State v. Peterson

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STATE OF CONNECTICUT v. KYLE PETERSON
(SC 19414)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued November 3, 2015—officially released March 15, 2016
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Brian W. Preleski, state’s
attorney, and Christian Watson, assistant state’s attor-
ney, for the appellant (state).
Jon L. Schoenhorn, with whom, on the brief, was
Irene J. Kim, for the appellee (defendant).
Opinion
ROGERS, C. J. The principal issue in this case is
whether, under the totality of the circumstances, the
police possessed a reasonable and articulable suspicion
to detain the defendant, Kyle Peterson. After the defen-
dant’s motion to suppress was denied, the defendant
entered a conditional plea of nolo contendere, pursuant
to General Statutes § 54-94a,1 to possession of a con-
trolled substance with intent to sell in violation of Gen-
eral Statutes § 21a-277 (b). The trial court thereafter
rendered judgment in accordance with the defendant’s
plea and sentenced him to three years imprisonment.
The state appeals from the judgment of the Appellate
Court reversing the judgment of the trial court and
remanding the case with direction to vacate the condi-
tional plea of nolo contendere and to grant the defen-
dant’s motion to suppress, after the Appellate Court
concluded that the police did not possess a reasonable
and articulable suspicion that ‘‘criminal activity was
afoot . . . .’’ State v. Peterson, 153 Conn. App. 358, 376,
101 A.3d 337 (2014). The state argues that, under the
totality of the circumstances, the police had a reason-
able and articulable suspicion to detain the defendant
outside a known drug location where the defendant
had acted in a manner consistent with drug activity
once before. We agree and, accordingly, reverse the
judgment of the Appellate Court.
The trial court’s findings and the record reveal the
following undisputed facts and procedural background
relevant to this appeal. ‘‘On March 10, 2010, officers of
the New Britain Police Department were conducting
surveillance [of] the residence of Pedro Ayala, a sus-
pected marijuana trafficker. On the same date, the
police observed the defendant arrive at Ayala’s resi-
dence in a Jeep Cherokee, stay for approximately five
minutes, and then leave. Once the defendant left Ayala’s
residence in his vehicle, the police stopped him,
searched him, and discovered $4000 in cash on his per-
son. Thereafter, on March 23, 2010, the police executed
a search warrant on Ayala’s residence and discovered
more than two pounds of marijuana, a firearm, and
what the police described as ‘drug proceeds.’ The police
arrested Ayala who, in turn, told the police that the
defendant was one of his several sources of marijuana
and [that], on March 10, 2010, he had paid the defendant
$4000 in cash for marijuana.
‘‘Approximately six months later, on September 29,
2010, the police arrested Eric Cedeno for the sale of
marijuana. While in police custody, Cedeno told Officer
Joseph Lopa that he regularly purchased marijuana
from an individual named Kyle Peterson, whom Cedeno
described as a twenty-five year old male who drove
two different Jeep Cherokees. Lopa, on the basis of
past investigations involving the defendant, corrobo-
rated that Cedeno was describing the defendant.
‘‘On the basis of the information received from Ayala
and Cedeno that the defendant was selling marijuana
in large quantities, the police began conducting surveil-
lance of the defendant’s New Britain residence in early
October, 2010. In the course of their surveillance, the
police observed the defendant make a single trip to 33
Thorniley Street . . . .’’ Id., 361–62. During that trip, at
33 Thorniley Street, a three-story, multifamily residence
in New Britain, the police observed the defendant ‘‘park
in the driveway, enter the residence for approximately
five minutes, and then leave.’’ Id., 362. Just before this
observation, on October 7, 2010, ‘‘the police arrested
Leonardo Soares, a registered confidential informant
for the Federal Drug Enforcement Administration, for
the illegal possession of prescription drugs. Soares told
the police that he had purchased marijuana from an
unidentified male living on the third floor of 33 Thorni-
ley Street.’’ Id. Soares said that he had been inside the
third floor apartment several times in the past and had
witnessed several pounds of marijuana and a large quan-
tity of cash. Id. ‘‘On the basis of this information, as
well as information previously obtained from Ayala cor-
roborating that the defendant’s March, 2010 visit to
Ayala’s residence involved the sale of marijuana, the
police believed that the defendant’s October, 2010 visit
to 33 Thorniley Street, insofar as the defendant quickly
entered and exited the residence, was consistent with
drug activity.’’ Id.
