State v. Lewis

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STATE OF CONNECTICUT v. DEMETRICE LEWIS
(AC 38087)
DiPentima, C. J., and Beach and Bishop, Js.
Argued March 16—officially released June 20, 2017
(Appeal from Superior Court, judicial district of New
Haven, Cradle, J. [motion to suppress]; Keegan, J.
[judgment].)
Laila M. G. Haswell, senior assistant public defender,
with whom, on the brief, was Lauren Weisfeld, chief
of legal services, for the appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Karen A. Roberg, assistant state’s attor-
ney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Demetrice Lewis, appeals
from the judgment of conviction after the court’s denial
of his motion to suppress evidence in which he sought
to suppress the introduction of a pistol found on his
person by a police officer. Following the denial of his
motion, the defendant entered conditional pleas of nolo
contendere to the offenses of carrying a pistol without
a permit and criminal possession of a pistol. Subse-
quently, the court rendered a judgment of conviction
and sentenced the defendant to ten years of incarcera-
tion, execution suspended after one year, followed by
a three year conditional discharge. On appeal, the defen-
dant claims that the court erroneously denied his
motion to suppress the pistol because it was obtained
from him in violation of his constitutional rights against
unlawful search and seizure. We affirm the judgment
of the trial court.
The following background facts and procedural his-
tory are relevant to our consideration of the issues on
appeal. On May 28, 2013, in a short form information, the
defendant was charged with carrying a pistol without
a permit in violation of General Statutes § 29-35 (a),
criminal possession of a firearm in violation of General
Statutes § 53a-217 (a) (1), and criminal possession of
a pistol or revolver in violation of General Statutes
§ 53a-217c (a) (1). These charges were restated in a long
form information dated January 9, 2015. Thereafter, on
February 19, 2015, the defendant filed a written motion
to suppress evidence on the basis of his claim that any
evidence taken from him had been unlawfully seized
during an unlawful stop and ensuing search of his per-
son by Officer Milton DeJesus.
On October 24, 2014, following an evidentiary hearing
on the defendant’s motion to suppress at which DeJesus
testified, the trial court, Cradle, J., issued a written
memorandum of decision in which it found the follow-
ing facts, all of which find substantial support in the
evidentiary record: ‘‘On the evening of May 24 and into
the early morning hours of May 25, 2013, Officer
DeJesus of the New Haven Police Department was
assigned to patrol the area of district four in New Haven.
District four encompasses the area of Chapel Street
and Derby Avenue, which is known for its problems
with drug sales and prostitution. At approximately 4:20
a.m., officers were dispatched to 36 Derby Avenue in
response to a report of a domestic disturbance. The
call from dispatch indicated that a female had reported
that she had been choked by an individual named
‘Antoine’ who had fled the residence. The caller indi-
cated that she believed she heard ‘Antoine’ outside in
the bushes. Dispatch described the perpetrator as a
black male dressed in all black. Officer DeJesus was
working alone that evening, in uniform, in a marked
patrol vehicle. At the time of the call, he was in the
area of Whalley Avenue, approximately one quarter mile
from 36 Derby Avenue and was the only officer nearby.
Being in close proximity, he was able to respond to the
call and proceeded to 36 Derby Avenue. Approximately
one minute after receiving the call from dispatch, while
en route to 36 Derby Avenue, he approached the corner
of Chapel Street and Derby Avenue and spotted the
defendant, a black male, in dark clothing in the driveway
to the right of 1494 Chapel Street, which is almost at
the corner of Chapel Street and Derby Avenue. The
location where the defendant was standing is less than
a one minute walking distance from 36 Derby Avenue,
and in close proximity to 1494 Chapel Street.
‘‘Based on the testimony provided by Officer DeJesus
and photographs taken after his arrest, although the
defendant was not wearing all black when he was appre-
hended, he was wearing dark clothing more specifically,
dark blue jeans, a dark grey jacket, and a navy blue
skull cap. Officer DeJesus testified, however, that due
to the heavy rain that evening, the defendant’s clothing
appeared to be ‘all black’ when he first spotted the
defendant. When Officer DeJesus first identified the
defendant on the corner of Chapel and Derby, he was
standing alone, in the pouring rain and appeared to be
talking on a cell phone. At that hour of the morning it
was dark, and the area was only lit by a street lamp that
illuminated the street onto the sidewalk area. Although
Officer DeJesus could see the defendant, the area was
not well lit. Given the circumstances and the nature of
the clothing the defendant was actually wearing, he
matched the general description provided by dispatch
of the suspect in the domestic violence incident.
