Opinion
N23NCR170176771
11-15-2019
STATE of Connecticut v. Wendell MCCLEAN
UNPUBLISHED OPINION
OPINION
Elpedio N. Vitale, Judge
The defendant, Wendell McClean, stands charged in an information with Weapons in a Motor Vehicle, in violation of Connecticut General Statutes § 29-38, Carrying a Pistol without a Permit, in violation of Connecticut General Statutes § 29-35(a), Criminal Possession of a Firearm, in violation of Connecticut General Statutes § 53a-217, Failure to Display Plate, in violation of Connecticut General Statutes § 14-18(a), and Illegal operation of a Motor Vehicle without Tint Inspection, in violation of Connecticut General Statutes § 14-99g(g).
The charges arise out of events that are alleged to have occurred on June 12, 2017, in New Haven near the area of College Street near Chapel Street, during a motor vehicle stop effectuated by members of the New Haven Police Department. On April 3, 2019, the defendant filed a document captioned "Motion to Suppress Evidence," wherein the defendant seeks to "suppress from evidence the fruits of searches and/or seizures of the defendant’s person, house, papers, and effects" pursuant to "Connecticut Practice Book Section 41-12 et seq., the Fourth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article One, Sections 7 and 8 of the Connecticut Constitution." The defendant’s written motion posits several grounds he suggests warrant the suppression of "any physical evidence" seized. Only one such ground, however, that "property was illegally seized without a warrant under circumstances requiring a warrant," appears arguably relevant after a hearing on the motion.
Although not clearly articulated in the written motion filed with the court, the defendant asserted during argument on the motion and in his brief that he is challenging the stop and subsequent search of his motor vehicle.
An evidentiary hearing on the motion was conducted on divers dates in April, May and June 2019. Following the hearing, the court afforded counsel for the defendant and the state the opportunity to submit briefs in support of their respective claims. The defendant’s brief was originally due to be submitted July 11th, 2019. The defendant sought, and was granted, two continuances past the original July 11, 2019 due date to file his brief. Ultimately, defendant’s brief was scheduled to be filed by September 5, 2019. Nevertheless, the defendant’s brief was filed eleven days late, on September 16, 2019. The state’s response was timely filed on October 4, 2019. The court heard oral argument on the motion on October 15, 2019.
In reaching its conclusions, the court has fairly and impartially considered all of the evidence received at trial; evaluated the credibility of the witnesses; assessed the weight, if any, to be given specific evidence and measured the probative force of conflicting evidence; reviewed all exhibits, relevant statutes, and case law; and has drawn such inferences from the evidence, or facts established by the evidence, that it deems reasonable and logical. To the extent it is necessary to further amplify, the court’s credibility determinations for each witness were made, inter alia, on the basis of the conduct, demeanor, and attitude of the witnesses as well as all the other factors relevant for each witness with respect to the credibility evaluation. See Lapointe v. Commissioner of Corrections, 316 Conn. 225, 268-71, (2015). Additionally, any other evidence on the record not specifically mentioned in this decision that would support a contrary conclusion, whether said evidence was contested or uncontested by the parties, was considered and rejected by the court. See State v. Edmonds, 323 Conn. 34 (2016).
For the reasons set forth below the motion is hereby denied.
The defendant’s brief and oral argument referenced a state constitutional claim. However, the defendant’s brief, and oral argument, while overtly mentioning a state constitutional claim, did not clearly or fully address for purposes of a state constitutional claim, the precise issues at play in the instant motor vehicle stop or analyze the evidence and the issues applying the factors enumerated in State v. Geisler, 222 Conn. 672, 684-86 (1992). "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones." State v. Colthurst, 192 Conn.App. 738, 757 (2019).
I. Findings of Fact
Based on the evidence and the reasonable and logical inferences therefrom, the court finds the following facts.