The following week, ‘‘[o]n October 13, 2010, Lopa
contacted Adrian Arocho, a registered confidential
informant for the police who had previously provided
reliable information, and requested that he make a con-
trolled purchase of marijuana from the defendant. In
addition to agreeing to make the controlled purchase,
Arocho indicated that he was familiar with the defen-
dant and knew that the defendant sells marijuana. Lopa
provided Arocho with a telephone number that he
received from Cedeno. With Lopa seated next to him
and the speakerphone activated, Arocho called the
number from his cell phone. When an individual
answered his call, Arocho told the individual that he
wanted to purchase marijuana but his usual supplier,
Cedeno, did not have any. The individual responded
that he had recently ‘set up’ Cedeno and that he would
call Arocho back. Lopa, who was familiar with the
defendant’s voice, confirmed that the individual to
whom Arocho was speaking was the defendant.
Approximately two minutes after that call ended, the
defendant called Arocho back and told him never to
call again.
‘‘On October 20, 2010, at approximately 1 p.m., Officer
Michael Farrell was conducting surveillance of the
defendant’s residence when he observed the defendant
depart the residence in his vehicle with a white,
weighted plastic bag in his possession. Farrell con-
tacted Sergeant Jerry Chrostowski via radio to inform
him of his observations. Chrostowski, who was con-
ducting patrol in an unmarked police vehicle, followed
the defendant to Thorniley Street in New Britain. When
Chrostowski turned on to Thorniley Street, he observed
the defendant’s vehicle enter the driveway of 33 Thorni-
ley Street and come to a stop. At that point, Chrostowski
observed the defendant, from his vehicle’s driver’s seat,
begin speaking to an individual unknown to the police
through his passenger side window.
‘‘On the basis of the information obtained by the
police prior to October 20, 2010, as well as Farrell’s
observation of the defendant carrying a white,
‘weighted’ plastic bag out of his residence, Chrostowski
‘believed that [the defendant] was making a [marijuana]
delivery to . . . [33 Thorniley Street].’ Chrostowski
subsequently drove his vehicle into the driveway of 33
Thorniley Street, blocking in the defendant’s vehicle
from the rear. Chrostowski exited his vehicle,
approached the passenger side of the defendant’s vehi-
cle, identified himself as a police officer, and instructed
the defendant to turn off his engine. Lopa, who arrived
at 33 Thorniley Street shortly after Chrostowski exited
his vehicle, approached the driver’s side of the defen-
dant’s vehicle, ordered the defendant to exit the vehicle,
and conducted a patdown search of the defendant’s
person. After Lopa completed his patdown search, he
handcuffed the defendant and ordered him to [stand
by] the rear of the vehicle.’’ Id., 363–64. The trial court
noted in its memorandum of decision that ‘‘Lopa, while
still outside the defendant’s vehicle, gazed into the rear
of the vehicle through the open front driver’s door and
saw in plain view on the floor behind the front passen-
ger’s seat a ziplock bag sitting on top of a white plastic
bag. The ziplock bag appeared to contain marijuana.’’
(Footnote omitted.) Chrostowski then searched the
defendant’s vehicle and seized the plastic bag, which
contained two ziplock bags. State v. Peterson, supra,
153 Conn. App. 364. ‘‘Following a field test, the sub-
stance was confirmed to be marijuana and the police
placed the defendant under arrest.’’ Id.
