State of Connecticut v. Troy Amarante (2013)

MEMORANDUM OF DECISION RE MOTION TO SUPPRESS

The defendant, Troy Amarante, filed a motion to suppress evidence gathered as a result of what he claims was an illegal stop by an off-duty police officer outside of his territorial jurisdiction.   The defendant had interactions with an off-duty North Haven police officer in the town of Cheshire after the officer witnessed the defendant driving in an erratic manner.   The North Haven police officer, prior to interacting with the defendant, requested assistance from the Cheshire police department.   The Cheshire police officer, upon arrival, performed an investigation and arrested the defendant.

The defendant claims the North Haven police officer had no constitutional or statutory authority to perform an investigatory stop, or a search and seizure outside of his municipality.   On March 22, 2013, the court heard testimony related to the motion.

The state asserts that Officer Petrillo was not acting in his official capacity during his contact with the defendant.   In the alternative, the state claims that if this court finds the officer was acting in his official capacity, that he did not arrest the defendant, but merely detained him until officers from the proper jurisdiction arrived.   Finally, the state argues that even if this court finds that Officer Petrillo was acting in an official capacity and arrested the defendant in Cheshire, the evidence obtained during the Cheshire police investigation is sufficiently attenuated from the illegal arrest so as to remove any taint, obviating the need for suppression.

FACTS

On May 18, 2012 in the early evening, Louis Petrillo was a passenger in a motor vehicle traveling on Cook Hill Road in Cheshire.   Mr. Petrillo's attention was drawn to a black Volkswagen stopped at the intersection of Cook Hill Road and Tuttle Avenue.   The Volkswagen was observed stopped in the northbound lane.   Mr. Petrillo observed the operator's eyes shut and head intermittently rising and drooping.   Based on these observations, Mr. Petrillo believed the operator to be in distress, either based on a need for medical assistance or due to impairment.

When Mr. Petrillo observed the Volkswagen drift into the oncoming travel lane on Cook Hill Road, he instructed the operator of the vehicle in which he was a passenger to follow the Volkswagen.   Mr. Petrillo called the Cheshire Police Department through 911 and informed them of his observations and location.   Mr. Petrillo testified that he placed the call out of a concern for public safety based on his opinion that the driver of the Volkswagen was not able to operate the vehicle safely.   After placing the 911 call, Mr. Petrillo further observed the Volkswagen driving “all over the road,” including veering into the oncoming travel lane, nearly colliding with another vehicle, forcing that vehicle onto the right shoulder to avoid the collision.   Mr. Petrillo also observed the Volkswagen cross the double yellow line into the oncoming travel lane, drifting toward a pedestrian walking a dog.   In total, Louis Petrillo estimates he observed the Volkswagen swerve out of its lane five times.   Mr. Petrillo continued to inform the Cheshire police department of the location and direction of travel of the Volkswagen.

As the Volkswagen stopped for traffic at the intersection of Route 10 and Cook Hill Road, Mr. Petrillo approached the Volkswagen on foot from approximately seven car lengths back.   Mr. Petrillo opened his wallet, displaying his badge and credentials to the operator of the Volkswagen, the defendant.   Mr. Petrillo next verbally identified himself as a police officer and instructed the defendant to exit the vehicle.   Officer Petrillo also immediately removed the car keys from the Volkswagen's ignition to prevent the defendant from driving away.   Officer Petrillo was not in uniform, was exiting a private vehicle and had no accoutrements, other than his badge and credentials, which would identify him as law enforcement.   The court credits Officer Petrillo's testimony that he identified himself as a police officer so as not to alarm the defendant.   When the defendant briefly resisted exiting the vehicle, Officer Petrillo used minimal force to remove the defendant from the vehicle.

Upon removal, the defendant had difficulty standing.   For that reason, Officer Petrillo suggested the defendant sit on the grass for his safety.   Officer Petrillo did not place the defendant under arrest.   The defendant was not handcuffed or otherwise restrained.   Officer Petrillo performed no investigation at the scene.   He did not question the defendant as to his intoxication.   He collected no evidence.   He did not ask the defendant to submit to sobriety testing of any sort.   He did not request the defendant's driver license or other vehicle paperwork.   He searched neither the vehicle nor the defendant's person.   There was no pat down of the defendant for officer safety.   Officer Petrillo testified that he did none of the things he would do as a matter of course were he acting in his capacity as a police officer.   Cheshire police officers arrived within a few minutes after the defendant was removed from his vehicle.   Cheshire police performed an investigation, including taking a witness statement from Mr. Petrillo.   The Cheshire police investigation resulted in the arrest of the defendant on the charges pending before this court.

DISCUSSION

The defendant asserts that the traffic stop by a municipal police officer outside his territorial jurisdiction was a violation of statutory authority and, therefore, violated his rights under the state constitution.   The defendant claims that the evidence gathered against him as a result of the illegal stop should be suppressed because the municipal police officer had no authority to perform an investigative stop, or a search and seizure outside of his municipality.   Specifically, the defendant claims that the extraterritorial conduct of the police officer was a violation of his rights under article first, §§ 7, 8 and 9, of the Connecticut constitution and General Statutes § 54–1f.

