support a reasonable conclusion that the defendant was involved in criminal activity.
First, the fact that the defendant turned to walk away when he saw Morales and Lawlor driving into the Subway lot does not suggest that he was up to something nefarious. It is true that an individual's “[h]eadlong flight” upon perceiving police may justify a Terry stop. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ; accord State v. Middleton, 170 Conn. 601, 605, 368 A.2d 66 (1976). The mere fact that a citizen turns and walks away from an approaching police officer does not, however, support a reasonable and articulable suspicion of criminality. State v. Hammond, supra, 257 Conn. at 625, 778 A.2d 108 ; see also United States v. Jones, 584 F.3d 1083, 1087 (D.C.Cir.2009) (stating federal rule), cert. denied, 559 U.S. 1044, 130 S.Ct. 2081, 176 L.Ed.2d 428 (2010) ; State v. Milotte, 95 Conn.App. 616, 617, 897 A.2d 683 (2006) (fact that defendant, in area where driving under influence arrests are common, appeared to drive so as to avoid police officer held too speculative to justify Terry stop), appeal dismissed, 281 Conn. 612, 917 A.2d 25 (2007) ; State v. Hicks, 241 Neb. 357, 362, 488 N.W.2d 359 (1992) (majority rule among states is that citizens may avoid or retreat from police presence without creating reasonable suspicion of criminality). We have recognized that “merely veering off course may be a wholly appropriate response to the sudden appearance of police officers in the roadway and is consistent with going about one's business....” (Internal quotation marks omitted.) State v. Benton, supra, 304 Conn. at 850, 43 A.3d 619. In the present case, not only did the defendant not flee headlong from the officers, but he did not flee at all; Morales even rejected the suggestion that the defendant had walked away “quickly.”
There are a number of legitimate reasons why a law-abiding citizen may not desire to remain on the scene when the police appear, especially in a dangerous neighborhood where police-citizen relations may be strained. See Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 40 L.Ed. 1051 (1896) (noting that, as matter of common knowledge, people who are entirely innocent may seek to depart crime scene due to fear of being mistakenly apprehended or unwillingness to appear as witnesses). As Justice Stevens elaborated in his concurring and dissenting opinion in Illinois v. Wardlow, supra, 528 U.S. at 131–34, 120 S.Ct. 673, “a reasonable person may conclude that an officer's sudden appearance indicates nearby criminal activity. And where there is criminal activity there is also a substantial element of danger—either from the criminal or from a confrontation between the criminal and the police. These considerations can lead to an innocent and understandable desire to quit the vicinity with all speed.
“Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer's sudden presence.... [T]he evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient.” (Footnotes omitted.) See also State v. Hicks, supra, 241 Neb. at 363, 488 N.W.2d 359 (“[f]ear or dislike of authority, distaste for police officers based upon past experience, exaggerated fears of police brutality or harassment, and fear of unjust arrest are all legitimate motivations for avoiding the police”). It would be ironic, to say the least, if we were to rely on a defendant's freedom to leave as evidence that there was not a seizure but then rely on the mere exercise of that ability to conclude that there is a reasonable suspicion that justifies a seizure.
Turning to the second factor, the state contends that the fact that Lawlor saw the defendant “engage in movements around his waistband as he walked” led the officers reasonably to suspect the defendant of criminal activity. Courts and commentators have recognized, however, that the mere fact that the police report that a suspect moved his hands in the area of his waist, without further context or detail, does not justify a warrantless seizure. See In re Jeremy P., 197 Md.App. 1, 14, 11 A.3d 830 (2011) (reviewing “waistband” cases from various jurisdictions and concluding that “a police officer's observation of a suspect making an adjustment in the vicinity of his waistband does not give rise to reasonable suspicion of criminal involvement sufficient to justify a Terry stop”). Because a typical man's hands hang only a few inches or so below his waist, under normal circumstances it is virtually impossible to turn and walk off in such a way that the hands do not appear to come into proximity thereto. Surely it cannot be the case that any man living in a high crime neighborhood who appears to move his hands in the vicinity of his waist as the police approach, or who engages in commonplace and innocuous conduct such as briefly adjusting his pants, thereby subjects himself to search and seizure. See Duhart v. United States, 589 A.2d 895, 899–900 (D.C.1991).
The officers in the present case did not provide the sort of detailed testimony that has been found to support a reasonable and articulable suspicion of gun possession in other cases. For example, there was no testimony describing a gun-shaped bulge in the clothing, an awkward gait or arm movement typical of those carrying concealed guns, an informant's tip that the subject was armed, or the fact that persons similarly situated to the defendant frequently carry unlicensed guns. See, e.g., United States v. Parker, 277 Fed.Appx. 48, 51 (2d Cir.2008) ; State v. Mann, 271 Conn. 300, 322–26, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1711, 161 L.Ed.2d 527 (2005) ; 4 W. LaFave, supra, at § 9.6(a), pp. 855–62. In fact, the officers never even testified that they actually believed the defendant was carrying a weapon. Although we have recognized a compelling interest in preserving officer safety; see State v. Mangual, 311 Conn. 182, 209–10, 85 A.3d 627 (2014) ; mere conclusory testimony that the officers were concerned for their safety does not constitute the sort of specific, articulable evidence necessary to justify a Terry stop. See Pinnock v. New Haven, 553 F.Supp.2d 130, 141 (D.Conn.2008).
Accordingly, while we remain cognizant of law enforcement officers' legitimate safety concerns, we cannot allow the police to invoke an individual's waistband like a talisman in order to justify any seizure after the fact. Particularly in a case such as the present one, where the facts that have been asserted as justifying an officer safety patdown—repeated fiddling with the waistband and refusal to comply with officers' orders—are almost entirely facts that the officers neglected to memorialize in their official incident report, and then claimed to remember two years later at a suppression hearing where they were unable to recall other basic details of the incident, we should be extremely wary of sanctioning a seizure in the absence of truly specific and articulable evidence that the defendant was engaged in criminal conduct.
At the time of the suppression hearing in February, 2013, for example, Morales, who had conducted more than 500 such patdowns over the course of his career, was unclear about or unable to recall a number of significant details of the January, 2011 incident involving this particular defendant: whether there were any cars in the lot; whether he patted the defendant down on a vehicle; who transported the defendant from the scene; which officer was driving the cruiser; whether Mercado was accompanied by another officer; where Mercado parked; what statements the defendant made upon being confronted; whether the defendant was wearing a hood; the circumstances under which the defendant provided the police with two different addresses; and which officer questioned the defendant. Morales did testify, however, that he specifically recalled: the defendant tussling with his pants in the area of his waistband and belt buckle; placing his hands behind him; fixing his pants; and ignoring the officers' commands that he keep his hands in plain view.
When Lawlor was first questioned as to what concern led to the need for an officer safety patdown, he replied only that he was concerned because the defendant initially started to walk away from the police and denied having robbed anyone. The prosecutor, however, responded by further prompting Lawlor: “[D]id the defendant make any movements with his hands at all to the best of your recollection?” Lawlor then volunteered that, in fact, the defendant had “moved them toward his waistband when he was walking away.” Neither officer was able to explain why they had neglected to include these key details in their official incident report, which stated only that the defendant “kept moving his hands around in a nervous manner and yelling ‘this is embarrassing!’ while continuing to state his innocence.”
A decision of the Supreme Court of Colorado is instructive in this regard. See People v. Thomas, 660 P.2d 1272 (Colo.1983), overruled on other grounds by People v. Archuleta, 980 P.2d 509, 515 (Colo.1999). The facts of Thomas are remarkably similar to those of the present case. While stopped at a red light, police officers observed the defendant, Joseph Thomas, “ ‘just standing’ ” in the parking lot of a fast-food restaurant. Id., at 1273. Upon their approach, Thomas placed his hand in his pocket, and either walked or ran across the lot toward an adjoining building. Id., at 1273–74. The court concluded that the mere fact that an individual in a high crime area makes a “ ‘furtive gesture’ ” about his clothing and quickly leaves the scene upon the arrival of law enforcement is clearly insufficient to justify a seizure. Id., at 1275–76, 1276 n. 2.