‘‘Prior to trial, the defendant moved to suppress evi-
dence seized from his vehicle, claiming, inter alia, that
the police did not possess a reasonable and articulable
suspicion that he was engaged in or about to engage
in criminal activity when Chrostowski entered the drive-
way of 33 Thorniley Street. Following a suppression
hearing, in its memorandum of decision dated August
23, 2012, the trial court denied the defendant’s motion
to suppress. In its decision, the court stated: Armed
with [the] information [from Ayala, Cedeno, Arocho,
and Soares] when the police observed the defendant
leave his residence with a weighted white bag and travel
in his vehicle to 33 Thorniley Street on October 20,
2010, they had a particularized and objective basis for
suspecting the defendant of criminal activity; specifi-
cally the delivery of marijuana to 33 Thorniley Street.
Accordingly, the police had an appropriate basis to stop
the defendant, by blocking his vehicle, after he entered
the driveway of 33 Thorniley Street and investigate
further.
‘‘Following the court’s denial of his motion to sup-
press, the defendant entered a conditional plea of nolo
contendere, pursuant to . . . § 54-94a, to one count of
possession of a controlled substance with intent to sell
in violation of § 21a-277 (b). The court accepted the
defendant’s plea and sentenced him to a total effective
sentence of three years imprisonment followed by three
years of probation.’’ (Footnote omitted; internal quota-
tion marks omitted.) Id., 364–65.
On appeal to the Appellate Court, the defendant
argued, inter alia, that the trial court improperly denied
his motion to suppress because the police lacked a
reasonable and articulable suspicion that he was
engaged in or about to engage in criminal activity when
Chrostowski detained him in the driveway of 33 Thorni-
ley Street.2 Id., 367. Specifically, the defendant con-
tended there were no contemporaneous facts indicating
that he was engaged in or about to engage in criminal
activity on October 20, 2010. Id. The defendant argued
that ‘‘the police did not have a specific and individual-
ized basis to suspect that either (1) the white plastic
bag he carried out of his residence contained marijuana
or (2) he traveled to 33 Thorniley Street for the purpose
of delivering marijuana.’’ Id. A majority of the Appellate
Court agreed and concluded that ‘‘[t]he presence of a
known drug dealer with a plastic bag at a location where
he is believed to have previously delivered drugs once
before, without more, is insufficient to particularize the
general suspicion the police harbored with respect to
the defendant on October 20, 2010.’’ Id., 375. The Appel-
late Court stated in its opinion that ‘‘[w]ithout informa-
tion or observations that would have particularized
their general suspicion that the defendant was deliv-
ering marijuana to 33 Thorniley Street on October 20,
2010 . . . any suspicion of ongoing crime was neces-
sarily founded in conjecture or the police’s subjective
notions of the defendant’s propensity to engage in crimi-
nal behavior. . . . Whatever the basis of Chrostowski’s
conclusion that the defendant was transporting mari-
juana to 33 Thorniley Street on October 20, 2010, [the
Appellate Court’s] review of the record . . . revealed
that it could not have been more than a hunch. For that
reason, [it] conclude[d] that the [trial] court’s determi-
nation that the police possessed a reasonable and arti-
culable suspicion that criminal activity was afoot when
they detained the defendant on October 20, 2010, was
legally and logically incorrect.’’ (Citation omitted.) Id.,
375–76. Accordingly, the Appellate Court reversed the
judgment of the trial court. Id., 377. This appeal
followed.3
We first address the proper standard of review. ‘‘Our
standard of review of a trial court’s findings and conclu-
sions 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 plead-
ings in the whole record . . . . [W]here the legal con-
clusions 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 . . . .’’ (Internal quotation
marks omitted.) State v. Burroughs, 288 Conn. 836, 843,
955 A.2d 43 (2008). ‘‘[T]he trial court’s conclusions must
stand unless they are legally and logically inconsistent
with the facts.’’ (Internal quotation marks omitted.)
State v. Lipscomb, 258 Conn. 68, 74, 779 A.2d 88 (2001).
The law governing investigatory detentions is also
well settled. ‘‘Under the fourth amendment to the
United States constitution and article first, §§ 7 and 9,
of our state constitution, a police officer is permitted
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 suspi-
cion 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.’’4 (Citations omitted; internal quotation
marks omitted.) Id., 75.
