State v. Kelly ( 2014 )

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STATE OF CONNECTICUT v. JEREMY KELLY
(SC 18849)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh,
McDonald and Vertefeuille, Js.*
Argued April 16, 2013—officially released August 12, 2014
Timothy H. Everett, assigned counsel, with whom,
on the brief, were Blake Holler, Victoria Mueller and
Nicole Vaswig, certified legal interns, for the appel-
lant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Gail
P. Hardy, state’s attorney, and Robert Diaz, assistant
state’s attorney, for the appellee (state).
Richard Emanuel and Leonard M. Crone filed a brief
for the Connecticut Criminal Defense Lawyers Associa-
tion as amicus curiae.
Michael A. Blanchard, Sandra J. Staub and Amy
Breglio, legal intern, filed a brief for the American Civil
Liberties Union Foundation of Connecticut as amicus
curiae.
Opinion
PALMER, J. The defendant, Jeremy Kelly, was con-
victed, on a conditional plea of nolo contendere; see
General Statutes § 54-94a;1 of possession of narcotics
with intent to sell in violation of General Statutes § 21a-
277 (a). The defendant entered his plea following the
trial court’s denial of his motion to suppress cocaine
that the police had discovered after stopping him inci-
dent to the detention of another individual, who the
police reasonably believed was armed and dangerous
and who was the subject of an arrest warrant, while
the two men were walking together on a public street.
The defendant appealed to the Appellate Court, and
that court affirmed the trial court’s judgment. State v.
Kelly, 129 Conn. App. 109, 126, 19 A.3d 223 (2011).
We granted the defendant’s petition for certification to
appeal, limited to the following issues: ‘‘[1] Whether
the Appellate Court properly held constitutional the
warrantless seizure of the defendant on a public street
because he was in the company of a person believed
to be an individual wanted for [a] violation of probation
and [2] [W]hether the Appellate Court, in doing so,
properly relied on facts not [expressly] found by the
trial court when it denied the defendant’s motion to
suppress . . . .’’ State v. Kelly, 302 Conn. 920, 28 A.3d
338 (2011). We agree with the Appellate Court that the
trial court properly determined that the police were
authorized to stop and briefly detain the defendant, as
a reasonable safety measure, in connection with the
lawful detention of the individual he was accompa-
nying, because the police reasonably believed that that
other individual was armed and dangerous. With
respect to the second certified question, that issue has
been rendered moot by virtue of an articulation, which
the trial court issued in response to this court’s order
following oral argument, explaining that it had credited
certain suppression hearing testimony on which the
Appellate Court relied in its recitation of the facts.
Because we conclude that the protective stop of the
defendant passes muster under both the federal and
state constitutions, we affirm the judgment of the Appel-
late Court.
The opinion of the Appellate Court sets forth the
following facts, which were based on testimony
adduced at the evidentiary hearing on the defendant’s
motion to suppress. ‘‘On March 27, 2007, Detective Wil-
liam Rivera of the Hartford [P]olice [D]epartment
received information from a reliable confidential infor-
mant that . . . Pedro Gomez, [who resided] in the area
of Brown Street in [the city of] Hartford, was in posses-
sion of a firearm. Having also discovered that Gomez
was the subject of an outstanding arrest warrant for
[a] violation of probation, Rivera and Lieutenant Jose
Angeles of the [D]epartment of [C]orrection drove to
the area in an unmarked car [while] dressed in plain
clothes. They had a description of Gomez as a Hispanic
male of medium complexion with short hair, twenty to
twenty-two years of age, between 130 and 150 pounds
and between five feet, five inches and five feet, seven
inches tall. The informant also had alerted Rivera that
[Gomez] sometimes . . . disguised himself by wearing
a dark wig.
‘‘At approximately 11 a.m., the officers observed two
men, later identified as the defendant and Rafael
Burgos, walking and talking together on the sidewalk.
There was a gas station on the corner that was a known
location for drug dealing, and Rivera suspected that the
men had just left that location. As the officers
approached, they determined that Burgos fit the
description of Gomez. As Burgos and the defendant
walked into the driveway at 13-15 Brown Street, they
made eye contact with the officers, and Burgos moved
his foot as if he was going to run. Both men continued
to walk slowly toward the rear of the building, looking
backwards. Angeles noticed that the defendant was
clutching his waistband. Stopping his vehicle in front
of the driveway, Rivera displayed his badge and stated
‘I’m a police officer’ and ‘come to the vehicle.’ Angeles
also displayed his badge. Burgos replied, ‘for what?’
and the defendant stated, ‘I live here.’ Burgos and the
defendant continued walking up the driveway. Rivera
then pulled the car into the driveway east of 13-15
Brown Street. The officers did not activate [the] vehi-
cle’s lights or siren and had not drawn their firearms.
‘‘As Angeles began to step out of the vehicle, he
ordered the men to ‘stop, stop, come here.’ At that point,
[Burgos and the defendant] fled. The defendant ran
behind the house. Rivera drove the car to the front of
13-15 Brown Street and observed the defendant run
around the front of the house and up the street, still
clutching his waistband, while Angeles chased him on
foot. Rivera drove alongside them up the street and
then turned into a driveway to block the defendant’s
path. The defendant changed course, and Rivera began
chasing him on foot. Rivera saw the defendant drop a
clear plastic bag containing a white substance [that
subsequently was determined to be cocaine]. When the
defendant tripped and fell, Rivera tackled him and hand-
cuffed him after a thirty second struggle. Rivera seized
the bag that the defendant had dropped and also seized
another clear plastic bag containing a large amount
of a white, rock like substance from the defendant’s
clenched hand.’’ (Footnote omitted.) State v. Kelly,
supra, 129 Conn. App. 112–13. The white substance
seized from the defendant’s hand also was determined
to be cocaine.
Thereafter, the defendant was charged with posses-
sion of narcotics with intent to sell by a person who is
not drug-dependent in violation of General Statutes
(Rev. to 2007) § 21a-278 (b), possession of narcotics
within 1500 feet of a school in violation of General
Statutes § 21a-279 (d), possession of narcotics in viola-
tion of General Statutes § 21a-279 (a), interfering with
an officer in violation of General Statutes (Rev. to 2007)
§ 53a-167a, and criminal trespass in the third degree in
violation of General Statutes (Rev. to 2007) § 53a-109.
The defendant moved to suppress the cocaine, claiming
that he had been unlawfully seized because Rivera and
Angeles had no reason to believe that the defendant
had committed or was committing a criminal offense,
and the discovery of the cocaine was the fruit of that
illegal seizure.
Following an evidentiary hearing on the defendant’s
motion to suppress, the trial court denied the motion.
In support of its decision, the trial court explained that,
because Rivera and Angeles reasonably believed that
Burgos was Gomez, they were justified in stopping
Burgos in light of the outstanding arrest warrant for
Gomez. The trial court further found that, because that
warrant was for the offense of ‘‘felony . . . possession
of a firearm,’’ the officers were authorized to briefly
detain the defendant, as a legitimate safety precaution,
incident to the lawful stop of Burgos.2 The trial court
reasoned that, when the police lawfully stop a suspect
who they reasonably believe may be armed and danger-
ous, and that suspect is accompanied by a companion,
the police also must be permitted to temporarily restrict
the companion’s freedom of movement lest they place
themselves at risk that the companion will ‘‘[step] back
. . . and open fire’’ on them. In reaching its conclusion,
the trial court analogized the companions of a suspect
on a public street to passengers in a vehicle driven by
a suspect, who, under Brendlin v. California, 551 U.S.
