State of Connecticut v. Terence Trine
*That presented here has been slightly edited from the original
to reduce its size and redact names. The substantive content remains intact.
This brief was researched and written entirely by Attorney Miller under the
direction of the attorney of record in the case, Dominic Piacenza, Esq.
NATURE OF THE PROCEEDINGS
On March 26, 1993, the defendant was arrested by the statewide narcotics task force. He was charged with possession of over one ounce of cocaine with intent to sell in violation of General Statutes 21a-278 (b) and possession of drug paraphernalia in violation of General Statutes 21a-267.
The defendant filed a motion to suppress the evidence against him which had been seized without a warrant. Judge Thomas F. Parker presided over the hearing. The court determined that the evidence was admissible and, therefore, denied the motion.
The defendant then entered a plea of nolo contendere while preserving his right to appeal the trial court's ruling on the motion to suppress. He was subsequently sentenced on January 11, 1994.
The defendant now raises this appeal to the denial of his motion to suppress.
STATEMENT OF THE FACTS
On March 26, 1993, at 3:00 p.m., (T. 11/24 at 59), the defendant was at the home of [a friend]. While the defendant talked on the phone in her kitchen, the statewide narcotics task force forcibly entered the house in order to conduct a search of the residence and of [the defendant’s friend], pursuant to a validly executed warrant to search both the house and [the friend]. (T. 11/24 at 59; T. 11/24 at 82).
One of the task force members, Sergeant Pagan, with gun drawn, (T. 11/24 at 61), demanded the defendant, who was not known to him, (T. 11/24 at 28), to put his hands behind his head and lie down face first on the floor. (T. 11/24 at 30; T. 11/24 at 61). In a state of shock the defendant literally dropped the phone and immediately complied with the Sergeant's request. (T. 11/24 at 30; T. 11/24 at 61-62; T. 11/24 at 82). The Sergeant then handcuffed the defendant with his hands behind his back, still lying face down on the floor. (T. 11/24 at 31; T. 11/24 at 83). The Sergeant then proceeded to conduct what he termed a pat-down search of the defendant. (T. 11/24 at 33; T. 11/24 at 64-66).
While patting the defendant's right pants pocket, the Sergeant, according to his testimony, felt an object which he knew was not a weapon, (T. 11/24 at 33), yet concluded was contraband. (T. 11/24 at 33). He removed the object and discovered it to be a white crystallized substance, later determined to be cocaine. (T. 11/24 at 32). The defendant was subsequently arrested and released later that night after posting a $10,000 bond. (T. 11/24 at 71).
I. THE SEARCH EXCEEDED WHAT IS PERMISSIBLE UNDER A SO-CALLED TERRY PAT-DOWN FOR WEAPONS.
Citizens of Connecticut have a fundamental right of integrity of their person. The fourth amendment of the federal constitution, made applicable to the states by the fourteenth amendment, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed.2d 1081 (1961), guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Constitution of the United States, amend IV. Article first, � 7, of the Connecticut state constitution provides the same protection. State v. Watson, 165 Conn. 577 at 584, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed.2d 311 (1974). Such rights are difficult to protect because their advocates are often, in hindsight, criminals; however, safeguarding them is of importance because they protect not only the guilty, but the innocent as well. Illinois v. Gates, 462 U.S. 213 at 290, 103 S. Ct. 2317, 76 L. Ed.2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct 33, 77 L. Ed.2d 1453 (1983).
There are certain limited exceptions to the protection from unreasonable searches. "Time and again, this Court has observed that searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." (Emphasis Added.) Minnesota v. Dickerson, -- U.S. --, 113 S. Ct. 2130 at 2134, 124 L. Ed.2d 334 (1993) (quoting Thompson v. Louisiana, 469 U.S. 17 at 19-20, 105 S. Ct. 1921, 32 L. Ed.2d 612 (1984)(per curiam)(internal quotation marks omitted); State v. Zindros, 189 Conn. 228 at 236-37; 456 A.2d 288 (1983). One such search is known as the "pat-down" or "protective" search. It is conducted to determine whether a person is carrying a weapon. Terry v. Ohio, 392 U.S. 1 at 24, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968). In order to conduct the search, an officer that is investigating a suspicious person at close range must be justified in believing the individual is armed and presently dangerous. Id., at 30. The scope of the pat-down search must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Id., at 26; Ybarra v. Illinois, 444 U.S. 85 at 93-94, 100 S. Ct. 741, 62 L. Ed.2d 238 (1979); Minnesota v. Dickerson, at 2134. The pat-down search is an established exception to the freedoms of both the fourth amendment and article first, � 7; it may be conducted in specific circumstances without violating either the federal or state constitutions. Terry v. Ohio; State v. Dukes, 209 Conn. 98 at 122-23, 547 A.2d 10 (1980).