Detective Ryan Macuirzynski at the New Haven Police Department was assigned to the Shooting Task Force ("task force") on June 12, 2017 and was partnered with fellow task force officer Eric Bailey of the Yale Police Department. At approximately 6:30 p.m. on that date, while on patrol and positioned in an unmarked police vehicle, Macuirzynski and Bailey observed a white Nissan Maxima parked on Adam Clayton Powell Place. The vehicle was registered to the defendant Wendell McClean. The task force had previously received information from confidential informants and sources that the defendant was armed with a firearm, and had been robbing "drug dealers" while utilizing a firearm. Macuirzynski and Bailey were aware that the defendant was a convicted felon and was therefore not permitted to be in possession of a firearm. Specifically, they were aware that the defendant’s prior criminal history included "gun charges, weapons charges, [and] narcotics charges." Additionally, they were further aware based on an ongoing New Haven Police Department homicide investigation, that the defendant was an associate of the homicide victim. The homicide had occurred approximately two weeks prior to the events of June 12, 2017. The homicide had occurred on Dickerman Street in New Haven. In connection with the defendant’s association with the homicide victim, police additionally had received information that the defendant was armed to "protect himself from retaliation," as the defendant "had a lot of associations with the people that were involved with [the homicide]." As a result of the foregoing information, Macuirzynski believed that the defendant was "armed at all times." Bailey and Macuirzynski then drove past the white Nissan to determine if it was occupied. The vehicle was unoccupied at that time. Bailey and Macuirzynski were interested in interviewing the defendant about the homicide. The Nissan was observed to be heavily tinted and failed to display a "tint sticker" in compliance with Connecticut General Statutes § 14-99g(g). Additionally, the Nissan did not have a license plate affixed to the front bumper as required by Connecticut General Statutes § 14-18(a). Bailey and Macuinzynski remained in their vehicle and in close proximity to the Nissan. After "a little while," the defendant was observed by Bailey and Macuirzynski to exit a building quickly and then enter the driver’s side of the Nissan. The defendant then drove the Nissan away. There was no evidence of anything in the defendant’s hands as he walked toward the Nissan. The defendant was wearing a white "T-shirt" and blue jeans. There was no further evidence describing the defendant’s overall conduct or appearance as he walked to the Nissan from "the building." Once the defendant began to operate the Nissan, Bailey radioed New Haven Police Department communications and advised communications that they were going to follow his vehicle, and requested a marked police unit stop the Nissan for the motor vehicle violations. Macuirzynski requested a marked police cruiser conduct the stop, due to his belief that the defendant may be armed and "having a marked police cruiser pull him over would be safer." They followed the defendant’s vehicle for "several minutes" until a motor vehicle stop was made on College Street between Elm and Chapel Streets. The time of the stop was approximately 7:00 p.m. Officer John Moore of the patrol division actually conducted the motor vehicle stop. Moore was operating a marked police vehicle and had received a dispatch via police radio that an "I-Unit" had been following a vehicle. Moore was informed by dispatch that the "I-Unit" was looking for a marked patrol vehicle to initiate a stop on the vehicle they were following. Officer Moore was told to use caution when effectuating the stop as "the driver of the vehicle was known to carry a firearm." Moore first observed the vehicle in the area of College Street just before Elm Street while he was traveling northbound on College Street and the subject vehicle was traveling south bound. Moore noted that the Nissan lacked a front license plate. Moore then made a "U-turn" in order to travel behind the Nissan, and as he closed behind it, activated his overhead lights. Moore initiated the stop on the vehicle based on his observation that the vehicle lacked a front license plate. The lack of a front license plate constituted a motor vehicle violation enabling Moore to initiate a motor vehicle stop. But for his observation at the motor vehicle infraction, Moore would not have initiated the stop.
Bailey and Macuirzynski thereupon pulled in front of the defendant’s Nissan and parked their unmarked vehicle at an angle. Macuirzynski exited his vehicle from the passenger side, and approached the defendant’s vehicle. He "yelled" at the defendant, identifying himself as a police officer. As he approached the defendant’s vehicle, and from a distance of approximately ten to fifteen feet, Macuirzynski was able to observe the defendant through the front windshield of the Nissan. Although the Nissan had a "small tint up top," the entire windshield was not tinted. He was able to see directly into the driver’s side of the vehicle. At that point, Macuirzynski observed the defendant’s body "toward the right side of the vehicle, the passenger side." Macuirzynski could not ascertain exactly what the defendant was doing, but clearly saw the defendant "leaned over to the right." He could not see the defendant’s hands.
Macuirzynski then began yelling to the defendant to "show me your hands." Given the information Macuirzynski possessed regarding the defendant’s potential to be armed with a firearm, Macuirzynski "wanted to see his hands." The defendant complied with Macuirzynski’s request.
Bailey and Moore proceeded to the driver’s side of the Nissan and Macuirzynski went to the passenger side. There was no evidence the glove box was open, at that time, or that police, when approaching, had asked the defendant for his registration or insurance paperwork. The defendant was removed from the Nissan by Bailey and Moore, handcuffed, and placed into Moore’s police vehicle.
Macuirzynski thereupon searched the passenger compartment within the Nissan where he had observed the defendant "lean over to," including the front driver’s seat, and the front floorboard. He then "made his way to the rear passenger area." The areas he searched were all consistent with the areas he saw the defendant "leaning to." On the rear floorboard of the Nissan, behind the front passenger seat, Macuirzynski located an unlocked "box." There is a "latch" or "clasp" apparatus that secures the lid of the box. It is not a locking mechanism. The "box" was not locked. However, Macuirzyunski could not recall the precise location of the "box" behind the front passenger seat other than it was on the floor. Within the box, Macurizynski discovered a 9mm, semi-automatic pistol. Detective Ann Mays, assigned to the New Haven Police Department Bureau of Investigation, arrived on scene and took possession of the "box." The "box" was located on the back seat of the Nissan in an open position when Detective Mays first observed it.
Additional facts will be provided as needed.
II.
Discussion
A. Whether the Motor Vehicle Stop Was Based on Reasonable and Articulable Suspicion
"Under the fourth [and fourteenth amendments] to the United States constitution and article first, § § 7 and 9 of [the Connecticut] constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest ... [I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion ... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity." State v. Santos, 267 Conn. 495, 503 (2004). "Any inquiry into the permissible justification for, and boundaries of, a particular investigatory detention and pat-down search is necessarily fact bound." State v. Trine, 236 Conn. 216, 224 (1996).
