State v. Edmonds ( 2016 )

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STATE OF CONNECTICUT v. MICHAEL EDMONDS
(SC 19389)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 10, 2015—officially released September 13, 2016
Bradford Buchta, assistant public defender, with
whom, on the brief, was Nicole Donzello, senior assis-
tant public defender, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Marc R. Durso, assistant state’s attorney, for
the appellee (state).
Opinion
McDONALD, J. The defendant, Michael Edmonds,
appeals from the judgment of the Appellate Court
affirming his conviction, following a conditional plea
of nolo contendere, of one count of possession of nar-
cotics with intent to sell in violation of General Statutes
§ 21a-277 (a), and one count of failure to appear in the
first degree in violation of General Statutes § 53a-172.
See State v. Edmonds, 151 Conn. App. 763, 765, 96 A.3d
607 (2014). On certification to this court, the defendant
contends that the Appellate Court improperly con-
cluded that: (1) the trial court, Rodriguez, J., in denying
the defendant’s motion to suppress narcotics evidence,
correctly determined that the defendant was not seized
until police officers performed a patdown search for
weapons; and (2) the record was inadequate to review
the defendant’s claim that he was unreasonably seized,
in violation of the federal and state constitutions, when
two police cruisers simultaneously descended upon him
from opposite directions in a small private parking lot
behind a Subway restaurant and a uniformed officer
verbally commanded him to stop.1 We agree with both
of the defendant’s claims and conclude that the evi-
dence the defendant sought to suppress was seized in
violation of the fourth amendment to the United States
constitution2 and article first, §§ 7 and 9, of the constitu-
tion of Connecticut.3 We therefore reverse the judgment
of the Appellate Court.
Before setting forth the relevant facts and procedural
history, we begin by observing that the standard of
appellate review governing allegedly unconstitutional
police searches and seizures differs from the standard
that governs appellate review of other types of similarly
fact intensive questions. It is well established that we
must ‘‘undertake a more probing factual review’’ of
allegedly improper seizures, so that we may come to
‘‘an independent legal determination of whether a rea-
sonable person in the defendant’s position would have
believed that he was not free to leave.’’ State v. Bur-
roughs, 288 Conn. 836, 843, 844 n.5, 955 A.2d 43 (2008).
‘‘A proper analysis of this question is necessarily fact
intensive, requiring a careful examination of the entirety
of the circumstances in order to determine whether the
police engaged in a coercive display of authority . . . .’’
Id., 846. Although we must, of course, defer to the trial
court’s factual findings, ‘‘our usual deference . . . is
qualified by the necessity for a scrupulous examination
of the record to ascertain whether [each] finding is
supported by substantial evidence . . . .’’ (Citation
omitted; internal quotation marks omitted.) Id., 843.
Furthermore, in reviewing the record, we are bound to
consider not only the trial court’s factual findings, but
also the full testimony of the arresting officers; in partic-
ular, we must take account of any undisputed evidence
that does not support the trial court’s ruling in favor
of the state but that the trial court did not expressly
discredit. See State v. DeMarco, 311 Conn. 510, 520 and
n.4, 88 A.3d 491 (2014); id., 543 (Palmer, J., dissenting).
In the present case, the trial court’s oral decision,
as supplemented by the undisputed testimony of the
arresting officers, reveals the following relevant facts.4
On the evening of Friday, January 28, 2011, Officers
Elson Morales and Joseph Lawlor of the Bridgeport
Police Department (department) were patrolling in the
vicinity of Madison Avenue and Capitol Avenue. The
officers had been assigned to patrol there because a
large number of teenagers were expected to attend a
basketball game at nearby Central High School and
teenagers tended to congregate on Madison Avenue
after such games, clogging traffic.
The officers testified that this area of Bridgeport is
plagued by a high rate of violent crime. Both officers
conceded, however, that the department considers
essentially the entire city of Bridgeport to be a high
crime area. There was no testimony that the crime rate
in the neighborhood of Madison Avenue and Capitol
Avenue is any higher than in other areas of Bridgeport.
At approximately 7 p.m., the two officers were driving
northbound on Madison Avenue in a marked police
cruiser when they stopped at a red light at the intersec-
tion of Madison and Capitol Avenues. As they waited
for the light to change, they briefly observed a man,
later identified as the defendant, who is black, standing
alone in the parking lot at 944 Madison Avenue, behind
a Subway sandwich restaurant located on the corner.
Although it is not evidenced in the record, it may reason-
ably be assumed—and the state conceded at oral argu-
ment before this court—that the Subway restaurant
would have been open for dinner at that hour.
The officers offered three reasons why the defendant
aroused their suspicions at that time. First, Morales
testified that, at the time the officers observed the
defendant, ‘‘[i]t was pre-dark, it was starting to get
dark.’’ He indicated that the defendant ‘‘was loitering
in the rear in the shadows . . . .’’ (Emphasis added.)
The trial court does not appear to have credited
Morales’ testimony that, at 7 p.m. on January 28, 2011,
in Bridgeport, it was just ‘‘starting to get dark.’’5 And
for good reason. On that particular winter evening, the
sun had set two hours earlier, at 5:04 p.m., and even
the twilight had long since passed.6 Moreover, there
was undisputed testimony that no lights illuminated the
Subway parking lot at that time. Accordingly, the only
reasonable inference is that anyone standing outside
the Subway restaurant at dinnertime on that particular
evening necessarily would have been standing in the
‘‘shadows.’’
Second, both officers testified that the defendant
aroused their suspicions because he was ‘‘loitering’’ in
the Subway lot. In the police report they completed the
evening of the incident, the officers wrote that ‘‘we
observed a heavy set black male wearing a tan colored
hooded sweatshirt loitering behind the Subway [s]and-
wich [s]hop . . . .’’ In the section of the report entitled
‘‘Point of Illegal Entry/Means of Attack,’’ the officers
entered: ‘‘Loitering near Subway.’’
During the suppression hearing, however, both offi-
cers acknowledged that, at the time they first observed
the defendant and decided to question him, they had no
reason to believe that he was in violation of Bridgeport’s
loitering ordinance. Bridgeport Municipal Code
§ 9.04.010 provides: ‘‘Any person who, without permis-
sion or legitimate purpose, loiters upon the property
of another or upon city-owned property, and who upon
command of any police officer or person in charge of
city-owned property fails to quit such property, shall
be punished as provided in Chapter 1.12 of this code.’’
In this case, there were no signs indicating ‘‘no loitering’’
posted at that location, and the officers had no informa-
tion that the defendant was on Subway’s property with-
out permission or legitimate purpose, nor that he had
been commanded to leave by a police officer or city
official. Indeed, the officers readily conceded that the
defendant might have been a resident of one of the
apartment units located above the Subway restaurant.
In addition, the period during which the officers were
stopped at the red light, and had an opportunity to
observe the defendant and conclude that he might be
loitering, lasted only a few seconds. During that brief
period, and given the poor lighting conditions, the offi-
cers were unable to determine even the defendant’s
skin color. All they could see was a ‘‘silhouette and just
a vague color of his jacket.’’
Third, the officers testified that their suspicions were
aroused because the Subway restaurant had been
robbed multiple times in the past, including within the
past year. There was undisputed testimony, however,
that no incidents of any sort had been reported in the
Bridgeport police logs for that Subway location during
the preceding four months. Nor did the officers receive
any calls with respect to that location on the date in
question.
In any event, after having observed nothing more
than a nondescript individual standing outside a Sub-
way restaurant for a few seconds at 7 p.m. on a Friday
evening, the officers decided to interrupt their patrol
of the high school traffic situation to question him. They
testified that they intended to ask him why he was in
the parking lot, and whether he lived in one of the
apartment units above the Subway restaurant.
There was no testimony suggesting that either
Morales or Lawlor had any reason to believe that the
defendant was armed or dangerous, nor that any sort
of criminal activity was underway or recently had tran-
spired at that location. Nevertheless, before stopping
to talk to the defendant, they decided to radio their
supervisor, Sergeant Ronald Mercado, for backup.
Morales testified that ‘‘[w]e wanted to try to attempt
to [identify] the party and we wanted [Mercado] to
cover us.’’ Later in the hearing, Morales reiterated that
the two officers contacted Mercado because ‘‘we
wanted cover.’’
The small parking lot in which the defendant was
standing formed an L shape around the rear of the
rectangular Subway building. There were only two
entrances/exits to the lot. The small end of the L exited
onto Capitol Avenue, and the large end onto Madison
Avenue. Otherwise, the lot was enclosed by the Subway
building on the street corner side, and by various com-
mercial buildings on the opposite side. The lot was
private property. The defendant, who was standing in
the middle of the lot, was the only person in the lot at
the time of the incident.
After Mercado reached the location to provide the
requested ‘‘cover’’ for Morales and Lawlor, the three
officers in two patrol cars entered the Subway lot from
opposing directions and converged on the defendant
simultaneously in the middle of the lot, near a staircase
leading to the apartments located above the Subway
shop. Morales and Lawlor entered the lot from the Capi-
tol Avenue entrance, while Mercado entered through
the Madison Avenue entrance. Both vehicles were
marked police cruisers. All three officers were in uni-
form, and armed. The record does not reveal whether
they activated the cruisers’ light bars or sirens as they
approached the defendant.
