Opinion
F02BCR180300554S
05-20-2019
State of Connecticut v. Jonathan Tyner
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Dayton, Tracy Lee, J.
MEMORANDUM OF DECISION
Tracy Lee Dayton, Judge
On February 7, 2019, defendant Jonathan Tyner filed a motion to suppress evidence seized from his car on January 27, 2018. The defendant alleges that the police lacked reasonable suspicion to conduct a motor vehicle stop and that any evidence seized following the stop was unlawfully obtained.
The court conducted an evidentiary hearing on February 8, 2019, February 21, 2019, and February 25, 2019. Both parties filed post-hearing briefs. On April 1, 2019, the court heard post-hearing argument.
FINDINGS OF FACT
Based upon the evidence presented at the hearing, the court finds the following facts:
A. The January 19, 2018 "Threatening with a Firearm" Incident
Bridgeport Police Officer Rosemarie Thibodeau testified that on January 19, 2018 she was dispatched to the area of Stillman Street and Pembroke Street in response to a 911 call. Tr. 11-12. The caller stated that there had been a hit-and-run accident and that the driver who left the scene of the accident had threatened him with a gun. Tr. 11-12.
"Tr." refers to the February 8, 2019 transcript. References to the February 21, 2019 and February 25, 2019 hearing dates will be reflected as "Tr." with the relevant date in parentheses, e.g., Tr. 1 (2/21/2019).
Upon arrival, Officer Thibodeau spoke with a woman who had been involved in the incident. The woman explained that she backed her car out of her driveway in order to park on the street in front of her house. Tr. 12. As she was reversing, there was a white Ford Taurus behind her on the street that was blocking her vehicle. Tr. 12. The woman said that the driver of the Taurus would not move out of her way and instead kept "launching" his vehicle toward hers. Tr. 12. The woman and the driver of the Taurus got out of their respective cars and "words were exchanged." Tr. 12. As the woman got back into her vehicle, her husband (hereinafter "complainant") came out of the house and tried to explain to the driver of the Taurus that his wife was just trying to park her car. Tr. 12. Once again, words were exchanged. Tr. 12. The driver of the Taurus, who the complainant described as a tall, black male with a heavy-set build, pulled a gun from behind his back, cocked it, and pointed it at the complainant’s face. Tr. 11-12. When the complainant said that he was going to call the police, the suspect got back in his car, reversed it into a Jeep that was behind him, and then sped off. Tr. 12, 28. As the Taurus fled the scene, the complainant took photographs and a video of the fleeing car. Tr. 14.
The driver of the Jeep left before the police arrived. According to the complainant, the Jeep did not sustain any damage and the driver of the Jeep did not wish to make a report. Tr. 28, 31-32.
Officer Thibodeau viewed the complainant’s photographs. Tr. 14-16; State’s Exhibits 3 and 4. From those, Officer Thibodeau obtained the license plate number and a description of the suspect vehicle, including the damage to the ear of the vehicle. Tr. 14, 16, 26. Officer Thibodeau then called dispatch to request that a "be-on-the-lookout" (hereinafter "BOLO") be broadcast to police officers in the area advising them that the Taurus "was involved in a threatening with a firearm" incident. Officer Thibodeau explained that the BOLO was necessary "for officer safety and for the public’s safety." Tr. 16, 19. Officer Thibodeau testified that the BOLO contained a description of the suspect; a description of the vehicle, including the license plate number and the damage on the rear of the vehicle; and the type of incident in which the vehicle was involved, i.e., "threatening with a firearm." Tr. 19, 22; State’s Exhibit 5. Officer Thibodeau read the information contained in the BOLO into the record. Specifically, she stated that it was broadcast as a hit and run:
Responsible vehicle is Connecticut reg [ ] AC05286 on a 2005 Ford Taurus color white. It comes back to 46 Herkimer Street [ ]. Vehicle should have a large dent on the rear bumper and a crack on the lower, right side of the exhaust. The operator is a black male, dark skin, 6’2," heavy set, over 300 pounds. He was last seen wearing a black sweatshirt, black pants and a beanie. This party displayed a black firearm, a possible Berretta and was last seen heading west on Ogden Street.Tr. 23-24.
Police dispatch determined that the car was registered to the defendant, and Officer Thibodeau testified that the description of the suspect matched the information on the defendant’s driver’s license. Tr. 26. Dispatch identified multiple addresses associated with the vehicle registration and/or the defendant. Tr. 25. Police officers went to several of those locations in an unsuccessful attempt to locate the suspect and the suspect vehicle. Tr. 25.