By contrast, our decision in State v. Mann, supra, 271 Conn. at 325, 857 A.2d 329, on which the Appellate Court relied; State v. Edmonds, supra, 151 Conn.App. at 776, 96 A.3d 607 ; is readily distinguishable. In that case, the police had specific prior information that drugs were being packaged and sold from the apartment in question. State v. Mann, supra, at 323–24, 857 A.2d 329. Upon confronting the police at the apartment door, the defendant in that case immediately thrust his hand into his pocket. Id., at 324, 857 A.2d 329. Under those circumstances, and given the “well established correlation between drug dealing and firearms,” we concluded that there was a reasonable suspicion that the defendant was armed and posed an imminent danger to the police. (Internal quotation marks omitted.) Id., at 325, 857 A.2d 329.
In the present case, by contrast, there was no specific and articulable basis for the officers to believe that the defendant was engaged in criminal conduct, that he was reaching for a weapon, or that they were in any immediate danger. For these reasons, we conclude that the officers' seizure of the defendant was not supported by a reasonable and articulable suspicion that he was engaged in criminal conduct and, accordingly, that his motion to suppress the narcotics evidence obtained in violation of his constitutional rights should have been granted.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to grant the defendant's motion to suppress.
In this opinion ROGERS, C.J., and PALMER, EVELEIGH and ROBINSON, Js., concurred. ROGERS, C.J., concurring.
I agree with and join the majority opinion because I believe that the seizure of the defendant, Michael Edmonds, occurred no later than the time at which he was commanded to stop by the police and that this seizure was not supported by a reasonable and articulable suspicion. I write separately, however, to emphasize that I do not express any opinion as to whether a seizure occurred when the two police vehicles entered the parking lot in which the defendant was standing.
ROBINSON, J., with whom ROGERS, C.J., and PALMER, EVELEIGH and McDONALD, Js., join, concurring.
I agree with the majority that the defendant, Michael Edmonds, was seized by the police when an officer commanded him to stop, and that this seizure was not supported by reasonable suspicion. I write separately to address the following concerns raised in the dissent: (1) that the majority's opinion “will ultimately have the practical effects of hindering law enforcement at the most fundamental level”; (2) that citizens living in “crime-plagued neighborhoods will likely meet today's decision with bewilderment and frustration”; and (3) that such individuals “will ultimately be less safe” as these areas “will become fertile soil for the growth of further crime” as a result of the majority's opinion. On the contrary, I believe that the majority strikes an appropriate balance between law enforcement interests in investigating crimes and keeping their communities safe, and citizens' interests in enjoying their rights under the fourth amendment to the United States constitution, regardless of the fact that they may live or work in “crime-plagued neighborhoods....” I address each of these troubling issues in turn.
The broader social policy issues raised by the dissent were not briefed, argued, or even broached by the parties or the majority. While I earnestly believe that this is not the proper place or time to discuss the extremely complex societal issues of police enforcement in “crime-plagued neighborhoods,” if I did not do so, the ominous assertions made in the dissent would go unquestioned. This is something that I simply cannot accept, especially when the satisfactory resolution of these issues requires both critical analysis and open, honest and robust debate, given these very troubling times in our nation's history. This separate and relatively short concurrence should by no means be regarded as a substitute for the comprehensive in-depth discussion that I believe is necessary.
As mentioned in the portion of this dissenting opinion discussing the standard of review, the majority avoids this problem by making its own credibility and factual determination by resolving the conflicting testimony in favor of the version of events present in Morales' testimony.
I first disagree with the dissent's assertion that “police will be hamstrung in their ability to thoroughly investigate and prevent crime” as a result of the majority's opinion. Contrary to the dissent's assertions, the majority does not imply that a per se seizure occurs when the officers merely “[pull] into a parking lot” and “sa[y] something indeterminate” to a suspect. The majority instead concludes that a variety of additional facts, which reveal the true character of the encounter, demonstrate that the defendant in this case reasonably did not feel free to leave. These facts include: (1) two marked police cruisers converged on him nearly simultaneously in a parking lot from opposite directions; (2) the cruisers at least partially blocked his ability to leave the area on foot; (3) the defendant was the only person in the parking lot; (4) the encounter occurred at night; (5) the cruisers' headlights were focused on only him; (6) the parking lot is private property; (7) when the defendant initially tried to exercise his right to leave, by turning in the opposite direction when the first marked cruiser pulled up in front of him, a second marked cruiser blocked his path in that direction; (8) three uniformed and armed police officers exited from the cruisers; and (9) one of the officers commanded him to stop. As the dissent recognizes, “the question of whether a defendant has been seized must be reviewed under the totality of the circumstances.” See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ; State v. Burroughs, 288 Conn. 836, 845, 955 A.2d 43 (2008). As such, nothing about the majority's opinion prevents officers from approaching and questioning citizens under more routine circumstances. See, e.g., State v. Kimble, 106 Conn.App. 572, 594–95, 942 A.2d 527 (occupants of parked vehicle not seized when, at night, uniformed police officer exited marked cruiser, approached vehicle, and questioned them), cert. denied, 286 Conn. 912, 950 A.2d 1289 (2008) ; see also Florida v. Royer, 460 U.S. 491, 497–98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (“officers do not violate the [f]ourth [a]mendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions [or] by putting questions to him if the person is willing to listen”). Moreover, the officers' conduct in this case emphatically does not suggest an attempt to engage in the type of “cooperative discourse” that the dissent worries will be “snuffed out” by the majority opinion.
Second, I do not agree with the dissent's assertion that citizens living in “crime-plagued neighborhoods” will “meet today's decision with bewilderment and frustration.” The majority concludes that police seized the defendant when they converged on him in two marked cruisers from opposite directions and commanded him to stop, and that this seizure was not supported by reasonable suspicion, because he was merely standing in a parking lot, at night, in a high crime area. I fail to see how such a decision would create “bewilderment and frustration” among people living in high crime areas, many of whom have been subject to a disproportionate number of suspicionless stops. See A. Wolf, “The Adversity of Race and Place: Fourth Amendment Jurisprudence in Illinois v. Wardlow, [120] S.Ct. 673 (2000),” 5 Mich. J. Race & L. 711 (1999–2000) (“it is not surprising that ‘high-crime area’ residents are disproportionately the victims of police harassment”). As Justice Sotomayor of the United States Supreme Court has recognized, “many innocent people are subjected to the humiliations of ... unconstitutional [stops and] searches.” Utah v. Strieff, ––– U.S. ––––, 136 S.Ct. 2056, 2070, 195 L.Ed.2d 400 (2016) (Sotomayor, J., dissenting). The prevalence of suspicionless stops have “created an expectation among residents ... that they will be stopped, interrogated, and frisked numerous times in the course of a month, or even a single week.” (Internal quotation marks omitted.) K. Koss, “Leveraging Predictive Policing Algorithms to Restore Fourth Amendment Protections in High–Crime Areas in a Post–Wardlow World,” 90 Chi.–Kent L.Rev. 301, 323 (2015).
I believe that the majority's opinion takes an important step forward in protecting the fourth amendment rights of citizens living in such areas. By holding that police may not approach a pedestrian in the intimidating manner displayed in the present case solely on the basis of his or her presence in a high crime area, the majority ensures that this court does not “significantly [lower] constitutional protections for law-abiding citizens who, by choice or for reasons beyond their control, live in high-crime areas....” United States v. Black, 525 F.3d 359, 366 (4th Cir.) (Gregory, J., dissenting), cert. denied, 555 U.S. 875, 129 S.Ct. 182, 172 L.Ed.2d 129 (2008). To allow such conduct by police in the absence of a reasonable suspicion of criminal activity would, in my view, render citizens living in these areas “less than other citizens for purposes of constitutional protection based on their economic and social standing,” a position that has “no place in a constitutional democracy.” State v. Ward, 80 Ohio App.3d 701, 706, 610 N.E.2d 579 (1992) (Harper, J., dissenting).