‘‘Observing the defendant and believing him to match
the description of the suspect, Officer DeJesus stopped
his patrol vehicle on the left side of the Chapel-Derby
intersection about fifteen to twenty feet away from the
defendant to investigate further. While seated within his
patrol vehicle, Officer DeJesus rolled down the window
and inquired, ‘yo my man, what’s your name?’ The defen-
dant did not respond or acknowledge Officer DeJesus
in any way. Officer DeJesus then exited his patrol vehi-
cle to investigate further. As he approached the defen-
dant, he attempted to engage the defendant in a dialogue
to determine who he was and what he was doing in the
area. He asked for his name and identification but the
defendant did not give a coherent answer and was ‘just
. . . mumbling back’ and ‘trying to make words, but
not being clear or concise . . . .’ Based upon the defen-
dant’s conduct [and] appearance, Officer DeJesus
believed the defendant to be intoxicated and/or under
the influence of drugs. The officer approached the
defendant at an angle, so as not to appear confronta-
tional, and again asked for the defendant’s name. The
defendant mumbled what sounded like ‘Michael,’ and
continued to appear to talk on his cell phone.
‘‘Officer DeJesus observed that the defendant was
‘not . . . staying stable,’ and kept ‘swaying’ and ‘mov-
ing around.’ He noted the defendant’s ‘eyes were not
right’ and that he was not acting normal. The officer
further described the defendant’s stance as ‘guarded.’
When Officer DeJesus asked the defendant where he
was coming from, the defendant muttered, ‘I’m in a
program.’ On the basis of his training and experience,
Officer DeJesus deduced that because (1) the defendant
fit the description of the suspect wanted in connection
with a violent domestic assault in that area, (2) the
defendant acted in a guarded and evasive manner, and
(3) individuals under the influence of alcohol or narcot-
ics are more likely to be violent or aggressive, a patdown
of the defendant was warranted for officer safety.
‘‘Officer DeJesus approached the defendant and con-
ducted a brief patdown that he described as a ‘sweep’
for weapons. The entire encounter lasted less than one
minute. During the course of the patdown, the defen-
dant dropped his hand toward his side at which point
Officer DeJesus told him ‘no, hold on a second.’ Officer
DeJesus simultaneously reached for the defendant’s
waistband and felt the butt end of a firearm. He then
removed a nine millimeter handgun from the defen-
dant’s waistband. Upon removing the gun, the defen-
dant initiated a struggle for the weapon and the two
wrestled for a brief moment, ultimately rolling into the
street. In the interim, responding officers arrived on
the scene and were able to subdue the defendant with
the assistance of a canine. The defendant was then
arrested and taken into custody.’’
In denying the defendant’s motion to suppress, the
trial court concluded first that the police officer had
not seized the defendant at the moment he stopped his
patrol car nearby the defendant, but rather later, after
DeJesus had approached the defendant and physically
touched him. The court found: ‘‘When Officer DeJesus
first approached the defendant in his police cruiser, he
stopped fifteen to twenty feet away from him. He did
not activate his lights or sirens, and he did not use any
language that connoted a display of authority. He asked
his initial question from a seated position within his
cruiser. In fact, the initial colloquial dialog with the
defendant beginning with Officer DeJesus addressing
the defendant as ‘my man,’ connotes a casual encoun-
ter.’’ The court continued: ‘‘After the defendant failed
to respond to his inquiry, Officer DeJesus exited his
vehicle and approached the defendant to merely ask
questions to determine his identity and investigate. The
officer approached the defendant at an angle, so as not
to appear confrontational and at no time did Officer
DeJesus brandish his weapon. The officer did not
engage in coercive or threatening behavior.’’ The court
concluded: ‘‘In the present case, the officer did not
display any authority until he observed the defendant’s
questionable and guarded behavior. On the basis of this
evidence, the court concludes that the defendant was
not seized until Officer DeJesus physically touched him
and commenced the patdown.’’
The court next concluded that the seizure was justi-
fied because DeJesus had a reasonable and articulable
suspicion that the defendant was engaged in criminal
activity. The court found: ‘‘[T]he nature of the 911 call
coupled with Officer DeJesus’ observations of the
defendant immediately after the crime occurred, war-
ranted a brief stop of the defendant. Here, the alleged
criminal activity had occurred only moments before
Officer DeJesus encountered the defendant in very
close proximity to the location of the alleged crime.