249, 255–58, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007),
lawfully may be detained incident to the lawful stop of
the driver. The trial court concluded that, because the
officers had justifiably detained the defendant for safety
reasons, the defendant could not prevail on his claim
that the cocaine seized by the police following his deten-
tion was the fruit of unconstitutional police conduct.
The defendant subsequently entered a plea of nolo
contendere to the crime of possession of narcotics with
intent to sell in violation of § 21a-277 (a), conditioned
on his right to appeal from the trial court’s denial of
his motion to suppress. See State v. Kelly, supra, 129
Conn. App. 114. The trial court rendered judgment of
conviction in accordance with the plea and sentenced
the defendant to nine years imprisonment, suspended
after three and one-half years, and three years proba-
tion. Id.The defendant appealed to the Appellate Court from
the judgment of the trial court, claiming, inter alia, that
the police had detained him in violation of the fourth
amendment to the United States constitution3 and arti-
cle first, §§ 74 and 9,5 of the Connecticut constitution.
Id. Specifically, the defendant argued that the officers
had seized him in violation of Terry v. Ohio, 392 U.S.
1, 27, 30–31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see
also State v. Donahue, 251 Conn. 636, 643–45, 742 A.2d
775 (1999) (Terry stop permitted under article first, §§ 7
and 9, of state constitution), cert. denied, 531 U.S. 924,
121 S. Ct. 299, 148 L. Ed. 2d 240 (2000); because they
lacked a reasonable and articulable suspicion that he
had committed or was about to commit a crime.6 See
State v. Kelly, supra, 129 Conn. App. 118. The defendant
also asserted that the trial court’s conclusion that the
officers had stopped him as a reasonable safety measure
was flawed for a second reason, namely, that it was
based on the clearly erroneous factual finding that
Gomez was the subject of an outstanding warrant for
felony possession of a firearm when, in actuality, the
testimony adduced at the suppression hearing estab-
lished that the warrant was for a violation of probation
that had been imposed for an unspecified felony con-
viction.
During the pendency of his appeal before the Appel-
late Court, the defendant moved for an articulation by
the trial court of several of its factual findings. After
the trial court denied the motion, the defendant filed
a motion for review with the Appellate Court, which
granted the motion in part and ordered, inter alia, that
the trial court identify the offense alleged in the out-
standing warrant for Gomez. In its articulation, the trial
court reiterated that the warrant was for felony posses-
sion of a firearm.
On appeal, the Appellate Court concluded that the
trial court properly had denied the defendant’s motion
to suppress. Id., 124. The Appellate Court commenced
its analysis by rejecting the defendant’s claim that his
seizure violated the fourth amendment, explaining that,
‘‘[u]nder federal law, a person is seized by a show of
authority only if he submits to it; California v. Hodari
D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d
690 (1991); which did not occur in the present case.
Accordingly, the first seizure under the fourth amend-
ment occurred when Rivera tackled the defendant. By
the time that physical force was applied, Rivera had
probable cause to believe that the defendant was
engaged in criminal conduct when he fled and visibly
tossed away a plastic bag [containing a white substance]
while being pursued.’’ State v. Kelly, supra, 129 Conn.
App. 117 n.6.
With respect to the defendant’s claim that his seizure
violated article first, §§ 7 and 9, of the state constitution,
the Appellate Court relied on State v. Oquendo, 223
Conn. 635, 649–50, 613 A.2d 1300 (1992),7 in concluding
that the defendant was seized for state constitutional
purposes when Rivera and Angeles drove up alongside
him, displayed their badges, and Rivera told him to
approach the vehicle. See id., 116–17. The Appellate
Court also concluded, however, that, even though
Rivera and Angeles lacked reasonable and articulable
suspicion to believe, at the time of that encounter, that
the defendant was engaged in criminal activity, they
nevertheless lawfully had detained him because the
stop was reasonable, and therefore justified, under the
state constitution. See id., 122–24. Like the trial court,
the Appellate Court analogized the defendant’s deten-
tion to the legitimate detention of a vehicle’s passengers
incident to the stop of the driver; see Brendlin v. Cali-
fornia, supra, 551 U.S. 255–58; observing that, ‘‘[i]n the
context of a traffic stop, the United States Supreme
Court has taken the unprecedented step of authorizing
seizures that are unsupported by any individualized sus-
picion whatsoever and [has] held that, during a traffic
stop, an officer may also order any passenger out of
the car as a precautionary [safety] measure.’’ State v.
Kelly, supra, 129 Conn. App. 119. The Appellate Court
also likened the stop of a suspect’s companion on a
public street to the suspicionless detention of the occu-
pants of a residence during the execution of a search
warrant, which the United States Supreme Court
declared to be constitutionally permissible in Michigan
v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L.
Ed. 2d 340 (1981). See State v. Kelly, supra, 122. The
court ultimately concluded that, in light of the state’s
‘‘weighty interest in promoting the safety of its police
officers’’; (internal quotation marks omitted) id., 118;
and the minimal intrusion on the defendant’s liberty
interest; id., 123; it was reasonable for the officers to
briefly detain the defendant for safety purposes incident
to their investigative stop of Burgos.8 Id., 124. Accord-
ingly, the Appellate Court affirmed the trial court’s judg-
ment of conviction.9 Id., 126.
This certified appeal followed. Following oral argu-
ment, this court, sua sponte, ordered the trial court to
issue an articulation addressing two questions. First,
‘‘[u]pon reconsideration, and notwithstanding its find-
ing that . . . Gomez was wanted for a felony firearms
violation, did the trial court credit the testimony
adduced at the hearing on the defendant’s motion to
suppress that there was an outstanding felony violation
of probation warrant for Gomez?’’ Second, ‘‘[d]id the
trial court credit the testimony that the police had
received information from a reliable informant that
Gomez might well be in possession of a firearm?’’ The
trial court answered both questions in the affirmative.
In the present appeal, the defendant does not seri-
ously contest the conclusion of the Appellate Court that
he was not seized for fourth amendment purposes until
the police had probable cause to arrest him and, there-
fore, that his seizure did not violate the federal constitu-
tion.10 See State v. Kelly, supra, 129 Conn. App. 117 n.6.
Relying on the fact that he was seized under the state
constitution when the officers approached him and told
him to stop, the defendant claims, rather, that the Appel-
late Court incorrectly concluded that article first, §§ 7
and 9, permit the police to detain an individual on a
public street, even if the officers have no reason to
believe that the individual has committed or is commit-
ting a criminal offense, if that individual is accompanied
by a person whom the police have lawfully detained,
and the police reasonably suspect that that other person
is armed and dangerous. The defendant also claims that
the Appellate Court, in concluding that the trial court
correctly determined that Rivera and Angeles were jus-
tified in detaining the defendant, improperly relied on
facts that the trial court had not expressly found. With
respect to the defendant’s first claim, we conclude that
the state constitution permits the kind of brief, protec-
tive stop that occurred in the present case and, further,
that the evidence supported the trial court’s determina-
tion that the stop of the defendant was lawful. We also
reject the defendant’s second claim because it has been
rendered moot by virtue of the trial court’s response
to this court’s order for an articulation. We address
each of the defendant’s claims in turn.