In the present case, other than observing that the defendant was a black man standing in the parking lot of a restaurant, the officers did not point to any suspicious conduct on the part of the defendant in justifying their initial seizure of him, beyond his presence in a high crime area. The United States Supreme Court has unequivocally stated, however, that “[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). To hold otherwise would, as one trial court judge from Ohio put it, render the fourth amendment “meaningless” in high crime areas. State v. Dancer, 52 Ohio Misc.2d 9, 11, 557 N.E.2d 178 (1989). The judge in that case granted the defendant's motion to suppress after police ordered her to provide identification and empty her purse simply because she was sitting at a bar that had been the site of previous drug activity. Id. In granting that motion, the judge posed the following question: “Do persons living, by choice or more likely by duress of circumstances, in a ‘high crime’ area give up their constitutional rights, while those persons living in fancy suburbs or drinking at the country club bar are protected?” Id. I would answer this question, no. As Judge Roger Gregory of the United States Court of Appeals for the Fourth Circuit put it: “It has never been my understanding of the [f]ourth [a]mendment that those with less means likewise receive less constitutional protection as a result of their plight. It is written into the very fiber of our [c]onstitution that the protections granted therein apply equally to all Americans, regardless of whether they are returning home to the grandest of mansions or the humblest of shanties.” United States v. Black, supra, 525 F.3d at 370 (Gregory, J., dissenting). I, therefore, posit that citizens living in “crime-plagued neighborhoods” in Connecticut should not, and will not, meet today's opinion with “bewilderment and frustration” as suggested by the dissent.
As the majority states, although the nearby restaurant had been the site of previous robberies, that “particular location had not reported any criminal activity for at least the prior four months, and no incidents had been reported in the area that evening.” Although one of the officers testified that the defendant was “loitering” in “the shadows,” the majority aptly notes that, because it was nighttime, “the only reasonable inference is that anyone standing outside the [restaurant] at dinnertime on that particular evening necessarily would have been standing in the ‘shadows.’ ” (Emphasis in original.) Finally, as the majority also notes, the officer also “had no reason to believe that [the defendant] was in violation of [the applicable municipal] loitering ordinance,” especially since it may reasonably be assumed that the restaurant was open for dinner at that time.
In a subsequent portion of this dissenting opinion, I fully address the defendant's claim that he was seized upon the entry of the police cruisers into the parking lot.
Lastly, I respectfully, but emphatically, disagree with the dissent's contention that citizens living in high crime areas “will ultimately be less safe,” and that those areas “will become fertile soil for the growth of further crime” as a result of the majority's opinion. Suspicionless stops are not only a violation of an individual's constitutional rights, they often breed fear and distrust toward police, which, in my view, is an additional unacceptable burden to place on the shoulders of citizens living in high crime areas. See, e.g., Illinois v. Wardlow, supra, 528 U.S. at 134 n. 10, 120 S.Ct. 673 (Stevens, J., concurring in part and dissenting in part) (citing report concluding that New Jersey police engaged in “disparate treatment,” which “engender[ed] feelings of fear, resentment, hostility, and mistrust” [internal quotation marks omitted] ). As Justice Stevens of the United States Supreme Court has emphasized, some citizens, “particularly minorities and those residing in high crime areas,” flee from police even when they are entirely innocent, believing that any contact with the police can be dangerous. Id., at 132, 120 S.Ct. 673. He further noted that these fears “are validated by law enforcement investigations into their own practices” and that the evidence supporting the reasonableness of these fears “is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient.” Id., at 133–34, 120 S.Ct. 673. Intuitively, when citizens avoid and actively refuse to interact with police out of fear of becoming a suspect, the opportunities for positive dialogue between the police and citizens disappear. This means that the police will also miss out on learning important information related to actual criminal activity in those communities.
Beyond fear and distrust, some citizens have developed hostility and animosity toward police as a result of the prevalence of suspicionless stops. See Johnson v. State, 70 Ark.App. 343, 370, 19 S.W.3d 66 (2000) (Griffen, J., dissenting) (noting “ever-present hostility and simmering rage of many persons from poor and minority communities about unjust police conduct”), aff'd, 343 Ark. 343, 37 S.W.3d 191 (2001) ; K. Koss, supra, 90 Chi.–Kent L.Rev. at 304 (“[c]ourts' deference to police officers' subjective experiences has created significant animosity between the residents of these neighborhoods and law enforcement”). Such hostility may stem from the dehumanizing nature of some of these encounters. Justice Sotomayor describes such a stop: “Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more.... The indignity of the stop is not limited to an officer telling you that you look like a criminal.... The officer may next ask for your consent to inspect your bag or purse without telling you that you can decline.... Regardless of your answer, he may order you to stand helpless, perhaps facing a wall with [your] hands raised.... If the officer thinks you might be dangerous, he may then frisk you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” (Citations omitted; internal quotation marks omitted.) Utah v. Strieff, supra, 136 S.Ct. at 2069–2070 (Sotomayor, J., dissenting). As such, the United States Supreme Court has acknowledged that “[i]n many communities, field interrogations are a major source of friction between the police and minority groups.” (Internal quotation marks omitted.) Terry v. Ohio, 392 U.S. 1, 14 n. 11, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When police routinely “stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident,” according to the court, such interactions “cannot help but be a severely exacerbating factor in police-community tensions.” (Internal quotation marks omitted.) Id., at 14–15 n. 11, 88 S.Ct. 1868. By sowing fear and distrust of police, such tensions could ultimately make high crime areas even less safe for the people who live there. As one scholar stated, “[u]ndemocratic policing ... increases the perception of illegitimacy, which in turn can increase levels of crime and reduce police-citizen cooperation.” I. Capers, “Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle,” 46 Harv. C.R.–C.L. L.Rev. 1, 34 (2011). Instead “individuals are more likely to voluntarily comply with the law when they perceive the law to be legitimate and applied in a nondiscriminatory fashion.” Id., at 47.
Moreover, widespread stops in high crime areas may not even be a “particularly efficient or even accurate method of identifying wrongdoers.” R. Hutchins, “Stop Terry: Reasonable Suspicion, Race, and a Proposal to Limit Terry Stops,” 16 N.Y.U. J. Legis. & Pub. Policy 883, 902–903 (2013). For example, one study found that, of the 4.4 million people stopped in New York City between 2004 and 2012, almost 90 percent were released by the police after no evidence of wrongdoing was found. Id. I, therefore, disagree with the dissent's contention that citizens living in high crime areas “will ultimately be less safe” as a result of the majority's opinion, especially because the majority's opinion will not hinder law enforcement efforts to approach and question suspects.
Accordingly, I join in the judgment of the court.
ESPINOSA, J., with whom ZARELLA, J., joins, dissenting.
In today's decision, the majority concludes that the defendant, Michael Edmonds, was seized within the meaning of the fourth amendment to the United States constitution and article first, §§ 7 and 9, of the constitution of Connecticut, by the mere act of a police officer speaking to him. The most troubling aspect of the majority's determination is that it rests not on the record and findings of the trial court, but on the majority's own inferences and assumptions about the record and a misreading of the relevant case law. The majority's decision disregards the appropriate standard of review, muddles our search and seizure jurisprudence, and will ultimately have the practical effects of hindering law enforcement at the most fundamental level and further endangering citizens living in crime-ridden neighborhoods. Accordingly, I am compelled to dissent. In my view, the Appellate Court properly concluded that the record was inadequate to permit appellate review of the defendant's previously unraised claim that he was seized upon a police officer's verbal order to stop. State v. Edmonds, 151 Conn.App. 763, 770, 96 A.3d 607 (2014). I would also conclude that the Appellate Court correctly determined that the defendant was not seized until the police performed a patdown search of his person, at which point the police possessed a reasonable and articulable suspicion that the defendant was engaged in criminal activity. Id., at 766, 96 A.3d 607. I would therefore affirm the judgment of the Appellate Court.
Prior to charting the factual landscape of the present case, I set forth the proper standard of review rather than the incorrect reading of the standard that the majority applies for the purposes of this case. In reviewing a motion to suppress, this court accords great deference to the findings of the trial court. “[T]he standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, [however] and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence.” (Internal quotation marks omitted.) State v. Kendrick, 314 Conn. 212, 222, 100 A.3d 821 (2014). In the present case, the testimony of the arresting officers was central to the trial court's factual findings and legal conclusions. “[W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision....” (Internal quotation marks omitted.) Id.
