State of Connecticut v. Juan Lopez (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SUPPRESS/DISMISS

The pertinent facts of this matter include the following:

At approximately 2:20 on a Saturday morning, Officer Caliguri and Sergeant Kelly of the Metropolitan Transit Authority Police Department [MTAPD] were traveling northbound on I–95, in the right lane, south of Sherwood Island, in Westport.   They were passed by a tan Honda Accord, traveling in the left lane at a high rate of speed.

The MTAPD merged to the left lane and observed:  the operator continued to accelerate forcing motorists to move from the left lane to the center lane;  the operator was unable to maintain the travel lane;  the vehicle was observed driving to the left of the solid white pavement marking;  the operator then moved his vehicle from the left lane, crossing the center and right lane, causing other motorists to brake abruptly.

The MTAPD then activated their police vehicle's emergency lights, and moved to the right lane in an attempt to effectuate a motor vehicle stop, following the vehicle for approximately two-tenths of a mile.   The operator stopped his vehicle, on the pavement, partially in the entrance ramp from Sherwood Island to I–95 northbound.

The operator ignored verbal instructions given via the public address system to move his vehicle from the travel lane.   Sergeant Kelly approached the vehicle from the passenger's side, instructing the driver to open the passenger side window.   The operator was the sole occupant of the vehicle.   When the window was opened, Sergeant Kelly detected a strong odor of an alcoholic beverage, and the operator was observed to have glassy eyes.   Sergeant Kelly instructed the operator of the vehicle to move the vehicle to the right shoulder of the roadway, and the operator moved the vehicle to a safe location ten feet to the right shoulder.   Officer Caliguri then parked the MTA police vehicle behind the operator's vehicle.

MTAPD notified “Central” of the location of the motor vehicle stop, and requested that Connecticut State Police, Troop G be notified.   The operator was requested to produce his license, registration and proof of insurance.   The operator had difficulty locating his wallet, which was visible on the passenger seat.   The operator “spontaneously” stated that his license was suspended.   As he was speaking, Officer Caliguri detected a strong odor of alcoholic beverage emitting from the operator's breath.   The operator was instructed to remain in the vehicle for further instructions.

At 2:45 a.m. Connecticut State Trooper Matthew arrived on the scene.   The operator was instructed to exit his vehicle, and did so, steadying himself with his left hand resting on the vehicle.   The operator was identified as Juan Lopez, the defendant in this case.

Sgt. Kelly asked the operator if he suffered from any medical conditions that would prohibit him from performing Standard Field Sobriety Tests, to which the reply was negative.   The tests were administered by Sgt. Kelly, in the presence of Trooper Matthew and Officer Caliguri.   The horizontal gaze nystagmus test was conducted first, and three clues were noted.   The walk and turn test was performed next, and the operator was unable to perform to standard.   The one-leg stand test was the final test performed, and the operator was unable to maintain his balance or keep his foot off the ground.   At 2:50 a.m., the operator was placed into custody for Operating Under the Influence.

Trooper Matthew advised that Troop G [State Police Barracks] was unable to perform the breathalyzer test, but indicated that he would contact Westport PD. Trooper Matthew arranged for the towing of the operator's vehicle, and Sgt. Kelly and Officer Caliguri of the MTAPD transported the operator to the Westport PD for breathalyzer testing.   Westport Police Officer Simpson was assigned to administer the breath test.   The operator was advised of his rights at 3:15 a.m. and refused to submit to breath test analysis.   At 3:34 a.m. the operator was transported to the MTAPD facility in Bridgeport for arrest processing.

The defendant has moved both to suppress all evidence obtained and to dismiss the charges, based upon a claim of illegal arrest by the MTAPD.

General Statutes § 54–1f(a) provides, in relevant part:  “Peace officers ․ in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others ․” Section 54–1f(c) provides:  “Members of any local police department or the Office of State Capitol Police and constables and state marshals who are certified under the provisions of sections 7–294a to 7–29e, inclusive, and who perform criminal law enforcement duties, when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest.   Such person may then be returned in the custody of such officer to the precinct in which the offense was committed.”   In State v. Harrison, 228 Conn. 758 (1994), the court held that a violation under § 14–227a (operation while under the influence of liquor or drug or while having an elevated blood alcohol content) was an “offense” for purposes of § 54–1f.