I
The defendant contends that the Appellate Court
incorrectly concluded that it is permissible under the
state constitution for the police to briefly detain the
companion of a suspect, incident to the lawful stop of
that suspect, even though the police lack reasonable
suspicion to believe that the companion himself has
engaged or is engaging in criminal behavior. In support
of this contention, the defendant argues that the state
constitution does not permit the warrantless ‘‘seizures
of citizens in public places except upon a particularized
showing of suspicion of criminal activity’’ and that the
mere geographic proximity of a companion to a suspect,
however potentially dangerous that suspect may be, is
insufficient, without more, to justify the stop of the
companion. The state disagrees, asserting that,
although no preexisting framework for evaluating the
reasonableness of a state intrusion into a suspect’s lib-
erty under article first, §§ 7 and 9, expressly authorizes
the suspicionless detention of a suspect’s companion,
such action is reasonably necessary, and therefore per-
missible under the state constitution, for the protection
of the investigating officer when, as in the present case,
that officer has lawfully stopped the suspect and has
a reasonable concern for his safety. The state further
asserts that ‘‘the governmental interests involved in
‘companion’ situations consistently will be so strong
that this court should recognize a bright line rule to the
effect that, when reasonable and articulable suspicion
supports a stop of a suspect, the police reasonably may
stop the companion of the suspect . . . .’’11 Although
we decline to adopt the bright line rule proposed by
the state, we agree with the state that, when officers
lawfully detain a suspect who they reasonably believe
poses a threat to their safety, article first, §§ 7 and
9, permit the officers to briefly detain the suspect’s
companion for protective purposes.
The defendant’s claim requires us to examine the
scope of the rights afforded by the Connecticut constitu-
tion. ‘‘It is well-established that federal constitutional
and statutory law establishes a minimum national stan-
dard for the exercise of individual rights and does not
inhibit state governments from affording higher level
of protection for such rights.’’ (Internal quotation marks
omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d
1225 (1992). In determining the contours of the protec-
tions provided by our state constitution, we employ a
multifactor approach that we first adopted in Geisler.
The factors that we consider are ‘‘(1) the text of the
relevant constitutional provisions; (2) related Connecti-
cut precedents; (3) persuasive federal precedents; (4)
persuasive precedents of other state courts; (5) histori-
cal insights into the intent of [the] constitutional [fram-
ers]; and (6) contemporary understandings of appli-
cable economic and sociological norms.’’ (Internal quo-
tation marks omitted.) State v. Dalzell, 282 Conn. 709,
716 n.6, 924 A.2d 809 (2007). In addition, as we pre-
viously have noted, these factors may be ‘‘inextricably
interwoven,’’ and ‘‘not every [such] factor is relevant
in all cases.’’ State v. Morales, 232 Conn. 707, 716 n.10,
657 A.2d 585 (1995).
As to the first Geisler factor, namely, the relevant
constitutional text, ‘‘this court repeatedly has observed
that the language of article first, § 7, of the state consti-
tution closely resembles the language of the fourth
amendment to the federal constitution.’’12 State v.
Davis, 283 Conn. 280, 306, 929 A.2d 278 (2007). In light
of this textual similarity, it is not surprising that, with
respect to the second Geisler factor, namely, this state’s
precedent, we consistently have recognized that, ‘‘in
determining whether article first, § 7, has been violated,
we employ the same analytical framework that would
be used under the federal constitution.’’ (Internal quota-
tion marks omitted.) Id., 310. Indeed, although we pre-
viously have held that, in some circumstances, article
first, § 7, provides greater protections than those
afforded under the federal constitution,13 we also have
observed that the standards governing our analysis for
purposes of article first, § 7, ‘‘mirror those set forth by
the United States Supreme Court . . . with regard to
[federal] fourth amendment analysis . . . .’’ (Citation
omitted.) State v. Oquendo, supra, 223 Conn. 654.
Accordingly, we next consider the third Geisler factor,
namely, relevant federal precedent, to determine
whether the fourth amendment permits the protective
stop of a suspect’s companion when the police reason-
ably believe that the suspect is armed and dangerous.
Because reasonableness is the touchstone of both the
fourth amendment and article first, § 7, persuasive fed-
eral precedent applying that standard is particularly
relevant to our state constitutional inquiry.14
The fourth amendment, like article first, § 7,15 pro-
scribes only ‘‘unreasonable’’ searches and seizures. U.S.
Const., amend. IV; accord Conn. Const., art. I, § 7. A
search or seizure is presumptively unreasonable when
it is conducted without a warrant issued upon probable
cause. See, e.g., Katz v. United States, 389 U.S. 347,
356, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Nevertheless,
several categories of searches and seizures have been
deemed reasonable, and therefore lawful, even when
officers lack probable cause or a warrant. See, e.g.,
National Treasury Employees Union v. Von Raab, 489
U.S. 656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989)
(‘‘neither a warrant nor probable cause . . . is an indis-
pensable component of reasonableness in every circum-
stance’’). For instance, under Terry, officers may tem-
porarily seize an individual if they have a reasonable
and articulable suspicion that he is involved in criminal
activity. See Terry v. Ohio, supra, 392 U.S. 30–31. As
the court stated in Terry, ‘‘we deal here with an entire
rubric of police conduct-—necessarily swift action
predicated [on] the on-the-spot observations of the offi-
cer on the beat—which historically has not been, and
as a practical matter could not be, subjected to the
warrant procedure. Instead, the conduct involved in
this case must be tested by the [f]ourth [a]mendment’s
general proscription against unreasonable searches and
seizures.’’ Id., 20. After balancing the state’s legitimate
interests in crime prevention and detection against a
suspect’s liberty interest; see id., 21–25; the court con-
cluded that, when an officer has a reasonable basis
for suspecting that an individual is committing or has
committed a criminal offense, it is constitutionally per-
missible for the officer to briefly detain the individual
for investigative purposes. Id., 30–31. An accompanying
patdown search is similarly justified if the police also
have a reasonable basis to believe ‘‘that the person
stopped is armed and dangerous.’’ Arizona v. Johnson,
555 U.S. 323, 327, 129 S. Ct. 781, 172 L. Ed. 2d 694(2009); see Terry v. Ohio, supra, 27, 30. This latter action
does not violate the fourth amendment because of the
‘‘immediate interest of the police officer in taking steps
to assure himself that the person with whom he is
dealing is not armed with a weapon that could unexpect-
edly and fatally be used against him.’’ Terry v. Ohio,
supra, 23.
Since Terry, the United States Supreme Court has
made it clear that an individual’s mere geographic prox-
imity to ‘‘premises where an authorized narcotics
search is taking place’’ does not itself justify a patdown
search of that individual because that proximity, with-
out more, is insufficient to create a reasonable suspi-
cion that he is armed and dangerous. Ybarra v. Illinois,
444 U.S. 85, 94, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979);
see also United States v. Jaramillo, 25 F.3d 1146, 1152
(2d Cir. 1994) (‘‘[t]he sole fact that an individual as to
whom the officers have no reasonable and articulable
factual suspicion of wrongdoing happens to be in a
public place where another person possesses a weapon
or contraband does not provide a basis for a Terry-
type search if the possessor is a person with whom the
searched individual has no known connection’’). Courts
have applied this reasoning in concluding that the mere
geographic proximity between an individual who offi-
cers reasonably suspect has committed or is committing
a crime and his companion does not alone rise to the
level of reasonable suspicion of criminal activity by the
companion. See, e.g., United States v. Black, 707 F.3d
531, 539 (4th Cir. 2013); United States v. Navedo, 694
F.3d 463, 468–69 (3d Cir. 2012); People v. Trapier, 47
App. Div. 2d 481, 483–84, 367 N.Y.S.2d 276 (1975).