Conversely, the majority opinion states that “the standard of appellate review governing allegedly unconstitutional police searches and seizures differs from the standard that governs appellate review of other types of similarly fact intensive questions.” While correctly recognizing that when presented with a claim of constitutional magnitude we must “[conduct] a scrupulous examination of the record” to ascertain whether each finding is supported by substantial evidence; State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008) ; the majority takes this to mean that this court need not defer to the trial court's factual findings, but rather may examine the record in order to make its own findings in opposition to those found by the trial court. Although Burroughs correctly states the standard of review in the context of the present case, the majority broadly applies Burroughs and does so in a manner inconsistent with the mandate that we are to leave undisturbed the factual findings of the trial court unless the findings are clearly erroneous in light of the record as a whole. Id. The majority does not suggest that the trial court's findings are in error and although the majority purports to defer to the trial court, a comparison of the facts as found by the trial court and the majority's facts demonstrate otherwise.
The majority also seeks to broaden the standard of review by purporting that “we must take account of any undisputed evidence that does not support the trial court's ruling in favor of the state but that the trial court did not expressly discredit.” In support of this position, the majority relies on our decision in State v. DeMarco, 311 Conn. 510, 88 A.3d 491 (2014). The majority's reliance, however, is misplaced. In DeMarco, this court recognized that in reviewing a motion to suppress, “[i]f the [police] officers' own testimony as to what occurred is internally consistent and uncontested by the defendant but, in fact, undercuts the trial court's ruling in favor of the state, a reviewing court would be remiss in failing to consider it.” Id., at 520, 88 A.3d 491. Of course, the majority is correct in taking note of undisputed evidence in the record that the trial court did not discredit. But where the majority errs is in taking this a step too far and using the evidence in the record to make its own findings and even resolve inconsistencies in the officers' testimony, which DeMarco expressly forbids. Id., at 519–20, 88 A.3d 491 (“It is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony.... Questions of whether to believe or disbelieve a competent witness are beyond our review.” [Internal quotation marks omitted.] ).
Instead, the majority quibbles with and repeatedly questions the trial court's factual findings and introduces its own assumptions and inferences into the factual matrix of the present case, all while continually professing to do so under the auspices of the standard of review. Scrupulous review of the record requires us to examine whether the trial court's findings are supported by substantial evidence, not to decide what factual conclusions we ourselves would draw from that same evidence. See State v. Burroughs, supra, 288 Conn. at 843, 955 A.2d 43. To conclude otherwise is to forsake our role as an appellate tribunal.
Because we are an appellate court, the raison d'etre of this institution is to review the judgment of the trial court without substituting our own preferred determinations in place of those of the trial court. In broadening the appropriate standard of review, the majority ignores “the fundamental distinction between the function of the fact finder, which is to make credibility determinations and to find facts, and the function of the appellate tribunal, which is to review, and not to retry, the proceedings of the trial court.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 156, 920 A.2d 236 (2007). Although the trial court is obviously not infallible, this court has historically recognized the trial court's advantage in seeing witnesses and evidence firsthand, which warrants great deference to its determinations. State v. Brown, 279 Conn. 493, 514, 903 A.2d 169 (2006). The review undertaken by this court, however, is confined to a cold, printed, and impersonal record. As such, we are not equipped to make factual findings. State v. Lipscomb, 258 Conn. 68, 74, 779 A.2d 88 (2001) (trial court is in “unique [position] to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us” [internal quotation marks omitted] ).
In order to present aversion of the facts that is faithful to the record and the factual findings of the trial court, I take the time here to restate the relevant facts in a manner that ensures their accuracy and reflects this court's proper role in relation to that of the trial court. At approximately 7 p.m. on January 28, 2011, Officers Elson Morales and Joseph Lawlor of the Bridgeport Police Department were on patrol in their cruiser in the vicinity of Madison Avenue and Capitol Avenue in Bridgeport. The officers were on alert that evening as the police anticipated a large influx of youth into the neighborhood due to a nearby high school basketball game and this area of Bridgeport was well-known among local police for robberies and other violent crimes. As Morales and Lawlor proceeded down Madison Avenue, they observed the defendant standing alone in the poorly lit parking lot of a Subway sandwich shop. Because Morales was aware that the Subway shop had been the target of previous robberies, he radioed his supervisor, Sergeant Ronald Mercado, who was on patrol nearby, and informed him of the defendant's presence.
A brief description of the Subway parking lot in which the defendant was standing is helpful in understanding the facts in the present case. The Subway shop and its parking lot are located on a corner lot at the intersection of Madison Avenue and Capitol Avenue. The parking lot wraps around the building containing the Subway in an L-shape and has vehicle entrances from both Madison Avenue and Capitol Avenue. At the time of the defendant's arrest, the parking lot was open and was not enclosed by a fence, gate, or wall. Although the parking spaces in the lot are for the customers of Subway and a nearby bakery, the back side of the Subway building contains a flight of stairs that begins in the parking lot at the corner of the “L” and ascends to upper floor apartment units. To reach the stairs, residents of the apartments would have to walk through the parking lot. Several parking spaces are painted onto the asphalt along the long side of the Subway building. Morales and Lawlor drove into the parking lot from the Madison Avenue entrance at the same time that Mercado pulled in from the Capitol Avenue entrance. The defendant was standing near one of the parking spaces along the side of the Subway building. Although both police vehicles were marked, there was no testimony that the officers had activated the lights or sirens in either vehicle. As soon as the police arrived, the defendant began to walk away while making a number of movements around his waist. When the officers exited their vehicles and approached the defendant, he blurted out, “ ‘I didn't rob anyone,’ ” and repeatedly told the officers that he was embarrassed. Morales then performed a patdown search of the defendant, during which a plastic packet fell from the defendant's waistband. Its contents were later found to contain narcotics. The majority's failure to apply the proper standard of review results in an array of “facts” and groundless inferences that support the majority's own outcome, but that often run counter to the trial court's findings of fact or address details that the trial court never considered. As an addendum to my presentation of the facts as they were actually found by the trial court, I am obligated to point out each instance in which the majority draws a conclusion that has dubious or nonexistent support in the record in order to fully demonstrate both the majority's alteration of the standard of review and the threats that the improper standard poses to this court's fundamental role as an appellate tribunal. Upon my own review of the record, I have identified the following fifteen instances in which the majority finds facts that have insufficient or no support in the record:
First, the majority “assume[s]” that the Subway outside of which the defendant was standing was open for business. The majority takes this for inviolable fact merely because at oral argument before this court the state acknowledged that the Subway may have been open. But merely because an attorney says something does not make it an indisputable fact, particularly so here, where the record is utterly devoid of any information about the Subway shop's business hours or whether it was open on the day and time of the defendant's arrest. Furthermore, it is an elemental principle that arguments of counsel are not evidence. See Bartholomew v. Schweizer, 217 Conn. 671, 684–85, 587 A.2d 1014 (1991). If that principle is true in the trial court, it surely holds equal force in this court.
Second, the majority decides that the “only reasonable inference” is that “anyone standing outside of the Subway” would “necessarily” have been standing in the shadows. (Emphasis in original.) The record does not support the majority's absolute conclusion that anyone in the parking lot would necessarily have been obscured in darkness. Although the record does reflect that there were not any lights on in the parking lot at the time of the defendant's arrest, Lawlor's testimony also clearly indicates that he nonetheless was able to see the defendant's silhouette and the color of his jacket despite the impenetrable darkness in which the majority concludes he “necessarily” would have been cloaked.
Third, the majority opinion concludes that the police cruisers “simultaneously” converged on the defendant, and then immediately contradicts itself by citing a statement to the contrary in the police report, namely that Morales and Lawlor entered the parking lot prior to Mercado's entrance. The trial court itself found only that the two cruisers entered the parking lot's two entrances at the same time, which is very different than the majority's would- be finding that the cruisers “simultaneously” converged on the defendant and blockaded him where he stood.