"Pursuant to Terry v. Ohio, 392 U.S. 1 88 S.Ct. 1868 (1968), a police officer has authority, under the fourth amendment to the United States Constitution, to stop the driver of a car if the officer has a reasonable and articulable suspicion that the driver has engaged in illegal conduct." State v. Barone, 154 Conn.App. 552, 543 (2015) (internal citations omitted).
"A police officer has the right to stop a motor vehicle operating on a Connecticut highway even if the reason for the stop is only an infraction under our traffic laws. Upon doing so, he prudently may prefer to ask that an occupant exit the vehicle." State v. Dukes, 209 Conn. 98, 122 (1988). The police may order the operator of a lawfully stopped motor vehicle to exit the motor vehicle even for an infraction. As the Supreme Court stated in Pennsylvania v. Mimms, 434 U.S. 106 (1977) ... "[w]e are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis." Mimms at 111.
"[A] Terry stop is justified to detain a motor vehicle when there exists a reasonable and articulable suspicion of a traffic violation." State v. Thomas, 98 Conn.App. 542, 549, cert. denied, 281 Conn. 910 (2009). "[T]he United States Supreme Court has further defined reasonable suspicion for a traffic stop as requiring some minimal level of objective justification for making the stop." Whether police are justified in stopping a motor vehicle for a traffic infraction is an issue of fact." Id. The United States Supreme Court has held that the constitutional reasonableness of traffic stops does not depend on the actual motivations of the individual officers involved. "Not only have we never held ... that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary." Whren v. U.S., 517 U.S. 806, 812 (1996). Thus, "[i]t is well established that an officer’s subjective intent in pulling over a motorist is irrelevant to the question of whether the officer’s conduct violates the constitution. " State v. Willoughby, 153 Conn.App. 611, n.11 (2014).
At oral argument, the defendant appeared to acknowledge that there is no question that police had the independent authority to stop his vehicle for its missing license plate and tinted windows because a police officer has the right to stop a motor vehicle operating on a Connecticut Highway even if the reason for the stop is only an infraction. See State v. Dukes, 209 Conn. 98, 10 (1988). The defendant argued, however, that the stop based on the license plate and tinted window infractions was pre-textual. The defendant claims that the testimony of Bailey, Macuirzynski, and Moore shows that the real reason for the stop was to find a way to pressure the defendant into cooperating with an investigation into a recent homicide that the police believed the defendant had knowledge about. As a result, the defendant argues that the subjective motivations of Bailey, Macuirzynski, and Moore render the stop unconstitutional.
The defendant recognized that his argument that the stop is invalid on federal constitutional grounds is foreclosed by the Supreme Court’s decision Whren v. United States, 517 U.S. 806, 812-13, (1996), where the court held that a temporary detention of a motorist on probable cause to believe that he had violated traffic laws does not violate the fourth amendment’s prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. The court went on to state that its prior decisions in United States v. Villamonte-Marquez, 462 U.S. 579, (1983); United States v. Robinson, 414 U.S. 218 (1973); and Scott v. United States, 436 U.S. 128 (1978), served to "foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved," and further iterated that "[s]ubjective intentions play no role in ordinary, probable cause Fourth Amendment analysis." Whren v. United States, supra, 813. Thus, pursuant to Whren, "the term ‘pretextual’ has become something of a misnomer as an officers’ motivations for a stop are irrelevant if the stop was independently justified ..." State v. Norman, Superior Court, judicial district of New London, Docket No. CR07-283066T (March 20, 2008, Abrams, J.) (45 Conn.L.Rptr. 240). As noted by one commentator, after the Whren decision, "the pretext doctrine has disappeared from Fourth Amendment jurisprudence ..." W. LaFave, Search and Seizure (4th Ed. 2004) § 1.4 p. 20. Our Appellate Court has applied the objective standard from Whren in holding that as long as there is a justifiable basis for a stop, the subjective intent of the officer will not render the stop unconstitutional under our federal constitution. See State v. Jones, 113 Conn.App. 250, 265, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009); see also State v. Parker, 84 Conn.App. 739, 745 (2004), cert. denied, 272 Conn. 912 (2005).
"An officer making a traffic stop may order passengers to get out of the car pending completion of the stop ... passengers have no fourth Amendment right not to be ordered from their vehicle, once a proper stop is made." Maryland v. Wilson, 519 U.S. 408, 412-12 (1997).
The court concludes that, based on the uncontroverted evidence presented, that police had a reasonable and articulable suspicion that traffic violations had been committed by the defendant, to wit, Failure to Display Plate in violation of Connecticut General Statutes § 14-18(a) and Illegal operation of a Motor Vehicle without Tint Inspection, in violation of Connecticut General Statutes § 14-99g(g). Therefore, police had a reasonable and articulable suspicion to stop the defendant’s vehicle. See also State v. Butler, 296 Conn. 62, 73-74 (collective knowledge doctrine also applies to reasonable suspicion). There was an particularized and objective basis for suspecting the defendant was operating his motor vehicle in violation of relevant motor vehicle statutes.