Further, the defendant’s clothing, although not identi-
cal, was dark and generally matched the description of
the suspect as described by the dispatcher. Additionally,
it was early morning and the defendant was standing
alone, in the dark, and in pouring rain. Based on the
defendant’s identifying features, clothing, location, and
overall behavior, the officer had reasonable and articu-
lable suspicion to stop the defendant to determine if
he was involved in the domestic incident under investi-
gation.’’ The court found further support for this finding
in the defendant’s evasive behavior, stating that
DeJesus’ ‘‘initial suspicion was further aroused by the
defendant’s response to the officer’s inquiry when the
officer was seated in his vehicle. That response led the
officer to step out of his vehicle and conduct a further
inquiry. . . . Officer DeJesus believed the defendant
was under the influence because of his conduct and
demeanor. When considered in connection to violent
crime . . . here—the assault of a female—a reason-
able officer could conclude that, on the basis of his
evasive behavior, that the defendant had recently been
involved in criminal activity.’’ (Citation omitted; internal
quotation marks omitted.)
Lastly, the court concluded that DeJesus’ patdown
of the defendant was supported by a reasonable belief
that the defendant might have been armed and danger-
ous. The court found: ‘‘Under the totality of the circum-
stances, including (1) the nature of the crime under
investigation, (2) the defendant’s close proximity to the
crime scene, (3) that his clothing sufficiently matched
the description of the suspect, (4) his location and the
time of day, and (5) his appearance and behavior, the
court finds that a reasonable officer would have an
objective suspicion, based on articulable facts, to con-
clude that the defendant might be armed and danger-
ous.’’ On the basis of those three conclusions, the court
denied the defendant’s motion to suppress the evidence.
Following the denial of his motion, the defendant
pleaded nolo contendere1 to one count of carrying a
pistol without a permit and one count of criminal pos-
session of a pistol.2 The court, Keegan, J., on May 15,
2015, sentenced the defendant to five years of incarcera-
tion, execution suspended after the mandatory mini-
mum one year of incarceration, followed by a three
year conditional discharge on the count of carrying a
pistol without a permit, and five years of incarceration,
execution fully suspended, with a three year conditional
discharge on the count of criminal possession of a pis-
tol.3 The sentences were to run consecutively for a
total effective sentence of ten years of incarceration,
execution suspended after one year, and a three year
conditional discharge.
On appeal, the defendant disputes the court’s findings
and argues that he was seized by DeJesus when DeJesus
stopped his patrol cruiser nearby the defendant and
called to him. In the alternative, he argues that he was
seized when DeJesus exited his vehicle and approached
him. He argues, as well, that DeJesus did not have a
reasonable and articulable suspicion that the defendant
was engaged in criminal activity at the time of the sei-
zure and, therefore, it was unlawful regardless of when
it occurred. Lastly, the defendant argues that because
he was unlawfully seized, the officer’s subsequent pat-
down of his person was similarly unlawful because
DeJesus did not have reasonable suspicion that the
defendant was armed and dangerous. In response, the
state claims that the defendant was not seized until the
officer physically touched him before patting him down
for weapons. Further, the state claims that DeJesus’
patdown of the defendant was justified by a reasonable
belief that the defendant was armed and dangerous.
The evidentiary record and the application of pertinent
decisional law support the state’s claims.4
We begin our analysis with a discussion of the stan-
dard of review. On appeal from the court’s denial of a
motion to suppress evidence, ‘‘it is the function of this
court to determine whether the decision of the trial
court is clearly erroneous. . . . The trial court’s con-
clusions must stand unless they are legally and logically
inconsistent with the facts.’’ (Internal quotation marks
omitted.) State v. Oquendo, 223 Conn. 635, 645, 613
A.2d 1300 (1992). The court’s ‘‘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 chal-
lenged, 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 . . . .’’
(Citations omitted; internal quotation marks omitted.)
State v. Joyce, 243 Conn. 282, 288, 705 A.2d 181 (1997),
cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed.
2d 674 (1998). When, however, the basis of a defendant’s
claim is that the police conducted an unconstitutional
search and seizure, we must, on review, ‘‘undertake
a more probing factual review of allegedly improper
seizures, so that we may come to an independent legal
determination of whether a reasonable person in the
defendant’s position would have believed that he was
not free to leave. . . . A proper analysis of this question
is necessarily fact intensive, requiring a careful exami-
nation of the entirety of the circumstances in order to
determine whether the police engaged in a coercive
display of authority . . . . Although we must, of
course, defer to the trial court’s factual findings, our
usual deference . . . is qualified by the necessity for
a scrupulous examination of the record to ascertain
whether [each] finding is supported by substantial evi-
dence . . . . Furthermore, in reviewing the record, we
are bound to consider not only the trial court’s factual
findings, but also the full testimony of the arresting
officers; in particular, we must take account of any
undisputed evidence that does not support the trial
court’s ruling in favor of the state but that the trial court
did not expressly discredit.’’ (Citations omitted; internal
quotation marks omitted.) State v. Edmonds, 323 Conn.