Although there is a pat-down exception, its permissible scope is strictly confined. It must be restrained to that reasonably related to the circumstances that justified it in the first place. State v. Aillon, 202 Conn. 385 at 399; 521 A.2d 555 (1987); State v. Moreland, 23 Conn. App. 495, 582 A.2d 212 (1990). The pat-down must be confined to a search reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. Terry v. Ohio, at 29; State v. Anonymous, 6 Conn.Cir. 583, 280 A.2d 816 at 819 (1971). Professor LaFave summarizes the need to maintain the restrictive scope of the pat-down:
To allow a search for anything which could under some circumstances be employed as a weapon would be to permit a search just as intrusive as that which can be made incident to a custodial arrest, except in the rare case in which the suspect's pockets are entirely empty. 3 W. LaFave, Search and Seizure (1978) � 9.4(c) at 127.
It cannot be extended to a generalized search for anything but weapons. Ybarra v. Illinois, at 93-94. Being so limited, the search specifically cannot be used to discover evidence of a crime. Adams v. Williams, 407 U.S. 143 at 146, 92 S. Ct. 1921, 32 L. Ed.2d 612 (1972); Sibron v. New York, 392 U.S. 40 at 65, 88 S. Ct. 1889, 20 L. Ed.2d 917 (1968). An officer may pat-down search a suspect for the protection of police or third parties to determine if the suspect is armed; however, once an officer ascertains the suspect has no weapon, the search must end. Terry v. Ohio, at 29; State v. Anonymous, at 819. The scope of a pat-down search is the search for weapons; if an officer goes beyond that necessary to determine if the suspect is armed, the search is no longer valid and Constitutional protection requires the suppression of the evidence. Sibron v. New York, at 65-66; State v. Anonymous, at 819.
Under certain circumstances, evidence discovered during a pat-down search is admissible. The plain view doctrine has recently been expanded by the Supreme Court to include what is termed "plain feel." An officer that is lawfully conducting a pat-down search, may seize any contraband that is plainly felt as long as the proper scope of the pat-down has not been exceeded. Minnesota v. Dickerson, at 2135. "Plainly felt" is defined as an "object whose contour or mass makes its identity immediately apparent." Ibid. If any further feeling or manipulating of the object is required, beyond an officer's determination that the object is not a weapon, the criteria of the plain feel doctrine are not met and the evidence must be suppressed. Id., at 2137. An officer is not required to ignore contraband that is discovered during a pat-down search so long as the officer immediately determines its identity as contraband.
Assuming arguendo that the circumstances in the case at bar established the ability of the officers to conduct a pat-down search, the search that was conducted exceeded the allowable scope. The defendant contends that the officer's contact with his body was more than a pat-down; rather than ending when the search was determinative that he was unarmed, it continued as a roving search for contraband.
The only on-point Connecticut case found by this author is State v. Anonymous, supra. It is strikingly similar to the one at bar regarding the conducting of a pat-down and subsequent discovery of drugs. The Court, in that case, determined that the officer's authority to search terminated when he ascertained that the defendant was not armed. Id., at 819. The Court stated that if the officer felt an object that he knew was not a weapon, seizing it would exceed the purpose of the frisk and would be constitutionally unreasonable. Ibid. It concluded by quoting Sibron, supra: "Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents." Sibron v. New York, at 65. The Court in that case granted the motion to suppress.