The precise sequence of events from the time the
officers entered the Subway lot until they frisked the
defendant is less clear. In their signed police report,
the officers provided the following account: ‘‘We . . .
drove into the rear parking lot of [the] Subway [s]and-
wich [s]hop when the [defendant] turned away from us
when he observed our patrol unit, Sergeant Mercado
drove in from the Madison [Avenue] entrance and
stopped the [defendant] . . . . [The defendant] imme-
diately stated ‘I didn’t rob nobody!’ He kept moving his
hands around in a nervous manner and yelling ‘this is
embarrassing!’ while continuing to state his innocence.’’
The officers’ testimony at the suppression hearing,
together with the trial court’s subsequent factual find-
ings, injected some ambiguity into three elements of the
police report account of events: (1) whether Mercado
entered the lot precisely at the same time as Morales
and Lawlor; (2) the circumstances under which the
defendant was stopped; and (3) the timing and nature
of the defendant’s nervous hand movements.
First, with respect to the timing of the two cruisers
entering the lot and approaching the defendant,
Morales’ testimony mirrored and expanded upon the
account in the officers’ police report: ‘‘As we entered
from Capitol [Avenue] into the rear parking lot of Sub-
way we observed the [defendant] still in the shadow of
the parking lot. He immediately—when he saw our car,
it’s a marked unit, he immediately turned around and
started walking away. That’s—at the time when we
went to go around the L shape of—toward Madison
[Avenue] Sergeant Mercado entered in his marked unit
and was able to stop the [defendant].’’ Morales later
summarized this sequence of events by stating that the
two cruisers ‘‘pulled in’’ at ‘‘about the same time’’ and
arrived at the defendant’s location in the middle of the
lot at approximately the same time.
Lawlor’s testimony was consistent with that of
Morales on this point. He testified that when he and
Morales entered the lot from Capitol Avenue, the defen-
dant immediately turned and started to walk away, and
that Mercado entered the lot from Madison Avenue
‘‘shortly thereafter.’’
The trial court found, however, that ‘‘[t]he two offi-
cers and . . . Mercado entered the parking lot at the
same time and through the only two entrances into the
eatery’s parking lot. . . . As soon as the two officers
arrived . . . the defendant started to immediately walk
away from the officers . . . .’’ (Emphasis added.)
Because the police report, Morales, and Lawlor all indi-
cated that Morales and Lawlor entered the lot from
Capitol Avenue shortly before Mercado entered from
Madison Avenue, and the record contains no evidence
to the contrary, we must understand the court’s finding
that the two cruisers entered at the same time to mean
that the two cruisers arrived at the lot at approximately
the same time, and that, as the defendant began to walk
away from the first cruiser, Mercado entered and the
two simultaneously converged on his position in the
middle of the lot.
Second, with respect to when the defendant was
stopped, Morales’ testimony was again consistent with
the police report. In response to direct questioning by
the trial court to clarify the sequence of events, Morales
indicated that Mercado made the first contact with the
defendant as he attempted to walk away from the
cruiser driven by Morales and Lawlor, and that Mercado
stopped the defendant ‘‘[b]y verbally commanding him
to stop.’’ Morales indicated that Mercado also ‘‘might
have been’’ the one who began to question the defendant
after he was stopped, although Morales was unsure.
Lawlor testified that it was Morales who ‘‘made con-
tact with [the defendant] first,’’ spoke to the defendant,
and ‘‘handl[ed] more of the contact,’’ while Lawlor him-
self observed the interaction. During that portion of the
suppression hearing, however, Lawlor was not asked—
and did not testify—about Mercado’s role in the stop-
ping and questioning of the defendant. Lawlor also did
not testify as to how the defendant came to be stopped
when he began to walk away from the first cruiser, and
the trial court made no findings in this regard.
Third, the record contains three accounts of the
defendant’s nervous hand movements. The police
report states that, after Mercado stopped the defendant
and he denied having robbed anyone, ‘‘[the defendant]
kept moving his hands around in a nervous manner and
yelling ‘this is embarrassing!’ while continuing to state
his innocence.’’ Morales offered a far more detailed
account at the suppression hearing. He testified that,
after the officers exited their cars and the defendant
denied having robbed anyone, and as the three officers
approached him on foot, the defendant moved his hands
in a nervous manner while he stood facing the officers,
and repeatedly stated that he felt embarrassed.7 These
hand movements entailed ‘‘going on the side, behind
him fixing his pants,’’ and were accompanied by com-
plaints about a bad back. Morales variously described
these movements as ‘‘tussling with his pants’’; ‘‘tussling
with his belt buckle . . . the belt area of his pants’’;
and ‘‘fidgeting with his hands . . . moving his belt, his
upper part of the pants . . . .’’ Morales testified that
when the officers then ordered the defendant to keep
his hands where the officers could see them, the defen-
dant refused to comply with those orders, which led
the officers to pat him down for their safety. Lawlor,
by contrast, testified without elaboration that the defen-
dant moved his hands toward his waistband at the out-
set, as he turned to walk away from the approaching
patrol car.
The trial court found on this question that, ‘‘as the
defendant started to immediately walk away from the
officers, he was observed by . . . Morales and . . .
Lawlor to engage in movements around his waistband
as he walked. While the police exited their vehicles and
approached the defendant, he spontaneously yelled out
‘I didn’t rob anyone’ and he kept saying that he was
embarrassed.’’ Although there was no evidence in the
record to support the court’s finding that Morales wit-
nessed suspicious hand motions at the outset, while
the officers were still in their vehicle pulling into the
lot, the court was free to credit Lawlor’s testimony that
he witnessed such motions at that time. The court made
no findings with respect to Morales’ testimony that the
defendant later defied the officers’ commands to keep
his hands in plain view, after the officers had
stopped him.
In any event, it is clear that, soon after they entered
the lot, exited their cruisers, and approached the defen-
dant, the officers decided to pat the defendant down
for their safety. Although they testified that they were
concerned that he might have been carrying a weapon,
the only fact they were able to articulate in support of
that concern was that the defendant moved his hands
near his waistband as he turned away from them. In fact,
the officers did not find any weapons on the defendant
when they frisked him. They did discover a bundle
containing heroin, however, and arrested him.
The defendant moved to suppress the narcotics evi-
dence, contending that its discovery was the fruit of an
illegal search and seizure, in violation of the state and
federal constitutions. The trial court denied the defen-
dant’s motion and the defendant subsequently entered
a plea of nolo contendere to the counts of possession
of narcotics with intent to sell and failure to appear in
the first degree, conditional on his right to appeal the
denial of his motion to suppress pursuant to General
Statutes § 54-94a. Consistent with the plea agreement,
the court, Arnold, J., imposed a total effective sentence
of ten years imprisonment, execution suspended after
four years, and three years probation.
The defendant appealed to the Appellate Court,
arguing that he was seized when the police converged
on him in the Subway parking lot or, at the very latest,
when Mercado commanded him stop. State v.
Edmonds, supra, 151 Conn. App. 766. The defendant
further argued that at neither of those times did the
police possess a reasonable and articulable suspicion
that he was involved in criminal activity, as required
to justify a nonarrest seizure under Terry v. Ohio, 392
U.S. 1, 21–22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
State v. Edmonds, supra, 766. The Appellate Court
rejected the defendant’s claim that he was seized at
the outset, when the officers converged on him in the
Subway lot. Id., 772–73. The court also concluded that
(1) the defendant had not preserved his claim that Mer-
cado’s verbal command to stop constituted a seizure,
and (2) the record was inadequate to review that claim
under the test for the review of unpreserved constitu-
tional claims that we established in State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989).8 State v.
Edmonds, supra, 769–71. Accordingly, the Appellate
Court upheld the trial court’s implicit finding that the
defendant was not seized until Morales performed the
patdown search. Id., 773. Finally, the Appellate Court
concluded that, at that time, the police had a reasonable
and articulable suspicion sufficient to detain and frisk
the defendant. Id., 775. Accordingly, the court affirmed
the judgment of the trial court. Id., 776. We granted the
defendant’s petition for certification and this appeal
followed. See footnote 1 of this opinion. Additional facts
and procedural history will be set forth as necessary.
In part I of this opinion, we consider whether the
Appellate Court properly concluded that the defendant
was not seized until the officers patted him down for
weapons and that certain of his claims in that regard
are unreviewable. In part II, we consider whether, at
the time of the defendant’s seizure, the police officers
possessed a reasonable and articulable suspicion of
criminal activity, whether the purpose of the seizure
was reasonable, and whether the scope and character
of the seizure was reasonable in light of its purpose.