34, 39, 145 A.3d 861 (2016).
Before turning to the defendant’s specific arguments,
we briefly discuss the overarching legal principles rele-
vant to the defendant’s claim. Interactions between the
police and members of the public in public places can
implicate the public’s right to be free from unreasonable
searches and seizures. ‘‘The fourth amendment [to the
United States constitution], like article first, § 7 [of the
Connecticut constitution], proscribes only ‘unreason-
able’ searches and seizures. . . . A search or seizure
is presumptively unreasonable when it is conducted
without a warrant issued upon probable cause. . . .
Nevertheless, several categories of searches and sei-
zures have been deemed reasonable, and therefore law-
ful, even when officers lack probable cause or a
warrant. . . . For instance, under Terry [v. Ohio, 392
U.S. 1, 30–31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)],
officers may temporarily seize an individual if they have
a reasonable and articulable suspicion that he is
involved in criminal activity. . . . 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 officer on the beat—
which historically has not been, and as a practical mat-
ter 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.’ . . .
After balancing the state’s legitimate interests in crime
prevention and detection against a suspect’s liberty
interest . . . the court concluded that, when an officer
has a reasonable basis for suspecting that an individual
is committing or has committed a criminal offense, it
is constitutionally permissible for the officer to briefly
detain the individual for investigative purposes. . . .
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. . . . 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 unexpectedly and fatally be used against him.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) State v. Kelly, 313 Conn. 1, 16–17, 95
A.3d 1081 (2014).
I
We address first the defendant’s two alternative argu-
ments that he was seized by DeJesus either when
DeJesus stopped his patrol cruiser nearby the defendant
and called to him, or when DeJesus exited his vehicle
and approached him. A seizure occurs when ‘‘by means
of physical force or a show of authority, [an individual’s]
freedom of movement is restrained. . . . The key con-
sideration is whether, in view of all the circumstances
surrounding the incident, a reasonable person would
have believed that he was not free to leave.’’ (Citation
omitted; footnote omitted; internal quotation marks
omitted.) State v. Burroughs, 288 Conn. 836, 844–45,
955 A.2d 43 (2008). While the show of authority or
coercion necessary to establish restraint is fact specific,
our law is clear that the fact that an officer is in uniform
when approaching a member of the public is not, alone,
viewed as a sufficient sign of authority or coercion
to constitute detention. See id., 849 (‘‘[a]lthough we
recognize that a uniformed law enforcement officer
is necessarily 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 . . . .’’); see
also State v. Hill, 237 Conn. 81, 91, 675 A.2d 866 (1996)
(‘‘[t]he mere approach by a police officer, either in a
police car or on foot, does not alone constitute a show of
authority sufficient to cause the subject of the officer’s
attention reasonably to believe that he or she is not
free to leave’’).
Although the assessment of whether a police officer’s
conduct vis-a``-vis a member of the public constitutes
a stop is necessarily fact-specific, the United States
Supreme Court has provided some guidance for our
analysis. The court opined: ‘‘Examples of circumstances
that might indicate a seizure, even where the person
did not attempt to leave, would be the threatening pres-
ence of several officers, the display of a weapon by an
officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be com-
pelled.’’ United States v. Mendenhall, 446 U.S. 544, 554,
100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). In determining
whether a seizure has occurred, our Supreme Court
has also considered whether the police activated a siren
or flashers, commanded the defendant to halt, displayed
any weapons, or operated the police cruiser in an
aggressive manner to block the defendant’s course or
otherwise control the direction or speed of his move-
ment. State v. Burroughs, supra, 288 Conn. 847.
With this guidance in mind, we turn to the defendant’s
specific claim that he was seized by DeJesus when
DeJesus parked his marked police cruiser fifteen to
twenty feet from where the defendant was standing and
called to him ‘‘yo my man, what’s your name?’’ The
court rejected this claim and we agree. As noted by
the court, when DeJesus stopped his cruiser fifteen to
twenty feet from the defendant, he did not activate his
lights or siren, he did not use any language or tone that
connoted a display of authority, and he did not use
his police cruiser in an aggressive manner to block or
control the defendant’s movement. He was still seated
in his cruiser when he initially tried to speak with the
defendant. On the basis of our jurisprudence on the
matter, these circumstances do not constitute restraint.