The threshold question pursuant to General Statutes § 54–1f is whether the offense occurred within the jurisdiction of the MTAPD.

The Metropolitan Transit Authority Police are governed by U.S.C.F.R. Title 49 Part 207, “Railroad Police Officers” § 207.1 provides:  “Application.   This part applies to all railroads, as such term is defined in section 202(e) of the Federal Railroad Safety Act of 1970, as amended, Public Law 91–458 (45 U.S.C. 431(e).”   It appears that 45 U.S.C. 431(e) has been repealed;  49 U.S.C. § 20102(2) states that “railroad”:  “(A) means any form of nonhighway ground transportation that runs on rails or electromagnetic guideways, including—(i) commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979;  and (ii) high speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads;  but (B) does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.”

Title 49 § 207.2 provides:

Definitions. As used in this part:

(a) Railroad police officer means a peace officer who is commissioned in his or her state of legal residence or state of primary employment and employed by a railroad to enforce state laws for the protection of railroad property, personnel, passengers, and/or cargo.

(b) Commissioned means that a state official has certified or otherwise designated a railroad employee as qualified under the licensing requirements of that state to act as a railroad police officer in that state.

(c) Property means rights-of-way, easements, appurtenant property, equipment cargo, facilities, and buildings and other structures owned, leased, operated, maintained, or transported by a railroad.

Section 207.3 provides:

Designation and commissioning.

(a) A railroad may designate employees to be commissioned by a state authority as railroad police officers to serve in the states in which the railroad owns property.

(b) The designated railroad police officer shall be commissioned by the railroad police officer's state of legal residence or the railroad police officer's state of primary employment.

Section 207.4 provides, in part:

Notice to State officials.

(a) After the designated railroad police officer is commissioned by a state or states, the railroad shall send, by certified mail, written notice to appropriate officials of every other state in which the railroad police officer shall protect the railroad's property, personnel, passengers, and cargo ․

Section 207.5 provides:

Authority in States where officer not commissioned.

(a) A railroad police officer who is designated by a railroad and commissioned under the laws of any state is authorized to enforce the laws (as specified in paragraph (b) of any state in which the railroad owns property and to which the railroad has provided notice in accordance with § 207.4.

(b) Under the authority of paragraph (a) of this section, a railroad police officer may enforce only relevant laws of the protection of—

(1) The railroad's employees, passengers, or patrons;

(2) The railroad's property or property entrusted to the railroad for transportation purposes;

(3) The intrastate, interstate, or foreign movement of cargo in the railroad's possession or in possession of another railroad or non-rail carrier while on the railroad property;  and

(4) The railroad movement of personnel, equipment, and materials vital to the national defense.

(c) The authority exercised under this part by an officer for whom the railroad has provided notice in accordance with § 207.4 shall be the same as that of a railroad police officer commissioned under the laws of that state.

(d) The railroad police officer's law enforcement powers shall apply only on railroad property, except that an officer may pursue off railroad property a person suspected of violating the law on railroad property, and an officer may engage off railroad property in law enforcement activities, including, without limitation, investigation and arrest, if permissible under state law.

Section 207.5(d) provides that “an officer may engage off railroad property in law enforcement activities, including, without limitation, investigation and arrest, if permissible under state law.”

Based upon the unique facts of this case, the MTAPD lacked jurisdiction to legally effectuate the arrest.   The allegations in this matter did not involve the protection of the railroad's employees, passengers, or patrons, nor any railroad property, property entrusted to the railroad for transportation purposes or cargo in the railroad's possession and/or on the railroad property.   Nor did the actions giving rise to the arrest originate on any railroad property.   Where right to arrest without a warrant is regulated by statute, an arrest except as authorized is illegal.  State v. Traub, 150 Conn. 169, 187 A.2d 230 (1962), vacated on other grounds 83 S.Ct. 1899, 374 U.S. 493, 10 L.Ed.2d 1048, on remand 150 Conn. 731, 197 A.2d 936.

The next issue for determination is the effect of the illegal arrest in this matter.  “Under both federal and state constitutional law, however, an illegal arrest does not operate as a per se jurisdictional barrier to a defendant's subsequent prosecution.   See State v. Fleming, 198 Conn. 255, 259–63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986), and cases cited therein.  Fleming held that ‘[w]here the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction.’  Id., 263;  see also State v. McPhail, 213 Conn. 161, 169–70, 567 A.2d 812 (1989).