‘‘[I]n justifying the particular intrusion the police offi-
cer must be able to point to specific and articulable
facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.’’
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed.
2d 889 (1968); State v. Lipscomb, supra, 258 Conn. 75.
‘‘[A]n investigative stop can be appropriate even where
the police have not observed a violation because a rea-
sonable and articulable suspicion can arise from con-
duct that alone is not criminal. . . . In evaluating the
validity of such a stop, courts must consider whether,
in light of the totality of the circumstances, the police
officer had a particularized and objective basis for sus-
pecting the particular person stopped of criminal activ-
ity.’’ (Citations omitted; internal quotation marks
omitted.) State v. Lipscomb, supra, 76. ‘‘This process
allows officers to draw on their own experience and
specialized training to make inferences from and deduc-
tions about the cumulative information available to
them that might well elude an untrained person.’’ (Inter-
nal quotation marks omitted.) United States v. Arvizu,
534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740
(2002); State v. Nash, 278 Conn. 620, 635, 899 A.2d 1
(2006) (‘‘law enforcement officials are trained to cull
significance from behavior that would appear innocent
to the untrained observer’’ [internal quotation marks
omitted]).
Consequently, ‘‘[w]e do not consider whether the
defendant’s conduct possibly was consistent with inno-
cent activity but, rather, whether the rational inferences
that can be derived from it reasonably suggest criminal
activity to a police officer.’’ State v. Madison, 116 Conn.
App. 327, 336, 976 A.2d 15, cert. denied, 293 Conn. 929,
980 A.2d 916 (2009), citing State v. Lipscomb, supra,
258 Conn. 75–76, and State v. Trine, 236 Conn. 216,
230–31, 673 A.2d 1098 (1996). ‘‘When reviewing the
legality of a stop, a court must examine the specific
information available to the police officer at the time
of the initial intrusion and any rational inferences to
be derived therefrom.’’ State v. Lipscomb, supra, 76.
On appeal, the defendant does not challenge the
underlying factual findings for clear error. Accordingly,
the only issue before this court is whether the trial
court’s conclusion that there was a reasonable and arti-
culable suspicion for the defendant’s detention was
legally and logically correct.
The defendant’s primary claims are that there is no
evidence to suggest that the police observation that the
plastic bag was weighted meant anything more than
the ‘‘ ‘opposite of empty’ ’’ and that the state entirely
dismisses the temporal requirement that criminal activ-
ity must be ‘‘afoot.’’ The Appellate Court majority
agreed, and in support of its decision stated: ‘‘The
record does not reveal any particularized basis upon
which Chrostowski could have associated the defen-
dant’s apparently innocuous conduct in the driveway
of 33 Thorniley Street on that day with drug activity.
. . . Thus, we fail to perceive what specific and individ-
ualized factors, if any, led Chrostowski to conclude that
the plastic bag in the defendant’s vehicle contained
marijuana. Indeed, absent any observations of conduct
consistent with drug activity, or specific and individual-
ized information suggesting that the defendant’s mere
presence at 33 Thorniley Street with a plastic bag in
his possession gave rise to a reasonable suspicion that
he was there to effectuate a drug transaction, Chrostow-
ski not only did not, but could not have known what,
if anything, the defendant was doing there on October
20, 2010, aside from talking to someone.’’ (Emphasis in
original.) State v. Peterson, supra, 153 Conn. App.
373–74.
The flaw in the Appellate Court majority’s analysis as
to whether the police had a reasonable and articulable
suspicion is that it focuses only on the defendant’s
activities on October 20, 2010, and fails to take into
account all of the specific information available to the
police on that date and the rational inferences that
could be drawn from such information. See State v.
Lipscomb, supra, 258 Conn. 76 (‘‘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’’).
Moreover, ‘‘[w]e do not consider whether the defen-
dant’s conduct possibly was consistent with innocent
activity . . . .’’ State v. Madison, supra, 116 Conn.
App. 336.
