State v. Edmonds ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. MICHAEL EDMONDS
(AC 35451)
Gruendel, Alvord and West, Js.
Argued April 17—officially released July 29, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Rodriguez, J. [motion to suppress]; Arnold,
J. [judgment].)
Nicole Donzello, senior assistant public defender,
with whom was Bradford Buchta, assistant 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
WEST, J. The issue in this appeal is whether the
trial court properly denied the defendant’s motion to
suppress narcotics evidence obtained by the police pur-
suant to a patdown search for weapons. The defendant,
Michael Edmonds, appeals from the judgment of con-
viction rendered by the trial court following a condi-
tional plea of nolo contendere to one count of
possession of narcotics 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 Gen-
eral Statutes § 53a-172.1 The issue in this appeal is a
two-tiered dispute. First, the parties disagree as to the
moment at which the defendant was seized. The defen-
dant contends that he was seized either when the police
approached him in a restaurant parking lot, or when a
police officer commanded him to stop. The state con-
tends that the defendant was seized at a later point in
time, when the police conducted a patdown search for
weapons. Second, the parties dispute whether, at the
moment of seizure, the police had a reasonable and
articulable suspicion of criminal activity. The defendant
claims that the police did not have a reasonable and
articulable suspicion of criminal activity when he was
seized, and therefore, the narcotics discovered pursuant
to a patdown search were obtained in violation of his
rights under article first, §§ 7 and 9, of the constitution
of Connecticut, and the fourth amendment to the United
States constitution. We disagree with the defendant
with respect to both tiers of the dispute, and conclude
that the defendant was seized when the police con-
ducted a patdown search, at which time there was a
reasonable and articulable suspicion of criminal activ-
ity. We thus affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In the original
information, the state charged the defendant with pos-
session of narcotics and possession of narcotics with
intent to sell. The defendant pleaded not guilty to both
charges and elected to have a jury trial. On the day of
trial, the defendant failed to appear and was rearrested
pursuant to a court order. Thereafter, the defendant
filed a motion to suppress the narcotics seized by the
police pursuant to a patdown search for weapons. The
court, Rodriguez, J., held a hearing on the defendant’s
motion to suppress on February 20, 2013.
In denying the defendant’s motion to suppress, the
court set forth the following facts in an oral decision.
‘‘On January 28, 2011, at approximately 7 p.m. while
on patrol in Bridgeport on Madison Avenue travelling
northbound in a marked car and in uniform, Officers
Elson Morales and Joseph Lawlor, the operator,
observed [the defendant] standing alone behind a Sub-
way Sandwich eatery in the shadow of the parking lot.
The business is located on Madison Avenue near Capitol
Avenue in Bridgeport and is considered a high crime
area by law enforcement where violent crimes are com-
monplace. Officer Morales knew of prior commercial
robberies in the area and involving this particular
eatery.
‘‘It was dark outside and the two officers were in
radio contact with their supervisor, Sergeant [Ronald]
Mercado. The police were anticipating the presence of
visiting . . . teenagers, from other areas due to a
scheduled basketball game that evening at the nearby
Central High School. The two officers informed Ser-
geant Mercado by radio of the presence of the defendant
whom they saw from their police cruiser as they
approached a red light.
‘‘The two officers and Sergeant Mercado entered the
parking lot at the same time and through the only two
entrances into the eatery’s parking lot. One entrance is
from Capitol Avenue and the other is from Madison
Avenue. As soon as the two officers arrived and as the
defendant started to immediately walk away from the
officers, he was observed by Officer Morales and Officer
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. At this point, the police conducted a pat-
down of the defendant for their safety and found what
later was determined to be packaged narcotics which
[fell] from the defendant’s waistband area during the
patdown for weapons.’’
Following an evidentiary hearing, the court denied
the defendant’s motion to suppress. On the basis of the
facts previously set forth, the court concluded that the
defendant’s presence in the parking lot of a Subway
restaurant that previously had been robbed, and which
was located in a high crime area, in addition to his
‘‘actions and utterances in response to the police pres-
ence . . . did create a reasonable and articulable sus-
picion that warranted a patdown search of the
defendant for the safety of the officers.’’ The court thus
found that ‘‘the officer search of [the defendant] was
based on valid justifiable reasons, which were created
by the defendant himself. Accordingly, the defendant’s
motion to suppress is denied.’’