The mere fact that the suspicionless detention of a
suspect’s companion cannot be justified under Terry
does not resolve the issue before us, however, because
such a detention otherwise may be reasonable for
fourth amendment purposes. Indeed, the United States
Supreme Court has used the same balancing approach
that it applied in Terry in concluding that certain war-
rantless searches and seizures pass muster under the
fourth amendment even though they are not supported
by probable cause or reasonable suspicion. For exam-
ple, in Michigan v. Summers, supra, 452 U.S. 692, the
court reasoned that Terry’s mandate of individualized
suspicion is inapplicable to the detention of the occu-
pants of a dwelling incident to the execution of a search
warrant for those premises. See id., 701–705. In reaching
its conclusion that such a seizure is permissible, the
court explained that the state’s interests in preserving
evidence, preventing flight, and protecting officer safety
outweighed the occupants’ liberty interests. See id.,702–703; see also Maryland v. Wilson, 519 U.S. 408,
413–15, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (balancing
state’s interest in officer safety against individual’s lib-
erty interest and holding that officers, while performing
traffic stop, may lawfully order passengers to exit vehi-
cle, despite lack of suspicion that they are dangerous
or engaged in criminal activity); cf. Maryland v. Buie,
494 U.S. 325, 333–36, 110 S. Ct. 1093, 108 L. Ed. 2d
276 (1990) (balancing interests in officer safety and
individual privacy and concluding that, when police
enter premises to arrest suspect pursuant to warrant,
and police have reasonable belief that potentially dan-
gerous companions of suspect may be hiding nearby,
police may conduct protective sweep of premises inci-
dent to execution of arrest warrant). Furthermore, we
have used the same balancing test that the United States
Supreme Court employed in Terry and Summers in
concluding that an individual’s suspicionless detention
may be reasonable under the Connecticut constitution.
See, e.g., State v. Mikolinski, 256 Conn. 543, 550, 554,
557, 775 A.2d 274 (2001) (applying reasonableness bal-
ancing test in holding that suspicionless sobriety check-
points operated pursuant to neutral criteria are per-
missible under article first, §§ 7 and 9, of state consti-
tution).
The Eleventh Circuit Court of Appeals recently
applied this balancing approach in determining that
the detention of the companions of two suspects ‘‘was
reasonable, in light of the substantial risks to the offi-
cers’ safety,’’ despite a lack of individualized suspicion
that the companions were involved in criminal activity.
United States v. Lewis, 674 F.3d 1298, 1309 (11th Cir.
2012). In Lewis, two police officers encountered four
men in a parking lot, one of whom was the defendant,
Omar Oneil Lewis. Id., 1300. During a conversation with
the men, the officers asked them whether they were
carrying firearms. Id. Two of the men, not including
Lewis, responded in the affirmative, and the police then
brandished their weapons and ordered all four men to
sit on the ground with their hands showing. Id., 1300–
1301. The officers subsequently discovered a semiauto-
matic pistol underneath a vehicle parked near Lewis,
whom they arrested and charged with carrying a con-
cealed firearm. Id., 1301. The District Court subse-
quently granted Lewis’ motion to suppress the pistol,
reasoning that the police had illegally seized Lewis
when they ordered him to the ground at gunpoint
because, at the time, they lacked reasonable and articu-
lable suspicion to believe that he had committed or was
committing a criminal offense, and the pistol was a fruit
of that unlawful seizure. Id., 1301–1302. The Eleventh
Circuit reversed the District Court’s ruling, concluding
that, ‘‘for safety reasons, officers may, in some circum-
stances, briefly detain individuals about whom they
have no individualized reasonable suspicion of criminal
activity in the course of conducting a valid Terry stop
as to other related individuals.’’ Id., 1306. In balancing
the safety interests of the officers against Lewis’ liberty
interest, the court concluded that it was reasonable
for the police ‘‘to control the movements of nearby
associates and exercise command over the situation
once the officers had reasonable suspicion of criminal
activity that warranted further investigation.’’ Id., 1308.
In arriving at this conclusion, the court focused on the
specific dangers associated with firearms, explaining
that ‘‘the very rationale underpinning Terry—the pro-
tection of officer safety and the safety of others nearby,
especially from the dangers posed by firearms—[was]
presented by the facts of [the] case.’’ Id., 1309.
We agree with Lewis that, for purposes of the reason-
ableness requirement of the fourth amendment, the
state’s interest in officer safety is sufficiently compel-
ling that, when officers have a reasonable concern for
their safety while lawfully detaining a suspect, it is
permissible for the officers to briefly detain the sus-
pect’s companion as a precautionary measure. As the
court in Lewis recognized, ‘‘individualized suspicion is
not an absolute prerequisite for every constitutional
search or seizure.’’ Id., 1305; see also Samson v. Califor-
nia, 547 U.S. 843, 855 n.4, 126 S. Ct. 2193, 165 L. Ed.
2d 250 (2006) (‘‘[t]he touchstone of the [f]ourth [a]mend-
ment is reasonableness, not individualized suspicion’’).
Although the protective stop of a companion authorized
by Lewis does not meet the requirements for a Terry
stop, ultimately, the determination of whether such a
stop is reasonable for fourth amendment purposes
entails a balancing of ‘‘the need to search [or seize]
against the invasion which the search [or seizure]
entails.’’ (Internal quotation marks omitted.) Terry v.
Ohio, supra, 392 U.S. 21; see also State v. Wilkins, 240
Conn. 489, 503, 692 A.2d 1233 (1997) (reasonableness
is evaluated by measuring state’s ‘‘intrusion on the indi-
vidual’s interests against its promotion of legitimate
. . . governmental interests’’ [internal quotation marks
omitted]). In evaluating the reasonableness of the pro-
tective stop of a suspect’s companion, we therefore
must consider the state’s interest in officer safety in
light of the companion’s liberty interest.
To be sure, the fourth amendment guarantees all per-
sons the right to be free from unwarranted police inter-
ference while on a public street, as in the present case,
or elsewhere. A protective stop of the kind that
occurred here, however, represents a relatively limited
intrusion into that interest. A protective stop typically
will be of short duration, and, unless the officer has
reason to believe that the subject of the stop is armed,
ordinarily, there will be no need for an accompanying
patdown for weapons.16 On the other side of the ledger,
the state has a weighty interest in ensuring officer safety
when an officer stops a suspect who he reasonably
believes is armed and dangerous. Should an officer
determine that it is necessary to detain a suspect in
furtherance of a criminal investigation, the officer may
well encounter one or more persons accompanying the
suspect, and the presence of those companions both
increases the possibility of interference with the offi-
cer’s investigation and, as the Appellate Court observed,
multiplies the sources of potential harm to the officer.
See State v. Kelly, supra, 129 Conn. App. 122–23. ‘‘Cer-
tainly it would be unreasonable to require that police
officers take unnecessary risks in the performance of
their duties. American criminals have a long tradition
of armed violence, and every year in this country many
law enforcement officers are killed in the line of duty,
and thousands more are wounded.’’ Terry v. Ohio,
supra, 392 U.S. 23. Consequently, the fourth amendment
permits ‘‘swift action by police officers who, while con-
ducting lawful investigations, find themselves in a posi-
tion of imminent peril.’’ State v. Mann, 271 Conn. 300,
315, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125
S. Ct. 1711, 161 L. Ed. 2d 527 (2005). Such action is
permissible when, as the state contends occurred in
the present case, an officer reasonably believes that,
in order to avoid or defuse a potentially dangerous
situation, he must take control of that situation by tem-
porarily maintaining the status quo.17
As we have indicated, our analysis comports with
the reasoning of the United States Supreme Court that,
in certain circumstances implicating police safety, it is
constitutionally permissible for the police to detain an
individual, even in the absence of particularized suspi-
cion that the individual has engaged in criminal con-
duct. For example, the detention of a suspect’s com-
panion on a public street bears important similarities
to the lawful detention of a vehicle’s passengers inci-
dent to the stop of the driver. See Brendlin v. Califor-
nia, supra, 551 U.S. 256–57. In the same manner that
a traffic stop curtails the freedom of a passenger, so,
too, does the protective stop of a suspect’s companion.