In the present case, the defendant was known to
police because they had corroborated the claim by
Ayala, another marijuana trafficker, that he had pur-
chased $4000 of marijuana on March 10, 2010, from the
defendant at Ayala’s home because they had stopped
the defendant that day and found that precise amount of
cash in his possession. Additionally, another informant
had recently identified the defendant as a person from
whom he regularly purchased marijuana. The defendant
also had already been observed earlier in the month
engaging in conduct consistent with drug activity at 33
Thorniley Street, a location where police had informa-
tion that large amounts of marijuana and cash were
being stored. Finally, the police had the defendant’s
recent incriminating statement that he had delivered
marijuana to another drug dealer, which corroborated
the information from multiple reliable informants that
they bought marijuana from the defendant.
Against this factual background, the issue ‘‘is not
whether the particular conduct is innocent or guilty,
but the degree of suspicion that attaches to particular
types of noncriminal acts.’’ (Internal quotation marks
omitted.) United States v. Sokolow, 490 U.S. 1, 10, 109
S. Ct. 1581, 104 L. Ed. 2d 1 (1989). Although the defen-
dant was still parked in the driveway of 33 Thorniley
Street when the police detained him, based on the total-
ity of the information available to the police that he was
an admitted marijuana trafficker, carrying a weighted
plastic bag,5 and had pulled into the driveway of a drug
location where police had seen him recently engage in
conduct consistent with drug activity, it was not logi-
cally and legally incorrect for the trial court to find that
the police had a reasonable and articulable suspicion
that the defendant was there to deliver drugs and that
the plastic bag did not contain innocuous items.
The defendant’s contention that there were no partic-
ularized facts that would indicate any ongoing crime
at 33 Thorniley Street is not supported by the record
or the trial court’s findings. While it is well settled that
an individual’s mere presence at a location known for
criminal activity is not sufficient, without more, to sup-
port a reasonable suspicion; Brown v. Texas, 443 U.S.
47, 52, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979); State v.
Scully, 195 Conn. 668, 678–79 n.15, 490 A.2d 984 (1985);
the individual’s presence in such a location can be a
relevant articulable fact in the Terry reasonable suspi-
cion calculus. State v. Nash, supra, 278 Conn. 634; State
v. Moreland, 23 Conn. App. 495, 497, 582 A.2d 212 (1990).
The record in this case, however, demonstrates that the
defendant was not stopped just because he happened to
be in the wrong place at the wrong time. He also was
not stopped merely because he was known to have sold
drugs in the past. Rather, the trial court specifically
found, relying on Soares’ information,6 that there was
a suspicion of ongoing criminal activity at 33 Thorniley
Street by noting in its memorandum of decision that
‘‘the police had information that 33 Thorniley Street
was an address where large amounts of marijuana and
cash were stored.’’7 Even the Appellate Court majority
recognized that this information, along with the fact
that the defendant’s actions at 33 Thorniley Street were
also consistent with his previous drug transaction at
Ayala’s home, meant that ‘‘the police were not only
entitled to lend some degree of credence to the informa-
tion from Soares . . . but they reasonably could have
inferred that the defendant may have sold marijuana
to someone living at 33 Thorniley Street when he visited
the residence in early October, 2010.’’ State v. Peterson,
supra, 153 Conn. App. 372.