Fourth, the majority “must understand” the trial court's finding to “mean that the two cruisers arrived at the lot at approximately the same time” in order to support its preferred sequence of events, in which the cruisers “simultaneously converged on [the defendant's] position in the middle of the lot.” (Emphasis in original.) But why must we understand the trial court's memorandum of decision to mean anything other than exactly what it states: “The two officers and Sergeant Mercado entered the parking lot at the same time and through the only two entrances into the [Subway] parking lot.” The trial court's finding is supported by the officers' testimony, so why attempt to qualify or embellish it at all?
Fifth, the majority decides that the defendant could “presumably” have walked around the parked police cruisers onto either Capitol or Madison Avenues. The majority points to nothing in the record that supports this other than its own presumption.
Sixth, the majority assumes that “it would have been apparent” to the defendant that the police had entered the lot for the sole purpose of apprehending him. This is pure speculation. The defendant never testified and we have no way whatsoever of knowing what the defendant would have been thinking when the officers arrived in the parking lot.
Seventh, the majority concludes, with absolutely no basis, that the police would “not be expected to routinely patrol” in the area where the defendant was arrested. There is no support in the record for this proposition. Indeed, there is support to the contrary, namely Morales' testimony that he had previously conducted police work in that area of Bridgeport and was currently assigned to a special detail patrol of that area, and the trial court's finding that the officers' conduct was “normal” and “routine.”
Eighth, the majority describes, with much hyperbole, the defendant as being cut off in all directions by the police like the “protagonist” in “espionage and other action genre films.” This is an inaccurate reflection of the facts in the record as there is no indication that the officers blockaded the defendant with their cruisers all at once as the majority suggests.
Ninth, the majority “must at least assume” that the police illuminated the defendant in the headlights of their cruisers despite the lack of any testimony or evidence whatsoever indicating that the officers focused their headlights on the defendant. Why “must” we “assume” this? We should not be assuming anything, let alone drawing legal conclusions based on those assumptions.
Tenth, the majority, despite never having witnessed the police officers testify, takes it upon itself to correct an inconsistency in the testimony of the officers that the trial court itself never deemed necessary to address. No matter how “reasonable” the majority considers its own conclusion that Mercado spoke to the defendant first and Morales merely “interacted” with him, making such a resolution is fundamentally and solely the role of the trial court. At the suppression hearing, Morales testified that Mercado first spoke to the defendant, whereas Lawlor testified that Morales was the first to initiate contact with the defendant. But rather than just acknowledging the contradiction or requesting an articulation from the trial court, the majority simply resolves the factual inconsistency itself and in doing so may quite possibly have injected a factual error into its decision. Eleventh, the majority determines exactly what the officers would have seen from their cruiser on Madison Avenue, namely an “otherwise nondescript man ... if they could even discern that” the individual was actually a male or not. Lawlor testified that he saw the defendant's silhouette and the color of his jacket. The trial court found that Morales and Lawlor “observed [the defendant] standing alone” in the parking lot. There is no need to speculate beyond the trial court's finding and the officers' given testimony as to what they did or did not see.
Twelfth, the majority speculates as to why the defendant would have been standing in the Subway parking lot. Perhaps, the majority postulates, the defendant was “waiting for his children to come out of the restroom” or “reviewing the menu” or “pondering whether he was in the mood for sandwiches or fish” or “taking a smoke break” or “just getting a breath of fresh air.” Again, this is sheer speculation. The defendant never testified and we have no way of knowing what thoughts were in his mind prior to his arrest. And regardless, this is irrelevant to the issue before the court. Thirteenth, the majority assumes that “police-citizen relations” were estranged in the neighborhood of the defendant's arrest. There was no testimony to this effect and the trial court made no findings that the relationship between citizens and the police had broken down in the neighborhood where the defendant was arrested.
Fourteenth, the majority states that “[the police] never even testified that they actually believed the defendant was carrying a weapon.” Lawlor, however, clearly testified that the defendant was initially patted down for officer safety because the officers found the defendant's furtive movements around his waist “concerning ... [b]ecause typically weapons are hidden such as guns in the waistband, knives.” Despite the majority's insistence otherwise, the testimony demonstrates that, under the circumstances, the officers believed that the defendant may have been armed.
Fifteenth, the majority offers generic and unsupported approximations of the exact length of a typical human arm and the exact manner in which a typical human moves while walking in order to conclude that it would be “virtually impossible” for any person to behave in a manner contrary to the way the defendant behaved when the police approached him, specifically, in the present case, by making furtive movements around his waist. Again, the majority's statement has no basis, either in the record or reality.
Each of these fifteen examples represents an instance in which the majority has made factual findings—in many instances based on speculation. In thus expanding the scope of appropriate review and usurping the proper role of the trial court, the majority almost certainly ensures that some of its conclusions will rest in part on sheer factual error or unsupported inferences. This is patently unacceptable, particularly in cases—such as the present—that are of constitutional dimension. Having outlined the proper parameters of the standard of review, I now address the defendant's substantive claims and the majority's treatment of them. I first discuss whether the Appellate Court properly concluded that the record was inadequate to review the defendant's claim, raised for the first time before the Appellate Court, that he was seized when Mercado allegedly gave him a verbal command to stop. Both the majority opinion and the defendant assert that the existing record is sufficiently developed to review this new claim. The state counters that the Appellate Court was correct to find the record inadequate due to the defendant's failure to develop his claim at the suppression hearing, the absence of Mercado's testimony, and the conflicting testimony offered by Morales and Lawlor. I would conclude that the Appellate Court properly determined that the current record is insufficient to review the defendant's claim with any reasonable degree of accuracy. State v. Edmonds, supra, 151 Conn.App. at 770, 96 A.3d 607.
The majority begins by deciding outright—despite providing no factual analysis of the circumstances of the alleged verbal command—that the defendant was seized when Mercado ordered him to stop. Only then, after already deciding the defendant's claim that he was seized at that moment, does the majority consider whether the claim was even reviewable in the first place. The majority's approach, whereby it reviews whether it may review a claim after already deciding the claim, defies the most basic notions of our well developed jurisprudence. I am also seriously troubled that the majority reverses the decision of the trial court on the basis of its conclusion that the trial court incorrectly resolved a claim that the defendant never brought before the trial court, and, therefore, on which the trial court made no factual findings. As the defendant did not initially raise this claim at the suppression hearing, this court should review the unpreserved constitutional claim only if it satisfies all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Footnote omitted.) State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989) ; see In re Yasiel R., 317 Conn. 773, 775, 120 A.3d 1188 (2015) (modifying third prong of Golding ). Although this court has a strong interest in reviewing unpreserved claims of constitutional import, if the record is “insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant's claim.” State v. Golding, supra, at 240, 567 A.2d 823. We have “consistently ... declined to grant Golding review to fourth amendment claims wherein the predicate factual record was not completely developed before the trial court.” State v. Jenkins, 298 Conn. 209, 230, 3 A.3d 806 (2010).
Upon my review of the record, I would conclude that the Appellate Court properly determined that the defendant's claim did not warrant Golding review. State v. Edmonds, supra, 151 Conn.App. at 770, 96 A.3d 607. The majority suggests that the defendant's claim that he was seized upon Mercado's command to stop was raised at the suppression hearing because the defendant asked the trial court to determine when he was seized and “framed the issue more broadly,” and the trial court asked Morales to clarify who first made verbal contact with the defendant. The other one half of the majority's equation, however, is missing: the defendant never articulated that claim when specifically asked by the trial court to clarify his theories as to when the seizure occurred. Rather, defense counsel clearly stated that the theory of the defense was that the defendant was seized when the cruisers pulled into the parking lot or, in the alternative, when he was ordered to submit to a patdown. As a result of the claim never having actually been raised, neither the defendant nor the state introduced evidence to develop this issue and, consequently, the trial court's findings of fact do not address when, if, or how Mercado told the defendant to stop. Additionally, because Mercado was unavailable at the time of the suppression hearing and therefore never testified, the record is devoid of Mercado's own account of what he actually said or did when he allegedly commanded the defendant to stop. Neither of the claims that the defendant raised at the suppression hearing hinged on Mercado's actions or words. Although the prosecutor indicated that he initially had wanted Mercado to testify, after informing the court that Mercado was unavailable, the prosecutor moved on to his examination of Lawlor. Nothing in the record reflects that either party felt Mercado's testimony was indispensable to resolve the defendant's claims.
