State of Connecticut v. Keysean Holland (2012)

MEMORANDUM OF DECISION RE MOTION TO SUPPRESS

Counsel for the defendant, pursuant to Section 41–12 of the Connecticut Practice Book, Article First, Section 7 of the Constitution of the State of Connecticut, and the Fourth and Fourteenth Amendments of the United States Constitution, has filed a Motion to Suppress all evidence seized from the defendant at the time of his arrest and further moves to suppress all statements made by the defendant subsequent to his arrest.   In essence the defendant claims that he was stopped and seized by the officers without probable cause and without reasonable and articulable suspicion and therefore the warrantless search of his person was illegal, as was his subsequent arrest.

The evidence presented during the hearing on the motion established the following facts:  On January 6, 2011 at approximately 12:40 a.m., the defendant, Keysean Holland, and Latavian Harris were walking northbound on Benham Road near the intersection of Rainville Avenue in the City of Groton, Connecticut, when Lieutenant Thomas Forbes of the Groton City Police Department observed them.   He radioed Officer Travis Winkleman of the department and then spoke with him on the phone, indicating what he (Forbes) had observed.   Forbes, who was operating a marked Groton City Police Department Ford Expedition, pulled to the curb, on the east side of Benham Road, north of Rainville Avenue, and exited his vehicle.   As Forbes was exiting, Winkleman, in his marked cruiser, pulled up and parked behind Forbes' vehicle.   Neither Forbes nor Winkleman had activated their emergency lights or sirens.   Forbes approached Holland and Harris and in a calm voice, asked if he could speak with them.   Both Holland and Harris assented.   Forbes had proceeded to the front of his vehicle and spoke to Holland and Harris from the road.   Winkleman approached and was near Forbes in the road.   Although both Forbes and Winkleman were in uniform, and had sidearms, neither had unholstered or drawn their weapons.   Holland and Harris remained on the sidewalk.   Their path of travel was not blocked nor obstructed in any way by Forbes or Winkleman, or either of their vehicles.   Forbes and Winkleman asked Holland and Harris for their identifications.   Harris provided Winkleman with his identification.   Holland did not have any identification on his person, but provided Forbes with his name and other information.   Winkleman radioed in the information to dispatch.   Neither Holland nor Harris had any outstanding warrants or were wanted by the police.   As Winkleman was providing Holland's information, a third officer, Officer LeBeau, arrived on the scene.   He parked across the street and remained apart from the encounter.

Forbes asked Holland several questions concerning where he (Holland) was going and from where he had come.   Holland indicated that he was on his way home, having come from down by Eastern Point.   That information was consistent with the direction in which they were traveling.   Winkleman moved approximately five feet away and questioned Harris.   Winkleman was close enough to be able to hear Forbes and Holland, as well as observe the interaction between the two.   According to Winkleman, Holland appeared nervous, was speaking in a quiet tone and not making eye contact.   Winkleman, who had prior contact with Holland, indicated that sometimes Holland was shy and would act that way, but other times he was not.   Forbes asked Holland if he could pat him down for the officer's safety.   Holland refused to allow Forbes to do so, and Forbes did not attempt to pat him down.   Forbes then asked Holland if he had ever been arrested, and Holland acknowledged that he had.   Holland informed Forbes that he, in fact, had been to court earlier that day and had an electronic bracelet removed.   Forbes asked Holland why he had been arrested, and Holland told him that he was arrested for drugs and alcohol.   When Forbes expressed his disbelief that one would have an electronic bracelet for charges involving drugs and alcohol, Holland admitted that he had been recently arrested for a robbery.   At that point, Lt. Forbes informed Holland that he was going to pat him down for officer's safety, and then place his hands on Holland.   Holland told him not to do so, and pushed Forbes away.   Forbes, apparently having felt something, yelled, “gun” and Holland attempted to flee.   Officers Winkleman and LeBeau apprehended Holland and placed him in handcuffs.   Officer LeBeau searched Holland and recovered a BB pistol type gun.   Holland was placed into custody and transported to the police department.   At the station, Holland gave a written statement inculpating himself and Harris in a conspiracy to commit a robbery that morning, and in a robbery which occurred in July 2010.