In the case at bar, the searching officer determined that the defendant was unarmed. Sergeant Pagan stated in his testimony that he "instantaneously" knew the object which he felt in the defendant's right pocket was not a weapon. (T. 11/24 at 18 and 33). After completing his pat-down, the officer found no further objects on the defendant's person. (T. 11/24 at 33). Thus, having determined that the defendant was unarmed and presented no danger to the officers, the search was required to end at that point. Terry v. Ohio, at 29. Any further search of the defendant does not fall within an exception to Constitutional freedoms and would simply be a clear, "wholesale intrusion upon the personal security of our citizenry." Davis v. Mississippi, 394 U.S. 721 at 726-27, 89 S. Ct. 1394, 22 L. Ed.2d 676 (1969).
The only reason that would warrant any further intrusion on the defendant's right to personal integrity would be if the officer had immediately determined that the object was contraband, without manipulating it in any way. Sergeant Pagan testified that he frisked the defendant with an open hand and that actual contact with the defendant was made with a patting motion. (T. 11/24 at 33). Although he concludes, in hindsight, that he immediately came to the conclusion of the illegality of the object, further testimony of Sergeant Pagan suggests otherwise. He states that "almost instantaneously upon touch, I felt that hard object and I heard the sound of plastic," (T. 11/24 at 33), suggesting that a conclusion of the nature of the object was not immediately made, requiring a more intrusive touch than a "pat" to feel the "hardness of the object." Corroborating the lack of instantaneous determination, Pagan states, in response to a question regarding what the object was, that, "It was later determined to be a plastic bag containing cocaine." (T. 11/24 at 32 (emphasis added)). He also stated that the noise the bag made "sounded like a plastic bag," (T. 11/24 at 38), leading to the conclusion that he was not even positive the bag was plastic, only that it sounded like it. Even if the officer had been sure that the bag was plastic, he admits that that does not necessarily mean it is contraband. (T. 11/24 at 51). Sergeant Pagan, in conducting a pat-down search felt an object, but was not certain at that immediate time that it was contraband; he thought it might be plastic and that sometimes plastic contains contraband. This uncertainty at the moment of contact with the object prohibits any further investigative touching.
That Sergeant Pagan did not "immediately" conclude what he felt was contraband is confirmed by the trial court's own findings: "Likewise, Pagan had probable cause that contraband narcotics were in the pocket." (T. 11/29 at 38)(emphasis added).
Sergeant Pagan did continue his search beyond a pat-down by manipulating the object to determine its identity. He admitted that he "moved the plastic" and that, inversely, it did not move on its own. (T. 11/24 at 48). He specifically stated that the plastic itself moved "upon [his] touch." (T. 11/24 at 47-48 (emphasis added)). In the context of describing the sound the plastic made, the sergeant conceded that the statement written by Officer Sinagra in the police report, Defendant's Exhibit A, was made after communicating with himself. (T. 11/24 at 41). The report states that the object "sounded like a plastic bag when it moved." Defendant's Exhibit A, at 7 (Emphasis added.). The U.S. Supreme Court invalidated a similar search in which the officer stated that he, "examined [the object] with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane." Minnesota v. Dickerson, at 2130 (emphasis added). The statements of the sergeant conducting the pat-down search are conclusive in determining that the object was subjected to manipulation by touch, notwithstanding whether the sergeant subjectively considered his intrusion to be a pat. The United States Supreme Court has specifically stated that moving an object in an attempt to determine its identity goes beyond the allowable scope of a pat-down search and is a clear violation of Constitutional liberties considered to be inherently fundamental. Id., at 2132.
The pat-down search exceeded its limited scope and therefore violated the defendant's freedom from unreasonable searches. As a result, any evidence derived from the search must be suppressed as fruit of the poisonous tree. Sibron v. New York, at 65-66.
In light of recent decisions by this Court, an examination of the decisions of other jurisdictions is appropriate in determining an issue within this state. State v. Joyce, 229 Conn. 10 at 16, n.7, -- A.2d -- (1994). Decisions of other states and jurisdictions provide to this Court a guideline of how fellow jurists have interpreted the constitutional rights of personal integrity established in the federal Constitution as well as United States Supreme Court decisions.