There is no evidence that the defendant was subject to custodial arrest for the infractions described herein. Thus Arizona v. Grant, 556 U.S. 332 (2009), would appear inapplicable to the evidence presented.
B. Whether the Weapons Search of the Vehicle was Justified
Under the federal constitution and pursuant to United Supreme Court precedent, an officer’s permitted "to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual ... is dangerous and might access the vehicle to gain immediate control of weapons." State v. Butler, 296 Conn. 62, 71 (2010) (internal citations omitted.)
"[S]uspects in handcuffs can remain a danger to police, particularly when weapons are present ... the fear of a person gaining immediate control of weapons does not limit itself to the time of the stop, but extends through the entire interactions between him and the officers." Id. (Internal citations omitted). "In a no-arrest case, the possibility of access to weapons in a vehicle always exists, since the driver ... will be allowed to return to the vehicle when the interrogation is completed." State v. Butler, supra at 72. (Internal citations omitted.)
With regard to the reasonable suspicion determination, as previously noted, the collective knowledge doctrine is applicable. "The collective knowledge of law enforcement officers conducting an investigation is sufficient to provide reasonable suspicion, and the collective knowledge can be imputed to the individual officer who initiated the traffic stop ... we have recognized that reasonable suspicion or even probable course can be establishing by the collective knowledge or pooled knowledge principle." State v. Butler, supra, 73-74. (internal quotations and citations omitted). Under the collective knowledge doctrine, the knowledge of Macuirzynski and Baily, gleaned as members of the task force, may be considered in determining whether Macuirzyski had reasonable suspicion sufficient to justify the protective search.
The search of the passenger compartment of an automobile is limited to those areas in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032 (1983). Thus, "a search for weapons in the passenger compartment of a motor vehicle is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing the suspect is dangerous and the suspect may gain immediate control of weapons." Id. at 1049-50.
"Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion ... The police officer’s decision ... must be based on more than a hunch or speculation ... In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Internal quotation marks omitted.) State v. Wilkins, 240 Conn. 489, 496 (1997).
In Michigan v. Long, supra, the Supreme Court considered whether the reasoning in Terry should be extended to permit a police officer to conduct a protective search of the passenger compartment of an automobile during an investigative stop. The court explained that it had previously held that the "protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect." Id., 1049. The court concluded that its prior rulings compelled the conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inference from those facts, reasonably warrant" the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. (Internal quotation marks omitted.) Id. The court rejected the argument that such a search would not be permissible absent a full custodial arrest. See id., 1051. Rather, the court explained that a suspect who is detained for investigation and therefore temporarily under the control of a police officer may nonetheless "break away from police control and retrieve a weapon from his automobile" much in the same way as a suspect could reach into his clothing for a weapon. Id., 1051. Moreover, the court reasoned that if the suspect is not ultimately placed under arrest, that the "officer remains particularly vulnerable in part because a full custodial arrest has not been effected." (Emphasis omitted.) Id., 1052. In that instance, the suspect will be permitted to return to his automobile thereby providing him full access to any weapon that may be secreted inside. Id. Accordingly, the court ruled that it was permissible for an officer to conduct a protective search of the passenger compartment of an automobile in order to mitigate the inherent danger of investigative detentions involving suspects in motor vehicles, which, the court explained, "are especially fraught with danger to police officers." Id.
Our Supreme Court has concluded that the rules enunciated in Terry regarding investigatory detentions and protective searches extend to motor vehicle stops and as such, the Connecticut constitution does not afford greater protection than the fourth amendment in the area of protective searches of motor vehicles. See State v. Wilkins, supra, 240 Conn. 508-09. The court explained that the same safety concerns underlying Terry permit "a limited weapons search of the passenger compartment of a lawfully stopped vehicle." Id., 509. Consistent with federal law, the court explained that the focus is on whether the officer had a reasonable and articulable suspicion to believe that the defendant posed a danger and might access the vehicle to gain control of a weapon. See id. ,; see also State v. Butler, 296 Conn. 62, 72 (2010). Moreover, "[t]he fear of a person’s gaining immediate control of weapons does not limit itself to the time of the stop, but extends through the entire interaction between him and the officers." (Citations omitted; internal quotation marks omitted.) State v. Butler, supra, 72. That is, "if the suspect is not placed under arrest, he will be permitted to go free, and he will then have access to any weapons" that may be in the vehicle. Id., 72. Consequently, an officer must be permitted to "take preventive measures to ensure that there [are] no weapons within the defendant’s immediate grasp before permitting him to reenter his vehicle." State v. Wilkins, supra, 509-10. To hold otherwise, "would impose upon a police officer a Hobson’s choice: do not make a limited intrusion even though there exists a reasonable belief that a weapon may be concealed, thereby increasing the risk that he will be shot; or, when possible, as in this case, formally arrest the defendant and have the vehicle towed to the station to ensure police safety. Neither of these alternatives, however, is reasonable." Id., 510.