Additionally, the testimony of Morales and Lawlor regarding Mercado's actions is contradictory. Morales testified that Mercado verbally ordered the defendant to stop. Conversely, Lawlor testified that it was Morales who first verbally engaged with the defendant. As this particular detail was irrelevant to the defendant's claims that he was seized when the officers pulled into the parking lot or when Morales performed the patdown, neither party sought to reconcile the contradiction or examine the officers further in order to precisely determine Mercado's actions. Indeed, after Lawlor made the contradictory statement on direct examination, defense counsel extensively cross-examined Lawlor on a plethora of topics—the police report of the incident, Bridgeport's loitering ordinance, the exact logistics of how the officers approached the defendant—yet never once questioned him on his facially contradictory statement. Neither party subsequently used the contradiction in their arguments before the court nor did the court itself even make a finding of fact as to who first spoke to the defendant.1 Thus, the contradiction was clearly unimportant to both the parties and the trial court. As the Appellate Court noted, the defendant easily could have filed a motion for articulation pursuant to Practice Book § 66–5 in order to request that the trial court make findings on Mercado's alleged verbal command, but he did not do so. State v. Edmonds, supra, 151 Conn.App. at 771, 96 A.3d 607. Likewise, the majority—rather than annexing the fact-finding province of the trial court—could have remanded the case to the trial court and requested that it make the factual findings necessary for us to resolve the defendant's claim.
Because the parties never developed the testimony concerning the verbal command, the record currently before this court contains no information on exactly which officer gave the command, what the officer actually said, how he said it, the tone of voice in which he issued the command, where the officer was standing in relation to the defendant when he gave the command, whether the officer beckoned or gestured to the defendant while issuing the command, or whether the officer demonstrated a show of authority beyond that of his inherent authority as a law enforcement officer. Such information is pertinent to this court's analysis of whether the verbal command constituted a seizure of the defendant. On the current record, however, the feasibility of such an inquiry is severely curtailed, if not rendered practically impossible. See State v. Jenkins, supra, 298 Conn. at 230, 3 A.3d 806.
In an attempt to circumvent the mandate of Golding that this court may not review constitutional claims when the record is inadequate; State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823 ; the majority, in addition to broadening the standard of review, appears to advance the theory that a verbal command issued by a police officer is an indisputable seizure. The majority's talismanic, bright line approach is an anathema to this court's search and seizure jurisprudence, which has always held that the question of whether a defendant has been seized must be reviewed under the totality of the circumstances. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ; State v. Burroughs, supra, 288 Conn. at 844–48, 955 A.2d 43. Certainly, there may be cases in which a verbal command, under various circumstances, will amount to a seizure. See United States v. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. 1870 (relevant factors include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled”); State v. Benton, 304 Conn. 838, 844, 43 A.3d 619 (2012) (verbal command may constitute seizure, but only “in view of all the circumstances surrounding the incident”); but see United States v. Taverna, 348 F.3d 873, 878–79 (10th Cir.2003) (that police officer “hollered” and shouted command did not amount to seizure of defendant).
I also observe that both on this point and throughout, the majority relies to a vast extent on authorities from our sister courts in other jurisdictions, despite the body of on point, applicable case law established by this court's previous decisions. Merely because we do not have a previous case that is directly, factually analogous to the present case does not mean that we have an absence of authority to govern our decision. To be sure, it is often helpful for this court to examine case law from our sister courts, particularly when confronted with an issue of first impression or a split in authority. See State v. Berrios, 320 Conn. 265, 284–292, 129 A.3d 696 (2016) (conducting survey of federal and sister state case law to resolve inconsistency in this court's jurisprudence). The court is not faced, however, with such circumstances in the present case. The majority openly acknowledges that there “is no Connecticut authority directly on point” to support its result, and rightly so, because our own case law supports a result contrary to the majority's. See State v. Burroughs, supra, 288 Conn. at 846–49, 955 A.2d 43. The majority's use of case law from other jurisdictions in order to arrive at a result that is unsupported by our own prior decisions is simply unpersuasive and corrosive of the predictability and stability of our case law.
As I have stated, the record currently before the court is inadequately developed for the purpose of making a determination as to whether the defendant was seized when an officer issued a verbal command. Indeed, the very out of state cases that the majority offers in support of its own position lend support to the contrary: that a verbal command alone is not necessarily a seizure and must be evaluated under the particular factual circumstances of the command. See United States v. Stover, 808 F.3d 991, 997, 1000 (4th Cir.2015) (where uniformed police officers blocked defendant's parked car with their cruiser, with its emergency lights activated and spotlight on, officer's verbal command to defendant, who had exited his vehicle with loaded weapon, to return to his vehicle, did not constitute seizure until he submitted to show of authority); In re Martin H., Docket No. B151148, 2002 WL 1732650, *3 Cal.App. July 25, 2002) (holding defendant was seized where police shown spotlights on him and ordered him to “ ‘[c]ome here’ ” to parked police cruisers); Blake v. State, 939 So.2d 192, 195 (Fla.App.2006) (recognizing that police commands may constitute seizure under some circumstances, yet also recognizing that police encounters to determine individual's identity and address—goal of police in present case—is not unlawful seizure). Although the majority insists that its conclusion is supported by case law, a fair and impartial reading of these cases clearly demonstrates otherwise.
Due to what can only be its tacit acknowledgment that the record is indeed inadequate to address this claim, the majority opinion instead premises its conclusion that the alleged verbal command was a seizure on the fact that Morales and Mercado had driven their police cruisers into the Subway parking lot from opposite directions. Although the fact that the police vehicles were present in the parking lot is certainly a factor for this court to consider in its analysis of whether the defendant was seized under the totality of the circumstances, it is not alone dispositive of whether the verbal command itself was a seizure. Rather than discussing the actual verbal command—the details of which, of course, are completely unknowable to us based on the record—the majority obfuscates its own analysis by arguing that because the police cruisers had entered into the parking lot, any verbal order after that point was necessarily a seizure. It is curious that the majority devotes such substantial length and depth to the issue of the police cruisers entering the parking lot, especially since the majority itself expressly declines to address the defendant's claim that he was seized upon the entry of the cruisers on the basis that his claim regarding the verbal command is dispositive.2 See footnote 9 of majority opinion. And yet the majority's analysis is overwhelmingly devoted to the entry of the police cruisers while the professed dispositive claim, the alleged verbal command, is given only the most minimal attention.
In her concurring opinion, the Chief Justice—while agreeing that the defendant was seized “no later than the time at which he was commanded to stop by the police”—disavows the majority's analysis regarding the officers' entrances into the parking lot. Yet, the majority's conclusion that the verbal command was a seizure is ultimately premised on its analysis of how the police entered the parking lot in their police cruisers. In this regard, the concurrence appears to accept the majority's suggestion that a verbal command alone is sufficient to constitute a seizure.
Conversely, the Appellate Court concluded that the defendant was not seized until Morales performed a patdown search. The defendant argues that the Appellate Court improperly determined that he was not seized prior to the patdown, either when the officers first entered the Subway parking lot or, as the majority concludes, when Mercado allegedly commanded him to stop. In response, the state asserts that the Appellate Court's determination was correct, given the benign nature of the officers' encounter with the defendant until the time of the patdown search. Because the defendant's claim that he was seized upon Mercado's verbal command is unreviewable on the existing record, my discussion is confined to whether the defendant was seized when he submitted to Morales' patdown search or rather, as the defendant argues and the majority implicitly agrees, when the police initially drove into the two entrances of the Subway parking lot.