Nevertheless, in the case of a traffic stop, an officer
may detain the vehicle’s passengers because ‘‘[t]he risk
of harm to both the police and the occupants is mini-
mized if the officers routinely exercise unquestioned
command of the situation.’’ (Internal quotation marks
omitted.) Id., 258. Indeed, in the context of a traffic
stop, the state’s overriding interest in officer safety has
been deemed to provide sufficient justification for the
officer to order the passengers out of the vehicle with-
out any individualized suspicion that those passengers
pose a threat or otherwise were involved in conduct
warranting their removal from the vehicle. See Mary-
land v. Wilson, supra, 519 U.S. 413–15; cf. United States
v. Vaughan, 718 F.2d 332, 334–36 (9th Cir. 1983)
(applying balancing test used by United States Supreme
Court in Summers and concluding that brief, protective
detention of passenger, who repeatedly attempted to
walk away from vehicle, was lawful). Furthermore, the
protective stop of a suspect’s companion is analogous
to a traffic stop of a vehicle with one or more passengers
in that ‘‘a sensible person would not expect a police
officer to allow people to come and go freely from
the physical focal point of an investigation into faulty
behavior or wrongdoing.’’ Brendlin v. California,
supra, 257.
In addition, as the Appellate Court explained; see
State v. Kelly, supra, 129 Conn. App. 120; the holding
in Michigan v. Summers, supra, 452 U.S. 705, permitting
the detention of a dwelling’s occupants during the exe-
cution of a search warrant at the dwelling provides
further support for the conclusion that the protective
stop of a suspect’s companion incident to the lawful
stop of the suspect does not violate the fourth amend-
ment when the investigating officer has a reasonable
concern for his safety. An officer who detains a suspect
accompanied by a companion faces safety concerns
similar to those that are present during the execution
of a search warrant, especially when, as in the present
case, the officer has reason to believe that the suspect
is armed and dangerous: the companion’s physical prox-
imity to the officer and the suspect makes it very easy
for the companion to interfere with the police investiga-
tion and to cause harm to the officer. The state’s interest
in mitigating this risk is substantial in both contexts
and justifies police action without individualized suspi-
cion. As this court previously has recognized, ‘‘the
notion is abhorrent that police who are investigating a
crime and suddenly find themselves at risk are pre-
cluded from acting reasonably in response to that risk
merely because they have not yet established’’ the requi-
site level of cause to believe that a crime has been
committed.18 (Internal quotation marks omitted.) State
v. Mann, supra, 271 Conn. 318.
We do recognize that some of the factors on which
the court in Summers relied to support its conclusion
that it is constitutionally permissible for the police to
detain the occupants of a dwelling while executing a
search warrant are not present in the case of a protec-
tive stop of the companion of a lawfully detained and
potentially dangerous suspect. For example, when exe-
cuting a search warrant for a dwelling, ‘‘[a] neutral
and detached magistrate [has] found probable cause to
believe that the law was being violated in that house and
[has] authorized a substantial invasion of the privacy of
the persons who [reside] there.’’ Michigan v. Summers,
supra, 452 U.S. 701. In addition, the detention of the
dwelling’s occupants usually is less intrusive than the
scope of the judicially authorized search itself. Id. The
fact that these considerations are not present in the
case of a protective stop of a suspect’s companion,
however, does not render protective stops per se unrea-
sonable; rather, it is reason for concluding that the
permissible degree to which the state may intrude on
a companion’s personal liberty must be correspondingly
circumscribed. Consequently, a protective stop must
be limited, in both time and manner, to the minimum
intrusion necessary for officers to reasonably ensure
their safety. In addition, the propriety of the protective
stop is contingent on the constitutional validity of the
underlying seizure of the suspect, and the state must
point to specific facts that support the conclusion that
the safety concerns of the police officer involved in
the protective stop were objectively reasonable.19 When
these requirements have been met, a protective stop
is significantly less intrusive than the detention of a
dwelling’s occupants authorized by Summers; indeed,
in stark contrast to a protective stop, a detention inci-
dent to the execution of a search warrant potentially
could last for hours and could involve the use of signifi-
cant physical restraints on the individual’s liberty. See,
e.g., Muehler v. Mena, 544 U.S. 93, 96, 100, 102, 125 S. Ct.
1465, 161 L. Ed. 2d 299 (2005) (reasonable to handcuff
defendant for two to three hours during execution of
search warrant); see also State v. Read, 132 Conn. App.
17, 21, 29 A.3d 919 (execution of search warrant lasted
approximately eight to ten hours), cert. denied, 303
Conn. 916, 33 A.3d 740 (2011). Furthermore, unlike the
preventive detention of a suspect’s companion, the
police need not have a reasonable concern for their
safety when detaining the occupant of a dwelling in
accordance with Summers.20 See Michigan v. Sum-
mers, supra, 703–704.
Thus, federal cases construing the fourth amend-
ment’s reasonableness requirement strongly support
the conclusion that it is reasonable under article first,
§§ 7 and 9, of the state constitution for the police to stop
a suspect’s companion, as a reasonable safety measure,
when the police, having lawfully detained the suspect,
reasonably believe that the suspect is armed and dan-
gerous. We therefore turn to the remaining Geisler fac-
tors, none of which supports the defendant’s claim.
As to the fourth Geisler factor, namely, persuasive
sister state precedents, state courts invariably have con-
cluded that a police officer, while lawfully detaining a
suspect, also may briefly stop the suspect’s companion
when that stop is justified by considerations of officer
safety. See, e.g., Trice v. United States, 849 A.2d 1002,
1006 (D.C. 2004) (‘‘[d]espite the general rule, immediate
safety concerns may justify police in stopping, or stop-
ping and frisking, a person based on his association
with someone else whom the police reasonably suspect
of criminal activity’’), cert. denied, 543 U.S. 1078, 125
S. Ct. 934, 160 L. Ed. 2d 820 (2005); Commonwealth v.
Rucker, Massachusetts Superior Court, Docket No. 06-
00530 (Mass. Sup. November 27, 2006) (‘‘when an officer
legitimately comes into contact with the companion of
the target of a Terry stop, particularly when the stop
is related to a crime of violence or involves firearms,
[he] may [stop and] frisk the suspect’s companion if
[he] consider[s] [the companion] dangerous, even if [he
does] not have reasonable, articulable grounds to stop
[the companion] for suspicion of criminal activity’’);
State v. Drury, 358 S.W.3d 158, 163 (Mo. App. 2011)
(‘‘[p]rotective detention is reasonable when it is for a
limited duration, and when the individual’s presence
could create a risk of harm to the officer, the individual
detained, or the public at large, even if the officer has
no reason to believe the individual would intentionally
cause harm’’), transfer denied, Missouri Supreme Court,
Docket No. SC92290 (Mo. March 6, 2012); State v. Sparr,
13 Neb. App. 144, 153–55, 688 N.W.2d 913 (2004) (offi-
cer’s actions were reasonable when, while seizing driver
of one vehicle that already was stopped, he detained
driver of nearby vehicle as safety precaution); see also
United States v. Maddox, 388 F.3d 1356, 1367–68 (10th
Cir. 2004) (permitting protective stop of arrestee’s com-
panions incident to his arrest when officers had reason-
able safety concerns), cert. denied, 544 U.S. 935, 125 S.