As he approached the defendant’s vehicle following the lawful traffic stop, Macuirzynski observed the defendant, the operator and sole occupant of the Nissan, "[lean] over to the right" and saw his body "toward the right side of the vehicle, the passenger side." Macuirznski could not see the defendant’s hands, and thus yelled at the defendant to "show me your hands." As a member of the task force, Macuirzynski was aware of information describing the defendant as "armed with a firearm" and "robbing drug dealers," as well as his past criminal history. That history included "gun and weapons charges." He was also aware of the defendant’s association with a recent homicide victim and that he may have armed himself "to protect himself from retaliation."
"Our case law is clear ... that a furtive movement may be a factor in determining whether there exists reasonable suspicion to believe that a detained individual is armed." State v. Willoughby, 153 Conn.App. 611, n.12 (2014) (internal citations omitted).
"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger ... and in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." State v. Nash, supra, 278 Conn. 620, 630 (2000).
"[T]he essence ... is that the totality of the circumstances- the whole picture- must be taken into account. Based upon that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped ..." United States v. Cortez, 449 U.S. 411, 417-18 (1981). "[A] suspect’s reaction to police may be one factor considered in the totality analysis." State v. Nash, supra at 636. "[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion." State v. Tuck, 90 Conn.App. 872, 879-80 (2005). As noted in State v. Willoughby, supra, furtive movement by a suspect is an additional factor to be considered in the reasonable suspicion analysis using the totality of the circumstance. See, e.g., United States v. Paulino, 850 F.2d 93, 94 (2nd cir. 1988) (movement of backseat passenger "as if placing an object on the floor" established cause to lift floor mat as part of protective search); United State v. Carr, 674 F.3d 570, 574 (6th cir. 2012) ("bending toward the middle console); United States v. Campbell, 549 F.3d 364, 369, 371 (6th cir. 2008) ("slouching down ... with hands out of sight"). United States v. Graham, 483 F.3d 431, 439 (6th cir. 2007) ("a dip with his right shoulder toward the floor"); United States v. DeJear, 552 F.3d 1196, 1200 (10th cir. 2009) ("stuffing movements toward the seat"); United States v. Bell, 480 F.3d 860, 862, 864 (8th cir. 2007) ("reaching back"); United States v. Tillman, 543 Fed.Appx. 557 (2013) ("driver ‘quickly reached’ over to front passenger side of car, disregarding commands to keep hands on steering wheel"); United States v. Carter, 366 Fed.Appx. 136 (11th cir. 2010) (suspicious reaching provided articulable suspicion ... ). Also, in State v. Tyner, Superior Court, judicial district of Fairfield, Docket No. CR18-0300554S (May 20, 2019, Dayton, J.), an officer observed a vehicle with a low hanging bumper that bore the same license plate as a vehicle involved in a threatening with firearm incident one week prior. The officer pulled the vehicle over and as he approached the defendant, the driver of the vehicle dipped his right shoulder. See id. The officer approached the driver side of the vehicle and asked the defendant to step out of the vehicle. See id. The defendant was cooperative and complied with the request. See id. After patting down the defendant, who was not armed, the officer asked a passenger in the vehicle to step out so he could search for weapons. The officer looked within the driver’s wingspan to ensure that there were no weapons within the reach of the driver’s seat before he let the defendant re-enter the vehicle. Within seconds of the search the officer discovered in plain view a "billy club" or "nightstick."
The court concluded that the officer had a reasonable basis to believe that the defendant may be armed and dangerous because (1) the officer knew the prior incident involved the use of a firearm and believe that there could be a gun in the car; and (2) upon stopping the vehicle, the officer observed the defendant dip his right shoulder down. State v. Tyner, supra, Superior Court, Docket No. CR18-03005545.
Under the totality of the circumstances, the court concludes that Macuirzynski had a reasonable and articulable suspicion that the defendant posed a danger of being armed, or had access to a weapon within the vehicle. State v. Butler, 296 Conn. 62 (2016) The collective knowledge of the officers amply supported an inference that the defendant was potentially armed and dangerous. Combined with the observation of the defendant’s movements toward the passenger side of the vehicle, the officers reasonably suspected that the defendant presented a danger to them that needed to be investigated before they safely could allow the defendant to re-enter the Nissan. Based on the evidence presented, and the reasonable and logical inferences therefrom, the area of the passenger compartment of the defendant’s vehicle where the firearm was located was described with sufficient particularly to warrant the conclusion that the defendant had the ability to gain immediate access and control over it. The search of the passenger compartment of the Nissan was limited to the areas in which a weapon may have been hidden or placed. Accordingly, Macuirzynski had a proper basis for effectuating the protective search of the rear area of the front passenger seat.
To the extent that the defendant claims the protective search of the vehicle for weapons was impermissible because he was being detained at the scene in a police vehicle, and thus was "no danger" to the officers at the scene, such claim under the circumstances presented herein has been raised and rejected by our Supreme Court and other courts. See State v. Butler, supra, 71-72; United State v. Wallen, 388 F.3d, 161, 166 (5th Cir. 2004).
As previously noted, Arizona v. Gant, supra, would appear to be inapplicable based on the evidence presented, as the court concludes Macuirzynski engaged in a protective search rather than a search incident to arrest. There was no evidence the motor vehicle infractions at issue subjected the defendant to custodial arrest. State v. Butler, supra.
