February 19, 2004
SEARCH AND SEIZURE IN HIGH CRIME AREA
By: Kristina Sadlak, Legislative Fellow
You asked for a summary of State of Connecticut v. Pablo E. Santos, a recent state Supreme Court decision regarding search and seizure.
Santos was with three companions in a high crime area when two police officers searched him and seized cocaine. The trial court entered judgment of conviction of possession of narcotics with intent to sell in violation of CGS § 21a-277(a). The court rendered judgment after a conditional plea of nolo contendere (no contest). Before trial, Santos filed a motion to suppress the seized narcotics. He claimed they were seized illegally during a warrantless pat-down search of his person for weapons.
Santos appealed the conviction on the claim the police action constituted a search and seizure violating his state constitutional rights under Article First, §§ 7 and 9 of the Connecticut Constitution. These provisions allow a police officer to detain a person for investigative purposes without probable cause to make an arrest only if the officer believes, based on a reasonable and articulable suspicion, that the person is engaged in criminal activity.
The Supreme Court rejected two of the trial court's factual findings. It held that the presence of young adults in a high crime area at night and the smell of alcohol on the breath of one of the adults, who is not the
driver of the vehicle at the scene, are not enough for an officer to conclude that a person is engaged in criminal activity and thus not enough to justify investigatory detention.
The Supreme Court reversed and remanded the trial court judgment with direction to grant the defendant's motion to suppress the evidence. It concluded that the police detained the defendant without a reasonable and articulable basis to suspect that criminal activity had occurred or was about to occur.
Under 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” (State v. Lipscomb, 258 Conn. 68, 75, 779 A.2d 88 (2001)).
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.” The court must look to the whole situation when determining whether detention is justified and consider if the “detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity.”
STATE OF CONNECTICUT V. PABLO E. SANTOS
On September 7, 2001, at 10:23 p.m., state troopers Chick Bistany and Steven McManaway conducted a routine patrol of the athletic fields on Plains Road in Windham. The athletic fields do not have lighting for nighttime use, but they do not close at sunset.
Police patrolled the area nightly because the athletic fields are known for a high degree of criminal activity such as drug transactions and prostitution.
Upon entering the athletic fields' parking lot, the troopers noticed two parked automobiles. Bistany drove toward one, a white Chevrolet Lumina, in which the defendant Santos was a passenger. Bistany illuminated the area around the Lumina with his cruiser's spotlight. At this time, neither trooper witnessed any illegal activity.
The Lumina was parked with its front end against the fields. As he approached the Lumina, Bistany saw three individuals standing outside the vehicle and a fourth, the defendant, exiting the right passenger side of the car. Bistany stopped his cruiser at a slight angle behind the Lumina, focused the spotlight on the car and the individuals, and activated his cruiser's mobile video recorder and body microphone. Bistany exited the cruiser, and approached the four men. He testified that as he got closer to the four men, he noticed that they were “pacing back and forth. . . [and] appeared visibly nervous. . .” He stopped at the rear of the Lumina, about four feet from the men, and asked them questions, including what they had been doing at the athletic fields and where they had come from. One of the men responded that they were “not causing any trouble” and were “just driving around.”
Bistany asked the men to come to the rear of the Lumina, in front of his cruiser. They complied and were standing in front of him when Bistany asked who was driving the Lumina. One of the men with the defendant identified himself as the driver. Bistany asked to see his identification. When the driver started moving toward the driver's side of the car, Bistany asked him to stop and to return to where he was standing. Bistany, concerned for his safety, instructed all four men to stand still and submit to a pat-down search. As Bistany began searching the first man, McManaway returned from patrolling the other side of the parking lot and assisted Bistany by watching the three other men.
The defendant was the third person searched. Bistany testified that when he called him, the defendant approached with his hands clenched. When he reached Bistany, he turned around and put his fists under his armpits. Bistany directed him to place his hands behind his back and when he complied, Bistany began to pat him down. Bistany told him to relax and unclench his fists. When he did so, Bistany saw a clear plastic bag containing a white, powdery substance between the fingers of his right hand. Bistany and McManaway arrested him for possession of narcotics.
The state charged the defendant with possession of narcotics in violation of CGS § 21a-279(a) and possession of narcotics with intent to sell in violation of CGS § 21a-277(a). The defendant moved to suppress the seized narcotics on the ground that the police did not have a reasonable and articulable suspicion of criminal activity that is required to conduct a valid Terry stop (See Terry v. Ohio, 392 U.S. 1 (1968)).