The defendant claims that the North Haven police officer's actions exceeded his authority because they were a violation of the statutory authority conferred to municipal police officers under § 54–1f.   According to § 54–1f(a), municipal police officers may make a warrantless arrest for any offense within their own jurisdiction.  Section 54–1f(b) allows a municipal officer to arrest a person without a warrant in any jurisdiction if there are reasonable grounds to believe a felony was committed or is being committed.   Section 54–1f(c) additionally allows municipal officers to arrest a suspect without a warrant in another jurisdiction for any offense after immediately pursuing the suspect from their own jurisdiction into any other part of the state.   The question is whether § 54–1f(a) applies to the facts of the instant case.

The state argues that § 54–1f(a) did not prevent the arrest by the Cheshire police officer, although it would prevent an arrest by the North Haven police officer.   The state relies on the assertion that the North Haven police officer did not make the arrest and that the Cheshire police officer, within the town of Cheshire, made the arrest.   The state argues that the North Haven police officer was not acting in his official capacity when interacting with the defendant.   The state further argues that the North Haven police officer, if found to have been acting in his official capacity, made an extraterritorial investigative stop or a Terry stop, rather than an arrest.  State v. Czyzewski, 70 Conn.App. 297, 797 A.2d 643, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002).   Finally, the state argues that even if the North Haven police officer is found to have arrested the defendant, the taint of the illegal arrest was removed by the subsequent investigation and arrest by the Cheshire police department.

Our Supreme Court has stated that a defendant suspected of operating a motor vehicle while under the influence of intoxicating liquor can be detained briefly without a violation of the defendant's due process rights.  State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990).   Our courts have clearly distinguished between an investigatory stop and an arrest.   See Terry v. Ohio, 392 U.S. 1, 22–27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);  State v. Lamme, supra, 184;  see also State v. Oquendo, 223 Conn. 635, 656, 613 A.2d 1300 (1992).   Our Supreme Court has acknowledged that “the police must enjoy a certain degree of latitude in making investigative stops.   Nevertheless, the requirement of a reasonable and articulable factual basis for an investigative stop must be met.”  State v. Oquendo, supra, 656.

The question of whether the term “arrest” in § 54–1f(a) means a full custodial arrest or is intended to limit municipal police officers from performing investigatory stops outside their jurisdiction has been settled by our courts in State v. Czyzewski, supra, 304.   The court in Czyzewski held that Section 54–1f does not include a prohibition on brief investigatory Terry stops, as “[p]ersons who have been the subject of a Terry stop have not yet been arrested.”  Id.

Based on the facts adduced at the motion hearing, the court finds that the North Haven officer in this case did not arrest the defendant.   Rather, it was the Cheshire officer, who, after reviewing the facts himself and making his own appraisal of the situation, as well as giving the defendant field sobriety tests, made the arrest.   It is the Cheshire authority before which the defendant must be presented.   The North Haven police officer did not investigate this matter in any way.   He immediately turned over the investigation to the correct municipal officers.   The North Haven police officer gave the Cheshire police officer a statement, as would any ordinary witness.   The officer in the proper jurisdiction took the defendant's identifying information, vehicle information and conducted the sobriety tests.   The subsequent investigation, including the statements of Officer Petrillo, by the officer from the correct jurisdiction was sufficiently removed from any taint that any initial investigatory stop may have had.

The facts of Andrews are similar to those in the present case.   In Andrews, the defendant was stopped in Derby by an off-duty Shelton police officer for suspicion of operating a motor vehicle while under the influence of intoxicating liquor.  State v. Andrews, 33 Conn.App. 590–93 (1994).   The off-duty officer was out of his jurisdiction and also happened to be a member of a volunteer fire department.   He signaled the defendant to stop his vehicle by utilizing a blue flashing fire department light.   The officer took no action other than to ask the defendant to wait and called the Derby police department to respond to the scene.  Id., 594.   This court held that the stop did not violate the fourth amendment to the United States constitution.  Id., 598.   This court relied on the finding by the trial court that the Derby police had arrested the defendant, not the off-duty extraterritorial officer.  Id., 599.

Our Supreme Court has upheld the argument that “a seizure may be constitutionally reasonable even if it is not specifically authorized by statute.”  State v. Miller, 227 Conn. 363, 375, 630 A.2d 1315 (1993).   The defendant in the present case was not arrested by an off-duty extraterritorial police officer, but was stopped by an extraterritorial police officer who was off-duty.   Officer Petrillo was not acting in his capacity as a police officer.   Even if he were acting in an official capacity, the detention of the defendant in the present case did not violate the statutory provisions of § 54–1f because the detention was not an arrest.   Furthermore, the subsequent prosecution of the defendant would not be prohibited even if the stop had been illegal.   See State v. Miller, supra, 227 Conn. 370;  State v. Fleming, supra, 198 Conn. 262–63.   The extraterritorial officer's observations of the defendant's driving behavior and the stop thereafter did not violate the Connecticut constitution.  State v. Miller, supra, 227 Conn. 377.

This Court finds that the off-duty police officer, Petrillo, was not acting under color of his authority as a police officer, and as such, his interaction with the defendant implicated neither Connecticut General Statutes § 54–1 nor any constitutional provisions.   Even if Officer Petrillo were acting as a police officer during the aforementioned interaction, his brief detention of the defendant was not an arrest but an investigatory stop.   Finally, even if the stop was an arrest, suppression of evidence is not required as any taint that the investigative stop may have had was sufficiently removed by the subsequent investigation and arrest by Cheshire police officers.

Accordingly, the defendant's motion to suppress is DENIED.

BY THE COURT

Hon. Vernon D. Oliver

Oliver, Vernon D., J.