C.
State Constitutional Claim: "Pre-textual Stop"
The defendant, recognizing that his claim doesn’t comport with the state of the law under our federal constitution, seeks to demonstrate pursuant to State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), that state constitutional protections against pretextual stops exceed those guaranteed by the federal constitution. In Geisler, our Supreme Court enumerated six factors that the court should consider in analyzing independent claims under the Connecticut constitution: "(1) the text of the relevant constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state court; (5) historical insights into the intent of our constitutional forebears; and (6) contemporary understandings of applicable economic and sociological norms." (Internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709, 716 n.6, 924 A.2d 809 (2007). "[Our Supreme Court has] repeatedly ... emphasized that [it] expect[s] counsel to employ [the Geisler analysis] [i]n order to [allow courts to] construe the contours of our state constitution and [to] reach reasoned and principled results ... When a party fails to analyze these factors separately and distinctly, [w]e have made clear that ... we are not bound to review the state constitutional claim." (Citation omitted; internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 154 n.26 (2004), cert. denied, 546 U.S. 848 (2005); see also State v. Lindo, 75 Conn.App. 408, 410 n.2, cert. denied, 263 Conn. 916 (2003). Although the defendant in the present case set forth out the factual basis for his claim and his argument for why the stop was pretextual, he failed to appropriately employ the Geisler analysis to his claim.
The defendant does attempt to engage in a Geisler analysis in his memorandum in support of the motion to suppress, however, the analysis is merely a replication of Associate Justice Katz’s dissenting opinion in State v. Jenkins, 298 Conn. 209, 283-08, 3 A.3d 806 (2010) (Katz, J., dissent). The issue in Perkins and the point of disagreement between the majority and Associate Justice Katz was whether under article first, § 7, of the Connecticut constitution, police must have reasonable and articulable suspicion of illegal activity unrelated to the initial traffic violation before police can shift the purpose and scope of a roadside detention from a routine traffic stop to a consent search. See id., 284. In the present case the court is not confronted with a consent search.
Put another way, the court is not persuaded after considering the defendant’s oral arguments and brief that he has meaningfully or intelligibly analyzed the evidence presented, or the issues raised therefrom, while applying such evidence to the factors enumerated in Geisler supra. As such, the court is not bound to consider the state constitutional claim. See State v. Colon, supra, 272 Conn. 154 n.26.
"It is idiomatic that argument is not evidence." In re Justin F., 116 Conn.App. 83, 96; cert. denied, 293 Conn. 913 (2009).
Nevertheless, even assuming, arguendo, that a state constitutional claim has been identified and articulated appropriate to the evidence presented, and has been analyzed employing the Geisler factors, the defendant’s state constitutional claim must fail.
I.
Text and History
Neither the text nor the history of article first, § § 7 and 9, of the Connecticut Constitution provides any reason to depart from Whren ’s objective test for purposes of determining the reasonableness of a traffic stop. Article first, § 7, of the Connecticut Constitution is the corollary to the fourth amendment of the United States constitution, which provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures; and no warrant to search any place or seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." As our Supreme Court has recognized, the text of article first, § 7, is virtually identical to that of the fourth amendment. See State v. Miller, 227 Conn. 363, 382 (1993). Although our Supreme Court has construed article first, § 7, more broadly than the fourth amendment, it has generally done so only when our state’s constitutional preference for warrants is somehow implicated. See State v. Geisler, supra, 222 Conn. 695-96; see also State v. Miller, supra, 384-85.
II.
Federal Precedent
In interpreting our state constitution, "decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration." State v. Ross, 230 Conn. 183, 248 (1994), cert. denied, 513 U.S. 1165 (1995). The federal precedent in Whren unequivocally supports a finding that the officers’ motivations in stopping the defendant’s vehicle was irrelevant to the stop is constitutionally permissible in this case.
III.
Connecticut Precedent
In a variety of contexts, our Supreme Court has held as a matter of state constitutional law that the lawfulness of any seizure, including traffic stops, depends on the objective reasonableness of the stop based on the totality of circumstances, not on the subjective intent or motives of the police officers involved. For example, in deciding whether exigent circumstances justify a warrantless entry into a home, our Supreme Court has held that all that matters is what a reasonable police officer would believe under the totality of circumstances, "not what the arresting officer actually did believe." State v. Guertin, 190 Conn. 440, 453 (1983); see also State v. Colon, supra, 272 Conn. 149 (recognizing under both the federal and Connecticut constitutions that "[r]easonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion" [internal quotation marks omitted] ).
Moreover, our Supreme Court repeatedly has held that the reasonableness of any Terry seizure is measured by an objective standard under the fourth amendment as well as article first § § 7 and 9, of the Connecticut constitution "[a]rticle first, § § 7 and 9, of our state constitution permit a police officer in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest ... In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity ... A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom ... These standards, which mirror those set forth by the United States Supreme Court in Terry ... with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, § § 7 and 9, of our state constitution." (Citation omitted; internal quotation marks omitted.) State v. Wilkins, 240 Conn. 489, 507-08 (1997).
