State v. Scully

• Decision Date: 16 April 1985
• Citation: 195 Conn. 668,490 A.2d 984
• Parties: STATE of Connecticut v. James SCULLY. STATE of Connecticut v. Alexander TAYLOR.
• Court: Connecticut Supreme Court

Page 984

490 A.2d 984

195 Conn. 668

STATE of Connecticut v. James SCULLY.

STATE of Connecticut v. Alexander TAYLOR.

Supreme Court of Connecticut.

Argued Jan. 11, 1985.

Decided April 16, 1985.

Scott J. Murphy, Asst. State's Atty., for appellant (state).

Arthur P. Meisler, Vernon, for appellees (defendants).

Before PETERS, C.J., and HEALEY, SHEA, ASPELL and BRENNAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The state has appealed from the granting by the trial court, Conway, J., of both defendants' motions for the suppression and return of property seized from them by the state police. These appeals present the question whether under the circumstances of this case the officers involved could constitutionally make a valid warrantless investigatory stop of these defendants in their automobile. We hold they could not and affirm the trial court's suppression and return of the property seized and the dismissal of the informations.

On October 10, 1981, the Ku Klux Klan (Klan) held a rally in the town of Windham. A counterdemonstration, which included a march from Willimantic to Windham, was also held that day. This march was organized by the International Committee Against Racism (InCAR), an organization that opposes the policies of the Klan. The defendants, James Scully and Alexander Taylor, were both residents of Willimantic at that time. ¹

Trooper Bernard DePrimo was on duty that day in the Windham-Willimantic area. He had previously monitored three other Klan rallies, ² and he and his partner had been assigned to conduct a surveillance of a street demonstration on this particular day. Both officers wore plain clothes and were operating undercover in an unmarked green, two-door Ford LTD automobile.

Early in the afternoon, DePrimo was in Willimantic in his parked vehicle observing an InCAR demonstration that preceded an anti-Klan march to Windham. At approximately 1:15 p.m., the defendants, in a red Ford Mustang automobile, pulled up alongside DePrimo who saw Taylor take his photograph with a camera, giggle and look at him in a "funny way." DePrimo claimed that, because of the glare on the windshield, he was unable to identify the Mustang's driver, Scully. ³ After photographing DePrimo, ⁴ who at the time was alone in the unmarked police vehicle, the defendants drove away.

Approximately fifteen minutes later, DePrimo, who had then picked up his partner, proceeded in the unmarked automobile on a street described as running parallel to the InCAR march route. He then noticed through his rear-view mirror the same Mustang occupied by the defendants behind him on Route 32. After traveling about an eighth of a mile, ⁵ the two vehicles arrived at a traffic light at the intersection of Routes 32 and 6. While stopped at the light, DePrimo looked again in his rear-view mirror and observed the defendants in their car, according to his testimony, making gestures and pointing. These gestures were described by him as neither obscene nor anything "too dramatic."

While the light was still red, DePrimo exited from his vehicle intending to arrest both defendants for breach of the peace. While approaching the defendants' vehicle which was stopped at the light behind the troopers' car in the line of traffic, DePrimo held out his badge in one hand and placed his other hand on his undrawn gun. When DePrimo reached the defendants' vehicle, he then noticed for the first time a gun butt sticking out from between the front bucket seats into the rear of the Mustang and a steel bar in the back seat. He then ordered the defendants to pull into an adjacent convenience store parking lot, which they did. Prior to observing these items in the defendants' vehicle, DePrimo had not informed them that they were under arrest.

After Scully had complied with DePrimo's order and pulled the Mustang off the road, DePrimo and his partner had the defendants get out of their vehicle, searched them, and placed them under arrest. ⁶ The pat-down search of the defendants uncovered 20-gauge shotgun shells and .22 calibre rifle shells on both defendants. The officers then searched the defendants' vehicle and found and seized therefrom a rusted eighteen-inch steel bar with a large nut rusted on the end of it, an unloaded 20-gauge shotgun positioned as stated above, an unloaded .22 calibre rifle on the floor of the back seat, two chains approximately two feet long in a plastic bag under the driver's seat, additional ammunition, a comb, a walkie-talkie, and Taylor's medical prescriptions.