Accordingly, the defendant was not seized when
DeJesus called to him from the police cruiser.
The defendant claims, in the alternative, that once
DeJesus alighted from his cruiser and walked toward
him, the officer’s movements limited the defendant’s
movements and, accordingly, served to seize him. In
this regard, he asserts that the location of the interaction
in a fairly isolated area in the early morning hours of
the day heightened the aura of the officer’s authority.
Thus, he claims, he was detained as soon as the officer
began to approach him. The court found, however, that
at this juncture DeJesus was approaching the defendant
merely to ask him questions, that the officer approached
at an angle so as not to appear confrontational, and
that the officer did not, at any time in this process,
brandish his weapon. Accordingly, the court concluded,
the officer’s approach to the defendant did not consti-
tute a seizure. We agree. Under these circumstances,
where the record is plain that the officer took no mea-
sures to impede the defendant’s movement either by
blocking his means of egress or by any threatening
behavior, the officer’s conduct in walking toward the
defendant did not constitute restraint under all the
existing circumstances. Accordingly, the defendant was
not seized when DeJesus began walking toward him.
The court found, and the state argues, that the defen-
dant was not seized until DeJesus physically touched
the defendant. We agree. The record is clear that once
DeJesus reached the defendant and physically touched
him, the officer’s conduct, at that juncture, constituted a
detention of the defendant. Accordingly, the defendant
was not seized until DeJesus physically touched him.
II
We turn next to the defendant’s argument that the
seizure was unlawful, regardless of when it began,
because DeJesus did not have a reasonable and articula-
ble suspicion that the defendant was engaged in crimi-
nal activity at the time of the seizure. On this point the
state and the defendant have different perceptions of
the underlying factual circumstances and their implica-
tions. The defendant argues that when DeJesus reached
out and physically touched the defendant, he was acting
on a mere hunch that the defendant might be the suspect
in the domestic violence incident, which was unreason-
able because the defendant’s clothing did not match the
description issued by police dispatch. The defendant
further argues that his behavior did not give rise to a
reasonable suspicion for DeJesus to seize him. The
state, on the other hand, claimed that DeJesus was
justified in stopping the defendant because he suffi-
ciently fit the description of the domestic violence sus-
pect, because of his lack of response to the officer’s
questions and muddled behavior, and because he was
found in an area geographically close to the alleged
violent crime scene within minutes of the notification
from the police dispatcher of having received a 911 call.
With respect to the defendant’s clothing, the defen-
dant argues that the clothing he was wearing did not
match the description of clothing given by the 911 caller
to dispatch regarding the alleged domestic violence
assailant, and that, even though the 911 caller’s descrip-
tion was not passed on by dispatch to DeJesus, he
is charged with knowing that description under the
collective knowledge doctrine. The defendant argues
that, as a consequence, DeJesus reasonably could not
have suspected the defendant as being the perpetrator.
In response to the defendant’s claim regarding the col-
lective knowledge doctrine, the state argues that even
if the officer could be charged with knowledge of the
clothing description given by the 911 caller, the defen-
dant’s appearance in dark clothing in the rain and in
the dark early morning hours was sufficiently alike to
the description given by the 911 caller to be a factor
supporting his reasonable suspicion that the defendant
could be the domestic violence suspect.
The following additional information is relevant to
this argument. The record reflects that the 911 caller
described her assailant to the dispatcher as a black man
dressed in a ‘‘black hoodie, black sweatpants, a chain
around his neck, a fitted [hat], I believe an orange and
grey fitted [hat].’’ Dispatch, however, did not relay this
complete description. Rather, it described the alleged
perpetrator as ‘‘Antoine,’’ ‘‘a black male in all black,’’
who had allegedly choked the victim and was believed
to be hiding in the bushes outside the victim’s home.
The defendant, when approached by DeJesus, was not
wearing all black, but instead, dark blue jeans, a dark
grey jacket, and a navy blue skull cap. DeJesus testified
at the suppression hearing, though, that due to the heavy
rain, the defendant’s clothing looked all black.
At the outset, we agree that DeJesus is chargeable
with the collective knowledge of the police department.
The collective knowledge doctrine imputes onto an
arresting officer the collective knowledge of the law
enforcement organization at the time of the arrest. State
v. Butler, 296 Conn. 62, 72–73, 993 A.2d 970 (2010).