Under article first, §§ 7 and 9, of the Connecticut constitution, a person is seized when “by means of physical force or a show of authority, his freedom of movement is restrained.” (Internal quotation marks omitted.) State v. Burroughs, supra, 288 Conn. at 844, 955 A.2d 43. In determining whether a person has been seized, this court asks “whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Internal quotation marks omitted.) Id., at 845, 955 A.2d 43 ; United States v. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. 1870. This court has recognized, however, that although uniformed police officers are “cloaked with an aura of authority, this [aura alone] cannot, in and of itself, constitute a show of authority sufficient to satisfy the test for a seizure....” State v. Burroughs, supra, at 849, 955 A.2d 43. Our decisions have recognized that the investigatory function of the police often requires officers to approach individuals either on foot or in a police cruiser. In light of that recognition, this court consistently has held that “[t]he mere approach by a police officer, either in a police car or on foot, does not alone constitute a show of authority sufficient to cause the subject of the officer's attention reasonably to believe that he or she is not free to leave.” (Internal quotation marks omitted.) Id., at 849–50, 955 A.2d 43 ; State v. Hill, 237 Conn. 81, 91, 675 A.2d 866 (1996).
The trial court in the present case made specific findings of fact about the conduct of the police officers in the Subway parking lot on the night of the defendant's arrest. Although all of the officers were in uniform and entered the parking lot in marked police cruisers, nothing in the trial court's factual findings or underlying evidence shows that the officers had activated their cruisers' lights, drawn their weapons, or taken any actions that amounted to a show of authority sufficient to cause a reasonable person to believe that he was unable to leave. State v. Edmonds, supra, 151 Conn.App. at 772–73, 96 A.3d 607. As the officers themselves testified, their initial purpose in entering the parking lot and approaching the defendant was to initiate a consensual encounter with him and verify his identity given the history of robberies in the immediate area. Importantly, the trial court found that the actions of the police in the present case were “normal routine, legitimate and good police investigative techniques,” rather than a set of unusual circumstances. The majority makes much of Morales and Lawlor's decision to call Mercado for cover prior to entering the parking lot, but calling for cover is, and the trial court found it to be, routine police practice. Nothing in the record demonstrates that the officers physically or verbally restrained the defendant prior to the patdown.
The majority presents the call for cover as if it were part of some irregular, nefarious plot by the police rather than routine practice. Police calling for cover in seemingly harmless situations is routine for good reason. Consider State Trooper Russell Bagshaw who, pulling into a parking lot at night to investigate a potential burglary, did not call for cover and was shot and killed by a burglar exiting a nearby building. See State v. Johnson, 253 Conn. 1, 6, 751 A.2d 298 (2000).
Likewise, no evidence in the record indicates that the officers positioned their vehicles in such a way as to physically block the defendant from departing. Indeed, the officers' testimony demonstrates that after they pulled into the parking lot, the exits were not blocked. Additionally, during cross-examination, Lawlor used photographs of the Subway parking lot to demonstrate where the police cruiser was parked after entering the lot and his indications did not reveal that the cruiser was blocking the exit. On the basis of this testimony and the other evidence before it, the trial court did not find that the cruisers were used to physically barricade the exits from the parking lot. As nothing about the situation would have indicated to a reasonable person that he was not free to depart, there was no seizure. Such a result is consistent with this court's prior decisions under similar facts. See State v. Benton, supra, 304 Conn. at 840–41, 43 A.3d 619 (no seizure where police officer stepped into road into path of oncoming cyclist); State v. Burroughs, supra, 288 Conn. at 840, 849–50, 955 A.2d 43 (when police officers approached defendant's parked car from opposite sides there was no seizure).
The following exchange occurred on cross-examination:
“[Defense Counsel]: Okay. So at this point you're at one entrance, Sergeant Mercado at the other entrance. The entrance or exit, however you want to call it, they're blocked at this point with police cars?
“[Morales]: No, they're not blocked.”
The following exchange occurred on cross-examination:
“[Defense Counsel]: Okay. And here is State's exhibit number 3.... And to the best of your knowledge do you know where you parked your car if you can tell on that photo?
“[Lawlor]: Approximately in this area here. It's approximate. I'm not going to give you a definite spot....
“[Defense Counsel]: So let the record reflect that the witness pointed to the bottom center of the photograph, approximately, Your Honor. If that may be reflected.”
Notably, the defendant in the present case was in the parking lot as a pedestrian rather than a motorist. As the parking lot was not contained by a fence or a wall, a reasonable person traveling on foot would not have felt himself unable to leave because two police cruisers pulled into the exits intended for motor vehicles rather than foot traffic. Given the open, unenclosed nature of the parking lot in which the defendant was standing, the present case is readily distinguishable from the sister state authority on which the majority relies, as those cases all involve instances in which persons or their vehicles were seized in contained areas. See State v. Rustad, Docket No. 58691–2–I, 2008 WL 555945, *1 (Wn.App. March 3, 2008) (defendant seized where police cruiser partially blocked single exit from parking lot and police officers surrounded defendant's parked car); State v. Allen, Docket No. 02CA0059, 2003 WL 21276146, *3 (Ohio App. June 4, 2003) (defendant seized where police obstructed sole exit from contained hallway). Accordingly, I would conclude, contrary to the majority's implicit conclusion, that the Appellate Court properly held that the defendant was not seized prior to the patdown.
The law enforcement community and citizens living in crime-plagued neighborhoods will likely meet today's decision with bewilderment and frustration. Indeed, the majority opinion has grave and unsettling public policy implications. In essence, the defendant posits, and the majority agrees, that he was seized when two police cruisers pulled into a parking lot and when a police officer said something indeterminate to him. To characterize such police conduct as a seizure would convert a substantial number of ordinary interactions between the police and citizens into events of constitutional magnitude. The majority's result will adversely impact the “laudable interaction between the officer and citizenry” in the “performance of his duty to guard the public safety and welfare....” State v. Burroughs, supra, 288 Conn. at 854, 955 A.2d 43 ; see also United States v. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. 1870 (“characterizing every street encounter between a citizen and the police as a ‘seizure,’ while not enhancing any interest secured by the [f]ourth [a]mendment, would impose wholly unrealistic restrictions [on] a wide variety of legitimate law enforcement practices”).
In addition to the detection and prevention of crime, the police perform an important community caretaker function. The desirable social benefits of cooperative discourse between police officers and citizens will be snuffed out by the majority's conclusion that under the routine circumstances of the present case the officers' conduct constituted a seizure. See Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (“not all personal intercourse between policemen and citizens involves seizures of persons” [internal quotation marks omitted] ); State v. Clark, 297 Conn. 1, 10, 997 A.2d 461 (2010) ( “[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 the purposes of investigating possibly criminal behavior” [internal quotation marks omitted] ); State v. Burroughs, supra, 288 Conn. at 853, 955 A.2d 43 “the constitution does not prohibit, or even discourage, healthy, mutually beneficial intercourse between the public and the police sworn to protect them”); State v. Foote, 85 Conn.App. 356, 361–62, 857 A.2d 406 (2004) (recognizing community caretaker function of police and holding that there was no seizure when police approached stranded motorist to render assistance), cert. denied, 273 Conn. 937, 875 A.2d 43 (2005).
The majority, however, fails to see any such consequences. Although the majority's conclusions are certainly drawn from a legitimate concern for the constitutional rights of defendants, its conclusion that a defendant may be seized merely when two police cars enter a parking lot or when a police officer utters an unknown phrase to a defendant is an impractical and imprudent rule that ignores the reality of police work, particularly police work in those areas inundated with violent crime. Under the majority's conclusion, police will be less likely to initiate consensual encounters with citizens, as such encounters can now easily be transformed into events of constitutional magnitude by the mere act of an officer's approach. Indeed, after today's decision it is difficult to imagine what police-citizen interactions will not be considered a seizure. Given the numerous streets, businesses, and parking lots that can be found in any large, urban area, the police will be hamstrung in their ability to thoroughly investigate and prevent crime because approaching a citizen to obtain information could easily evolve into a seizure. In turn, citizens living in dangerous areas will ultimately be less safe and such areas will become fertile soil for the growth of further crime. The majority accurately observes that in areas with a history of strained relations between the police and citizenry, some citizens may be intimidated by the mere approach of a police officer. But what better way to rectify such a situation than developing a positive dialogue between police officers and the members of the communities that they serve? The majority's take undercuts the possibility of improving police-citizen relationships at the outset.