Ct. 1689, 161 L. Ed. 2d 504 (2005); cf. People v. Samples,
48 Cal. App. 4th 1197, 1206–1207, 56 Cal. Rptr. 2d 245(1996) (using balancing test and concluding that, after
defendant parked his vehicle without prompting, offi-
cers acted reasonably in detaining him incident to sei-
zure of his passengers, whom officers reasonably
suspected had engaged in sale of narcotics, because
state’s interest in officer safety outweighed relatively
minor limitation on defendant’s liberty), review denied,
California Supreme Court, Docket No. S056442 (Cal.
December 18, 1996). Indeed, neither the defendant nor
the dissent has identified a single case in which a court,
either federal or state, has determined that such a pro-
tective stop of the companion was unreasonable.
Nevertheless, the defendant contends that the final
potentially relevant Geisler factor, namely, sociological
and policy considerations,21 supports his claim that the
state constitution precludes the protective stop of a
suspect’s companion. In essence, the defendant claims
that permitting the police to conduct such a stop will
lead to abuse by overzealous officers. We do not believe
that any such risk outweighs the state’s strong interest
in officer safety. Moreover, to the extent that the defen-
dant’s concern may have some legitimacy, our courts
are well equipped to address any claim of police impro-
priety with respect to the protective stop of a suspect’s
companion and to enforce the conditions that we have
placed on such detentions by ensuring that the failure
of the police to abide by those conditions in any given
case does not go unremedied.
Thus, our review of the Geisler factors leads to only
one conclusion: the defendant cannot prevail on his
claim that the state constitution categorically bars the
police from detaining a suspect’s companion as a pre-
cautionary safety measure. On the contrary, it is reason-
able, and therefore permissible, under article first, §§ 7
and 9, of the state constitution, for officers to briefly
detain a suspect’s companion incident to the lawful
stop of the suspect when the officers reasonably believe
that the suspect presents a threat to their safety.
Finally, the state maintains that the interest in officer
safety is so weighty that we should go further and adopt
a bright line rule pursuant to which it always is permissi-
ble for an officer to detain a suspect’s companion, when-
ever the suspect is detained, regardless of whether the
officer is reasonably concerned for his safety. We
decline the state’s invitation to adopt such a broad rule
because we do not believe that it is necessary for the
protection of the police, and, consequently, we are
doubtful that it would satisfy the constitutional reason-
ableness requirement. For example, under the state’s
proposed standard, an officer could lawfully detain a
suspect’s companion even if the officer had no reason
to believe that either the suspect or the companion
posed any threat to the officer’s safety. Similarly, an
officer would be free to automatically detain a suspect’s
young child or a group of obviously disinterested
bystanders, merely because of their physical proximity
to the suspect, even though the officer could not articu-
late a rational justification for the detention.22 Although
it is true that an officer invariably may detain the passen-
gers of a car incident to the stop of the driver; see
Brendlin v. California, supra, 551 U.S. 255–58; because
of the nature of such a stop; see, e.g., Pennsylvania v.
Mimms, 434 U.S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d
331 (1977) (recognizing ‘‘the inordinate risk confronting
an officer as he approaches a person seated in an auto-
mobile’’); there will be some circumstances when it
is not reasonable for an officer to detain a suspect’s
companion incident to the stop of the suspect. Conse-
quently, we do not agree with the state that the general-
ized interest in police safety inevitably outweighs the
companion’s liberty interest. We are persuaded, rather,
that permitting the protective stop of a suspect’s com-
panion when the officer has reason to be concerned
for his safety strikes an appropriate balance between
the competing state and individual interests.
II
The defendant next claims that the Appellate Court
incorrectly concluded that the trial court properly had
found that Detective Rivera and Lieutenant Angeles
were justified in detaining the defendant because they
had a reasonable concern for their safety. In support
of this claim, the defendant asserts that the trial court’s
conclusion was based on clearly erroneous factual find-
ings and, further, that the Appellate Court ignored those
erroneous findings and improperly upheld the trial
court’s ruling on the basis of facts that the trial court
never found.
The record reveals the following additional facts and
procedural history that are relevant to this issue. At
the hearing on the defendant’s motion to suppress the
cocaine seized by the police following his detention
incident to the stop of Burgos, Rivera testified that,
shortly before the defendant’s arrest, a confidential
informant, who previously had provided accurate infor-
mation about individuals in possession of firearms, told
the police that Gomez, who lived in the Brown Street
area of Hartford, likely was carrying a firearm. After
receiving this information, Rivera discovered that
‘‘there was an outstanding felony violation of probation
warrant’’ for Gomez. At the hearing, the defense con-
ceded that the officers lawfully had stopped Burgos
because they reasonably believed that he was Gomez
and had a reasonable and articulable suspicion that
Gomez had committed a criminal offense.
At the conclusion of the suppression hearing, the trial
court made the following factual findings. ‘‘This [case]
involves a series of events that happened on Brown
Street, in Hartford, in the midday hours of March 27,
2007. The Hartford police had a warrant for . . .
Gomez. And this warrant was a felony warrant for
possession of a firearm. The police also had reason to
believe that . . . Gomez was located in the Brown
Street area of Hartford. The police went to this
address—or went to this location—and saw walking
on the street two gentlemen, one of whom, although
neither person was . . . Gomez—it happened that one
person matched a physical description given to the
police of . . . Gomez. And they did not have a photo-
graph; they just had a physical description.’’ (Emphasis
added.) Thereafter, however, the Appellate Court, in
upholding the trial court’s denial of the defendant’s
motion to suppress, relied in part on testimony adduced
at the suppression hearing establishing, first, that
Gomez was the subject of an outstanding warrant for
a violation of probation and, second, that the police
had received information from a reliable confidential
informant that Gomez was carrying a firearm. State v.
Kelly, supra, 129 Conn. App. 112. Finally, while this
appeal was pending, and in response to this court’s
order for an articulation, the trial court stated that it
had credited the officers’ testimony that there was an
outstanding felony violation of probation warrant for
Gomez, and that a reliable informant had told the police
that Gomez was in possession of a firearm.
We agree with the defendant that the trial court’s
initial finding concerning the charge in the outstanding
arrest warrant for Gomez, that is, felony possession of
a firearm, was unsupported by the record because the
unchallenged testimony adduced by the state estab-
lished that Gomez was the subject of a warrant for an
‘‘outstanding felony violation of probation . . . .’’ As
we have explained, however, in the trial court’s articula-
tion, which it issued during the pendency of the present
appeal, the court reconsidered that initial finding and
stated that it credited the suppression hearing testi-
mony that Gomez had an outstanding felony warrant
for a violation of probation. The trial court also stated
that it credited the testimony that the officers had
received information from a reliable confidential infor-
mant that Gomez likely was in possession of a firearm.
In light of these factual findings by the trial court, the
defendant’s claim that the Appellate Court improperly
relied on certain erroneous factual findings is moot.23
Furthermore, as the Appellate Court explained, the evi-
dence was sufficient to support a reasonable belief by
Rivera and Angeles that Gomez was armed and danger-
ous. Finally, the defendant himself conceded that Rivera
and Angeles lawfully had stopped Burgos because they
reasonably believed that he was Gomez, for whom they
had an arrest warrant, when they observed Burgos on
Brown Street. For the reasons set forth in part I of this
opinion, the facts also support the conclusion of the trial
court and the Appellate Court that Rivera and Angeles
reasonably detained the defendant, as a legitimate
safety precaution, incident to the stop of Burgos, even
though they lacked any individualized suspicion to
believe that the defendant himself was involved in crimi-
nal activity or was armed and dangerous.