A number of states and federal jurisdictions have determined the limiting scope of the pat-down search. All related cases found by this author have squarely determined that the pat-down must end the moment an officer concludes the suspect is unarmed. State v. Collins, 679 P.2d 80 at 83 (Ariz. 1983); People v. Collins, 463 P.2d 403 at 406 (Cal. 1970); People v. Ratcliff, 778 P.2d 1371 at 1381 (Colo. 1989); People v. Cobbin, 692 P.2d 1069 at 1072 (Colo. 1984); Raleigh v. State, 404 So.2d 1163 at 1164-65 (Fla. 1981); Jones v. State, 192 S.E.2d 171 at 174 (Ga. 1972); State v. Cambell, 235 A.2d 235 at 240 (N.J. 1967); People v. Diaz, 612 N.E.2d 298 at 302 (N.Y. 1993); People v. Roth, 487 N.E.2d 270 at 270 (N.Y. 1985); Minnesota v. Dickerson, 469 N.W.2d 462 at 466 (1991); Lippert v. State, 664 S.W.2d 712 at 721 (Tex. 1984); Neal v. State, 696 P.2d 508 at 509 (Okla. 1985); State v. Allen, 606 P.2d 1235 at 1236 (Wash. 1980); State v. Hobart, 617 A.2d 429 at 433 (Wash. 1980); State v. Broadnax, 654 P.2d 96 at 101 (Wash. 1982); United States v. Robinson, 471 F.2d 1082 (D.C. Cir. 1973); United States v. Del Toro, 464 F.2d 520 at 522 (2d Cir. 1972); United States v. Hunter, 550 F.2d 1066 at 1070 (6th Cir. 1977); Tinny v. Wilson, 408 F.2d 912 (9th Cir. 1969); United States v. Thompson, 597 F.2d 187 at 191 (9th Cir. 1979); United States v. Gonzalez, 319 F.Supp. 563 (D.Conn. 1970). When an officer feels an object and determines with certainty that it is not a weapon, as Sergeant Pagan did in this case (T. 11/24 at 18 and 33), the object cannot be seized.
Not only must the pat-down have a specific purpose, but it also must remain within specific constraints. An officer cannot conduct an exploratory search unrelated to the purpose of self-protection. State v. Cambell, at 239. It must be limited to the purpose of discovering weapons. Terry, at 29; Jones v. State, at 174; United States v. Hostetter, at 1317. An officer cannot simply empty a defendant's pockets in order to search for weapons. People v. Cobbin, at 1072, n.4. Although a search is not limited to simply patting down, United States v. Hill, 545 F.2d 1191 at 1193 (9th Cir. 1976), it must be confined to those areas of the defendant's body where a weapon could be hidden and quickly retrieved to be used against an officer. United States v. Hunter, at 1070. The scope of a pat-down search must be limited to its purpose--to discover weapons. Allowing officers to use it as a means of searching for any evidence would be a destruction of both federal and state rights of personal integrity. Certainly an officer may pat-down a suspect for the protection of everyone concerned; however, this narrow exception is not meant to be the first step onto the slippery slope of destruction of personal rights. The Courts have specifically and narrowly define the role a pat-down search is to play; any extension of the search is contrary to both established law and constitutional principles.
The "plain-feel" doctrine has expanded the ability to properly seize evidence, but has in no way expanded the allowable scope or extent of a pat-down search. The Supreme Court decision of Minnesota v. Dickerson, supra, allows evidence to be seized that happened to be discovered in a properly constrained pat-down. See Dunn v. Commonwealth, 689 S.W.2d 23 at 27 (Ky. 1985). Thus an object thought to be a weapon can be extracted from a suspect's pocket; if it is contraband, it may properly be seized. Ibid.; People v. Martinez, 801 P.2d 542 at 544 (Colo. 1990); Raleigh v. State, at 1164; Phillips v. Commonwealth, 434 S.E.2d 918 at 920 (Va. 1993); United States v. Thompson, at 191. However, an object known not to be a weapon cannot be seized.