Our Supreme Court stated in State v. Fleming, supra, 198 Conn. 263:  “Due process of law is satisfied when one present in court is convicted of a crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.”   In State v. Gallagher, 191 Conn. 433 (1983), overruled in part on other grounds by State v. Brocuglio, 264 Conn. 778, 786, 826 A.2d 145 (2003), the court declined to reach the merits of claims of involuntary consent to entry of home and arrest in violation of § 54–1f because “[e]ven if we were to consider them and resolve them in the defendant's favor, such a determination would not invalidate the convictions.”  “An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.”  United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980);  see State v. Haskins, 188 Conn. 432, 442, 450 A.2d 828 (1982).

The remedy for an unlawful arrest is the suppression of evidence obtained thereby.  “Evidence that is the fruit of an illegal arrest or detention must be suppressed pursuant to our state constitution.  State v. Oquendo, 223 Conn. 635, 660, 613 A.2d 1300 (1992);  State v. Traub, 151 Conn. 246, 250, 196 A.2d 755 (1963), cert. denied, 377 U.S. 960, 84 S.Ct. 1637, 12 L.Ed.2d 503 (1964);  cf.  Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).”  State v. White, 229 Conn. 125, 155 (1994).  “[T]his court has held that where evidence that is the fruit of an illegal search of seizure leads to a defendant's arrest and is used against the defendant at trial, the defendant is deprived of a fair trial.  State v. Fleming, 198 Conn. 255, 262, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986);  State v. Federici, 179 Conn. 46, 61–62, 425 A.2d 916 (1979).”  State v. White, supra, 229 Conn. 149 n.20.

“Application of the exclusionary rule, however, is not automatic.  ‘Evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint’ ․ (Internal quotation marks omitted.)  Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).  ‘The United States Supreme Court in Wong Sun v. United States, [371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ], provided an explanation of what is meant by the phrase ‘attenuating the taint’ ․ The court stated that, in the context of the fourth amendment, not all evidence ‘is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police.   Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which [the] instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’  (Citations omitted.)  State v. Luurtsema, supra, 262 Conn. 190.”   State v. Brocuglio, 264 Conn. 778, 787.

State v. Czyzewski, 70 Conn.App. 297, 797 A.2d 643 (2002), has some similarity to the extraterritorial actions of the MTAPD officers in this case.   In Czyzewski, a Newington police officer stopped the defendant in Berlin, whom he witnessed driving in an erratic manner.   The Newington officer subsequently requested assistance from a Berlin police officer, who administered field sobriety tests and arrested the defendant.   The Appellate Court held that the trial court properly denied the defendant's motion to suppress because the detention by an extraterritorial officer was an investigatory stop, not in violation of Section 54–1f(a), and even if the stop were illegal, any taint it may have had was removed by the subsequent investigation and arrest by the Berlin officer.   In the case under consideration, no field sobriety tests were performed before the arrival of a state trooper, who had appropriate jurisdiction on the Interstate Highway 95.

Similarly, in State v. McCullough, 88 Conn.App. 110, 868 A.2d 757, cert. denied, 273 Conn. 933, 873 A.2d 1002 (2005), a Manchester police officer blocked the defendant's vehicle in Bolton, requested information from the defendant and instructed him to wait for other law enforcement personnel to arrive.   The court rejected the defendant's claim for suppression insofar as the defendant based his motion to suppress on the conduct of the Manchester officer.   In McCullough, the court concluded that the officer did not arrest the defendant, but that his actions constituted a legally permissible investigatory stop.   In this matter, the MTAPD stopped Mr. Lopez after observing what they found to be erratic operation, and called for a State Trooper.   After the arrival of, and in the presence of the State Trooper, the field sobriety tests were conducted.   From the evidence presented, it appears that the direct involvement of the State Trooper with the defendant ended at this time.   The defendant was taken into custody by the MTAPD for Operating Under the Influence, transported to the Westport police station for breathalyzer testing, and subsequently transported to the MTAPD facility in Bridgeport for arrest processing.

The motion to suppress is denied as to any evidence obtained up to the time that the State Trooper departed the scene, and granted with respect to any further evidence thereafter obtained from the time that the defendant was taken into custody by the MTAPD.   The motion to dismiss is denied.

THE COURT

DENNIS, J.

Dennis, Maureen D., J.