I
‘‘[W]hen considering the validity of a . . . [Terry]
stop, our threshold inquiry is twofold. . . . First, we
must determine at what point, if any, did the encounter
between [the police officers] and the defendant consti-
tute an investigatory stop or seizure. . . . Next, [i]f we
conclude that there was such a seizure, we must then
determine whether [the police officers] possessed a
reasonable and articulable suspicion at the time the
seizure occurred.’’ (Internal quotation marks omitted.)
State v. Brown, 279 Conn. 493, 516, 903 A.2d 169 (2006).
With respect to the former inquiry, the defendant argues
that he was seized at the moment the two marked police
cruisers converged on him from opposite directions in
the small Subway parking lot, and no later than the
time at which Mercado commanded him to stop. The
state, by contrast, contends that the Appellate Court
properly affirmed the implicit conclusion of the trial
court that the defendant was not seized until the officers
patted him down for weapons. We agree that the defen-
dant was seized no later than when Mercado com-
manded him to stop.9
A
We begin by setting forth the legal test used to deter-
mine when a person is seized for purposes of the federal
and state constitutions.10 ‘‘[A] person is seized when,
by means of physical force or a show of authority,
his freedom of movement is restrained. . . . The key
consideration is whether, in view of all the circum-
stances surrounding the incident, a reasonable person
would have believed that he was not free to leave.
. . . The inquiry is objective, focusing on a reasonable
person’s probable reaction to the [officers’] conduct.’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) State v. Burroughs, supra, 288
Conn. 844–46; accord United States v. Mendenhall, 446
U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).
In situations in which the police have not applied any
physical force, we must conduct ‘‘a careful [fact inten-
sive] examination of the entirety of the circumstances
in order to determine whether the police engaged in a
coercive display of authority . . . .’’ State v. Bur-
roughs, supra, 846.
Factors to be considered in determining whether
police conduct projects coercion include, but are not
limited to: the number of officers and vehicles involved;
whether the officers are uniformed; whether the offi-
cers are visibly armed or have their weapons drawn;
whether the vehicles involved are marked police cruis-
ers, whether the vehicles’ sirens and emergency lights
are activated, and whether the vehicles’ headlamps or
spotlights illuminate the defendant; whether the defen-
dant is alone or otherwise appears to be the target of
police attention; the nature of the location, including
whether it is public or private property; whether the
defendant is surrounded or fully or partially blocked
in by the police; the character of any verbal communica-
tions or commands issued by the police officers;
whether the officers advise the detainee of his right to
terminate the encounter; the nature of any physical
contact; whether the officers pursue after an initial
attempt by the defendant to leave; whether the officers
take and retain possession of the defendant’s papers
or property; and any other circumstance or conduct
that bespeaks aggressiveness or a show of force on the
part of the police, or suggests that the defendant is
under suspicion or otherwise not free to leave. See
United States v. Griffith, 533 F.3d 979, 983 (8th Cir.
2008); State v. Burroughs, supra, 288 Conn. 846–47;
State v. Thomas, 291 Kan. 676, 683, 246 P.3d 678 (2011);
4 W. LaFave, Search and Seizure (5th Ed. 2012) §§ 9.2
(a) and 9.4 (a). Although it is true that ‘‘not all personal
intercourse between [the police] and citizens involves
seizures of persons’’; (internal quotation marks omit-
ted) Immigration & Naturalization Service v. Delgado,
466 U.S. 210, 215, 104 S. Ct. 1758, 80 L. Ed. 2d 247(1984); and that law enforcement officers must be free
to engage in ‘‘healthy, mutually beneficial intercourse
with the public’’; State v. Burroughs, supra, 853; it is
equally true that use of coercion beyond that inherent
in any police-citizen encounter transforms these sorts
of informal, voluntary interactions into seizures. 4 W.
LaFave, supra, § 9.4 (a), p. 601.
B
In support of its conclusion that the defendant was
not seized until the officers frisked him for weapons,
the Appellate Court offered the following analysis: ‘‘The
facts found by [the trial court] and our independent
review of the record demonstrate nothing more than a
benign police presence in the Subway parking lot. The
court’s oral decision portrays an unremarkable scene
of three uniformed officers approaching the defendant
as part of a routine investigation to obtain identification
and determine his purpose for being in the lot. In addi-
tion to the facts set forth in the court’s oral decision,
the record does not contain any evidence suggestive of
threatening or coercive police conduct. For instance,
there is no evidence that the police engaged their lights
or sirens when they entered the Subway parking lot,
that they brandished their weapons, or that they
impeded the defendant’s ability to move, either physi-
cally or verbally. . . . We conclude, therefore, that the
defendant was not seized when the police approached
him because a reasonable person in the defendant’s
position would not have believed that it was impermissi-
ble to leave the scene.’’ (Citations omitted.) State v.
Edmonds, supra, 151 Conn. App. 772–73.
Our own independent review of the record reveals
anything but an unremarkable instance of benign com-
munity-police dialogue. On the contrary, we do not
believe that any reasonable person, finding himself or
herself in the position of the defendant, would have felt
free to simply disregard the approaching officers and
leave the scene. Numerous circumstances of the pres-
ent case support this conclusion.
From the perspective of the defendant, the incident
began when two police cruisers suddenly converged
on him from opposite directions, effectively blocking
off his only means of egress from the small Subway
parking lot. It is well established that, when law enforce-
ment officials block a suspect’s vehicle so as to prevent
him from driving off, they have, by that fact alone,
executed a fourth amendment seizure. See, e.g., Pane
v. Gramaglia, 509 Fed. Appx. 101, 103 (2d Cir. 2013)
(citing authorities); State v. Clark, 297 Conn. 1, 8, 997
A.2d 461 (2010); State v. Januszewski, 182 Conn. 142,
147, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101
S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), overruled in part
on other grounds by State v. Hart, 221 Conn. 595, 609,
605 A.2d 1366 (1992); 4 W. LaFave, supra, § 9.4 (a), pp.
596–97 n.122. Both this court and our sister courts have
applied the same reasoning with respect to pedestrians,
concluding that a seizure occurs when the police
maneuver or park their vehicles, or approach a pedes-
trian on foot, in such a way as to block the pedestrian’s
path or effectively close off any avenue of escape. See,
e.g., United States v. Berry, 670 F.2d 583, 597 (5th Cir.
1982) (‘‘blocking an individual’s path or otherwise inter-
cepting him to prevent his progress in any way is a
consideration of great, and probably decisive, signifi-
cance’’); State v. Januszewski, supra, 147 (pedestrian
constructively seized where police blocked his vehicle
from leaving parking lot); State v. Allen, Docket No.
02CA0059, 2003 WL 21276146, *3 (Ohio App. June 4,
2003) (defendant held seized where officers effectively
blocked only exit from hallway), review denied, 100
Ohio St. 3d 1424, 797 N.E.2d 92 (2003); State v. Ingram,
82 Ohio App. 3d 341, 345, 612 N.E.2d 454 (1992) (seizure
when two officers blocked defendant’s exits from
where he sat on porch railing).
We recognize that, in the present case, the officers
did not fully block in the defendant, who presumably
could have walked past one of the two police cruisers
onto Capitol Avenue or Madison Avenue. Even under
such circumstances, however, when officers have only
partially blocked the available exits, courts have not
hesitated to find a seizure when a reasonable person
would conclude that the police have positioned their
bodies or vehicles so as to effectively surround the
suspect or thwart his egress. See, e.g., United States v.
Smith, 794 F.3d 681, 685 (7th Cir. 2015) (pedestrian in
alleyway held seized when two officers ‘‘positioned
their bicycles at a [forty-five degree] angle to him,
obstructing his intended path forward’’); State v. Bur-
roughs, supra, 288 Conn. 847 (important factors include
whether individual’s movement was restrained or he
was otherwise isolated in some manner, such as when
cruiser parks in close proximity); J.N. v. State, 778 So.
2d 440, 441–42 (Fla. 2001) (pedestrian suspected of
loitering held seized when exiting alley and approached
on either side by three uniformed officers in marked
patrol cars); State v. Epperson, 237 Kan. 707, 714, 703
P.2d 761 (1985) (suspects held seized when officer ‘‘cut
off their avenue of escape’’ by parking cruiser so that his
open car door blocked lane of travel in which suspects’
vehicle was parked [internal quotation marks omitted]);
Swift v. State, 393 Md. 139, 149, 156, 899 A.2d 867 (2006)
(defendant walking on public road held seized when
police officer pulled marked cruiser directly in front of
him, ‘‘blocking his path’’).