Therefore, the knowledge of both the arresting officer
and the police department must be considered in
determining whether there is probable cause for an
arrest. Id. In Butler, our Supreme Court extended the
application of the collective knowledge doctrine
beyond determinations of probable cause, to circum-
stances warranting an officer’s reasonable suspicions
in a search and seizure context. Id., 73–74. In Butler,
the question was whether the state could utilize the
collective knowledge of the police department to sub-
stantiate its claim that the officer on the scene had a
reasonable basis to suspect the defendant of criminal
activity. Id., 74–75. The court opined: ‘‘Although this
court typically has applied the collective knowledge
doctrine to determinations of probable cause, we con-
clude that it is equally applicable to the reasonable
suspicion determination. See, e.g., United States v.
Thompson, 533 F.3d 964, 969 (8th Cir. 2008) (‘[t]he
collective knowledge of law enforcement officers con-
ducting an investigation is sufficient to provide reason-
able suspicion, and the collective knowledge can be
imputed to the individual officer who initiated the traffic
stop when there is some communication between the
officers’) . . . .’’ Id., 73. If the collective knowledge of
the police department can be attributed to an officer
on the scene in order to bolster the basis of the officer’s
reasonable suspicions, we can conceive of no reason
that the doctrine should not be applied, with equal force,
to information that can be imputed to the officer on
scene that would tend to erode the reasonableness of
an officer’s suspicion.
That, however, does not complete our analysis
regarding the collective knowledge doctrine because,
in order to apply the doctrine to the case at hand, we
would have to know that the person who received the
911 call from the alleged domestic violence victim was,
in fact, a member of the New Haven Police Department.
In that regard, the record reveals only that the alleged
domestic violence victim called 911 and that the phone
was answered by an individual who responded to the
call by stating ‘‘New Haven 911.’’ We know, as well, that
DeJesus testified that he was dispatched to a certain
address and given a description by dispatch of the
assailant’s clothing not as detailed as, and at some vari-
ance with, the description given by the 911 caller. Thus,
we do not know whether the individual who answered
the 911 call was a member of the New Haven Police
Department whose knowledge, fairly, could be attrib-
uted to the officer on the scene under the collective
knowledge doctrine.5 For purposes of our resolution of
this appeal, however, we will assume that the collective
knowledge doctrine is applicable.
That said, we are aware that the description of cloth-
ing is merely one factor in all the circumstances an
officer may consider in deciding whether to detain a
member of the public. State v. Gregory, 74 Conn. App.
248, 257–58, 812 A.2d 102 (2002), cert. denied, 262 Conn.
948, 817 A.2d 108 (2003). The defendant’s argument
regarding the discrepancy between the defendant’s
clothing and that of the alleged domestic violence per-
petrator is not unlike the argument made by the defen-
dant before this court in Gregory. There, the defendant
claimed that there was a discrepancy in the description
of an assailant’s clothing between the victim’s claims
and the actual clothing worn by the defendant when
detained. Id., 258–59. On appeal, this court stated: ‘‘The
police are . . . not required to confirm every detail of
a description of the perpetrator before that person can
be detained. . . . Rather, [w]hat must be taken into
account [when determining the existence of a reason-
able and articulable suspicion] is the strength of those
points of comparison which do match up and whether
the nature of the descriptive factors which do not match
is such that an error as to them is not improbable
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 259. Along with its discussion on the com-
parison of the defendant’s clothing to that of the sus-
pect, the court in Gregory further noted: ‘‘The nature
of the crime under investigation, the degree of suspi-
cion, the location of the stop, the time of day, the reac-
tion of the suspect to the approach of police are all
facts which bear on the issue of reasonableness. . . .
Proximity in the time and place of the stop to the crime
is highly significant in the determination of whether an
investigatory detention is justified by reasonable and
articulable suspicion.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 257–58. Thus, even though the
description of the assailant’s clothing by the 911 caller
is a relevant factor to the reasonableness of the officer’s
suspicion and subsequent detention of the assailant,
the discrepancy in the clothing description is but one
factor to consider in the overall circumstances bearing
on the issue of reasonableness. With that in mind, we
turn to a consideration of the other factors that led
the court to find that DeJesus had a reasonable and
articulable suspicion that the defendant was engaged
in criminal activity at the time of the seizure.
The record reflects that DeJesus came upon the
defendant at approximately 4:30 a.m. while it was dark
and rainy and, from the patrol car, believed that he was
wearing dark clothing, a description that matched that
from the dispatcher’s call. The defendant was located
within a minute’s walk from the scene of the alleged
violent assault in a high crime and high drug use area.