Subsequent to the court’s denial of the defendant’s
motion to suppress, the state filed a substitute informa-
tion charging the defendant with one count of posses-
sion of narcotics with intent to sell and one count of
failure to appear. The defendant entered a conditional
plea of nolo contendere to both charges. The court,
Arnold, J., accepted the defendant’s plea and sentenced
him to ten years incarceration suspended after four
years served with three years probation on the count
of possession of narcotics with intent to sell, and to
four years incarceration on the count of failure to
appear. The court further ordered that the sentences
run concurrently for a total effective sentence of ten
years incarceration suspended after four years served
with three years probation. This appeal followed.
‘‘Our standard of review of a trial court’s findings and
conclusions in connection with a motion to suppress is
well defined. A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [W]here the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
and whether they find support in the facts set out in
the memorandum of decision . . . . We undertake a
more probing factual review when a constitutional ques-
tion hangs in the balance. . . . In the present case,
in which we are required to determine whether the
defendant was seized by the police, we are presented
with a mixed question of law and fact that requires
our independent review.’’ (Citations omitted; internal
quotation marks omitted.) State v. Burroughs, 288
Conn. 836, 843–44, 955 A.2d 43 (2008).
I
We must first determine at what point the defendant
was seized. The defendant claims that he was seized
at two alternative points in time. First, he claims that
he was seized when the police exited their vehicles and
approached him in the Subway parking lot. Second, and
in the alternative, he claims that he was seized when
Mercado ‘‘exited his vehicle and verbally commanded
[him] to stop.’’ The state rejects both of the defendant’s
claims as to the moment of seizure. It argues, as a
threshold matter, that the defendant’s alternative claim
that he was seized when Mercado issued a verbal com-
mand to stop was not properly preserved for this appeal.
The state also disagrees with the defendant’s claim that
he was seized when the police officers approached him,
and instead, it contends that the court properly deter-
mined that the defendant was seized when Morales
conducted a patdown search for weapons. We agree
with the state that the defendant did not properly pre-
serve his claim for our review with respect to Mercado,
and that the defendant was seized when Morales con-
ducted a patdown search for weapons.
A
We first conclude that the defendant’s claim that he
was seized when Mercado commanded him to stop was
not preserved for review on appeal. We therefore
decline to review it.
At the hearing on the motion to suppress before the
trial court, the defendant argued that he was seized at
two alternative points in time: ‘‘at the moment that the
two police cars were in the parking lot and the three
officers exited their vehicles,’’ or alternatively, ‘‘when
he was told to submit to a patdown.’’ The defendant
did not claim, as he presently does on appeal, that he
was seized when Mercado ‘‘commanded the defendant
to stop.’’ In asserting this unpreserved claim on appeal,
the defendant did not affirmatively request review pur-
suant to State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989).2 Nevertheless, pursuant to our
Supreme Court’s recent decision in State v. Elson, 311
Conn. 726, 740–55, 91 A.3d 862 (2014), we must afford
Golding review when the defendant has ‘‘present[ed]
a record that is [adequate] for review and affirmatively
[demonstrated] that his claim is indeed a violation of
a fundamental constitutional right.’’ (Internal quotation
marks omitted.) State v. Elson, supra, 755.
We conclude that the defendant has failed to present
a record that is adequate for review, and thus, Golding
review is not warranted. In support of this conclusion,
we note that there is no record of Mercado’s personal
account of the incident in question because he was not
called as a witness to testify at the defendant’s motion
to suppress hearing. Additionally, Morales and Lawlor
gave limited and conflicting testimony regarding the
‘‘verbal command’’ allegedly issued by Mercado, and
the defendant did not seek an articulation pursuant to
Practice Book § 66-5 to illuminate the court’s factual
findings, if any, with respect to Mercado’s involvement
in the events preceding the defendant’s arrest.
Therefore, because the defendant failed to present a
record that is adequate for review, we decline to review
his claim that he was seized when Mercado issued a
verbal command to stop.