B. The January 27, 2018 Arrest of the Defendant
Bridgeport Police Officer Michael Cavaliere testified that he is assigned to the Patrol Anti-Crime Division. Tr. 35. His responsibilities include patrolling areas of Bridgeport that are experiencing high levels of violent crime and narcotics trafficking activity. On January 27, 2018, Officer Cavaliere started his shift at 4 p.m. Tr. 67; Tr. 4 (2/21/19). He testified that at the beginning of the shift there was a broadcast over channel one, which is the Bridgeport Police Department’s main emergency channel, for a "wanted vehicle with a party threatening another with a firearm"; the broadcast included a description of the suspect. Tr. 37; Tr. 17 (2/21/2019). Officer Cavaliere said that there were also printouts available during lineup with photographs of the suspect vehicle which, he explained, is common practice for stolen vehicles and wanted parties. Tr. 37-38, 67. Officer Cavaliere kept copies of many such printouts in his patrol car, including one related to the January 19, 2018 threatening with a firearm incident. Tr. 68; Tr. 6 (2/21/2019); Tr. 3 (2/25/2019).
In both his memorandum and in the post-hearing argument, the defendant acknowledged both expressly and implicitly that Officer Cavaliere’s testimony was entirely credible. See, e.g., Def. Memo at 6 (commenting on Officer Cavaliere’s "sincere belief" and justifiable reliance on what he had been told by other officers).
After lineup, Officer Cavaliere drove to the area of Iranistan Avenue and Park Avenue to patrol the area due to reports of rampant narcotics trafficking activity. Tr. 39. Officer Cavaliere was alone in his patrol vehicle. However, there were several other members of his unit separately patrolling in the same vicinity. Tr. 39, 73-74. As Officer Cavaliere drove northbound on Iranistan Avenue, he observed a white Ford Taurus with a low hanging bumper parked on the side of the road. Tr. 40, 71. The Taurus matched the description and bore the same license plate as the vehicle involved in the January 19, 2018 threatening with a firearm incident. Tr. 40, 42.
Officer Cavaliere drove past the Taurus, turned his patrol vehicle around, and parked 100 to 150 feet away in a spot that permitted him to watch the vehicle. Tr. 40, 44, 79. Officer Cavaliere did not immediately approach the Taurus because he wanted to determine if the driver of the vehicle matched the description of the suspect involved in the January 19, 2018 incident. Tr. 45. Approximately 30 to 45 minutes later, Officer Cavaliere observed a large, black male get into the Taurus; the individual did, in fact, match the description of the suspect. Tr. 40, 65, 71, 79; Tr. 5 (2/21/2019). As the suspect drove the Taurus northbound on Iranistan Avenue, Officer Cavaliere turned his patrol vehicle around and positioned himself behind the Taurus. Tr. 40, 42. He then radioed over channel one that he was behind the vehicle wanted for threatening with a firearm and requested backup for safety reasons. Tr. 40, 43, 81. Officer Cavaliere explained that he intended to conduct an investigatory stop related to the January 19, 2018 incident and "wanted ample coverage in case there was a firearm." Tr. 43, 61, 82.
Officer Cavaliere followed the Taurus for approximately three blocks until cover vehicles arrived. Tr. 40-41. Once he reached a well-lit area, Officer Cavaliere activated his overhead lights and siren. Tr. 40-41, 47. When the Taurus pulled to the side of the road, Officer Cavaliere stopped behind the car and shined his spotlight on the rear windshield of the vehicle so he could see if there was any movement in the car. Tr. 47, 62-63. At that point, Officer Cavaliere observed the driver dip his right shoulder. Tr. 47, 63. Officer Cavaliere stepped out of his patrol vehicle and carefully approached the driver’s side of the Taurus. Tr. 47. He testified that, by that time, there were approximately seven other patrol vehicles on scene. Tr. 47, 75. While Officer Cavaliere had his hand on his holster for safety reasons, neither he nor any other officer on scene drew their weapons. Tr. 47-48, 78.
Officer Cavaliere approached the driver of the car, who was later determined to be the defendant, and asked him to step out of the vehicle. Tr. 48, 64. The defendant was cooperative and complied with the request. Tr. 48, 83. Officer Cavaliere advised the defendant that he was going to pat him down for weapons both for his (Officer Cavaliere’s) and the defendant’s safety. Tr. 48. Officer Cavaliere conducted the pat down and, finding no weapons, asked the defendant to step toward the rear of the vehicle to stand with other officers. Tr. 49, 83; Tr. 10 (2/21/2019). The defendant was neither handcuffed nor placed in a patrol vehicle. Tr. 49. Officer Cavaliere then asked the female passenger to step out of the vehicle so that he could "check the wingspan of where the driver was sitting." Tr. 49. Officer Cavaliere explained that he had seen the defendant dip his shoulder down and was concerned there could be a weapon underneath the seat or within reach of the driver’s seat. Tr. 53. Based upon the BOLO, he also believed that the defendant could be in possession of a black Berretta. Tr. 53. Therefore, for officer safety reasons, Officer Cavaliere looked within the driver’s wingspan to ensure that there were no weapons within reach of the driver’s seat before he let the defendant re-enter the vehicle. Tr. 53.