When the officer called to the defendant, the defendant
was standing in the rain using a cell phone. Initially
ignoring the officer, the defendant then mumbled to
him while appearing to the officer to be under the influ-
ence of a controlled substance. Given the totality of
those circumstances, and even assuming some discrep-
ancy in the clothing description between what was told
by the 911 caller to dispatch and what was relayed
to DeJesus, it was nevertheless reasonable for him to
suspect the defendant of criminal activity and, thus, to
briefly detain him for the purpose of questioning him.
Additionally, given the high crime and drug usage
character of the neighborhood where DeJesus discov-
ered the defendant and the known association between
violence and drug use, it was reasonable for the officer
to conduct a patdown of the defendant for the officer’s
own safety before asking him more pointed questions.
As noted, the court looked to ‘‘the nature of the 911
call coupled with Officer DeJesus’ observations of the
defendant immediately after the crime occurred’’ in
determining that a brief stop of the defendant was war-
ranted. The court relied on the proximity in time and
location between the alleged criminal activity and the
defendant, the general matching of the defendant’s
clothing to that of the suspect, the circumstances in
which DeJesus found the defendant, namely alone in
the dark and pouring rain, and the defendant’s ‘‘evasive
behavior’’ when engaged by DeJesus. The court con-
cluded: ‘‘Based on the defendant’s identifying features,
clothing, location, and overall behavior, the officer had
reasonable and articulable suspicion to stop the defen-
dant to determine if he was involved in the domestic
incident under investigation. . . . Thus, based upon
the totality of the circumstances, Officer DeJesus had
reasonable and articulable suspicion to believe that the
defendant was indeed the suspect that had recently
committed an assault.’’ Contrary to the defendant’s
assertions, the record amply supports the court’s con-
clusions. We agree with the court that the defendant’s
detention by DeJesus was reasonable under all the cir-
cumstances.
III
Lastly, we turn to the defendant’s claim that even if
the investigatory stop by DeJesus was reasonable, the
patdown and ensuing seizure of a weapon from him by
the officer was unlawful because DeJesus did not have
a reasonable suspicion that the defendant was armed
and dangerous. In support of this claim, the defendant
argues that even if his clothing could have been seen
by DeJesus from his patrol car as resembling the
description given by the 911 caller, once he got closer
to the defendant he should have seen that the clothing
did not match. The defendant also argues that his behav-
ior in not cooperating with DeJesus and his intoxicated
appearance cannot support a reasonable suspicion that
he was armed and dangerous. Therefore, the defendant
claims, the possibility that he was the perpetrator of
the violent crime of domestic assault cannot be factored
in to the calculus of whether, at the moment of the
patdown, DeJesus had a reasonable basis for believing
that the defendant could be armed and dangerous.
We disagree.
Our Supreme Court has recognized that ‘‘[a] police
officer is not entitled to seize and search every person
whom he sees on the street or of whom he makes
inquiries. Before he places a hand on the person of a
citizen in search of anything, he must have constitution-
ally adequate, reasonable grounds for doing so. In the
case of the self-protective search for weapons, he must
be able to point to particular facts from which he rea-
sonably inferred that the individual was armed and dan-
gerous. . . . The authority to permit a reasonable
search for weapons for the protection of the police
officer is narrowly drawn applying only where he has
reason to believe that he is dealing with an armed and
dangerous individual . . . . The officer need not be
absolutely certain that the individual is armed; the issue
is whether a reasonably prudent man in the circum-
stances would be warranted in the belief that his safety
or that of others was in danger. . . . And in determin-
ing whether the officer acted reasonably in such circum-
stances, due weight must be given, not to his inchoate
and unparticularized suspicion or hunch, but to the
specific reasonable inferences which he is entitled to
draw from the facts in light of his experience.’’ (Internal
quotation marks omitted.) State v. Jenkins, 298 Conn.
209, 234, 3 A.3d 806 (2010).6 Additionally, ‘‘[w]hen mak-
ing a split second decision, an officer is not required
to calculate the probability that the defendant would
proceed in a certain way before taking reasonable steps
to protect himself and his fellow officers.’’ (Internal
quotation marks omitted.) State v. Kelly, supra, 313
Conn. 34.