Finally, the Appellate Court majority in reaching its
decision relied heavily on a lack of overt drug activity
on October 20, 2010. See id. Although the temporal
element, or contemporaneous observation, is an
important factor in determining reasonable and articu-
lable suspicion; id., 375 (and cases cited therein); it is
not the only factor that can lead to a determination that
criminal activity was afoot. See State v. Groomes, 232
Conn. 455, 467–68, 656 A.2d 646 (1995) (‘‘police may
detain an individual for investigative purposes if there
is a reasonable and articulable suspicion that the indi-
vidual is engaged in or about to engage in criminal
activity’’ [emphasis added]). Farrell, the officer who
had been conducting surveillance of the defendant’s
residence in New Britain in early October, 2010, testified
that the defendant used both of his Jeeps to travel to
and from his residence approximately thirty to forty
times in the span of one week. Chrostkowski testified
that, during that time, other officers would rely on Far-
rell’s surveillance and use unmarked vehicles to follow
the defendant to other residences in New Britain,
including his father’s home, where they would observe
him engage in activity consistent with drug-related
transactions, in particular making quick stops and leav-
ing after less than ten minutes after meeting someone
who had been waiting for him in a parked car. Indeed,
as Judge Bear noted in his dissenting opinion, the defen-
dant’s own incriminating statement one week earlier
about delivering marijuana to another drug dealer pro-
vided a foundation for the rational inference that he
was there to deliver drugs on the day of his arrest. See
State v. Peterson, supra, 153 Conn. App. 386 n.6 (Bear,
J., dissenting) (‘‘[the defendant’s] October 13 admission
to resupplying Cedeno with marijuana, and the common
knowledge that selling illegal drugs is a regenerating
activity . . . alone supported the inference that the
defendant was actively engaged in selling marijuana
one week later’’ [citation omitted; internal quotation
marks omitted]). This statement in addition to all the
information police possessed about the defendant when
he entered the driveway of 33 Thorniley Street with a
weighted plastic bag were facts that allowed a rational
inference to be drawn that the defendant was at the
location to deliver drugs contained in that plastic bag
that day. The police can make a minimally intrusive
inquiry to find out if such a delivery was about to occur
and, in this case, did not have to wait for the defendant
to exit his vehicle and deliver the drugs. See State v.
Lipscomb, supra, 258 Conn. 76 (‘‘A recognized function
of a constitutionally permissible stop is to maintain the
status quo for a brief period of time to enable the police
to investigate a suspected crime. . . . [A]n investiga-
tive stop can be appropriate even where the police have
not observed a violation . . . .’’ [Citations omitted;
internal quotation marks omitted.]).
‘‘In conducting our review, we recognize that the trial
court is given great deference in its fact-finding function
because it is in the unique [position] to view the evi-
dence presented in a totality of circumstances, i.e.,
including its observations of the demeanor and conduct
of the witnesses and parties, which is not fully reflected
in the cold, printed record which is available to us.’’
(Internal quotation marks omitted.) Id., 74. While the
line can be close between a good hunch and a reason-
able and articulable suspicion, in the present case, the
trial court’s findings regarding the information the
police possessed before the stop allowed a rational
inference to be drawn that the defendant was at 33
Thorniley Street to deliver drugs. The trial court’s con-
clusions were therefore legally and logically consistent
with the facts and, under the totality of the circum-
stances, we agree that the police possessed a reason-
able and articulable suspicion to detain the defendant.
The defendant claims in the alternative that, even
assuming the police had the authority to detain him,
the police exceeded the permissible scope of a Terry
stop when they directed him to exit his vehicle, which
afforded the police a plain view of the marijuana located
in his vehicle. This claim is meritless. As the trial court
observed: ‘‘It was . . . reasonable for Officer Lopa to
ask the defendant to exit his vehicle during the investi-
gatory stop. . . . Such a step was reasonably related
to the need to protect the safety of the police officer.
Officer Lopa was approaching a person he knew to
traffic in large quantities of marijuana and cash. Accord-
ingly, it was reasonable to suspect that the defendant
might be armed to safeguard the drugs and the cash.
In addition, police face ‘inordinate risk’ approaching a
person seated in an automobile. Pennsylvania v.
Mimms, 434 U.S. 106, 110 [98 S. Ct. 330, 54 L. Ed. 2d
331 (1977)]. This concern for officer safety outweighed
the ‘de minimis’ intrusion into the driver’s personal
liberty by ordering him out of the vehicle. Id., 111. See
also State v. Dukes, 209 Conn. 98, 122 [547 A.2d 10]
(1988) ([a]ny intrusion upon an occupant’s personal
liberty by asking the occupant to exit a vehicle during
a motor vehicle infraction stop is de minimis because
it serves to protect the officer).’’ (Citation omitted.)