During a pat-down, if an officer is not certain that an object is contraband it may not be seized, not even for further investigation (unless thought to be a weapon). Even where an officer considered the object to be "pills or something of that nature," the seizure was not upheld. Ricci v. State, 506 P.2d 601, at 604 (Okla.App. 1973). Similar to the facts of this case, an officer who knew an object in a suspect's pocket was not a weapon, but thought it to be cocaine because it was small and soft, conducted an illegal seizure by reaching in and taking the bag. United States v. Del Toro, at 522. Likewise, an officer that felt a soft object smaller than even the smallest gun could not remove it during a pat-down. United States v. Robinson, at 1082. An officer cannot seize a folded dollar bill that he knows was not a weapon, yet upon touching it suspected, through his experience, was filled with cocaine. United States v. Del Toro, supra. In a case nearly identical to the one now before the Court, the Federal District Court of Connecticut held that an agent was not entitled to further search a suspect's pocket even though a soft package thought to be wrapped in cellophane was felt within the pocket. The Court determined that such a seizure would be an intrusion on the personal effects of the suspect. United States v. Gonzalez, at 564. In fact, even in Minnesota v. Dickerson, supra, the Supreme Court held the seizure of cocaine from the defendant's pocket was a violation of his Fourth Amendment rights because the officer did not immediately recognize it as contraband; as in the case at bar, the officer had to first manipulate the object to determine its identity. Id., at 2136-37. Certainly an officer is not required to ignore contraband that is discovered during a valid pat-down search; Sibron v. New York, at 69-70; however, the Courts of the various states and jurisdictions have overwhelmingly determined that such discovery does not entail any further investigation of a suspect. To legally discover contraband while conducting a pat-down search, an officer cannot have been looking for it; the contraband must have, simply stated, been stumbled upon. Even the slightest query into an object's identity beyond determining if its a weapon, is in violation of the unanimous interpretation of the Constitution and Supreme Court precedents.
Additionally, the Connecticut Constitution may provide greater protection from "plain feel" seizures found constitutional by the United States Supreme Court. "It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit states governments from affording higher levels of protection of such rights." Cologne v. Westfarms Association, 192 Conn. 48, at 57; 469 A.2d 1201 (1984). Likewise, Article First, �� 7 and 9 of the Connecticut Constitution have been considered to afford greater protection to the citizens of this state than the Fourth Amendment of the federal constitution, State v. Oquendo, 223 Conn. 635, 649-50, 613 A.2d 1300 (1992). New York has determined that the "plain feel" doctrine is in violation of its state constitution. People v. Diaz, at 302. Likewise, this Court must determine the degree of greater protection provided by the Connecticut Constitution and whether "plain feel" is in violation of that protection.
Sociological concerns should be taken into consideration where appropriate under the circumstances of a particular case. State v. Joyce, at 16, n.7; see State v. Barton, 219 Conn. 529, at 546; 594 A.2d 917 (1991). It is important to note that this case does not concern the creation of a new protection, but of the preservation of the fundamental right to personal integrity. Sibron v. New York, at 65. However, this right must be balanced with the interest of protecting our peace keepers who routinely place their lives on the line for the protection of our society. The Supreme Court and the the courts of the various state and federal jurisdictions have made this balance, providing an exception to an otherwise unbreachable right to be free from unreasonable searches and seizures. This exception provides for a Terry pat-down search for the sole purpose of protecting police officers. Extending this limited search into anything more than a protection of officers is not only a violation of established law, but a perversion of the very principles on which both the federal and state constitutions are based.
II. THE DEFENDANT WAS SEIZED AND IN FULL CUSTODIAL ARREST WITHOUT PROBABLE CAUSE.
A person is protected from unreasonable searches and seizures by the Fourth Amendment of the federal constitution and by Article First, � 9 of the Connecticut constitution. This freedom protects the privacy and personal security of individuals by preventing arbitrary and oppressive interference by enforcement officers, requiring them to establish probable cause prior to making any seizure. United States v. Martinez-Fuerte, 428 U.S. 543 at 544, 96 S. Ct. 3074, 49 L. Ed.2d 1116 (1976); United States v. Mendenhall, 446 U.S. 544 at 553, 100 S. Ct. 1870 (1980). The defendant's freedoms were violated because he was, in fact, arrested without probable cause.
