State v. Burroughs

• Decision Date: 23 September 2008
• Docket Number: No. 17894.,17894.
• Parties: STATE of Connecticut v. David BURROUGHS.
• Court: Connecticut Supreme Court

955 A.2d 43

288 Conn. 836

STATE of Connecticut v. David BURROUGHS.

No. 17894.

Supreme Court of Connecticut.

Argued May 22, 2008.

Decided September 23, 2008.

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Kelley P. Swift, former assistant state's attorney, for the appellant (state).

Robert S. Bello, with whom, on the brief, were Patrick D. McCabe, Lawrence M. Lapine and Thomas M. Cassone, Stamford, for the appellee (defendant).

ROGERS, C.J., and KATZ, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

ZARELLA, J.

The sole issue in this appeal is whether the Appellate Court properly concluded that the defendant, David Burroughs, was seized within the meaning of article first, §§ 7¹ and 9,² of the Connecticut constitution when two uniformed, armed police officers exited their patrol car and approached his vehicle. The state appeals from the Appellate Court's judgment, claiming that that court improperly reversed the trial court's determination that the conduct of the officers did not amount to an unconstitutional seizure of the defendant. The state specifically argues that such conduct would not have caused a reasonable person in the defendant's position to believe that he was not free to leave. We agree with the state and, accordingly, reverse the judgment of the Appellate Court.

The Appellate Court, relying on the trial court's memorandum of decision and articulation, set forth the following uncontested facts in its decision. "On the night of May 21, 2003, Joseph Duguay, a uniformed member of the Stamford police department since June, 1977, and his partner ... Officer Robert Macari, were on patrol in a marked police vehicle. At approximately 10:30 p.m., the officers received a radio transmission from the police department dispatcher directing them to investigate a suspicious car in the area of 70 Dyke Lane. The vehicle was described as a possible black BMW with license plate 685 PXD.

"The officers drove to Dyke Lane and observed a black vehicle parked facing north in front of 70 Dyke Lane with two occupants: a male, later identified as the defendant, in the driver's seat, and a female, later identified as the defendant's cousin, in the front passenger seat. As the officers drove by the defendant's car, the officers did not observe any criminal or suspicious activity on the part of the occupants of the vehicle. Dyke Lane in this area is primarily an industrial commercial area. The defendant's car, however, was parked in front of a private residence.

"The officers drove by the car and turned their vehicle around to bring it to the rear of the parked car. The parked car was a black Pontiac Grand Am, not a black BMW, and the license plate was 695 PXD, not 685 PXD. At all times while operating their police vehicle on Dyke Lane, the officers activated only the ordinary headlights on their vehicle. At no time did the officers activate their vehicle's siren or the overhead, side strobe lights or flashing colored lights.

"After parking behind the Grand Am, the officers exited their vehicle and approached the Grand Am. Duguay approached on the driver's side, and Macari approached on the passenger side. Neither officer drew his handgun; the guns remained in the respective holsters. The driver's side window had been lowered three to four inches. When Duguay approached the car window, he smelled marijuana and then noticed marijuana residue on the driver's jacket. Duguay testified that he had received training with regard to marijuana and that during his police service he had encountered and smelled marijuana `tens, if not hundreds, of times.'

"At this time, Duguay asked the defendant to exit the car and directed him to place his hands on the front hood of the car. Then, Duguay conducted an external patdown for weapons. Duguay found no weapon.

"Meanwhile, another police vehicle arrived on Dyke Lane. Duguay asked the defendant to walk back to the rear of the patrol car, where two officers were now standing by. As the defendant walked toward the police car, he reached into his jacket and pulled out a bag of what was later determined to be marijuana, handed it to Officer Thomas Pjatuk, one of the officers who had recently arrived on the scene, and then ran off. Duguay and Pjatuk pursued the defendant on foot and eventually apprehended him. The defendant was arrested ... and brought back to the area of 70 Dyke Lane, where he was placed in the rear of a patrol car.