The defendant specifically argued in his motion that (1) his detention was unwarranted because the troopers did not possess a reasonable and articulable suspicion that a crime had been or was about to be committed; (2) the Terry pat-down of his person was unwarranted because the troopers did not have a reasonable suspicion or probable cause to suspect that he was presently armed and dangerous; and (3) consequently, the exclusionary rule and the “fruit of the poisonous tree” doctrine required suppression of all the evidence obtained during and subsequent to the stop and seizure.
After an evidentiary hearing, the trial court denied the defendant's motion to suppress, concluding that Bistany had a reasonable and articulable suspicion for deciding to detain and pat down the defendant.
Pursuant to CGS § 54-94a and Practice Book § 61-6, the defendant entered a conditional plea of nolo contendere to the second count in order to appeal immediately the trial court's denial of the motion to suppress. The trial court accepted the defendant's conditional plea, and the state nolled the first count of possession of narcotics. The trial court rendered judgment of guilty on the charge of possession of narcotics with intent to sell.
The trial court found the following facts and found that they justified the investigatory detention: (1) the defendant and his companions were perspiring, (2) the defendant and his companions were “pacing back and forth,” (3) the defendant and his companions were in a high crime area, and (4) there was alcohol on the breath of one of the men.
Issues on Appeal
The defendant appealed to the Appellate Court, and the appeal was transferred to the Supreme Court pursuant to CGS § 51-199 and Practice Book § 65-1.
On appeal, the defendant claimed that the trial court improperly denied his motion to suppress and challenged its factual findings. He claimed that the trial court improperly found that he and his companions were “sweating” and “pacing back and forth” during Bistany's questioning. Additionally, he claimed that, based on these erroneous factual findings, the trial court improperly concluded that there existed reasonable and articulable basis for the Terry stop.
The Supreme Court reversed and remanded the trial court's judgment with direction to grant defendant's motion to suppress. It concluded that the police detained the defendant without a reasonable and articulable basis to suspect that criminal activity had occurred or was about to occur, so the trial court improperly denied the defendant's motion to suppress the evidence.
The Supreme Court rejected the trial court's first two factual findings: that the defendant and his companions were perspiring and “pacing back and forth,” because the evidence of the police officer's videotape did not support these findings.
Supreme Court's Holding
The Supreme Court held that the presence of young adults in a high crime area at night and the smell of alcohol on the breath of one of the adults, who is not the driver of the vehicle at the scene, are not enough to justify investigatory detention.
Supreme Court's Reasoning
To determine the validity of a Terry stop, there are two levels of inquiry (State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992)). The first level of inquiry is to determine “at what point, if any, did the encounter between [the police] and the defendant constitute an investigatory stop or seizure?” Then, if the court concludes “that there was such a seizure, it must then determine whether [the police] possessed a reasonable and articulable suspicion at the time the seizure occurred.”
The first level of inquiry is: at what point, if at all, did a search and seizure occur? The state conceded that a seizure occurred when Bistany told the defendant and his companions to stay still and submit to a pat-down search. This occurred when Bistany assembled the men at the rear of the Lumina and in front of the cruiser, and after Bistany had told the driver to return to where he was standing.
The second level of inquiry is whether the trial court properly concluded that the seizure was based on a reasonable and articulable suspicion of criminal activity. This determination rests on a two-part analysis: whether (1) the underlying factual findings of the trial court are clearly erroneous and (2) the conclusion that those facts gave rise to
such a suspicion is legally correct (State v. Wilkins, 240 Conn. 489, 496, 692 A.2d 1233 (1997)). The police officer must be able to point to reasonable and articulable facts that warrant the search and seizure.
The videotape of the encounter did not show any indication that defendant or his companions were perspiring. Neither Bistany nor McManaway testified at the suppression hearing that any of the four men were sweating, and the state conceded at oral argument that there was no testimony that they were sweating. The Supreme Court concluded that the trial court's finding that the defendant and his companions were sweating could not stand.
There was also no support for the finding that the four men were “pacing back and forth.” Bistany testified that the men were “pacing back and forth.” The videotape showed the four men standing at the rear of the Lumina, occasionally shifting their weight from one foot to the other, standing in the spotlight, answering Bistany's questions. The Supreme Court found that these factual findings were clearly erroneous. The police officer's videotape did not support these factual findings.
The trial court's remaining findings were that Bistany noticed the “odor of alcohol emanating from the individual's breath” and that “the area was noted for the high instance of criminal activity.”
The Supreme Court concluded that even if Bistany smelled alcohol, this fact could not support the investigatory detention of the defendant. Also, Bistany testified that he smelled alcohol at “some point,” which did not indicate that he smelled it before the seizure, and this could not provide a reasonable and articulable basis for suspecting criminal activity.
The Court also concluded that the presence of the four men in a high crime area at night was not sufficient to indicate criminal activity to justify investigatory detention.