Officer Cavaliere testified that within seconds of opening the car door he saw in plain view a "billy club" or "nightstick" between the center console and the driver’s seat. Tr. 49, 54; Tr. 10 (2/21/2019); State’s Exhibit 1. Based upon his training, Officer Cavaliere believed the item to be a deadly weapon. Tr. 49, 54. Thus, the defendant was arrested for having a weapon in a motor vehicle, handcuffed, and seated in the back of a patrol car. Tr. 54, 57. The defendant, who was the registered owner of the vehicle, opted to release the car to his girlfriend rather than to have it towed. Tr. 57, 64; Tr. 12 (2/21/2019).
Bridgeport Police Detective Laura Azevedo-Rasukt testified that on January 27, 2018, she heard Officer Cavaliere radio for backup because he was about to stop a car that had been involved in an incident that involved a gun. Tr. 23, 33, 35 (2/21/2019). Detective Azevedo-Rasukt, who was in the vicinity of the call, arrived on scene within seconds. Tr. 23-24 (2/21/2019). She explained that whenever there is a call involving a gun that "everyone responds," and that she, too, had responded "due to the seriousness of the call." Tr. 34 (2/21/2019). Detective Azevedo-Rasukt conducted a pat-down of the female passenger in the defendant’s car. She left shortly thereafter having determined that the scene was safe. Tr. 24, 28, 34-35 (2/21/2019). Detective Azevedo-Rasukt, like Officer Cavaliere, testified that she never drew her weapon. Tr. 26 (2/21/2019).
C. The Status of the Investigation on the Date of the Defendant’s Arrest
Detective Azevedo-Rasukt also testified regarding retired-Detective John Schultz’s investigation of the January 19, 2018 incident. Tr. 30-31 (2/21/2019). Specifically, relying upon Detective Schultz’s report, Detective Azevedo-Rasukt testified that the witnesses had been unable to identify the defendant from a photo array as the individual who threatened the complainant with a gun. Tr. 30 (2/21/2019). Defense counsel then asked Detective Azevedo-Rasukt, "[A]t the time you arrived to the scene [of the defendant’s arrest], were you aware of the fact that the case for the alleged prior incident of the threatening with the gun had been closed out?" Detective Azevedo-Rasukt replied, "No, I did not know." Tr. 35-36 (2/21/2019). Counsel did not ask Detective Azevedo-Rasukt: (1) the date upon which the photo array was shown to the victim of the January 19, 2018 incident, i.e., before or after the defendant’s January 27, 2018 arrest, (2) if the investigation had been closed, and/or (3) if the investigation had been closed, when that occurred.
Detective Azevedo-Rasukt testified that she was not personally involved in the investigation of the incident that occurred on January 19, 2018. Tr. 32-33 (2/21/2019). Rather, her testimony regarding the investigation was entirely based on Detective Schultz’s report.
Defense counsel then recalled Officer Cavaliere to ask if he was "aware that [the threatening with a gun] case had been closed prior to the date that [he] pulled over Mr. Tyner." Officer Cavaliere replied, "No, I was not." Tr. 3 (2/25/2019).
There was no evidence adduced at the hearing as to whether or not the threatening with a firearm investigation was actually closed and, if so, when that occurred. Therefore, the only reasonable conclusion the court can draw from the evidence is that on the day he stopped the defendant, Officer Cavaliere believed the investigation into the prior incident was open.
ANALYSIS
A. Legal Analysis
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; CT Const. art. 1, § § 7 and 9. The Constitution does not forbid all searches and seizures, but only those that are unreasonable. Elkins v. United States, 364 U.S. 206, 222 (1960). In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court considered the question of "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." Id. at 15. The Court concluded that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. at 22; see also State v. Peterson, 320 Conn. 720, 730 (2016) (citation omitted). If the officer has a reasonable basis to believe that the person with whom he is dealing may be armed and dangerous, the officer may conduct a protective search for weapons based upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, supra, 392 U.S. at 21; see also State v. Wilkins, 240 Conn. 489, 495-96 (1997). "Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion." State v. Wilkins, supra, 240 Conn. at 496. The search must be limited in nature and "reasonably designed to discover guns, knives, clubs, or other hidden instruments" that may be used to assault the police officer or others nearby. Terry v. Ohio, supra, 392 U.S. at 29.