III
In sum, we agree with the Appellate Court that ‘‘the
interest in the officers’ safety during the investigatory
stop of Burgos outweighed the defendant’s personal
liberty interest in not being inconvenienced. To mitigate
the risk of harm, the officers exercised command of
the entire scene, including the defendant. See, e.g.,
Michigan v. Summers, supra, 452 U.S. 702–703. When
making a ‘split second’ decision, an officer is ‘not
required to calculate the probability that the defendant
would proceed in a certain way before taking reason-
able steps to protect himself and his fellow officers.’
State v. Mann, supra, 271 Conn. 328. For example, when
making a suspicionless detention of a passenger during
a traffic stop, a police officer ‘surely [is] not constitu-
tionally required to give [the defendant] an opportunity
to depart the scene after he exit[s] the vehicle without
first ensuring that, in so doing, [he is] not permitting
a dangerous person to get behind [him].’ Arizona v.
Johnson, [supra, 555 U.S. 334]. Similarly, for example, in
determining the reasonable duration of an investigative
stop, a court ‘should take care to consider whether the
police are acting in a swiftly developing situation, and
in such cases the court should not indulge in unrealistic
second-guessing.’ United States v. Sharpe, 470 U.S. 675,
686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). The risk
in the present case was significant, and the incremental
intrusion was minimal.’’ State v. Kelly, supra, 129 Conn.
App. 124. Accordingly, the protective stop of the defen-
dant incident to the stop of Burgos did not violate the
defendant’s rights under the state constitution, and,
therefore, the Appellate Court properly upheld the trial
court’s ruling that the defendant is not entitled to sup-
pression of the cocaine that the police had seized fol-
lowing his detention.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and NORCOTT, ZARE-
LLA and VERTEFEUILLE, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
2
We note that the trial court’s finding that Gomez had an outstanding
warrant for the offense of ‘‘felony . . . possession of a firearm’’ was incor-
rect. Rather, the undisputed testimony, elicited from Angeles, reflects that
Gomez was the subject of an ‘‘[a]ctive felony warrant for . . . a violation
of probation . . . .’’ As we explain more fully hereinafter, however, this
error is harmless because the trial court subsequently issued an articulation
that included a correction of its erroneous finding concerning the nature
of the offense alleged in the warrant. See part II of this opinion.
3
The fourth amendment to the United States constitution provides: ‘‘The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirma-
tion, and particularly describing the place to be searched, and the persons
or things to be seized.’’
The fourth amendment’s protection against unreasonable searches and
seizures is made applicable to the states through the due process clause of
the fourteenth amendment to the United States constitution. See, e.g., Mapp
v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
4
Article first, § 7, of the Connecticut constitution provides: ‘‘The people
shall be secure in their persons, houses, papers and possessions from unrea-
sonable searches or seizures; and no warrant to search any place, or to
seize any person or things, shall issue without describing them as nearly
as may be, nor without probable cause supported by oath or affirmation.’’
5
Article first, § 9, of the Connecticut constitution provides: ‘‘No person
shall be arrested, detained or punished, except in cases clearly warranted
by law.’’
6
In Terry, the United States Supreme Court held that police may detain
an individual when the following three conditions are met: ‘‘(1) the officer
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).
7
In Oquendo, this court held that, in contrast to fourth amendment juris-
prudence, ‘‘a consensual encounter becomes a seizure [under article first,
§ 7, of the Connecticut constitution] if, on the basis of a show of authority
by the police officer, a reasonable person in the defendant’s position would
have believed that he was not free to leave.’’ State v. Oquendo, 223 Conn. 653.
8
In reaching its conclusion, the Appellate Court relied on certain testimony
that the state had adduced at the suppression hearing but which the trial
court initially did not expressly credit or otherwise mention. In particular,
the Appellate Court’s conclusion was predicated on testimony that the police
were reliably informed that Gomez was in possession of a firearm and
that he was the subject of an outstanding arrest warrant for a violation of
probation. State v. Kelly, supra, 129 Conn. App. 112. In focusing on that
testimony, the Appellate Court essentially disregarded the trial court’s erro-
neous finding that there was an outstanding warrant for Gomez for felony
possession of a firearm. See footnote 2 of this opinion. As we discuss in
this opinion, during the pendency of the present appeal, the trial court issued
an articulation indicating that it also had credited the same testimony on
which the Appellate Court’s recitation of the facts was predicated. See part
II of this opinion.
9
On appeal to the Appellate Court, the defendant also asserted that the
trial court improperly allocated the burden of proof to him for purposes of
the motion to suppress when, in fact, it is the state’s burden to establish
that a warrantless search or seizure is constitutionally permissible. See State
v. Kelly, supra, 129 Conn. App. 125–26. The Appellate Court rejected that
claim; id., 126; and it is not at issue in this certified appeal.
10
Indeed, the defendant would have no reasoned basis on which to dis-
agree with that determination by the Appellate Court.
11
The state also contends that the defendant’s seizure was lawful because
Rivera and Angeles had a reasonable suspicion that the defendant himself
was engaged in criminal conduct when they ordered him to approach their
car. We need not address this claim in light of our determination that
the brief detention of the defendant incident to the lawful stop of Burgos
constituted a reasonable safety precaution.
12
See footnotes 3 and 4 of this opinion.
13
See, e.g., State v. Oquendo, supra, 223 Conn. 649–50, 652 (declining to
adopt, for purposes of state constitution, fourth amendment principle that
seizure of individual does not occur until individual submits to show of
authority); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990) (declining
to recognize, for purposes of state constitution, good faith exception applica-
ble to fourth amendment exclusionary rule).
14
Consequently, our discussion of federal precedent is significantly more
extensive than our discussion of the other, less relevant Geisler factors.
15
We note that the defendant asserts that article first, § 9, of the state
constitution provides protections greater than those afforded under article
first, § 7, because article first, § 7, grants rights to the ‘‘people,’’ whereas
article first, § 9, uses the singular term ‘‘person’’ in describing its protections.
We reject the defendant’s claim with respect to the alleged import of this
minor linguistic difference in the two provisions because, as we previously
have observed, ‘‘in the search and seizure context, article first, § 9, is our
criminal due process provision [and] does not provide protections greater
than those afforded by either the fourth amendment or its coordinate specific
state constitutional provision, article first, § 7.’’ State v. Jenkins, 298 Conn.
209, 259 n.39, 3 A.3d 806 (2010).
16
We note that some courts have adopted the so-called automatic compan-
ion rule, under which officers may conduct a patdown search of the compan-
ion of a lawfully detained suspect even though the officers lack a reasonable
suspicion to believe that the companion is armed and dangerous. See, e.g.,
United States v. Poms, 484 F.2d 919, 922 (4th Cir. 1973); United States v.
Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971); State v. Clevidence, 153 Ariz.
295, 298, 736 P.2d 379 (App. 1987). But see United States v. Bell, 762 F.2d
495, 499 (6th Cir.) (rejecting automatic companion rule and stating that it
did ‘‘not believe that the Terry requirement of reasonable suspicion . . .
ha[d] been eroded to the point that an individual may be frisked based [on]
nothing more than an unfortunate choice of associates’’ [citation omitted]),
cert. denied, 474 U.S. 853, 106 S. Ct. 155, 88 L. Ed. 2d 128 (1985). Although we
need not reach this issue for purposes of the present appeal, it is questionable
whether such a rule would satisfy the reasonableness requirement of the
fourth amendment. See Arizona v. Johnson, supra, 555 U.S. 326–27 (under
Terry, patdown search of suspect who has been lawfully stopped on basis
of reasonable and articulable suspicion cannot also be frisked unless police
reasonably suspect that suspect is armed and dangerous).