B
We now turn to the defendant’s claim that he was
seized when the officers exited their cars and
approached him in the Subway parking lot. A person
is ‘‘seized’’ within the meaning of article first, §§ 7 and
9, of our state constitution 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 circumstances surrounding the inci-
dent, 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 officer’s conduct. . . . 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 such that a reasonable
person in the defendant’s position would not have felt
free to leave.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) State v. Burroughs,
supra, 288 Conn. 844–846.
It is well established that a reasonable person would
not believe that his or her freedom to leave is restricted
based on ‘‘[t]he mere approach by a police officer, either
in a police car or on foot . . . .’’ (Internal quotation
marks omitted.) Id., 849–50. ‘‘On duty police officers
interact with individuals for a variety of reasons, many
of which have nothing to do with the detection, investi-
gation, or acquisition of evidence relating to the viola-
tion of a criminal statute. . . . It hardly can be
suggested that every encounter between a police officer
and an individual, regardless of whether such police
officer is investigating criminal activity, constitutes a
seizure. For example, a purely consensual encounter
between a police officer and an individual in a public
place is not necessarily a seizure.’’ (Citation omitted;
internal quotation marks omitted.) State v. Kimble, 106
Conn. App. 572, 588, 942 A.2d 527, cert. denied, 287
Conn. 912, 950 A.2d 1289 (2008). ‘‘Although we recog-
nize that a uniformed law enforcement officer is neces-
sarily cloaked with an aura of authority, this cannot,
in and of itself, constitute a show of authority sufficient
to satisfy the test for a seizure . . . . The conse-
quences of a contrary conclusion would be significant
indeed, for any police presence at all would then neces-
sitate a finding of a show of authority sufficient to
satisfy the test for determining whether a seizure
occurred.’’ (Citations omitted.) State v. Burroughs,
supra, 288 Conn. 849–50; see also United States v. Men-
denhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d
497 (1980).
The facts found by Judge Rodriguez and our indepen-
dent 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 addition 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 weap-
ons, or that they impeded the defendant’s ability to
move, either physically or verbally. See State v. Bur-
roughs, supra, 288 Conn. 849 (2008) (defendant not
seized where police did not ‘‘activate their overhead
flashing lights, side spotlights or sirens, direct any ver-
bal commands to the defendant or communicate with
him in any way’’ [footnote omitted]); State v. Rodriguez,
14 Conn. App. 574, 579, 542 A.2d 342 (1988) (‘‘[u]nless
the officer [signaled] the defendant to stop or impeded
his movement in any way, the defendant was not
seized’’). 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 impermissible to
leave the scene.
II
Although the defendant was not seized when the
police initially approached him, we agree with the trial
court’s conclusion that he was seized when Morales
conducted a patdown search for weapons. See Terry
v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968) (‘‘whenever a police officer accosts an individual
and restrains his freedom to walk away, he has ‘seized’
that person’’); State v. Santos, 267 Conn. 495, 504, 838
A.2d 981 (2004) (defendant seized when instructed to
submit to patdown search). We therefore must next
determine whether, at the time of the seizure, there
was a reasonable and articulable suspicion that criminal
activity was afoot. See State v. Benton, 304 Conn. 838,
843, 43 A.3d 619 (2012). We conclude that there was
such a reasonable and articulable suspicion, and there-
fore, the defendant’s constitutional rights were not
violated.
‘‘The standards governing our analysis under article
first, §§ 7 and 9, of our state constitution mirror those
set forth by the United States Supreme Court in Terry
v. Ohio, [supra, 392 U.S. 1], with regard to [federal]
fourth amendment analysis . . . . [T]he touchstone of
our analysis under the Fourth Amendment is always
the reasonableness in all the circumstances of the par-
ticular governmental invasion of a citizen’s personal
security . . . and that reasonableness depends on a
balance between the public interest and the individual’s
right to personal security free from arbitrary interfer-
ence by law officers . . . . [A] police officer is permit-
ted in appropriate circumstances and in an appropriate
manner to detain an individual for investigative pur-
poses if the officer believes, based on a reasonable and
articulable suspicion that the individual is engaged in
criminal activity, even if there is no probable cause to
make an arrest. . . .