The defendant attempts to counter this logic by claim-
ing that the trial court misapplied Mimms and Dukes
because those cases are limited to stops for motor vehi-
cle offenses committed by drivers and this was a Terry
stop. He argues that in the Terry stop context, the police
must have a reasonable and articulable suspicion that
an individual is armed and dangerous in order to frisk
the individual. ‘‘[W]e agree with the defendant that the
police must have a reasonable and articulable suspicion
that a suspect is armed and dangerous before they may
commence a protective patdown search during an
investigative stop.’’ State v. Nash, supra, 278 Conn. 633.
The trial court, however, found that it was reasonable
to suspect that the defendant was armed.8 See State v.
Mann, 271 Conn. 300, 325, 857 A.2d 329 (2004) (‘‘the
facts supporting the officers’ reasonable suspicion that
the defendant may have been involved in narcotics traf-
ficking also gave rise to a reasonable suspicion that the
defendant was armed and dangerous’’), cert. denied,
544 U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005).
We conclude, then, that ‘‘it [would defy] logic to permit
the policeman to order a minor traffic violator out of
the car for the policeman’s safety [as the United States
Supreme Court held in Pennsylvania v. Mimms, supra,
434 U.S. 111] but not allow him to exercise the same
precaution when making a valid [Terry] stop of sus-
pected narcotics traffickers.’’ United States v. White,
648 F.2d 29, 38–39 (D.C. Cir. 1981).
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgment of the trial
court.
In this opinion the other justices concurred.
1
General Statutes § 54-94a provides in relevant part: ‘‘When a defendant,
prior to the commencement of trial, enters a plea of nolo contendere condi-
tional on the right to take an appeal from the court’s denial of the defendant’s
motion to suppress . . . 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 . . . would be disposi-
tive 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 . . . . 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
The Appellate Court declined to review the defendant’s remaining claim
with respect to the propriety of the trial court’s denial of his motion to
suppress because the Appellate Court did not perceive how the defendant’s
request to enunciate, as a matter of state constitutional law, the circum-
stances under which the police may properly order an individual from his
vehicle and subject him to a physical search implicated the propriety of the
denial of his motion to suppress. State v. Peterson, supra, 153 Conn. App.
366 and nn.2 and 3. Although we generally agree with the Appellate Court,
because the patdown search revealed no drugs subject to suppression and
the subsequent search of the vehicle was carried out due to the plain view
observation of a ziplock bag that appeared to contain marijuana, we will
briefly address the defendant’s alternative claim for affirmance at the end
of our analysis.
3
This court granted the state’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court properly determine that
the totality of the circumstances did not provide sufficient reasonable and
articulable suspicion for police to detain the defendant?’’ State v. Peterson,
314 Conn. 947, 103 A.3d 980 (2014).
4
Reasonable and articulable suspicion is a lower standard than probable
cause. State v. Mann, 271 Conn. 300, 306 n.8, 857 A.2d 329 (2004) (‘‘[r]eason-
able suspicion is a less demanding standard than probable cause not only
in the sense that reasonable suspicion can be established with information
that is different in quantity or content than that required to establish probable
cause, but also in the sense that reasonable suspicion can arise from informa-
tion that is less reliable to show probable cause’’ [internal quotation marks
omitted]), cert. denied, 544 U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005).
‘‘Proof of probable cause requires less than proof by a preponderance of
the evidence,’’ or in other words, less than proof that something is more
likely than not. (Internal quotation marks omitted.) State v. Johnson, 286
Conn. 427, 435, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172
L. Ed. 2d 144 (2008).
5
The Appellate Court majority concluded that there was nothing in the
record upon which to infer that the defendant employed plastic bags or
similar items to transport marijuana or that drug dealers in general use
plastic bags or that the plastic bag in the defendant’s vehicle contained
marijuana. State v. Peterson, supra, 153 Conn. App. 373 and n.7. In addressing
this concern, the dissenting judge appropriately referenced the argument
put forth by the state that the bag was suspicious, under the circumstances,
due to the fact that the defendant was an active marijuana wholesaler dealing
in pound quantities of the product and that the bag looked like it contained
one pound or more of marijuana. Id., 380–81 n.4 (Bear, J., dissenting).