On the basis of this jurisprudence, the court con-
cluded: ‘‘Under the totality of the circumstances, includ-
ing (1) the nature of the crime under investigation, (2)
the defendant’s close proximity to the crime scene, (3)
that his clothing sufficiently matched the description
of the suspect, (4) his location and the time of day, and
(5) his appearance and behavior, the court finds that a
reasonable officer would have an objective suspicion,
based on articulable facts, to conclude that the defen-
dant might be armed and dangerous.’’
While we believe the defendant’s argument regarding
the discrepancy between the clothing description given
by the 911 caller and the clothing worn by the defendant,
that discrepancy, as we have noted, is not the only
factor to be considered in assessing the objective rea-
sonableness of the patdown and seizure. Additionally,
in assessing the officer’s conduct, we must be mindful
that he did not have the benefit of quiet contemplation
before deciding what reasonable steps were appro-
priate to guard his safety. The United States Supreme
Court’s assessment of a police officer’s reasonable use
of force is germane to the reaction of a police officer
in an interaction with a member of the public. The court
has opined: ‘‘The reasonableness of a particular use of
force must be judged from the perspective of a reason-
able officer on the scene, rather than with the 20/20
vision of hindsight. . . . The calculus of reasonable-
ness must embody allowance for the fact that police
officers are often forced to make split-second judg-
ments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is
necessary in a particular situation.’’ (Citation omitted;
internal quotation marks omitted.) Graham v. Connor,
490 U.S. 386, 396–97, 109 S. Ct. 1865, 104 L. Ed. 2d 443(1989). As with a court’s assessment of an officer’s
reasonable use of force, our assessment of the reason-
ableness of the officer’s decision to conduct a patdown
of the defendant must be guided by a realization that
the officer was required, for the sake of his own safety,
to make an immediate on the spot assessment of
whether the defendant was likely to be armed and dan-
gerous under all the circumstances then existing. Those
circumstances included, as well as the physical descrip-
tion of the domestic violence suspect and the clothing
he was wearing, the fact that the defendant was found
in an area close by the crime scene, at approximately
4:30 a.m., in the dark, in a high crime and drug use area,
standing in the rain, and when the officer approached
the defendant, he observed that he was mumbling and
swaying, behaving in a way that reasonably suggested
to the officer that the defendant was under the influence
of a controlled substance.
Under all those circumstances, it was reasonable for
DeJesus to be concerned for his safety and to make
the judgment that the defendant might be armed and
dangerous. Therefore, he had a reasonable basis to pat
down the defendant and, once discovered during the
patdown, to seize the weapon from the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court found that the denial of the motion to suppress was dispositive
of the case.
2
The state entered a nolle prosequi with respect to the remaining count,
criminal possession of a firearm in violation of General Statutes § 53a-217
(a) (1).
3
The court noted on the record that at the time of the offense § 53a-217c
did not carry a mandatory minimum jail sentence.
4
In the alternative, the state claims that the exclusionary rule’s new crime
exception bars suppression of the gun. Because we affirm the court’s denial
of the motion on other grounds, we need not address this argument.
5
It does not appear that our Supreme Court or this court has had the
occasion to determine whether the ‘‘collective knowledge’’ doctrine applies
in a situation in which information is received by a civilian 911 dispatcher
and then relayed to a police officer. In short, we have not determined
whether information in possession of a civilian dispatcher can be attributed
to a police officer on the scene. As noted in the state’s brief, federal Circuit
Courts are not in agreement on this question. See United States v. Whitaker,
546 F.3d 902, 909–10 n.12 (7th Cir. 2008) (knowledge of civilian 911 dis-
patcher can be imputed onto police officer); United States v. Colon, 250
F.3d 130, 135–38 (2d Cir. 2001) (knowledge of 911 dispatcher cannot be
imputed onto arresting officer where no evidence dispatcher had special
training in assessing the existence of probable cause). In the case at hand,
however, we need not answer this question for reasons set forth in our
opinion. Thus, we leave this issue for another day.
6
Thus, like the trial judge, we do not weigh the reasonableness of DeJesus’
conduct by reference to his stated practice, reflected in his statement to
the court that ‘‘I pat everybody down. . . . I pat [them] down for my safety.
. . . [T]his is not the first time that somebody pulled a gun on me, so, you
know, I’m [going to] protect myself.’’ We echo the court’s affirmation that
the judicial review of a police stop and patdown of a member of the public
can only be based on an objective test of reasonableness under the particular
circumstances and not by reference to an officer’s general proclivities.
Indeed we disapprove of such a practice as presenting a high risk of being
an unconstitutional intrusion, saved, perhaps, only by the operative facts
of any such police-public interaction.