Although there is no Connecticut authority directly
on point, given the unique factual circumstances of the
present case, State v. Rustad, Docket No. 58691-2-I,
2008 WL 555945 (Wn. App. March 3, 2008), a decision
of the Washington Court of Appeals, is instructive. In
that case, two officers, driving separate marked patrol
cars, were responding to a ‘‘911 hang-up call’’ from a
‘‘ ‘known drug house’ ’’ at approximately 10:30 p.m.
when they noticed a suspicious vehicle begin to turn
into that home’s driveway. Id., *1. When the officers
shined their flashlights at the vehicle, it instead contin-
ued down the street. Id. The officers then spotted that
same vehicle in the rear of a nearby parking lot. Id. The
officers entered the lot and parked thirty to forty feet
away from the vehicle, near the only road providing
entry to or exit from the area, and partially blocking
that exit. Id. Their spotlights were aimed at the vehicle,
but they did not activate their emergency lights or
sirens. Id. One officer then approached the passenger
side of the defendant’s vehicle, while his partner ‘‘stood
guard at the rear of the vehicle.’’ Id. Both officers were
uniformed and armed, although their weapons
remained holstered. Id., *2. Under those circumstances,
the court concluded that the officers’ actions consti-
tuted a seizure. Id. Specifically, the court concluded
that, although the defendant was not physically
detained, ‘‘a reasonable person would not feel free to
leave or otherwise terminate the encounter’’ because
the officers ‘‘largely, though not fully, blocked any exit
the [defendant’s vehicle] may have had from the parking
area and back onto the road . . . .’’ Id.
Indeed, the theory that the police seize an individual
when they knowingly surround him or obstruct his free
passage is firmly rooted in our state constitution and
federal common law. In State v. Oquendo, 223 Conn.
635, 650–51, 613 A.2d 1300 (1992), in construing article
first, §§ 7 and 9, of the constitution of Connecticut, we
emphasized that, at common law, ‘‘no man [could] be
restrained of his liberty; be prevented from removing
himself from place to place, as he [chooses]; be com-
pelled to go to a place contrary to his inclination, or
be in any way imprisoned, or confined, unless by
virtue of the express laws of the land. 1 Z. Swift, [A
System of the Laws of the State of Connecticut (1795)]
p. 180. . . . Moreover, every detention or confinement
of the person in any shape, including the forcible deten-
tion of a person in the street, constituted an imprison-
ment." (Citation omitted; emphasis altered; internal
quotation marks omitted.) A review of the case law
construing certain maritime provisions of a 1790 act,
which prohibited the ‘‘confine[ment of] the master of
any ship or other vessel’’; An Act for the Punishment
of Certain Crimes against the United States, c. 9, § 12,
1 Stat. 115 (1790); makes clear that, at both the time
that Chief Justice Swift wrote his two volume treatise,
A System of the Laws of the State of Connecticut, in
1795 and 1796, and when the relevant provisions of the
state constitution were adopted in the early nineteenth
century, an individual was deemed to be illegally ‘‘con-
fined’’ not only when he was physically restrained or
imprisoned, but also under circumstances in which he
was surrounded and thereby intimidated into believing
that he could not freely move. See, e.g., United States
v. Huff, 13 F. 630, 641 (C.C.W.D. Tenn. 1882), and
authorities cited therein; United States v. Hemmer, 26
F. Cas. 259, 260 (C.C.D. Mass. 1825) (No. 15,345).
To the extent that the state relies on State v. Benton,
304 Conn. 838, 43 A.3d 619 (2012), and State v. Bur-
roughs, supra, 288 Conn. 836, for the proposition that
blocking in or surrounding a defendant does not support
a finding of seizure, that reliance is misplaced. In Ben-
ton, three young males suspected of possible involve-
ment in gang related violence were riding their bicycles
on a public street in New Haven. State v. Benton, supra,
841. Two officers on foot patrol stepped into the road
approximately twenty to twenty-five feet ahead of the
three cyclists. Id. At that point, the defendant’s two
companions reversed direction and rode off. Id. The
defendant also veered away and attempted to pedal
off, but the officers physically apprehended him. Id. In
concluding that the officers had not seized the defen-
dant at the moment they initially stepped into the road,
we relied on the facts that (1) the officers entered the
road twenty to twenty-five feet away from the defen-
dant, (2) they occupied less than one quarter of the two
lane road, and (3) they stepped into the road in such
a way as to indicate that they might merely have
intended to advertise a police presence, or to observe
the cyclists, rather than to stop them. Id., 845–47. In
addition, the fact that both of the defendant’s compan-
ions decided to ride off in another direction, and did
so, indicated that they were not in fact blocked in by
the officers’ conduct. See id., 841. Accordingly, Benton
is readily distinguishable from the present case, in
which the arrival of a second police presence, from the
opposite direction, closing off the only available means
of egress from the lot, thwarted the defendant’s initial
attempt to walk away from Morales and Lawlor as they
approached him.
Burroughs provides even weaker authority for the
state’s position, because in that case the police did
nothing whatsoever to discourage or hinder the defen-
dant from leaving the scene. In Burroughs, a single
police cruiser pulled up behind a vehicle that was
parked at night in an industrial area, without activating
the cruiser’s emergency lights or sirens. State v. Bur-
roughs, supra, 288 Conn. 840, 852. Two officers exited
the cruiser and walked up to the driver’s and passen-
ger’s sides of the parked vehicle to determine whether
the occupants needed assistance. Id. Under those cir-
cumstances, we concluded that there was no significant
show of police authority sufficient to indicate that the
defendant and his passenger were not free to leave. Id.,851–52. Importantly, nothing barred the defendant in
Burroughs from simply driving off in the direction his
vehicle was facing. By contrast, if a second police
cruiser had entered the scene and pulled in front of
the defendant’s vehicle, boxing him in, he would not
have been free to leave. That is precisely what hap-
pened here.
Beyond the fact that two marked police cruisers con-
verged on the defendant from opposite directions, effec-
tively blocking him from exiting the lot, several other
aspects of the present case would indicate to a reason-
able person in the defendant’s position that he was not
free to leave. First, the defendant was the only person
in the parking lot at the time the police entered. Whereas
an individual standing in a crowded area or traveling
a public road has no reason to assume that a sudden
police presence is directed toward him, in the present
case it would have been apparent to the defendant
that the two cruisers and three officers who suddenly
approached were there for him. See State v. Oquendo,
supra, 223 Conn. 653. Second, and relatedly, it is
important that the Subway lot was private property,
where police would not be expected to routinely patrol.
See Parker v. Commonwealth, 255 Va. 96, 102, 496
S.E.2d 47 (1998).
A third, critical consideration is the fact that, as the
defendant turned to walk away from the marked police
cruiser driven by Morales and Lawlor, he was con-
fronted by a second cruiser, driven by Mercado, which
had entered from the opposite direction, appearing to
thwart his passage. There is a common trope in espio-
nage and other action genre films in which the protago-
nist turns to retreat upon confronting an enemy, only
to see more would-be captors appear from the other
direction. At that point, he, along with the audience,
realizes that he is trapped. Both courts and commenta-
tors have applied this basic intuition in the search and
seizure context, recognizing that cornering or ‘‘pursuing
a person who has attempted to terminate the contact
by departing’’ sends a clear signal that the person is
not free to leave. 4 W. LaFave, supra, § 9.4 (a), p. 586;
see, e.g., United States v. Beauchamp, 659 F.3d 560,
566–67 (6th Cir. 2011); In re D.J., 532 A.2d 138, 141
(D.C. App. 1987), abrogated for federal constitutional
purposes by California v. Hodari D., 499 U.S. 621, 626,
111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991); Commonwealth
v. Depina, 456 Mass. 238, 242, 922 N.E.2d 778 (2010);
Commonwealth v. Lewis, 535 Pa. 501, 506, 509, 636
A.2d 619 (1994); Parker v. Commonwealth, supra, 255
Va. 102.
Other factors that would have indicated to a reason-
able person in the defendant’s position that he was not
free to leave were the fact that he was approached by
multiple uniformed police officers; see State v. Benton,
supra, 304 Conn. 846; driving multiple marked patrol
cars; see State v. Burroughs, supra, 288 Conn. 847; in
a dark, unlit space. See United States v. Smith, supra,
794 F.3d 685. Moreover, although there is no indication
whether the cruisers’ sirens and emergency lights were
activated, we must at least assume, because the incident
occurred approximately two hours after sunset, that
the officers had illuminated their headlamps, and, there-
fore, that the defendant would have been illuminated in
the glare of those headlamps as the cruisers approached
him in the unlit lot. See Commonwealth v. Helme, 399
Mass. 298, 303, 503 N.E.2d 1287 (1987); State v. Pierce,
173 Vt. 151, 153, 787 A.2d 1284 (2001). These factors,
therefore, further support the conclusion that a reason-
able person, standing alone in a dark and private park-
ing lot, who suddenly found himself blocked in by
marked police cruisers, would not have felt free to
leave.
Lastly, if we had any remaining doubt as to whether
a reasonable person in the defendant’s position would
have felt free to disregard the three officers and leave
the scene as they approached, those doubts are dis-
pelled by the fact that Mercado, upon entering the Sub-
way lot, commanded the defendant to stop. As a result
of this command, the defendant, who initially sought
to turn away from the first cruiser driven by Lawlor
and Morales, stopped and submitted to police authority.
It is well settled that a reasonable citizen would not
feel free to disregard a verbal command to stop issued
by an armed, uniformed police officer. See State v.
