State of Connecticut v. Lorenzo Osbourne (2010)

EXCERPT:  Court's Decision on Motion to Suppress

(BEGINNING OF EXCERPT)

THE COURT:  The Court has indicated it is going to give its decision on the motion to suppress.   The defendant filed a motion to suppress based on the claim that the police did not have a reasonable and articulable suspicion to stop or seize him.   Because this was warrantless activity on the part of the police the burden is on the State to convince the Court by a preponderance of the evidence that the police acted on the basis of one of the recognized exceptions to the general rule of the unreasonableness of warrantless police activity.

Officer J. Larrequi and C. Vasquez testified for the State.   Officer Larrequi, an almost 10-year veteran of the Bridgeport Police Department, testified that he and Officer Vasquez were responding to a burglar alarm call at the Pentecostal Church of Prayer and Deliverance located at Stratford Avenue and Logan Avenue in Bridgeport.   The time was 4:36 p.m. on August 29th, 2009.

The officer testified that this location was a high area for crime, robberies, and drug activity.   He testified that he was assigned to that side of the city for some five years.   He maintained that the area was no more safe during the daytime hours than the nighttime hours and that there had been a recent spike in criminal activity in the area;  drug activity, lots of drug trade back and forth, robberies, and lots of guns recovered.

On cross-examination he testified that on this date there was no specific type or location of incident that he was looking for nor was the defendant the object of any specific investigation.   As they approached the church they saw two males who he testified acted scared when they spotted the officers' marked police car and turned around the corner down Logan Street.   He particularly noticed the two males because the officers were responding to a burglar alarm at the church and the men were directly across the street from the church.   On cross-examination he testified that neither male ran away when spotted-when they spotted the marked police car.   They had nothing in their hands and were not carrying anything such as a backpack.

Officer Larrequi further testified that he talked to two members of the church in the church parking lot for some six to seven minutes during which it was relayed to him that it was a false alarm.   During that conversation the same two males walked, not ran, by the discussion group.   Officer Larrequi gave a greeting to the two males who did not acknowledge him but kept walking onto an adjacent lot that had an abandoned house on it.   This house and lot, he testified, was commonly used for drug activity.   The two males took a long time to traverse that lot that contained the abandoned house.   The officers lost sight of them for a time.   After leaving the church parking lot the officers spotted the two males still on the abandoned lot.

There was a photograph admitted into evidence that showed the path across the abandoned lot to be a short walk.   He told his partner to radio in that they were going to alight from their patrol car with two 10-39s, suspicious parties.   He made a U-turn and stopped ten to fifteen feet away from the two males who are now in the street and were directly in front of the police car.

The officer further testified that he did not have his lights on or flashers on, that he did not activate his siren, that he did not use a bullhorn, but merely opened the door of his car to alight and the two officers got out.   As soon as they got out the two males ran.   He added that he did not-that when he got out neither he nor Officer Vasquez drew their service revolvers and they uttered no words of command or any words at all for that matter to the two males.

As I stated the defendant immediately started to run.   Officer Larrequi testified that Officer Vasquez grabbed the defendant as he attempted to flee while he, Officer Larrequi, grabbed the other male who was non-cooperative;  he was struggling and resisting.   Officer Larrequi could see that Officer Vasquez was struggling with the defendant who was vigorously resisting.   Officer Larrequi could not turn on his taser to aid Officer Vasquez because he was busy attempting to bring the other male under control.   Another officer, Officer Csech, arrived at the scene and relieved Officer Larrequi of the struggling second male.   Officer Larrequi unlocked his taser-it takes five seconds before the camera can be utilized-and tasered the defendant.   The Court found Officer Larrequi to be-testimony to be credible.

The taser video was marked as an exhibit and shown to the Court.   One can hear the voice of someone yelling, “Get down on the ground” on many occasions.   Officer Larrequi testified that the taser video showed a bulge in the defendant's pockets of his shorts.   Officer Larrequi testified further that the defendant reached for the gun in his pocket and it fell out of his hand and hit the ground and went off.   No one was hit by the errant shell.

Officer Vasquez, almost three years on the Bridgeport Police Force, testified similar to Officer Larregui concerning the-responding to the burglar alarm at the church.   The first observations of the two males who when they spotted the marked police car walked away and down Logan Street.   He further testified that he was watching the two closely because he and Officer Larrequi were responding to a burglar alarm and they were looking at anyone who might be suspicious in the neighborhood.

Officer Vasquez also testified about the failure of the two males to acknowledge the greeting of the officers when the two males walked by the officers in the church parking lot.   Also their presence on the abandoned property;  that as soon as the door of the police car was opened the defendant started to run.

Officer Vasquez further testified that he grabbed the defendant as he attempted to flee.   Officer Vasquez grabbed the defendant but he managed to get away.   He grabbed again but the defendant was putting up quite a fight, punching, kicking, and flailing his arms.   The officer feared for his safety.

Officer Csech who had by this time arrived at the scene took over the containment of the other male freeing Officer Larrequi to taser the defendant.

On cross-examination the officer testified that each time he observed the defendant that day he was walking except when Officer Vasquez got out of the police car and the defendant started to run.   The Court found the testimony of Officer Vasquez to be credible.