In Michigan v. Long, 463 U.S. 1032 (1983), the 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. at 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.Id. at 1049 (citing Terry v. Ohio, supra, 392 U.S. at 21). The Court rejected the argument that such a search would not be permissible absent a full custodial arrest. Id. at 1051. Rather, the Court explained that a suspect who is investigatively detained 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. at 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." Id. at 1052 (emphasis in original). 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. at 1052. 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. at 1047.
The Connecticut Supreme Court similarly has held that the rules enunciated in Terry regarding investigatory detentions and protective searches extend to motor vehicle stops. See State v. Wilkins, supra, 240 Conn. at 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. at 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." 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." Id. at 72 (internal citations and alterations omitted). 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. at 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, 240 Conn. at 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. at 510.
B. Factual Analysis
Under the totality of the circumstances, Officer Cavaliere had a reasonable and articulable suspicion justifying the detention and protective search of the defendant’s vehicle. Officer Cavaliere had reliable information regarding the January 19, 2018 incident that was derived from the victim’s account of the event. See State v. McCormack, 132 Conn.App. 490, 502 (2011) (information provided by a victim or witness is more reliable than that provided by an informant). The information included a description of the suspect and of the car the suspect used during the incident, as well as photographs and a video of the suspect vehicle. The information was memorialized on a printout that Officer Cavaliere kept in his patrol vehicle. As Officer Cavaliere drove through the city, he observed a white Ford Taurus with a low hanging bumper parked on the side of the road. The car matched the description of and bore the same license plate as the suspect vehicle. Officer Cavaliere then saw an individual who matched the description of the suspect get into the driver’s side of the Taurus. Based on these facts, Officer Cavaliere had reasonable suspicion to briefly detain the defendant for investigative purposes.
In addition, Officer Cavaliere had a reasonable basis to believe that the defendant may be armed and dangerous. Officer Cavaliere knew the prior incident involved the use of a firearm and believed that there could be a gun in the vehicle. Moreover, upon stopping the vehicle, Officer Cavaliere observed the defendant dip his right shoulder down. Believing that his safety or the safety of others could be in jeopardy, Officer Cavaliere looked in the passenger compartment of the car to see if there were any weapons underneath or within reaching distance of the driver’s seat. Officer Cavaliere explained that for safety reasons, he "wanted to make sure that there were no weapons in the vehicle" before he allowed the defendant to re-enter the car. Tr. 53. It was immediately upon opening the car door that Officer Cavaliere saw what he described as a "billy club" between the driver’s seat and the center console.
The defendant argues that Officer Cavaliere should not be able to rely upon the BOLO as the basis for the investigative detention claiming that the information contained therein was "stale." See Def. Memo at 6, 11. However, it cannot reasonably be argued under the circumstances delineated above that an eight-day lapse between the firearm incident and the vehicle stop rendered the information so stale as to negate the reasonable basis for an investigatory detention. That is, the passage of eight days did nothing to diminish the relevance of seeing an individual who matched the description of the suspect wanted for threatening the complainant with a firearm and who was driving the exact same car used during the incident.
The defendant also argues that the information Officer Cavaliere possessed was "incomplete" because he had not been apprised that the investigation into the January 19, 2018 incident had been closed prior to the defendant’s arrest. See Def. Memo at 6. Relying upon State v. Lewis, 173 Conn.App. 827, 844 (2017), cert. granted, 327 Conn. 925 (2017), the defendant claims that the fact of the closed investigation should be imputed to Officer Cavaliere through the collective knowledge doctrine. This, the defendant argues, would erode Officer’s Cavaliere’s probable cause (or reasonable suspicion) to search the car. See Def. Memo at 9.
As noted above, there was no evidence offered during the hearing to support the contention that the investigation had been closed. To the contrary, the evidence established that on January 27, 2018, the information regarding the firearm incident was still being broadcast over channel one and the flyer containing a photograph of the vehicle and description of the suspect was still available during lineup. The evidence further established that Officer Cavaliere believed the investigation was active, and that he had not received any information to suggest otherwise. Accordingly, there is no basis to impute knowledge to Officer Cavaliere that would serve to negate his reasonable suspicion to stop the vehicle.
It was telling that the primary thrust of the defendant’s questioning of Detective Acevedo-Rasukt related to the status of the investigation on the day of the defendant’s arrest. Yet, she was never asked if there was any indication in Detective Schultz’s report that the investigation had been closed.
CONCLUSION
For the foregoing reasons, the defendant’s motion to suppress is denied.