Benton, supra, 304 Conn. 844 n.4 (state conceded that
police officer’s command to stop constitutes seizure
for purposes of state constitution); State v. Oquendo,
supra, 223 Conn. 647–48 n.8 (similar); State v. William-
son, 10 Conn. App. 532, 540, 524 A.2d 655 (order to halt,
standing alone, constituted seizure), cert. denied, 204
Conn. 801, 525 A.2d 965 (1987); see also United States
v. Stover, 808 F.3d 991, 995 (4th Cir. 2015) (command
to halt is example of police conduct that conveys to
reasonable person that he is not free to leave); In re
Martin H., Docket No. B151148, 2002 WL 1732650, *3
(Cal. App. July 25, 2002) (‘‘when an officer commands
a citizen to stop, this constitutes a detention because
the citizen is no longer free to leave’’ [internal quotation
marks omitted]); Blake v. State, 939 So. 2d 192, 195
(Fla. App. 2006) (‘‘[i]f . . . the officer phrases his or
her inquiries as commands, this action would indicate
that the individual was not free to leave’’); M. Raymond,
‘‘The Right to Refuse and the Obligation to Comply:
Challenging the Gamesmanship Model of Criminal Pro-
cedure,’’ 54 Buff. L. Rev. 1483, 1493 (2007) (‘‘[P]olice
commands or orders create seizures. The quintessential
command is the order to stop . . . .’’ [Footnotes omit-
ted.]). Accordingly, having considered all of the relevant
circumstances and all of the undisputed evidence in the
record, we are compelled to conclude that a reasonable
person in the defendant’s position would not have felt
free to leave the scene, and that the defendant was
seized no later than when Mercado successfully com-
manded him to stop.
C
We next consider the state’s assertion, which the
Appellate Court found persuasive, that the defendant’s
claim that he was seized no later than when Mercado
commanded him to stop is unreviewable on appeal. The
state contends that we must determine either that the
defendant was seized at the outset, when the officers
converged on him in the middle of the parking lot, or
later, when they patted him down for weapons. We
disagree, and conclude that the defendant’s full argu-
ment is preserved for appellate review and that we
are not barred from considering any of the undisputed
testimony in the record.
The following additional procedural history is rele-
vant to our evaluation of the state’s argument. The
defendant filed with the trial court what fairly may
be characterized as a boilerplate motion to suppress
evidence. The motion alleged only that: (1) ‘‘certain
items seized by law enforcement officer(s) or his
agent(s) . . . were not seized pursuant to a search and
seizure warrant’’; and (2) ‘‘[t]he search and seizure vio-
lated the laws and constitutions of the United States
and of the [s]tate of Connecticut in that . . . [t]he
search and seizure was unreasonable.’’ No memoran-
dum of law setting forth specific legal theories or argu-
ments accompanied the motion, and the state neither
filed an objection to the motion nor sought any clarifica-
tion or specification as to the grounds or theories on
which the defendant objected to the search and seizure.
In fact, neither party presented its theory of the seizure
issue prior to the opening of testimony at the suppres-
sion hearing.
At the suppression hearing, the state proceeded first
with its case, consistent with its burden of proving
that the officers’ warrantless search and seizure of the
defendant was constitutional. See State v. Eady, 249
Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030,
120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). The state called
and examined two witnesses—Officers Morales and
Lawlor—whom defense counsel cross-examined
broadly about the circumstances surrounding the defen-
dant’s arrest. The prosecutor indicated that he had
intended to call Sergeant Mercado as well, but that
Mercado was on vacation in Florida and, therefore,
unavailable to testify.
When the prosecutor completed his redirect ques-
tioning of Morales, the trial court intervened to ask the
officer a series of questions to clarify the timeline of
events. The court specifically asked Morales one-half
dozen questions about the circumstances under which
Mercado had stopped the defendant from walking away,
and twice asked Morales to confirm that Mercado did
so by verbally commanding the defendant to stop. After
questioning Morales in this area, the court gave the
prosecutor an opportunity to ask Morales follow-up
questions.
After the state rested, the defendant briefly called one
witness to establish a lack of recent criminal activity at
the Subway in question. The court then invited the state
to present its closing argument, and the prosecutor for
the first time offered the state’s theory of the search
and seizure. It was only then, at the very end of the
hearing, after the witnesses had been excused, both
sides had rested, and the state had presented its argu-
ment, that the court invited defense counsel to argue
her theory of the case.
Defense counsel began by advising the court that
the court’s primary duty was to determine when the
defendant was seized, if at all. At varying times, she
argued that the defendant was seized: (1) when the
police cruisers surrounded him in the lot; (2) when the
three officers exited their cruisers and approached the
defendant; or (3) when the police patted him down. At
other times, however, defense counsel framed the issue
more broadly. Near the end of the hearing, for example,
she argued that the ‘‘bottom line’’ was that the defendant
‘‘was seized the minute that those police officers turned
around and did a U-turn, came into the parking lot and
stopped [the defendant] . . . .’’ (Emphasis added.)
Despite the fact that defense counsel correctly
advised the trial court that the court was obliged to
determine whether a seizure occurred between the time
that the officers entered the lot and when they verbally
stopped the defendant, the trial court made no express
findings in that regard. Instead, the court appears to
have assumed that the frisk was the event of constitu-
tional significance, and to have concluded that a seizure
was justified at that time.
On appeal, the state argues that (1) the defendant
failed to preserve his argument that a seizure occurred
when Mercado commanded the defendant to stop, (2)
the record is inadequate for us to review this allegedly
unpreserved claim, and (3) the state relied to its detri-
ment on the fact that the defendant opted not to raise
this argument at the suppression hearing. All of the
state’s arguments are without merit.
First, we disagree with the conclusion of the Appel-
late Court that the defendant’s claim that he was seized
no later than when Mercado commanded him to stop
is unpreserved and, therefore, can only be reviewed on
appeal if it satisfies the Golding test. State v. Edmonds,
supra, 151 Conn. App. 770. At the suppression hearing,
defense counsel advised the trial court that it must
determine precisely when the defendant was seized.
Counsel, who did not bear the burden of proof on this
issue and had just heard the officers’ account of the
events in question for the first time, offered three spe-
cific possibilities, ranging from the moment the officers
entered the lot to the moment they approached the
defendant on foot to the moment they frisked him. But
defense counsel also argued that the constitutionally
relevant time period was of longer duration: the
‘‘minute’’ during which the officers turned around,
entered the lot, and ‘‘stopped’’ the defendant. Because
the only explicit testimony as to how the defendant was
stopped was Morales’ testimony that Mercado verbally
commanded him to stop, we have no difficulty conclud-
ing that that command is fairly encompassed by the
seizure theory that defense counsel articulated at the
suppression hearing.11 As the Appellate Court has recog-
nized, ‘‘[c]losing arguments of counsel . . . are seldom
carefully constructed in toto before the event; improvi-
sation frequently results in syntax left imperfect and
meaning less than crystal clear. . . . [S]ome leeway
must be afforded to the advocates in offering arguments
. . . .’’ (Internal quotation marks omitted.) State v.
McCleese, 94 Conn. App. 510, 517–18, 892 A.2d 343, cert.
denied, 278 Conn. 908, 899 A.2d 36 (2006).
Second, even if we agreed that the defendant’s argu-
ment is unpreserved, we would disagree with the
state—and the Appellate Court—that the record is inad-
equate to review that argument. The state contends that
the record is inadequate because: (1) the trial court
made no express findings with respect to Mercado’s
verbal command to stop; and (2) the testimony of
Morales and Lawlor as to this point allegedly conflicts.
The first contention is of little moment, as it is well
established that, when reviewing the constitutionality
of an alleged seizure, we must parse the entire record,
and not only the trial court’s express findings. State v.
Burroughs, supra, 288 Conn. 843–44. If there is uncon-
tested testimony by the state’s own witness indicating
that Mercado seized the defendant before the defendant
made any incriminating statements, and if the trial court
did not affirmatively decline to credit that testimony,
then it is fairly considered in the context of a constitu-
tional analysis. This is especially true in light of the
fact that the trial court clearly failed to focus on the
constitutional import of any of the events that tran-
spired prior to the patdown, suggesting that we can
read little into the court’s failure to make express find-
ings with respect to those events.
The primary question, therefore, is whether Morales’
testimony on this point is uncontested. Morales clearly
testified, on multiple occasions, that it was Mercado
who ‘‘stopped’’ the defendant. The police incident
report—which Morales authored, for which Lawlor pro-
vided assistance, and which an unidentified supervisor
reviewed and signed12—is in full agreement, stating that
‘‘when the [defendant] turned away from us when he
observed our patrol unit . . . Mercado drove in from
the Madison [Avenue] entrance and stopped [him]
. . . .’’ The trial court itself questioned Morales at some
length to clarify this testimony. In response, Morales
specified that Mercado verbally commanded the defen-
dant to stop.
For his part, Lawlor testified only that Mercado
arrived shortly after Morales and he entered the lot,
and that he could not recall where Mercado had parked.