6
The Appellate Court majority took issue with the state’s characterization
that there was a marijuana dealer ‘‘actively operating’’ out of 33 Thorniley
Street based solely on Soares’ information, because the trial court did not
make a finding of fact to that effect. (Emphasis omitted.) State v. Peterson,
supra, 153 Conn. App. 370–71 n.5. As Soares did not testify at the suppression
hearing, Chrostowski testified to Soares’ information including that Soares
‘‘personally purchases marijuana from 33 Thorniley Street . . . .’’ On the
basis of this testimony by Chrostowski, the trial court found that Soares
‘‘ ‘personally purchased’ ’’ marijuana from an individual living at 33 Thorniley
Street and that, ‘‘ ‘several times in the past,’ ’’ Soares had been inside the
third floor apartment where he witnessed ‘‘ ‘several pounds of marijuana and
large amounts of cash.’ ’’ State v. Peterson, supra, 370 n.5. While somewhat
ambiguous, based on the underlying testimony, we do not believe the state’s
view of the trial court’s finding to be a mischaracterization. Regardless, in
making its reasonable and articulable suspicion determination, the trial court
simply needed to find Soares’ information relevant and credible enough to
indicate to police that there was ongoing criminal activity, which the trial
court clearly did find by including Soares’ information in its analysis. See
State v. Johnson, 219 Conn. 557, 567, 594 A.2d 933 (1991) (although infor-
mant’s tip alone would not have supported finding of probable cause, it
did indicate ongoing drug activity that was corroborated by subsequent
controlled purchase arranged by police); see also State v. Mann, supra, 271
Conn. 306 n.8 (‘‘reasonable suspicion can arise from information that is less
reliable [than that required] to show probable cause’’ [internal quotation
marks omitted]). Furthermore, as to the defendant’s contention that Soares’
information was stale, the trial court would not have used this information
in its reasonable and articulable suspicion analysis if it believed it was stale.
See State v. Batts, 281 Conn. 682, 693, 916 A.2d 788 (2007); State v. Buddhu,
264 Conn. 449, 465–66, 825 A.2d 48 (2003), cert. denied, 541 U.S. 1030, 124
S. Ct. 2106, 158 L. Ed. 2d 712 (2004).
7
While the facts are distinguishable, United States v. Collins, 445 Fed.
Appx. 840 (6th Cir. 2011), is illustrative. In that case, the police were aware
that the defendant previously had been involved in drug related activity.
Id., 841. Further, an identified citizen submitted weekly complaints to law
enforcement that numerous individuals entered the defendant’s residence
for a short period of time, often carrying bags, and the police verified this
suspicious activity. Id. ‘‘When [the defendant] left his home on the day of
his arrest, he was seen carrying a small bag.’’ (Emphasis added.) Id. The
United States Court of Appeals for the Sixth Circuit determined that, at that
point, the police officers had ‘‘an objective and particularized basis for
suspecting criminal activity’’ and thus for attempting to stop the defendant’s
vehicle in his driveway. Id. Arguably, the facts in the present case are more
compelling than, or at least as compelling as, those in Collins and, thus,
justified an investigatory stop of the defendant. In Collins, the suspicion
was based on suspicious activity observed outside of the defendant’s home
and his known involvement in drug related activity but not on any informa-
tion regarding what was actually occurring at the location. In the present
case, the police had observed suspicious activity at a house, the defendant’s
prior and ongoing involvement in drug activity, and actual information that
there were large amounts of marijuana and cash being stored at the location.
8
Although the defendant has briefed and requested that we conduct a
state constitutional analysis under State v. Geisler, 222 Conn. 672, 684–85,
610 A.2d 1225 (1992), and ‘‘hold that any removal of automobile occupants
by law enforcement and subjecting them to physical searches, must be
justified by individualized, reasonable and articulable suspicion that they
are armed or dangerous,’’ we decline to undertake this analysis because
that determination was actually made by the trial court in the present case.
See also footnote 2 of this opinion.