Approximately, three weeks prior to this incident, on December 15, 2010, the Eastern Point Liquor Store was robbed.   The perpetrators were alleged to be two black males, one somewhat taller than the other, wearing dark clothing and one was carrying what appeared to be a hand gun.   The Eastern Point Liquor Store was approximately 12 miles from where Holland and Harris were stopped.   Lt. Forbes was aware of the Eastern Point robbery and had viewed a video of that incident prior to January 6, 2011.   Additionally, Officer Winkleman testified that there had been a number of late night or early morning car break-ins reported in the general area where Holland and Harris had been stopped.

The defendant's Motion to Suppress seeks the suppression of the BB pistol seized from the defendant as well as the incriminating statement made subsequent to his arrest.   The thrust of the argument is that the officers lacked articulable and reasonable suspicion necessary for a seizure.   The State's response is that the officers possessed reasonable and articulable suspicion based upon their observations and the reasonable inferences drawn from those observations.

An individual has been seized, for purposes of fourth amendment analysis, only if a reasonable person, viewing the circumstances in their entirety, would have concluded or believed that he or she was not free to leave.  Michigan v. Chesternut, 486 U.S. 567, 573 (1988) The Connecticut Supreme Court has held that a person is seized within the meaning of article first, sections 7 and 9 of the Connecticut Constitution when by means of physical force or a show of authority, his freedom of movement is restrained.  State v. Oquendo, 223 Conn. 635, 650–52 (1992).   The inquiry is objective, focusing on a reasonable person's probable reaction to the officer's conduct.  State v. Santos, 267 Conn. 495, 503 (2004).   Up to the moment that the defendant was ordered to submit to a pat down by the officer, he could not have reasonably concluded that he was not free to leave.   The officers had not utilized the lights or sirens of their police vehicles.   No guns were drawn and no signals were given.   The officers had not issued any verbal commands to the defendant or his companion.   Neither the officers nor their vehicles blocked the sidewalk on which the defendant and his companion were standing.   Officers are not precluded from approaching individuals on the street.   A purely consensual encounter between a police officer and an individual, regardless of whether the officer is investigating criminal activity, is not necessarily a seizure.   State v. Kimble, 106 Conn.App. 572, 582 (2008).   Law enforcement officers do not violate the fourth amendment by merely approaching a individual on the street or in another place, by asking if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence his voluntary answers.  Florida v. Royer, 460 U.S. 491, 497 (1983).   The seizure of the defendant took place only after Lt. Forbes placed his hands on the defendant and announced that he was going to conduct a pat down.

Under the fourth amendment to the United States constitution a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes 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.   Terry v. Ohio, 392 U.S. 1, 22 (1968);  State v. Mitchell, 204 Conn. 187, 194–95 (1987).   In determining whether a detention is justified in a given case, a court must consider [whether], relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity.   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, 258 Conn. 68, 75–76 (2001).   Our Supreme Court has stated that part of the totality of circumstances that a court considers “are those inferences and deductions made by officers under the particular circumstances, since law enforcement officials are trained to cull significance from behavior that would appear innocent to the untrained observer.”  State v. Nash, 278 Conn. 620, 635 (2006).   The United States Supreme Court has stated that reviewing courts “must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing ․ This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.”   United States v. Arvizu, 534 U.S. 266, 273 (2002).

It is well established, however, that the 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 constitutionally 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 reasonably inferred that the individual was armed and dangerous.  Sibron v. New York, 392 U.S. 40, 64 (1968);  State v. Nash, supra, at page 631.   Before an individual may be patted down, which is far more intrusive of a person's privacy, the officer must also have a reasonable belief that the individual is armed and dangerous.  Minnesota v. Dickerson, 508 U.S. 366, 372 (1993).   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.  Terry v. Ohio, supra at page 27.

In the present case the totality of facts fail to support a finding that the officer had a reasonable and articulable suspicion that the defendant was armed and dangerous.   The officer had not observed the defendant engaging in apparent criminal behavior.   The defendant's behavior was somewhat nervous, but this was consistent with his behavior on other occasions.   The defendant had not made any threatening or evasive gestures.   There were no obvious signs of a potential weapon on the defendant's person.   The defendant was acting appropriately in engaging the officer in conversation.   The defendant had not given the officer any reason to fear for his safety, especially in light of the fact that two other police officers were present at the scene.   Since the officer lacked a reasonable and articulable suspicion that the defendant was armed and dangerous, the seizure of the defendant was illegal and the discovery of the weapon on his person and the subsequent statement given by him were obtained in violation of the defendant's constitutional rights.

The Motion to Suppress is granted.

BY THE COURT

Arthur C. Hadden Judge

Hadden, Arthur C., J.