In his concurring opinion, Justice Robinson responds to my concerns that today's decision will make it more difficult for law enforcement to carry out its investigative duties. If, as the majority concludes and the concurring justices agree, a police officer cannot speak to a citizen without that interaction becoming the equivalent of taking that citizen into custody, then the police will be unable to effectively communicate with local communities in order to investigate criminal activity and gather information while on patrol. In the present case, we have no idea what the police actually said to the defendant and no way of knowing, given the incomplete state of the record. In this regard, the position that Justice Robinson takes in his concurring opinion further underscores the inadequacy of the record and my belief that its inadequacy places the particular question of whether the verbal command constituted a seizure beyond this court's review.
Justice Robinson—joined by every other member of the majority in an ostensible concurrence—also raises a series of legitimate concerns regarding racial profiling and suspicionless police stops. Although I agree entirely with the concerns that his concurring opinion expresses, I note that issues of race are simply not implicated in the present case. I do not understand why the concurring justices find it necessary to raise and exhaustively discuss issues of race when it has no foundation in the established facts of the case. While the issue of racially motivated policing is currently a prominent topic in our national discourse, as Justice Robinson's concurring opinion itself acknowledges, this case “is not the proper place or time” to discuss “complex societal issues” such as those that the concurrence itself raises. See footnote 1 of Justice Robinson's concurrence. The issues of race raised by his concurrence should properly be discussed and debated in the public forum and it is not the role of this court to insert ourselves into that conversation when the parties themselves did not see fit to raise it.
Most importantly, at no point in the history of this appeal did the defendant or his counsel ever allege that the defendant was impermissibly stopped by the police on the basis of his race. In their testimony, the officers stated that when they first observed the defendant, they could only see his silhouette and that he was wearing a jacket. Nevertheless, Justice Robinson's concurring opinion chooses as its starting point that the defendant was stopped because he is a black man, an unfounded factual implication based on assertions that the majority makes without reference to the record. I have already discussed at length elsewhere in this opinion the utter lack of support in the record for such assertions. The theory that the defendant was the target of racial profiling by the police is yet another outgrowth of the inadequacy of the record in the present case and demonstrative of the factual uncertainties created by the majority's attempt to draw facts from the record that simply are not present.
Contrary to the conclusions of the majority, it is my opinion that the Appellate Court properly concluded that the defendant was seized when Morales performed a patdown of his person. There is no dispute in the present case that the patdown was a seizure: the police had both exerted the authority of their position and physically restrained the defendant. Once the police begin to perform a patdown search, a reasonable person would not believe he was free to disengage with the police and leave of his own volition.
Only after having first determined that a defendant has been seized, this court asks whether the police possessed a reasonable and articulable suspicion that the defendant was engaged in criminal conduct when seized. Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Brown, supra, 279 Conn. at 517, 903 A.2d 169 ; State v. Lipscomb, supra, 258 Conn. at 75–76, 779 A.2d 88. Thus, an analysis of whether the police possessed a reasonable and articulable suspicion is distinct from our analysis as to when a defendant has been seized. State v. Brown, supra, at 516, 903 A.2d 169. Reasonable and articulable suspicion is an objective standard that asks “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, 645 A.2d 529 (1994). In conducting that inquiry, we recognize that “the totality of the circumstances—the whole picture—must be taken into account.” (Internal quotation marks omitted.) State v. Mann, 271 Conn. 300, 323, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1711, 161 L.Ed.2d 527 (2005) ; see also United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
In determining whether the police had a reasonable and articulable suspicion, this court has always acknowledged that there are certain circumstances that, while seemingly innocent on their own, may justify a seizure when viewed in conjunction with other circumstances that are present. Thus, while an individual's presence in a high crime area alone is not enough to provide officers with reasonable suspicion, officers need not disregard “the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” (Internal quotation marks omitted.) State v. Benton, supra, 304 Conn. at 848, 43 A.3d 619 ; see Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Likewise, “[n]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” (Internal quotation marks omitted.) State v. Mann, supra, 271 Conn. at 324, 857 A.2d 329. Similarly, an individual's attempt to “reach into his pocket or some other place where a weapon may be concealed is a fact that supports a reasonable suspicion....” Id., at 325–26, 857 A.2d 329. Although the aforementioned circumstances may give rise to reasonable suspicion, we do not require that the police actually observe criminal activity prior to performing an investigative stop, as “reasonable and articulable suspicion can arise from conduct that alone is not criminal.” (Internal quotation marks omitted.) State v. Lipscomb, supra, 258 Conn. at 76, 779 A.2d 88.
In my view, the established facts in the present case lead unfalteringly to the conclusion that the officers possessed a reasonable and articulable suspicion of criminal activity at the time they administered a pat-down search of the defendant. The record reflects that robberies and other violent offenses were commonplace in the area of Bridgeport in which Morales and Lawlor were on patrol. The officers witnessed the defendant standing alone in the shadows of the empty parking lot of a Subway shop that had been previously robbed. Although the officers may have been curious as to why the defendant was present in that location, nothing under the circumstances was at that point sufficient to merit a seizure.
The defendant's own words and actions immediately prior to the patdown, however, provided the police with the requisite reasonable and articulable suspicion. Both the trial court and the Appellate Court found this to be determinative and I would agree with their assessment. The record reflects that once the officers pulled into the Subway parking lot, the defendant began to walk away and make furtive movements around his waist. Lawlor later testified that he was concerned that the defendant may have had a weapon in his waistband. See State v. Mann, supra, 271 Conn. at 325–26, 857 A.2d 329. Oddly, the majority frames the entire question of whether the police possessed a reasonable and articulable suspicion sufficient to support an investigative stop through the lens of whether the police possessed a “reasonable and articulable suspicion of gun possession....” This is not the correct standard. The analysis as to whether the police possess the requisite suspicion to support an investigative Terry stop does not vary depending on what manner of criminal activity the defendant is suspected of being involved in by the police, but rather on whether the police possessed a reasonable suspicion of criminal activity in general. Terry v. Ohio, supra, 392 U.S. at 21–22, 88 S.Ct. 1868.
Despite the lack of testimony or findings of the trial court supporting its view, the majority discounts the significance of the defendant's movements around his waist by observing that “a typical man's hands hang only a few inches or so below his waist,” and “under normal circumstances it is virtually impossible to turn and walk off in such a way that the hands do not appear to come into proximity [with the waist].” This unfounded observation about human anatomy is insufficient to serve as the justification for resolving a constitutional claim. I disagree that we should retailor our prior case law holding that furtive movements around the waist are a factor that may contribute to a reasonable and articulable suspicion; State v. Mann, supra, 271 Conn. at 325–26, 857 A.2d 329 ; merely on the basis of the majority's groundless conclusion that the defendant was merely “adjusting his pants....” Once the officers exited their vehicles, the defendant spontaneously blurted out, “ ‘I didn't rob anyone,’ ” while standing next to the Subway shop that had a history of prior robberies. He then told the officers numerous times that he was “embarrassed.”
Under the totality of the circumstances, it is clear to me that the defendant's actions and words in response to the police presence provided the officers with a reasonable and articulable suspicion that the defendant was engaged in criminal conduct. Although each factor may be viewed as innocuous on its own, when taken together, the defendant's evasive behavior, furtive movements around his waist, presence in a high crime area at night, and unsolicited statement that he had not committed a robbery were sufficient to paint a portrait of potential criminal activity. See State v. Benton, supra, 304 Conn. at 848–49, 43 A.3d 619 ; State v. Mann, supra, 271 Conn. at 323, 857 A.2d 329. In my opinion, the Appellate Court correctly determined that the officers possessed a reasonable and articulable suspicion when they seized the defendant. As the seizure thus falls within constitutionally valid parameters, I therefore, would affirm the judgment of the Appellate Court upholding the trial court's denial of the defendant's motion to suppress. Accordingly, I respectfully dissent.