He gave no indication of what role Mercado played in
the incident, if any, nor whether Mercado spoke to
the defendant or issued any commands. When asked
whether all three officers approached the defendant,
Lawlor replied: ‘‘I don’t recall at what specific time but
we approached him.’’ Nothing in Lawlor’s testimony,
then, directly contradicted Morales’ testimony that Mer-
cado ordered the defendant to stop as, or before, the
defendant made any incriminating statements.
In fact, the state’s argument that Lawlor offered con-
flicting testimony is based entirely on the following
brief colloquy between the prosecutor and Lawlor:
‘‘Q. Okay. Now, when you exited the vehicle did you
make contact with the individual that was hanging out
in back of the Subway?
‘‘A. Well, contact was made.
‘‘Q. By who?
‘‘A. By—Officer Morales made contact with him first.
‘‘Q. Okay. And then who made contact with him
second?
‘‘A. I was there, but Officer Morales was handling
more of the contact first.
‘‘Q. So is it a fair assessment to say that Officer
Morales spoke to the individual and you just kind of
observed what was going on?
‘‘A. Yes.’’
During this colloquy, no mention is made of Mercado
and, in particular, there is no discussion of any role
that Mercado might have played before Morales and
Lawlor exited their vehicle. In fact, Lawlor’s entire testi-
mony during this portion of the hearing is limited to
the roles that he and Morales played in the events in
question, and he is not asked about Mercado’s role until
much later. In context, then, there simply is no reason
to interpret Lawlor’s brief reference to the fact that,
after he and Morales exited their vehicle, Morales made
the first contact with the defendant, to mean that Lawlor
disagreed with Morales’ testimony that Mercado initi-
ated the stop. Indeed, the failure of either party to
seek clarification of Lawlor’s testimony as to this point
suggests that this testimony was not interpreted to con-
flict with Mercado’s testimony or with the officers’ inci-
dent report. The most reasonable reading of the
testimony, therefore, is that Lawlor was merely indicat-
ing that, of the two partners, it was Morales who inter-
acted with the defendant. Accordingly, we are not
precluded from considering Morales’ uncontradicted
testimony with respect to the time of seizure.
Third, we are not persuaded by the argument that
the state relied to its detriment on a belief that Mer-
cado’s verbal command to stop was not relevant to the
case. As we already have explained, that issue clearly
was raised at the suppression hearing. The trial court,
sua sponte, questioned Morales about the command at
some length, and afforded the prosecutor an opportu-
nity to pursue the issue on redirect. Defense counsel
later argued that the ‘‘bottom line’’ was that the defen-
dant was seized during the minute in which the officers
stopped the defendant. That the state opted to largely
ignore the constitutional significance of the period dur-
ing which the officers entered the lot and confronted
the defendant, and instead focused almost exclusively
on the reasonableness of the patdown search, was a
strategic decision, and not the result of trial by
ambuscade.
Nor is there any indication that the state declined to
call Mercado as a witness out of a belief that his role
in the encounter was somehow irrelevant. Rather, the
prosecutor indicated at the suppression hearing that he
had intended to call Mercado as a witness but that
Mercado was on vacation in Florida at the time. Accord-
ingly, we reject the state’s argument that, in determining
when the defendant was seized, we may not consider
the undisputed testimony of the state’s own witness,
as corroborated by the officers’ official incident report,
that Mercado, upon entering the parking lot, restrained
the defendant by issuing a verbal command to stop.
II
Having concluded that the defendant was seized no
later than when Mercado commanded him to stop, we
next consider whether the seizure was legal. It is well
settled that a Terry stop is constitutionally permissible
only if three conditions are met: ‘‘(1) the officer[s] must
have a reasonable suspicion that a crime has occurred,
is occurring, or is about to occur; (2) the purpose of
the stop must be reasonable; and (3) the scope and
character of the detention must be reasonable when
considered in light of its purpose.’’ State v. Cyrus, 297
Conn. 829, 837, 1 A.3d 59 (2010); see also United States
v. Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690, 66 L. Ed.
2d 621 (1981) (‘‘An investigatory stop must be justified
by some objective manifestation that the person
stopped is, or is about to be, engaged in criminal activity.
. . . [That] is the central teaching of this [c]ourt’s
[f]ourth [a]mendment jurisprudence.’’ [Citations omit-
ted; emphasis omitted; footnote omitted; internal quota-
tion marks omitted.]). For an officer’s suspicion of
criminal activity to be objectively reasonable, the offi-
cer ‘‘must be able to point to specific and articulable
facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion
. . . .’’ (Emphasis added; internal quotation marks
omitted.) State v. Cyrus, supra, 838. In the present case,
we agree with the conclusion of the trial court that,
from the time Morales and Lawlor first observed the
defendant standing in the Subway lot until they and
Mercado converged on his location, the officers had no
reasonable, articulable suspicion that he was engaged
in criminal conduct. We further conclude that the two
additional factors that arose as the officers were
approaching—that the defendant turned to walk away,
and that his hands moved near his waist as he did
so—also do not support a reasonable and articulable
suspicion of criminal activity. Accordingly, we conclude
that the warrantless seizure was illegal.
It is undisputed that, prior to the time the officers
entered the lot to question the defendant, he did not
make any suspicious statements or nervous gestures.
He was just standing outside at night. It is well estab-
lished that the fact that a citizen chooses to stand out-
side at the dinner hour, in a neighborhood plagued by
crime, does not warrant any reasonable and articulable
suspicion that he himself is engaged in criminal activity.
See State v. Santos, 267 Conn. 495, 508–509, 838 A.2d
981 (2004) (presence of individual in high crime area
at night not sufficient to justify seizure), abrogated on
other grounds by State v. Burroughs, 288 Conn. 836,
844 n.5, 955 A.2d 43 (2008); State v. Hammond, 257
Conn. 610, 625, 778 A.2d 108 (2001) (relying on United
States v. Gray, 213 F.3d 998, 1001 [8th Cir. 2000], for
proposition that standing on street in high crime area
before 10 p.m. in cold weather insufficient to justify
Terry stop); see also United States v. Blair, 524 F.3d
740, 751 (6th Cir. 2008) (10:30 p.m. is ‘‘not late enough
to arouse suspicion of criminal activity,’’ even in high
crime area); People v. Bower, 24 Cal. 3d 638, 645, 597
P.2d 115, 156 Cal. Rptr. 856 (1979) (time of 8:37 p.m.,
‘‘while falling during darkness in winter, is simply not
a late or unusual hour nor one from which any inference
of criminality may be drawn’’); People v. Bower, supra,
645 (cautioning that ‘‘high crime area justification is
easily subject to abuse’’ [internal quotation marks omit-
ted]); Commonwealth v. Helme, supra, 399 Mass. 298,
302 (stop not justified where defendant’s car was
parked with interior lights on and engine running at
12:30 a.m. in parking lot outside pub that was open for
business). Compare 4 W. LaFave, supra, § 9.5 (e), pp.
691–92 (not suspicious for individual to stand outside
residential or commercial establishment in evening),
with id., p. 688 n.180 (listing cases finding reasonable
suspicion that suspect was casing for possible burglary
where suspicious conduct took place after midnight
outside closed or abandoned establishments), and id.,
§ 9.5 (g), p. 741 n.346 (similar). Quite simply, ‘‘[t]oo
many people fit this description for it to justify a reason-
able suspicion of criminal activity.’’ (Internal quotation
marks omitted.) United States v. Gray, supra, 213
F.3d 1001.
Nor does standing in a private lot for a few seconds
constitute loitering, particularly without any indication
that the person is engaged in otherwise improper con-
duct or has been asked to leave the premises. See
Bridgeport Municipal Code § 9.04.010; see also Wain-
wright v. New Orleans, 392 U.S. 598, 604, 88 S. Ct. 2243,
20 L. Ed. 2d 1322 (1968) (Warren, C. J., dissenting from
dismissal of writ of certification as improvidently
granted); United States v. James, 62 F. Supp. 3d 605,
612 (E.D. Mich. 2014); State v. Grace, 28 Kan. App. 2d
452, 459, 17 P.3d 951 (2001).
In the present case, Morales and Lawlor saw an other-
wise nondescript man—if they could even discern that
the vague ‘‘silhouette’’ they saw was male—standing
outside a restaurant and apartment building for a few
seconds at 7 p.m., in a city with a generally high crime
rate. This particular location had not reported any crimi-
nal activity for at least the prior four months, and no
incidents had been reported in the area that evening.
There are 1001 legitimate reasons why a man might
pause for a moment outside an open eatery at the dinner
hour. He might have been meeting friends, family, or
colleagues for supper; waiting for his children to come
out of the restroom; reviewing the menu; checking to
see if a friend was inside; pondering whether he was
in the mood for sandwiches or fish; taking a smoke
break; making a private call; or just getting a breath of
fresh air. This was not a case where the defendant
looked into a store window one dozen times without
entering; see Terry v. Ohio, supra, 392 U.S. 6; staked
out a store for an extended period of time, from an
unusual location; see State v. Thurlow, 485 A.2d 960,
963 (Me. 1984); or paid particular attention to a store’s
cash registers. See Mosley v. State, 289 Md. 571, 572,
425 A.2d 1039 (1981). Quite simply, the officers were
unable to articulate anything remarkable, let alone sus-
picious, about this particular individual that would
differentiate him from any of the myriad other citizens
who might have paused for a moment in any residential
or commercial area of Bridgeport that evening, or that
would suggest that he was preparing to commit a crime.