The defendants were charged by information with breach of the peace in violation of General Statutes § 53a-181 ⁷ and possession of a dangerous weapon in violation of General Statutes § 29-38. ⁸ The defendants, pursuant to § 54-33f and our Practice Book rules, ⁹ moved for the suppression and return of the evidence arguing it was illegally seized.

A suppression hearing was held at which DePrimo was the sole witness. The trial court granted the motion to suppress on the grounds that: the arrest for breach of peace was without probable cause, and hence illegal; the evidence confiscated during the search was therefore "fruit of the poisonous tree" and properly suppressed; and even if the search were legal, these items seized were neither deadly nor dangerous weapons within the purview of § 29-38. Moreover, the court did not find credible DePrimo's testimony regarding his stated reasons for approaching the defendants' vehicle. ¹⁰ The trial court, upon the state's request, dismissed the informations with prejudice in order to allow the state to appeal these rulings. See State v. Ross, 189 Conn. 42, 454 A.2d 266 (1983).

On appeal, the state does not contend that probable cause existed to arrest the defendants at the time DePrimo exited his vehicle to approach them. Nor does the state contend that these defendants in their vehicle were "stopped pursuant to a practice embodying neutral criteria." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). The state instead claims the trial court erred in granting the motion to suppress in that the trooper properly detained the automobile and its occupants in order to conduct an investigative stop and thus the search and seizure were justified and legal. We do not agree and hold that there were insufficient grounds in this case to justify an investigative stop. ¹¹

The fourth amendment as applied through the fourteenth amendment of the federal constitution and article first, § 7 of the Connecticut constitution apply to searches and seizures of the person and things, including investigatory stops of an automobile as occurred here. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), reh. denied, 455 U.S. 1008, 102 S.Ct. 1648, 71 L.Ed.2d 877 (1982); Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); State v. Watson, 165 Conn. 577, 583-84, 345 A.2d 532 (1973). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." (Emphasis added.) (Citations omitted.) United States v. Cortez, supra, 449 U.S. at 417, 101 S.Ct. at 695, see State v. Cardinal, 194 Conn. 114, 117, 478 A.2d 610 (1984); State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981); State v. Watson, supra, 165 Conn. at 584-85, 345 A.2d 532. "Based upon the whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, supra, 449 U.S. at 417-18, 101 S.Ct. at 694-95; ¹² see also Brown v. Texas, supra, 443 U.S. at 51, 99 S.Ct. at 2640; State v. Januszewski, supra; State v. Watson, supra, 165 Conn. at 585, 345 A.2d 532. "The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances ... [which second,] must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." United States v. Cortez, supra, 449 U.S. at 418, 101 S.Ct. at 695; see State v. Januszewski, supra. We also have repeatedly stated that a police officer's decision to make such an investigatory stop must be predicated "on more than a mere hunch." State v. Januszewski, supra, 194 Conn. at 149, 438 A.2d 679; see also State v. Acklin, 171 Conn. 105, 111, 368 A.2d 212 (1976); State v. Watson, supra, 165 Conn. at 585, 345 A.2d 532. With this guidance, we examine the relevant circumstances involved in the present case in conjunction with the crimes charged.

On the day in question, the state police officers involved in this incident were assigned to a detail monitoring Klan and anti-Klan activities. On the basis of prior incidents, these officers could have reasonably been concerned about the potential for acts of civil disobedience or involving violence. At the time when these defendants were "stopped," however, there had been, at least on their part, no "objective manifestation" of involvement in any criminal activity. United States v. Cortez, supra, 449 U.S. at 417, 101 S.Ct. at 695; United States v. Nargi, 732 F.2d 1102, 1105 (2d Cir.1984). The defendants had photographed DePrimo, who had been dressed in plain clothes, sitting in his unmarked car and then had driven away; while perhaps such an act did not involve the use of the soundest judgment by the defendants, in and of itself it certainly did not constitute criminal activity. The officers never made any claim or arrest on the basis that the defendants were interfering with them in the performance of their police duties. See General Statutes § 53a-167a. The defendants had at some time later, after having disappeared from DePrimo's view, appeared behind his unmarked vehicle, and, while stopped...