‘‘Reasonable and articulable suspicion is an objective
standard that focuses not on the actual state of mind of
the police officer, but on whether a reasonable person,
having the information available to and known by the
police, would have had that level of suspicion. . . . In
determining whether a detention is justified in a given
case, a court must consider if, relying on the whole
picture, the detaining officers had a particularized and
objective basis for suspecting the particular person
stopped of criminal activity. . . . The threshold for rea-
sonable and articulable suspicion requires less than
probable cause . . . . The determination is not a tech-
nical one, but is informed by the factual and practical
considerations of everyday life. . . . In this respect,
the perceptions of an experienced police officer might
have more significance to him in determining whether
the law is being violated at a given time and place than
they would have to a layman . . . .’’ (Citations omitted;
internal quotation marks omitted.) State v. McCormack,
132 Conn. App. 490, 497–98, 33 A.3d 264 (2011), cert.
denied, 303 Conn. 932, 36 A.3d 694 (2012).
Judge Rodriguez determined, on the basis of the total-
ity of circumstances, that there was a reasonable and
articulable suspicion to conduct a patdown search of
the defendant. In support of this conclusion, the court
stated as follows: ‘‘[a]lthough there was no reasonable,
articulable suspicion to search the defendant at the
time that the police initially observed him for simply
being present at the Subway parking lot, and they could
have simply ordered the defendant to leave, the police
chose to approach the defendant to obtain identification
and determine why he was standing alone in the dark
on a winter night and in the shadow of a commercial
parking lot. . . . [A]lthough this is normal routine,
legitimate and good police investigative techniques, it
doesn’t permit a patdown. However, the defendant’s
actions and utterances in response to the police pres-
ence, in addition to his presence as previously
described, did create a reasonable and articulable suspi-
cion that warranted a patdown search of the defendant
for the safety of the officers. . . . The court finds that
the officer’s search of [the defendant] was based on
valid justifiable reasons, which were created by the
defendant himself.’’
We agree with the court’s conclusion that the totality
of circumstances raised a reasonable and articulable
suspicion of criminal activity to justify a patdown
search of the defendant. At dusk in a high crime area,
the defendant was standing alone in the parking lot of
a Subway restaurant, which itself had been the subject
of at least one robbery. Although the defendant’s pres-
ence in a high crime area at night was not, in itself,
sufficient to create a reasonable and articulable suspi-
cion; see State v. Oquendo, 223 Conn. 635, 655 n.11,
613 A.2d 1300 (1992); it is significant to raise a reason-
able and articulable suspicion when viewed alongside
the other factual circumstances. See State v. Lipscomb,
258 Conn. 68, 78, 779 A.2d 88 (2001); State v. Rodriguez,
supra, 14 Conn. App. 578. Significantly, in this case, as
the police approached the defendant, he spontaneously
stated, ‘‘I didn’t rob anyone.’’ This unsolicited state-
ment, uttered outside of an establishment that pre-
viously had been robbed, created a reasonable and
articulable suspicion that the defendant had, in fact,
participated in a robbery, thereby creating a reasonable
and articulable suspicion of criminal activity.
Moreover, when the police approached the defen-
dant, he made furtive motions to his waistband. ‘‘[A]
suspect’s attempt to reach into his pocket or some other
place where a weapon may be concealed is a fact that
supports a reasonable suspicion that the suspect is
armed and dangerous.’’ State v. Mann, 271 Conn. 300,
325–26, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949,
125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005). The patdown
search was thus based upon a reasonable and articula-
ble suspicion that the defendant was armed, and was
conducted for the safety of the police officers.
Therefore, in light of the totality of the circumstances,
we agree with the trial court’s conclusion that there
was a reasonable and articulable suspicion of criminal
activity when Morales seized the defendant. Accord-
ingly, the trial court properly denied the defendant’s
motion to suppress the narcotics evidence obtained
pursuant to a lawful patdown search for weapons.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant’s plea was conditioned on his right to appeal the denial
of his motion to suppress evidence in accordance with General Statutes
§ 54-94a or Practice Book § 61-6.
2
‘‘[A] defendant can prevail on a claim of constitutional error not preserved
at trial only 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 clearly exists and clearly 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.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40.