David Hall testified for the defense.   He is a deacon at the church.   He testified that he inspected the abandoned house up to three times a week to make sure that no one was in there and he-and he had boarded it up to keep people out.   He added that people all the time walked from the church parking lot through the abandoned lot property.   The Court found the testimony of Mr. Hall to be credible.

The State must prove by a preponderance of the evidence that the police had a reasonable and articulable suspicion when the defendant was stopped or seized.   If the suspicion is reasonable and articulable the police may detain an individual for investigative purposes.   Suspicion can arise from conduct that is not itself criminal.  “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the officer but on whether a reasonable person having the information available to and known by the police would have had that level of suspicion;” State v. Martin (sic), 89 Conn.App. 241 at 248.

“It is not an unparticularized suspicion or hunch, but one based on specific reasonable inferences which he is entitled to draw from the facts in light of his expertise.   What constitutes a reasonable and articulable suspicion depends on the totality of the circumstances;” State v. Hernandez, 87 Conn.App. 464 at 471.

An individual's presence in the area of expected criminal activity standing alone is not enough to support a reasonable particularized suspicion;  Brown v. Texas, 443 U.S. 47 (1979) “But officers are not required to ignore the relevant characteristics of the location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.   Accordingly, we have previously noted the fact that the stop occurred in a high crime area among the relevant contextual considerations in a Terry analysis.”   And that's Illinois v. Wardlow, 528 U.S. 119.   That's a 2000 case.

“In reviewing the propriety of an officer's conduct courts do not have available to them empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or courts or law enforcement officers where none exists.   Thus the determination of a reasonable suspicion must be based on commonsense judgments and inferences about human behavior ․ there can be innocent reasons for flight from the police and, therefore, flight is not necessarily indicative of ongoing criminal behavior, but that does not establish a violation of the Fourth Amendment.”   And that, again, is Illinois v. Wardlow, 528 U.S. 119 (2000).

There was testimony that this was a high crime area and that there had been a spike in that area around that time.   There was also testimony of the officers that the two individuals took an inordinate amount of time to cross the abandoned lot and that the property had been used for drug activity.   There is also testimony that the defendant was first spotted with another male standing on a corner directly across the street from the church.   There is credible testimony that on seeing the marked police car they appeared scared and turned away to walk down Logan Street.

David Hall testified that he checked the house three times a week to make sure it was boarded up and to keep intruders out.   The two males had disappeared from view as they crossed the abandoned lot.

In assessing the totality of the circumstances the defendant's unprovoked flight is an important circumstance.   The Court finds the defendant's immediate flight to be unprovoked as the officers alighted from the patrol car.   In this case it was unprovoked because the officers did not put on his flashing light, siren, or bullhorn nor did either unholster his weapon nor speak any words to the defendant.   There was nothing that indicated the defendant was not free to go about his business.

Evasive behavior is a pertinent factor in determining reasonable suspicion.   “Headlong flight when it occurs is the consummate act of evasion.   It is not necessarily indicative of wrongdoing but it is certainly suggestive of such.”   That, again, is Illinois v. Wardlow, 528 U.S. 119.

The Court finds that the seizure or stop occurred after the defendant attempted to flee and not before.   And at that time under the totality of the circumstances the officers had a reasonable and articulable suspicion to stop the defendant:  The high crime area with the recent specific spike in crimes;  the defendant turning quickly away, and one officer said appearing scared and leaving the fixed position on the corner upon seeing the marked police vehicle;  the defendant taking an inordinate amount of time to traverse the abandoned lot that included the house that had been the subject of drug activity;  and the headlong flight which is the consummate act of evasion.   I should mention that-the unprovoked headlong flight.

Even if this Court were to conclude that the stop or seizure was an unlawful one and thereby apparently subject to the suppression by virtue of the exclusionary rule, the commission of the new crime exception to the exclusionary rule dissipates the taint from evidence of that crime obtained as a result of the illegal search and seizure of the defendant's person.   Our Supreme Court speaks approvingly of the new crime exception to the exclusionary rule in State v. Brocuglio, 264 Conn. 778 (2003).

Officer Vasquez attempted to stop the defendant from fleeing.   The defendant vigorously resisted Officer Vasquez's attempt, hitting him, punching him, and kicking him.   When the defendant acted in this manner he was committing a new crime that was distinct from any crime he might have been suspected of at the time of the initial stop.   At that point Officer Vasquez had probable cause to arrest the defendant because the new crime purged the taint of a previous-of the prior illegal stop, and the gun which became in plain view during the defendant's resistance of Officer Vasquez at the scene of the new crime could be legitimately seized.

The fact that the pistol was first observed when the officers had made their-had made their illegal stop it cannot be said that the weapon was revealed as a direct result of the unlawful nature of the police conduct.

Motion to suppress is denied.

(END OF EXCERPT)

THE COURT BY:

HAUSER, J.

Upon reviewing this transcript of the court's oral decision, two changes should be made as the court misspoke two words when reading them from its written rough draft.

1. Pg. 6, line 25-delete the word “expertise” and insert the word “experience.”

2. Pg. 10, line 19-delete the word “when” and insert the word “after.”

By Court By:

HAUSER, J.

Hauser, Lawrence L., J.