There is a definite moment in which a seizure takes place. A seizure takes place under the Connecticut Constitution when, by means of physical force or show of authority, a person's freedom of movement is restrained. State v. Ostroski, 186 Conn. 287 at 291, 440 A.2d 984, cert. denied 459 U.S. 878, 103 S. Ct 173, 74 L. Ed.2d 984 (1982); see Terry, at 19. This is determined by when a reasonable person would have believed that they were not free to leave the custody of an officer. State v. Ostroski, at 287. A seizure exists when there is a display of a weapon, physical touching or the use of language or tone of voice that indicates compliance is compelled, not voluntary. Dunaway v. New York, 442 U.S. 200 at 207; 99 S. Ct. 2248, 60 L. Ed.2d 824. A person that is considered to fall within these criteria has been seized whether or not the arresting officer subjectively considers it a seizure.
Certain seizures are reasonable under the Fourth Amendment even in the absence of probable cause. A person may be seized if there is a "reasonable and articulable suspicion that the person has committed or is about to commit a crime." Terry v. Ohio, at 24; Florida v. Royer, 460 U.S. 491 at 498, 103 S. Ct. 1319, 75 L. Ed.2d 229 (1983); State v. Lamme, 216 Conn. 172 at 184, 579 A.2d 484 (1990); State v. Anderson, 24 Conn.App. 438 at 441, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991). Once a reasonable and articulable suspicion exists, the detaining officer may conduct an investigative stop of the suspect to confirm or dispel suspicions. Terry v. Ohio, at 18; State v. Federici, 179 Conn. 46 at 51, 425 A.2d 916 (1979); State v. Acklin, 171 Conn. 105 at 112-13, 368 A.2d 212 (1976). The main purpose of this exception is to allow the detaining officer to briefly maintain the status quo while ascertaining the nature of the situation. Terry v. Ohio, at 19; State v. Braxton, 196 Conn. 685 at 689; 495 A.2d 273 (1985). However, an investigatory stop must remain within certain parameters. A justified Terry stop can become constitutionally infirm if it lasts longer or becomes more intrusive than necessary to complete the investigation. State v. Mitchell, 204 Conn. 187 at 197, 527 A.2d 1168 (1987); State v. Evans, 214 Conn. 57 at 72, 570 A.2d 193 (1990). A seizure may be made without probable cause, but must remain within specific guidelines.
In the instant case, the defendant was seized just moments after the police officers entered the residence. The defendant was handcuffed while lying face down on the floor; (T. 11/24 at 31; T. 11/24 at 83); his freedom of movement was unquestionably restrained. See State v. Ostroski, at 291. A significant amount of force was shown: a gun was held just a few inches from the defendant's head, (T. 11/24 at 63-64); the officers physically restrained him, first with his knee then with handcuffs, (T. 11/24 at 82); the officers used language and tone of voice that required compliance, yelling to the defendant to get "on the fuckin' floor right now." (T. 11/24 at 61). It is unquestionable that while lying on the floor, handcuffed, with a gun to the head any reasonable person would believe that they were not free to leave. In light of all the circumstances, State v. Ostroski, at 287, the defendant was not free to leave, did not think he could leave and the arresting officer was detaining him by force. Therefore, this is a seizure requiring probable cause to be legal.
It is uncontroverted that the arresting officer did not conclude that he had probable cause, even after the defendant had been seized. He testified that he considered the defendant not to be under arrest at that time. (T. 11/24 at 17). He stated that he did not know the defendant prior to the raid. (T. 11/24 at 28). Therefore, the arresting officer knew nothing about the defendant other than the fact he was in a house when a search warrant was served. This is, by no means, probable cause by any definition.
Although probable cause is not required to conduct a brief, Terry investigatory detention, a lessor standard of reasonable and articulable suspicion is. The United States Supreme Court has determined that mere presence at a place where a search warrant is served does not establish reasonable and articulable suspicion; it must be established in direct regards to the suspect. Ybarra v. Illinois, at 94. Because the seizure in this case was not supported by either probable cause or reasonable and articulable suspicion, it cannot be upheld.