IV.
Decisions in Other Jurisdictions
The authority in other states evidences a weighty majority toward the adoption of the Whren standard. Forty-one states and the District of Columbia have adopted the Whren standard as a matter of state constitutional law. See State v. Ossana, 199 Ariz., 459, 18 P.3d 1258, 1260 (Ct.App. 2001) (relying on Whren for a Fourth Amendment claim and holding "[t]he officers had the right to stop appellant’s car if they reasonably believed he had committed a traffic violation"); see also State v. Mancia-Sandoval, 2010 Ark. 134, 361 S.W.3d 835, 839-40 (2010) ("As previously noted, a pre-textual stop is not impermissible under either the federal or Arkansas Constitution and, thus, does not invalidate an otherwise lawful stop of the vehicle"); People v. Miranda, 17 Cal.App.4th 917, 21 Cal.Rptr.2d 785, 789 (1993) (determining under the Fourth Amendment, "the subjective motivation of an arresting officer is irrelevant in determining the propriety of a traffic stop"); People v. Ingram, 984 P.2d 597, 603 (Colo. 1999) (en banc) (concluding under the Fourth Amendment, "[a] reviewing court must base its analysis of whether reasonable suspicion exists on an objective analysis and not upon the subjective intent of the arresting officer"); Karamychev v. District of Columbia, 772 A.2d 806, 813 n.9 (D.C. 2001) (applying Whren, "if [the officer] had an adequate objective basis to stop ... his subjective motivation was legally irrelevant"); Holland v. State, 696 So.2d 757, 760 (Fla. 1997) (applying the objective standard established in Whren in state constitutional analysis); State v. Bolosan, 890 P.2d 673, 681 (Haw. 1995) ("This court has also disapproved of analyses of officers’ subjective bases for conducting investigatory stops in favor of an objective standard" (citation omitted)); State v. Myers, 118 Idaho 608, 798 P.2d 453, 455 (Ct.App. 1990) (concluding for a Fourth Amendment claim, that "any underlying motive of [the officer] in stopping Myers ’ vehicle as a pretext to search for drugs was irrelevant because the stop was justified by an objectively reasonable basis"); People v. Rucker, 294 Ill.App.3d 218, 228 Ill.Dec. 782, 689 N.E.2d 1203, 1208 (1998) ("Regardless of [the officer’s] subjective intention for stopping the vehicle, the key question is whether he had a reasonable, articulable suspicion of criminal activity); Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001) (holding under the Indiana Constitution, there is "nothing unreasonable in permitting an officer, who may have knowledge or suspicion of unrelated criminal activity by the motorist, to nevertheless respond to an observed traffic violation"); State v. Jones, 300 Kan. 630, 333 P.3d 886, 893 (2014) (adopting the Whren objective standard); Commonwealth v. Bucalo, 422 S.W.3d 253, 258 (Ky. 2013) ("It has long been considered reasonable for an officer to conduct a traffic stop if he or she has probable cause to believe that a traffic violation has occurred"); State v. Waters, 780 So.2d 1053, 1056 (La. 2001) (per curiam) (applying Whren ); State v. Sasso, 143 A.3d 124, 128 (Me. 2016) ("The Supreme Court holding announced in Whren is consistent with Maine’s standard for evaluating whether a traffic stop passes constitutional muster"); Wilkes v. State, 364 Md. 554, 774 A.2d 420, 430-31 (2001) (referring to Whren in determining the constitutionality of a traffic stop under the Fourth Amendment); Commonwealth v. Buckley, 478 Mass. 861, 90 N.E.3d 767, 778 (2018) ("Outside of the racial profiling context- as this case is- the reasonableness of a traffic stop does not depend upon the particular motivations underlying the stop ... [L]egal justification alone, such as an observed traffic violation, is sufficient"); People v. Kazmierczak, 461 Mich. 411, 605 N.W.2d 667, 672 n.8 (2000) (relying on Whren in determining "[t]he traffic stop here was permissible because [the officer] observed a traffic violation"); State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (en banc) ("Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle"); Floyd v. Crystal Springs, 749 So.2d 110, 114-15 (Miss. 1999) (en banc) (referring to Whren after comparing the "almost identical language" of the Fourth Amendment to Mississippi’s search and seizure provision); State v. Brink, 218 S.W.3d 440, 445 (Mo.Ct.App. 2006) ("Whether or not a traffic stop is reasonable and therefore lawful does not depend on the investigating officer’s motive"); State v. Farabee, 302 Mont. 29, 212 P.3d 175, 180-81 (2000) (declining to adopt the "would have" standard rejected in Whren to evaluate pretextual stops under the Montana Constitution"); State v. Bartholomew, 258 Neb. 174, 602 N.W.2d 510, 514 (1999) ("If an officer has probable cause to stop a violator, the stop is objectively reasonable, and any ulterior motivation on the officer’s part is irrelevant"); Gama v. State, 112 Nev. 833, 920 P.2d 1010, 1013 (1996) (per curiam) (holding an officer’s subjective motivation is irrelevant in analyzing the validity of a traffic stop); State v. McBreairty, 142 N.H. 12, 697 A.3d 495, 497 (1997) ("The ultimate test of the propriety of an investigatory stop under part I, article 19 is whether, viewing the circumstances objectively, an officer had a specific and articulable basis for concluding that an individual had committed, was committing, or was about to commit a crime"); State v. Bacome, 228 N.J. 94, 154 A.3d 