"Officer Yan Vanderven, who had been a member of the Stamford police department for about eight years when he testified, arrived at the Dyke Lane location with his partner, Officer Romano Malacone, in response to a police radio call about a foot pursuit in the area. As they arrived, Duguay and Pjatuk, together with their partners, returned with the defendant in custody.

"Once the defendant was in custody, Vanderven searched the Grand Am. When he opened the driver's door, he observed pieces of marijuana on the driver's seat. He also saw a plastic bag in a `cubbyhole,' located in the dashboard to the left and a little below the steering wheel. He retrieved the bag and found that it contained a number of packages of what appeared to be crack cocaine, a narcotic that he testified he had encountered more than 100 times during his training and experience on the police force. In the trunk of the vehicle, he found a blue gym bag inside of which there was a plastic bag containing a number of smaller bags. All these items were secured and turned over to one of the officers at the scene.

"The defendant was arrested and charged with possession of narcotics with the intent to sell [by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b)] and possession of [marijuana in violation of General Statutes § 21a-279 (c)]. On November 24, 2004, the defendant filed a motion to suppress.... Following an evidentiary hearing on December 7, 2004, the court denied the defendant's motion." State v. Burroughs, 99 Conn.App. 413, 416-18, 914 A.2d 592 (2007). In denying the motion, the trial court concluded that the police officers' conduct prior to the time that Duguay smelled the marijuana did not constitute a seizure because there was no use of physical force or demonstration of authority, and, therefore, there was no constitutional violation that would justify exclusion of the evidence.

Thereafter, the defendant, pursuant to General Statutes § 54-94a,³ entered a conditional plea of nolo contendere to the charges of possession of narcotics with intent to sell and possession of marijuana. The trial court rendered judgment in accordance with the defendant's plea and sentenced the defendant to six years imprisonment and six years of special parole.

The defendant appealed to the Appellate Court, claiming that he was the victim of an illegal seizure and that the trial court improperly had denied his motion to suppress. The Appellate Court agreed and reversed with respect to the trial court's decision on the motion to suppress, concluding that a "seizure occurred at the time that the officers left their marked patrol car and began their approach [toward] the defendant's vehicle because a reasonable person would not have felt free to leave in that situation." Id., at 421, 914 A.2d 592.

On appeal to this court,⁴ the state claims that the defendant was not seized until after the police had developed a reasonable and articulable suspicion that he was engaged in criminal activity, which occurred when Duguay came close enough to the defendant's vehicle to detect the smell of marijuana. The state thus claims that the trial court properly denied the defendant's motion to suppress evidence of the contraband discovered in his possession. The defendant responds that he was seized illegally prior to the existence of probable cause or a reasonable and articulable suspicion justifying an investigative stop when the police officers exited their patrol car and began to approach his vehicle. We agree with the state and conclude that there was an insufficient show of police authority before the officers detected the smell of marijuana to establish a seizure under the state constitution.

"Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. 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]here the legal conclusions of the court are challenged, 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.) State v. Blackman, 246 Conn. 547, 553, 716 A.2d 101 (1998). We undertake a more probing factual review when a constitutional question hangs in the balance. See State v. Damon, 214 Conn. 146, 154, 570 A.2d 700 ("[w]here a constitutional issue turns [on] a factual finding ... our usual deference ... is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence" [internal quotation marks omitted]), cert. denied, 498 U.S. 819, 111 S.Ct. 65, 112 L.Ed.2d 40 (1990). In the present case, in which we are required to determine whether the defendant was seized by the police, we are presented with a mixed question of law and fact that requires our independent review.⁵

See Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995).

We next articulate the legal test used to determine when a person is "seized" within the meaning of article first, §§ 7 and 9, of our state constitution. We previously have concluded that 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. Ostroski, 186 Conn. 287, 291, 440 A.2d 984, cert. denied, 459...