As Justice Glass explained in his dissenting opinion in
State v. Cofield, 220 Conn. 38, 50, 595 A.2d 1349 (1991),
‘‘[m]any of our less fortunate citizens are forced to
establish their homes in or near locales of criminal
repute, or they travel to such places to call upon friends
or engage in an infinite range of innocuous human activ-
ities. . . . [T]he crime rate of a particular area cannot
transform otherwise innocent-appearing circumstances
into circumstances justifying the seizure of an individ-
ual.’’ (Citation omitted; internal quotation marks
omitted.)
In fact, the defendant’s conduct in this case was far
less suspicious than conduct that has been held to be
insufficient, as a matter of law, to justify a seizure. In
State v. Donahue, 251 Conn. 636, 639, 742 A.2d 775(1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L.
Ed. 2d 240 (2000), for example, the police observed an
individual idle his car at 1:50 a.m. in a vacant lot outside
a closed social club, on a street that ‘‘ ‘had experienced
a dramatic increase in criminal activity in the previous
four to six weeks . . . .’ ’’ Notwithstanding that
‘‘ ‘[i]ndividuals would often park their vehicles at the
commercial establishments along [that particular
street] and then walk through [a] cemetery into [a]
housing project to engage in [drug dealing and prostitu-
tion]’ ’’; id.; we concluded that the circumstances did
not give rise to a reasonable and articulable suspicion
of criminal activity. Id., 648. Allowing the police to exe-
cute a seizure without any information linking that par-
ticular individual to any particular crime, we reasoned,
would permit law enforcement to improperly profile
entire neighborhoods and communities as criminal. Id.,
648 and n.11. ‘‘This court,’’ we concluded, ‘‘cannot per-
mit such a suspension of constitutional protections.’’
Id., 648.
Looking to other jurisdictions, the most similar case
to the present case appears to be People v. Revoal, 269
P.3d 1238 (Colo. 2012) (en banc). In that case, the police
observed an individual standing outside a closed Sub-
way shop at 11:30 p.m., in an area that had experienced
a recent history of robberies. Id., 1239. They observed
the individual look to the left and to the right, as if
watching for something, and then walk to a dark area
across the lot, behind an open liquor store. Id. When
he saw their patrol car approaching, the individual
turned and walked in the opposite direction. Id. Consid-
ering all of these circumstances, the Supreme Court of
Colorado unanimously concluded that the officers did
not have a reasonable suspicion sufficient to justify
an investigatory stop. Id. In the present case, under
circumstances even less suspicious than those in Revoal
and Donahue, we likewise conclude that there was no
legitimate reason for Morales, Lawlor, and Mercado
to seize the defendant at the time they entered the
Subway lot.
The only events of potential constitutional signifi-
cance that transpired between the time the two cruisers
entered the lot and the time that Mercado successfully
commanded the defendant to stop are: (1) the fact that
the defendant turned to leave when the police arrived;
and (2) the fact that the defendant’s hand moved near
his waistband as he turned. These factors, taken
together with those previously discussed, also do not
provide sufficiently specific grounds to support a rea-
sonable conclusion that the defendant was involved in
criminal activity.
First, the fact that the defendant turned to walk away
when he saw Morales and Lawlor driving into the Sub-
way lot does not suggest that he was up to something
nefarious. It is true that an individual’s ‘‘[h]eadlong
flight’’ upon perceiving police may justify a Terry stop.
Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673,
145 L. Ed. 2d 570 (2000); accord State v. Middleton, 170
Conn. 601, 605, 368 A.2d 66 (1976). The mere fact that
a citizen turns and walks away from an approaching
police officer does not, however, support a reasonable
and articulable suspicion of criminality. State v. Ham-
mond, supra, 257 Conn. 625; see also United States v.
Jones, 584 F.3d 1083, 1087 (D.C. Cir. 2009) (stating
federal rule), cert. denied, 559 U.S. 1044, 130 S. Ct. 2081,
176 L. Ed. 2d 428 (2010); State v. Milotte, 95 Conn. App.
616, 617, 897 A.2d 683 (2006) (fact that defendant, in
area where driving under influence arrests are common,
appeared to drive so as to avoid police officer held too
speculative to justify Terry stop), appeal dismissed, 281
Conn. 612, 917 A.2d 25 (2007); State v. Hicks, 241 Neb.
357, 362, 488 N.W.2d 359 (1992) (majority rule among
states is that citizens may avoid or retreat from police
presence without creating reasonable suspicion of crim-
inality). We have recognized that ‘‘merely veering off
course may be a wholly appropriate response to the
sudden appearance of police officers in the roadway
and is consistent with going about one’s business
. . . .’’ (Internal quotation marks omitted.) State v. Ben-
ton, supra, 304 Conn. 850. In the present case, not only
did the defendant not flee headlong from the officers,
but he did not flee at all; Morales even rejected the
suggestion that the defendant had walked away
‘‘quickly.’’
There are a number of legitimate reasons why a law-
abiding citizen may not desire to remain on the scene
when the police appear, especially in a dangerous neigh-
borhood where police-citizen relations may be strained.
See Alberty v. United States, 162 U.S. 499, 511, 16 S.
Ct. 864, 40 L. Ed. 1051 (1896) (noting that, as matter of
common knowledge, people who are entirely innocent
may seek to depart crime scene due to fear of being
mistakenly apprehended or unwillingness to appear as
witnesses). As Justice Stevens elaborated in his concur-
ring and dissenting opinion in Illinois v. Wardlow,
supra, 528 U.S. 131–34, ‘‘a reasonable person may con-
clude that an officer’s sudden appearance indicates
nearby criminal activity. And where there is criminal
activity there is also a substantial element of danger—
either from the criminal or from a confrontation
between the criminal and the police. These considera-
tions can lead to an innocent and understandable desire
to quit the vicinity with all speed.
‘‘Among some citizens, particularly minorities and
those residing in high crime areas, there is also the
possibility that the fleeing person is entirely innocent,
but, with or without justification, believes that contact
with the police can itself be dangerous, apart from any
criminal activity associated with the officer’s sudden
presence. . . . [T]he evidence supporting the reason-
ableness of these beliefs is too pervasive to be dismissed
as random or rare, and too persuasive to be disparaged
as inconclusive or insufficient.’’ (Footnotes omitted.)
See also State v. Hicks, supra, 241 Neb. 363 (‘‘[f]ear or
dislike of authority, distaste for police officers based
upon past experience, exaggerated fears of police bru-
tality or harassment, and fear of unjust arrest are all
legitimate motivations for avoiding the police’’). It
would be ironic, to say the least, if we were to rely on
a defendant’s freedom to leave as evidence that there
was not a seizure but then rely on the mere exercise
of that ability to conclude that there is a reasonable
suspicion that justifies a seizure.
Turning to the second factor, the state contends that
the fact that Lawlor saw the defendant ‘‘engage in move-
ments around his waistband as he walked’’ led the offi-
cers reasonably to suspect the defendant of criminal
activity. Courts and commentators have recognized,
however, that the mere fact that the police report that
a suspect moved his hands in the area of his waist,
without further context or detail, does not justify a
warrantless seizure. See In re Jeremy P., 197 Md. App.
1, 14, 11 A.3d 830 (2011) (reviewing ‘‘waistband’’ cases
from various jurisdictions and concluding that ‘‘a police
officer’s observation of a suspect making an adjustment
in the vicinity of his waistband does not give rise to
reasonable suspicion of criminal involvement sufficient
to justify a Terry stop’’). Because a typical man’s hands
hang only a few inches or so below his waist, under
normal circumstances it is virtually impossible to turn
and walk off in such a way that the hands do not appear
to come into proximity thereto. Surely it cannot be the
case that any man living in a high crime neighborhood
who appears to move his hands in the vicinity of his
waist as the police approach, or who engages in com-
monplace and innocuous conduct such as briefly
adjusting his pants, thereby subjects himself to search
and seizure. See Duhart v. United States, 589 A.2d 895,
899–900 (D.C. 1991).
The officers in the present case did not provide the
sort of detailed testimony that has been found to sup-
port a reasonable and articulable suspicion of gun pos-
session in other cases. For example, there was no
testimony describing a gun-shaped bulge in the clothing,
an awkward gait or arm movement typical of those
carrying concealed guns, an informant’s tip that the
subject was armed, or the fact that persons similarly
situated to the defendant frequently carry unlicensed
guns. See, e.g., United States v. Parker, 277 Fed. Appx.