17
To conclude otherwise would enable a suspect’s companion to walk
away from the officer, and out of his line of sight, while the officer is
confronting the armed and dangerous suspect. If the companion is allowed
to walk away, he easily could be out of the officer’s view in a few short
steps, and, in order to keep track of the companion—whose relationship
to the suspect provides strong reason for the officer to keep the companion
in his sight until the officer gains sufficient command of the situation—the
officer would have to divert his attention from the suspect. This is an
untenable position in which to place the officer, who must be able to devote
his full attention to the dangerous suspect. We therefore reject the dissent’s
contention that, instead of briefly detaining the defendant, the police ‘‘had
to request that the defendant leave while they detained the suspect.’’ We
are fully persuaded, rather, that the officer, and not the companion, must
be permitted to control the situation by detaining the companion briefly for
the purpose of avoiding the potentially catastrophic consequences that might
result if the officer were denied the right to keep the companion in his sight
while dealing with the suspect. Notably, the dissent does not explain how
an officer may reasonably ensure his safety if he is unable to monitor the
activities of the companion while he is confronting the dangerous suspect.
18
The defendant and the dissent indicate that Summers provides little or
no support for the conclusion that a protective stop is permissible under
the fourth amendment because the court in Summers observed that the
search warrant itself provided an objective basis for believing that the
dwelling’s occupants were involved in criminal activity, and that belief pro-
vided a basis for the detention of the occupants. See Michigan v. Summers,
supra, 452 U.S. 703–704 (‘‘The existence of a search warrant . . . provides
an objective justification for the detention. A judicial officer has determined
that police have probable cause to believe that someone in the home is
committing a crime. Thus a neutral magistrate rather than an officer in the
field has made the critical determination that the police should be given a
special authorization to thrust themselves into the privacy of a home. The
connection of an occupant to that home gives the police officer an easily
identifiable and certain basis for determining that suspicion of criminal
activity justifies a detention of [the] occupant.’’ [Footnote omitted.]). This,
however, was only one of several justifications for the detention of the
occupants in Summers, the holding of which was predicated on balancing
the various ‘‘special law enforcement interests’’ implicated when a search
warrant is executed, including officer safety, and the relatively limited intru-
sion on the occupants’ liberty interests occasioned by the detention. See
id., 699–704. Indeed, the court in Summers made it clear that the ‘‘central
inquiry under the [f]ourth [a]mendment’’ is ‘‘the reasonableness in all the
circumstances of the particular governmental invasion of a citizen’s personal
security,’’ not individualized suspicion. (Internal quotation marks omitted.)
Id., 700 n.11.
19
Thus, contrary to the assertion of the dissent, our decision does not
give rise to any ‘‘unconscionable ramifications . . . .’’ In support of this
assertion, the dissent posits a number of hypothetical scenarios and suggests
that, in each such situation, the state might seek to rely on our holding in
the present case to justify the detention of persons based solely on their
proximity to an armed and dangerous suspect. The dissent’s concern appears
to be based on the fact that ‘‘[t]here simply is no definition of who is a
‘companion’ in the majority opinion.’’ Although the present case does not
require us to define ‘‘companion’’—because the defendant makes no claim
that he and Burgos were not companions—it suffices to say that the police
may detain a person in the belief that that person is accompanying an
armed and dangerous suspect only if that belief is based on reasonable and
articulable facts. In other words, the police must reasonably believe that
the person is accompanying the suspect. Because the police must abide by
this reasonableness standard, the dissent’s concern that our decision might
somehow authorize the police to detain one or more persons merely because
of their proximity to the suspect, and without regard to whether the facts
give rise to the justified belief that any such person or persons were accompa-
nying the suspect, is unfounded.
20
The defendant asserts that, in contrast to the duly authorized search of
the dwelling in Summers and the lawful stop of the vehicle in Brendlin, the
police have no such preexisting and independent justification for initiating an
intrusion into the liberty interest of a suspect’s companion. According to
the defendant, this distinction leads to the conclusion that an officer may
detain the companion only if he has an individualized and reasonable suspi-
cion that the companion has committed or is committing a criminal offense.
Contrary to the defendant’s claim, the protective stop of the companion is
indeed dependent on prior, lawful police action: in the same manner that
an officer lawfully detains the passengers of a motor vehicle when he has
sufficient cause to stop the driver; see Brendlin v. California, supra, 551
U.S. 255–58; the protective stop of a suspect’s companion is predicated on,
and justified by, the lawful stop of a suspect who the police reasonably
believe is armed and dangerous.
In addition, although we disagree generally with the dissent’s analysis of
the relevant case law, we are particularly puzzled by the dissent’s reliance
on Ybarra v. Illinois, supra, 444 U.S. 85, and its progeny. In Ybarra, the
court held that the police were not entitled to search a person who merely
was present in a bar that was the subject of a search warrant. Id., 88, 94,
96. Subsequently, however, in Michigan v. Summers, supra, 452 U.S. 705,
the court made it clear that the police are authorized to detain a person
who, like the defendant in Ybarra, is present on the premises during the
execution of a search warrant for those premises. Because our decision in
the present case permits only the brief detention of the defendant and does
not entail or authorize a search of the defendant, Ybarra, in contrast to
Summers, has little or no bearing on the outcome of the present case.
Perhaps even more important, however, the dissent, in asserting that Ybarra
provides the ‘‘appropriate framework’’ for purposes of the present case,
ignores the fact that, as the United States Supreme Court made clear in
Summers and, thereafter, in Wilson and Buie, a person may be detained
without particularized suspicion of criminal activity when the detention is
reasonable, and therefore justified for fourth amendment purposes, in the
interest of officer safety. As we explained, in determining the constitutional
propriety of such an intrusion, we must balance the state’s interest in police
safety against the individual’s liberty interest, with due regard for the nature
and extent of the intrusion. In the present case, the dissent fails to explain
why the state’s interest in the safety of the investigating officers did not
outweigh the relatively minimal intrusion into the defendant’s liberty inter-
est. We note, finally, that the dissent’s reliance on United States v. Navedo,
supra, 694 F.3d 463, is similarly misplaced because the court in that case
simply concluded that the detention of the defendant, Alexander Navedo,
was impermissible under Terry and never considered the argument—
because the government did not make it—that Navedo’s detention was a
reasonable protective stop. See id., 468–69.
21
The defendant does not contend that the fifth Geisler factor, the histori-
cal underpinnings of article first, § 7, provides support for his claim.
22
We recognize, of course, that there frequently are safety risks when an
officer detains a suspect in a public setting, and that the protective stop of
the suspect’s companion often will be warranted. Moreover, in posing the
foregoing examples, we do not suggest that any particular category of com-
panion necessarily is immune from a protective stop. Our point, rather, is
simply that, when an officer detains a suspect’s companion incident to the
stop of the suspect, the officer must have a legitimate reason for doing so.
23
The defendant also claims that the Appellate Court improperly relied
on other facts that, although the subject of testimony at the suppression
hearing, the trial court never expressly found. Those facts are that the
defendant clutched at his waistband, that Gomez sometimes disguised him-
self by wearing a wig, and that the stop of Burgos and the defendant occurred
near a gas station located in an area known for drug dealing. See State v.
Kelly, supra, 129 Conn. App. 112–13. For purposes of resolving the issue
presented by this appeal, however, it is irrelevant whether the Appellate
Court relied on those facts because other facts that the trial court found
and on which the Appellate Court relied, namely, that the police had a felony
arrest warrant for Gomez and had been told by a reliable informant that
Gomez likely was carrying a firearm; id., 112; were sufficient to support the
conclusion that Rivera and Angeles had a reasonable belief that Gomez was
armed and dangerous.