Even if it were conceded that reasonable and articulable suspicion had been established, the extent of the seizure far surpassed that necessary under the circumstances of the investigation. An investigatory detention loses its Constitutional mandate when it becomes more intrusive than necessary to complete the investigation. State v. Mitchell, at 197; State v. Edwards, at 72. Certainly police officers should not be given blanket ability to handcuff any suspect and place them face-down on the ground; there may be incidents when this is indeed necessary, yet it cannot, consistent with Constitutional freedoms from unreasonable seizures, be used in every situation. These officers knew nothing of this defendant and asked him no questions prior to seizing him with maximum restraint. Certainly this is not the probable cause exception established in Terry v. Ohio, supra, and more strictly protected by the Connecticut Constitution. State v. Marsala, 216 Conn. 150 at 159-60, 579 A.2d 58 (1990); State v. Oquendo, at 649-50.
Without the requisite probable cause, the defendant was improperly arrested. Where there is no probable cause to arrest a suspect, all evidence seized subsequent to the arrest must be suppressed. State v. Scull, 195 Conn. 668, 490 A.2d 984 (1985); State v. Magnott, 198 Conn. 209, 502 A.2d 404 (1985). As fruit of the poisonous tree, the arrest of the defendant was tainted by an illegal seizure and therefore cannot stand. State v. Federici.
III. AT THE MOMENT THE DEFENDANT WAS SEARCHED, THE REQUISITE FACTORS NECESSARY TO CONDUCT A PAT-DOWN SEARCH DID NOT EXIST.
The purpose of a pat-down search is the protection of officers and any third parties in the area. Terry v. Ohio, at 27. In order to utilize this exception to the Constitutional freedom from unreasonable searches, an officer must determine that a suspect is dangerous. Ibid.; State v. Dukes, at 122-23. This determination must stand entirely on its own merit, distinct from any suspicion that a person is about to commit a crime; "an officer does not have the automatic ability to frisk every suspect whom he may lawfully stop." 3 W. LaFave, Search and Seizure (2d.Ed. 1987) � 9.4(a) at 505-508 (quoted from CR91-77229 (1993)). A suspect not considered dangerous is not subject to a pat-down search. The defendant was not a threat to the officers safety when the warrant was first served and certainly was not a threat once handcuffed, lying face down on the floor.
Certainly an officer should not be subjected to needless, avoidable risks. "An officer should not be made to choose between his own safety and what could be construed as an illegal search and seizure." State v. Santiago, 17 Conn.App. 273 at 277, 552 A.2d 438 (1989). A pat-down search may be conducted for the protection of a law enforcement officer. Ybarra v. Illinois, at 93. However, prior to conducting such a search, a suspect must be considered armed and presently dangerous. Sibron v. New York, at 64; United States v. Bell, 762 F.2d 495 at 499 (6th Cir. 1985). The officer must reasonably believe or suspect that the suspect has possession of a weapon. Ybarra v. Illinois, at 93; State v. D'Ambrosia, 14 Conn.App. 309, 541 A.2d 880 (1988), rev'd, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied -- U.S. --, 110 S. Ct. 880, 107 L. Ed.2d 963 (1990). However, there "need not be absolute certainty 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." Terry v. Ohio, at 27. The officer must be able to point to particular facts that infer that the individual was armed and dangerous. Sibron v. New York, at 64. A mere hunch is not enough. Terry v. Ohio, at 27; State v. Rice, 172 Conn. 94 at 98, 374 A.2d 128 (1976). Therefore, a pat-down search may be made when a reasonable person under the circumstances, while pointing to particular facts, would consider a suspect to be in possession of a weapon that could harm another.