1253, 1558 (2017) ("The objective reasonableness of police officers’ actions- not their subjective intentions- is the central focus of federal and New Jersey search-and-seizure jurisprudence"); People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638, 642 (2001) ("In making that determination of probable cause [for a traffic stop], neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant"); State v. McClendon, 350 N.C. 630, 517 S.E.2d 128, 635 (1999) (rejecting defendant’s request to depart for the objective standard established in Whren under the North Carolina Constitution); State v. Oliver, 724 N.W.2d 114, 116 (N.D. 2006) (relying on Whren to determine "that [a] police officer’s subjective intentions in making a stop are not important as long as a traffic violation has occurred"); Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091, 1097-98 (1996) ("[W]here an officer has an articulable reasonable suspicion or probable cause to stop a motorist for ... a minor traffic violation, the stop is constitutionally valid regardless of the officer’s underlying subjective intent or motivation for stopping the vehicle in question"); Dufries v. State, 133 P.3d 887, 889 (Okla.Crim.App. 2006) ("[W]here an officer has probable cause to believe a traffic violation has occurred, his subjective motivation for stopping the vehicle is irrelevant to the legality of the stop"); State v. Carter, 287 Or. 479, 600 P.2d 873, 875 (1979) (en banc) ("The officer’s motives for an otherwise justifiable traffic stop are ... not relevant to the question of its validity" [citation omitted] ); Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108, 120-21 (2008) (concluding that a state statute allowing police officers to initiate traffic stops based on reasonable suspicion of vehicle code violations did not offend the state constitution’s search and seizure provision); State v. Bjerke, 697 A.2d 1069, 1073 (R.I. 1997) (declining to depart from Whren under the Rhode Island constitution); State v. Vinson, 400 S.C. 347, 734 S.E.2d 182, 184 (Ct.App. 2012) (referring to Whren and indicating an officer’s subjective motivations play no role in search and seizure analysis); State v. Vineyard, 958 S.W.2d 730, 736 (Tenn. 1997) ("[W]e conclude that probable cause justifies a traffic stop under Article I, Section 7 of the Tennessee Constitution without regard to the subjective motivations of police officers"); Crittenden v. State, 899 S.W.2d 668, 673 (Tex.Crim.App. 1995) (en banc) ("Having adopted the objective approach under the Fourth Amendment, not because of binding precedent, but because it ‘makes more sense’ than the alternatives, we can hardly justify concluding otherwise for purposes of Article I, § 9"); State v. Lopez, 873 P.2d 1127, 1140 (Utah 1994) (holding an officer’s subjective motivation for making a traffic stop is irrelevant so long as the traffic stop is based upon probable cause or reasonable suspicion); State v. Tetreault, 206 Vt. 366, 181 A.3d 505, 511 (2017) (applying Whren ); Harris v. Commonwealth, 276 Va. 689, 668 S.E.2d 141, 146 (2008) (indicating for a claim pursuant to the Fourth Amendment, that "the court’s review of whether there was reasonable suspicion involves application of an objective rather than a subjective standard"); Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518, 527 (1996) ("[I]f the trooper did indeed observe such a misdemeanor violation of the ‘rules of the road,’ his stop would clearly be justified in any event"); State v. Rutzinski, 241 Wis.2d 729, 623 N.W.2d 516, 520-20 (2001) (relying on the objective standard established the Whren under the Wisconsin Constitution).
Of the state courts who have reviewed Whren as a matter of state constitutional law only Washington has declined to follow the objective standard. See State v. Ladson, 138 Wash.2d 343, 348 (1999). In departing from Whren, the Supreme Court of Washington relied, in part on the significant textual differences between the fourth amendment and the Washington constitution. See id. The court found that article I, § 7, of the Washington constitution "is explicitly broader than that of the [f]ourth [a]mendment as it clearly recognizes an individual’s right to privacy with no express limitations and places greater emphasis on privacy." (Internal quotation marks omitted.) Id. In the case of the Connecticut constitution there is no material difference between the text of the fourth amendment and that of article first, § 7, of the Connecticut constitution.
V.
Policy
In People v. Robinson, 97 N.Y.2d 341, 350 (2001), all seven judges of the New York Court of Appeals including the dissenting judges acknowledged the "difficulty, if not futility, of basing the constitutional validity of searches or seizures on judicial determinations of the subjective motivations of police officers." This led the court to unanimously conclude that a subjective motivation test "should not be ... part of our state constitutional jurisprudence." Id. Due to this difficulty, this court likewise concludes that there is no basis to depart from Whren and the vast majority of states that have held that as a matter of state constitutional law that a police officer’s decision to stop an automobile is reasonable as long as there is an objectively justifiable basis for the stop, regardless of the officer’s subjective intent.
Therefore, for the foregoing reasons, the Motion to Suppress is denied.