48, 51 (2d Cir. 2008); State v. Mann, 271 Conn. 300,
322–26, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949,
125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005); 4 W. LaFave,
supra, § 9.6 (a), pp. 855–62. In fact, the officers never
even testified that they actually believed the defendant
was carrying a weapon. Although we have recognized
a compelling interest in preserving officer safety; see
State v. Mangual, 311 Conn. 182, 209–10, 85 A.3d 627(2014); mere conclusory testimony that the officers
were concerned for their safety does not constitute the
sort of specific, articulable evidence necessary to justify
a Terry stop. See Pinnock v. New Haven, 553 F. Supp.
2d 130, 141 (D. Conn. 2008).
Accordingly, while we remain cognizant of law
enforcement officers’ legitimate safety concerns, we
cannot allow the police to invoke an individual’s waist-
band like a talisman in order to justify any seizure after
the fact. Particularly in a case such as the present one,
where the facts that have been asserted as justifying
an officer safety patdown—repeated fiddling with the
waistband and refusal to comply with officers’ orders—
are almost entirely facts that the officers neglected to
memorialize in their official incident report, and then
claimed to remember two years later at a suppression
hearing where they were unable to recall other basic
details of the incident,13 we should be extremely wary
of sanctioning a seizure in the absence of truly specific
and articulable evidence that the defendant was
engaged in criminal conduct.
A decision of the Supreme Court of Colorado is
instructive in this regard. See People v. Thomas, 660
P.2d 1272 (Colo. 1983), overruled on other grounds by
People v. Archuleta, 980 P.2d 509, 515 (Colo. 1999). The
facts of Thomas are remarkably similar to those of the
present case. While stopped at a red light, police officers
observed the defendant, Joseph Thomas, ‘‘ ‘just stand-
ing’ ’’ in the parking lot of a fast-food restaurant. Id.,
1273. Upon their approach, Thomas placed his hand in
his pocket, and either walked or ran across the lot
toward an adjoining building. Id., 1273–74. The court
concluded that the mere fact that an individual in a
high crime area makes a ‘‘ ‘furtive gesture’ ’’ about his
clothing and quickly leaves the scene upon the arrival
of law enforcement is clearly insufficient to justify a
seizure. Id., 1275–76, 1276 n.2.
By contrast, our decision in State v. Mann, supra,271 Conn. 325, on which the Appellate Court relied;
State v. Edmonds, supra, 151 Conn. App. 776; is readily
distinguishable. In that case, the police had specific
prior information that drugs were being packaged and
sold from the apartment in question. State v. Mann,
supra, 323–24. Upon confronting the police at the apart-
ment door, the defendant in that case immediately
thrust his hand into his pocket. Id., 324. Under those
circumstances, and given the ‘‘well established correla-
tion between drug dealing and firearms,’’ we concluded
that there was a reasonable suspicion that the defendant
was armed and posed an imminent danger to the police.
(Internal quotation marks omitted.) Id., 325.
In the present case, by contrast, there was no specific
and articulable basis for the officers to believe that the
defendant was engaged in criminal conduct, that he
was reaching for a weapon, or that they were in any
immediate danger. For these reasons, we conclude that
the officers’ seizure of the defendant was not supported
by a reasonable and articulable suspicion that he was
engaged in criminal conduct and, accordingly, that his
motion to suppress the narcotics evidence obtained in
violation of his constitutional rights should have
been granted.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to the trial court with direction to grant the
defendant’s motion to suppress.
In this opinion ROGERS, C. J., and PALMER, EVE-
LEIGH and ROBINSON, Js., concurred.
1
We granted the defendant’s petition for certification to appeal limited
to the following two issues: (1) ‘‘Did the Appellate Court properly determine
that the record was not adequate for appellate review of the defendant’s
claim that he was seized when Sergeant Ronald Mercado commanded him
to stop?’’; and (2) ‘‘Did the Appellate Court properly determine that the
defendant was not seized until police officers conducted a patdown search
of the defendant’s person?’’ State v. Edmonds, 314 Conn. 925, 100 A.3d 855(2014). Because the certified questions are inextricably linked with the
related issue of whether the officers’ seizure of the defendant was reason-
able, and because the defendant briefed that question extensively and the
state—while declining to brief the question before this court—briefed it
before the Appellate Court and argued it at oral argument before this court,
we address it herein as well. See Montoya v. Montoya, 280 Conn. 605, 617
n.11, 909 A.2d 947 (2006).
2
The fourth amendment to the United States constitution provides in
relevant part: ‘‘The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated . . . .’’
3
Article first, § 7, of the Connecticut constitution provides in relevant
part: ‘‘The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches or seizures . . . .’’
Article first, § 9, of the Connecticut constitution provides: ‘‘No person
shall be arrested, detained or punished, except in cases clearly warranted
by law.’’
Although we have determined that, under certain circumstances, the rele-
vant provisions of the state constitution provide broader protection from
unreasonable search and seizure than does the fourth amendment; see, e.g.,
State v. Oquendo, 223 Conn. 635, 649–50, 613 A.2d 1300 (1992); our analysis
and resolution of the present appeal would be the same under either constitu-
tion. We recognize, however, that the defendant’s claim that he was seized the
moment that two police cruisers approached him from opposite directions in
the parking lot, and before he was ordered to stop, is cognizable only under
the constitution of Connecticut, because the United States Supreme Court
has held that the fourth amendment is not implicated until a suspect actually
submits to a show of authority by the police or is physically detained.
California v. Hodari D., 499 U.S. 621, 628–29, 111 S. Ct. 1547, 113 L. Ed.
2d 690 (1991).
4
Only three witnesses testified at the suppression hearing: two of the three
arresting officers, and a sergeant with the Bridgeport Police Department
(department) called by the defense for the limited purpose of establishing
that the department’s computer aided dispatch system had not recorded
any incidents at the location of the defendant’s arrest during the four months
preceding the defendant’s arrest.
5
The court found, rather, that ‘‘[i]t was dark outside . . . .’’
6
See Time and Date AS, ‘‘Bridgeport, CT, USA—Sunrise, Sunset, and
Daylength, January 2011,’’ available at http://www.timeanddate.com/sun/
usa/bridgeport?month=1&year=2011 (last visited June 1, 2016); see also State
v. Morris, 47 Conn. 179, 180 (1879) (‘‘[t]he time of the rising or setting of
the sun on any given day belongs to a class of facts . . . of which courts
will take judicial notice’’).
7
When the trial court asked Morales whether the fidgeting hand motions
occurred at the same time as the defendant professed his innocence, Morales
responded ambiguously: ‘‘[n]o, I believe that was before.’’ (Emphasis added.)
8
Under Golding, a criminal defendant can prevail on an unpreserved
claim of constitutional error if all of the following conditions are met: ‘‘(1)
the record is adequate to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Footnote omitted.) State v. Golding,
supra, 213 Conn. 239–40; see also In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015) (modifying third prong of Golding).
9
Because we conclude, taking all of the relevant circumstances into
account, that the defendant was seized without reasonable justification when
Mercado commanded him to stop, we need not consider the defendant’s
alternative theory that he was seized at the outset, when the officers con-
verged on his position in the center of the parking lot.
10
See footnotes 2 and 3 of this opinion.
11
Accordingly, this case is readily distinguishable from State v. Brunetti,
279 Conn. 39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328,
167 L. Ed. 2d 85 (2007), in which the defendant, who had taken the lead
during the suppression hearing; id., 48 n.14; and consistently argued that
his father’s consent to search was invalid, shifted gears on appeal and began
to argue for the first time that his mother’s opposition precluded a valid
consent search. Id., 48–49, 53.
12
It is unclear whether the supervisor’s signature is that of Mercado or
another supervisor.
13
At the time of the suppression hearing in February, 2013, for example,
Morales, who had conducted more than 500 such patdowns over the course
of his career, was unclear about or unable to recall a number of significant
details of the January, 2011 incident involving this particular defendant:
whether there were any cars in the lot; whether he patted the defendant
down on a vehicle; who transported the defendant from the scene; which
officer was driving the cruiser; whether Mercado was accompanied by
another officer; where Mercado parked; what statements the defendant
made upon being confronted; whether the defendant was wearing a hood;
the circumstances under which the defendant provided the police with two
different addresses; and which officer questioned the defendant. Morales
did testify, however, that he specifically recalled: the defendant tussling
with his pants in the area of his waistband and belt buckle; placing his
hands behind him; fixing his pants; and ignoring the officers’ commands
that he keep his hands in plain view.
When Lawlor was first questioned as to what concern led to the need for
an officer safety patdown, he replied only that he was concerned because
the defendant initially started to walk away from the police and denied having
robbed anyone. The prosecutor, however, responded by further prompting
Lawlor: ‘‘[D]id the defendant make any movements with his hands at all to
the best of your recollection?’’ Lawlor then volunteered that, in fact, the
defendant had ‘‘moved them toward his waistband when he was walking
away.’’ Neither officer was able to explain why they had neglected to include
these key details in their official incident report, which stated only that the
defendant ‘‘kept moving his hands around in a nervous manner and yelling
‘this is embarrassing!’ while continuing to state his innocence.’’