Presence in a location where a warrant is presently being served does not, per se, make a third party dangerous. All required elements of a pat-down search must be met, "even though [a] person happens to be on premises where an authorized narcotics search is taking place." Ybarra v. Illinois, at 94. "An individual may [not] be frisked based upon nothing more than an unfortunate choice of associates." United States v. Bell, at 499. The states are divided as to whether the Ybarra holding, supra, extends to private homes. Some consider the private home to be no different than a public tavern, thus requiring all elements of dangerousness; any distinction between private and public is fallacious and ignores the real teachings of Ybarra, supra. State v. Broadnax, at 100; see also United States v. Sporleder, 635 F.2d 809 at 813 (10th Cir. 1980). Other states distinguish the two, stating that those found within private homes are very likely to be associated with any illegal narcotics activity on the premises. See State v. Zearley, 444 N.W.2d 353 (N.D. 1989). The United States Supreme Court has declined to rule on the issue, leaving the states to interpret Ybarra, supra. Guy v. Wisconsin, -- U.S. --, 113 S. Ct. 3020, 125 L. Ed.2d 7709 (1993); Michigan v. Little, 474 U.S. 1024, 106 S. Ct. 580, 88 L. Ed.2d 563 (1985). Connecticut has not given an opinion in support of either interpretation. Because this point in Ybarra, supra, has not been overruled, the defendant urges this Court to accept the plain language of the opinion: "The narrow scope of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place." Ybarra v. Illinois, at 343. If the Supreme Court had wanted to restrict its holding only to public places and exclude private homes it would have specified; in fact, the opinion merely says "premises," which would refer to all premises--public or private. In order to remain consistent with the Supreme Court opinion, Connecticut must adopt an interpretation of Ybarra similar to that of Washington.
Certain circumstances have been recognized as establishing the requisite reasonable suspicion to conduct a pat-down search. A suspect that initially runs from an officer is considered likely to be armed. State v. Mierez, 24 Conn.App. 543, 590 A.2d 569 (1991). Conversely, a person who makes no threatening gestures or motions and does not attempt to flee is considered less likely to be dangerous. Ybarra, at 93. If a suspect is recognized by the investigating officer as having a criminal record, sufficient cause exists to conduct a pat-down search. Ibid. A location that is considered a high crime area lends to the establishment of probable cause of a suspect being armed; unusual time of day makes the same inference. Ibid. A suspect attired in "bulky clothes" is more subject to a pat-down for the protection of the officer. State v. Dukes. The Courts have recognized the inherent nature of certain circumstances and established whether, as a matter of law, they lead to probable cause of a suspect's danger.
When the officers in the case at bar entered the residence of Marybeth Montesi, the defendant did not pose a danger to anyone. The officers did not recognize the defendant as having a prior criminal record. (T. 11/24 at 28). The defendant made no sudden gestures in an attempt to move himself or any object. (T. 11/24 at 30). The police raid took place at three o'clock in the afternoon, (T. 11/24 at 59); Defendant's Exhibit 1, at 1, at a single-family residential house. (T. 11/24 at 11). The setting describes what could possibly have been nearly any house in the state. The officers entered the house and found three stunned people sitting around a kitchen table. (T. 11/24 at 59). Because the officers did not know the defendant, it is conceivable that he could have been anyone from a repairman to a door-to-door evangelist to a next door neighbor borrowing a cup of sugar. At that point in time, the officers could not have established probable cause of the defendant's danger. Such a determination would be based on mere presence at a location where a warrant was being served and simple association with the subject of that warrant--a conclusion specifically prohibited by the United States Supreme Court. Ybarra v. Illinois, at 94.
Even if the officer's fears were not dispelled by the defendant's immediate and total cooperation, (T. 11/24 at 30), simply looking at him and analyzing all that was in plain view would have dispelled any reasonable cause that he was presently armed. The defendant was wearing jeans and a long-sleeve T-shirt that were not baggy and workboots. (T. 11/24 at 43-44; T. 11/24 at 60-61; T. 11/24 at 77). Visually examining a person in such attire is sufficient to dispel any fears that he is concealing a weapon.
Even if the officers still felt threatened by the situation and wanted to immobilize the defendant, this was accomplished by handcuffing him while he was lying face down on the floor. At that moment in time there is absolutely no possibility of considering the defendant a present danger to the officers. A person in such a position is immobilized to a degree that he can not move, let alone attack or even escape. Once a suspect is placed in such a confining position, a reasonable prudent person in the circumstances could not possibly be warranted in the belief that anyone was in danger. Terry v. Ohio, at 27. When there is no threat to anyone, any exception to Constitutional freedoms expire, prohibiting any further intrusion. State v. Aillon, at 399.
CONCLUSION
For the aforementioned reasons, the defendant's motion to suppress should have been granted. This appellate court should, therefore, reverse the trial court's judgment of guilty.
(c) 1994, Richard Hustad Miller, All Rights Reserved