State of Connecticut v. Shean Congdon (2013)

MEMORANDUM OF DECISION REGARDING MOTION TO DISMISS

I. Procedural History

The defendant was charged on December 15, 2012 with driving while under the influence of alcohol or drugs, in violation of C.G.S. Section 14–227a.   On April 2, 2013, the defendant filed a Motion to Dismiss the charge pending against him.¹  The defendant claims that the Waterford police officer who stopped his motor vehicle on December 15, 2012 did not have a reasonable and articulable suspicion to stop the vehicle.   Defendant further argues that once stopped, there were errors in the manner in which the field sobriety tests were administered, that he was physically unable to complete the tests successfully, and that no probable cause existed for his arrest.

A contested hearing on the Motion to Dismiss was held before the undersigned on July 23, 2013 and October 16, 2013.   The court has carefully considered all of the evidence that was introduced at the hearing, and the legal arguments of counsel.

II. Factual Findings

The arresting officer, Gil Maffeo of the Waterford Police Department, testified at the hearing.   The court credits the testimony of Officer Maffeo.   The court's factual findings based on Maffeo's testimony follows.

Officer Maffeo has served with the Waterford Police Department for thirteen years, and worked prior to that time for approximately ten months with the University of New Haven Police Department.   Officer Maffeo received training at the P.O.S.T. Academy in Meriden and was trained in DWI enforcement, traffic enforcement, domestic violence, interview and interrogation, and search and seizure.   He also received advanced training in DWI enforcement and has made well over two hundred DWI stops.

On December 15, 2012 at approximately 2:21 in the morning, Officer Maffeo was driving on Route 85 north in the town of Waterford when he observed a tan Ford Taurus traveling north in the right lane.   The vehicle was drifting from the right lane into the left lane, crossing over the line, so the officer began to follow it.   The officer observed the vehicle cross over the line several times over a period of a minute or two.   After finding a safe place to activate his vehicle's emergency lights, Officer Maffeo initiated a traffic stop.  (7/23/13 Transcript, p. 8–9, hereinafter T–1.) Upon approaching the driver of the vehicle, the officer “could smell the odor of an alcoholic beverage on the operator's breath.”   The officer “noticed that the operator had red eyes and they were also glassy and bloodshot.”   The officer identified the driver as the defendant from the defendant's Connecticut driver's license.   While engaging the defendant in conversation, the defendant admitted to the officer that he had consumed alcoholic beverages and that he had smoked marijuana.   Additionally, the officer observed that the defendant had slurred speech, and had poor coordination while retrieving his license, registration and insurance card.  (T–1, p. 9–12.)

Maffeo asked the defendant to exit the vehicle in order to perform field sobriety tests.   Prior to giving the defendant instructions on the field sobriety tests, Maffeo asked the defendant whether he had any physical disabilities that would prevent him from completing the tests.   The defendant stated that he had been in a car accident several years prior and had suffered head and spinal injuries, but that he would try to complete the tests.  (T–1, p. 13–14.)   Regarding the horizontal gaze and nystagmus test, among other observations, Maffeo observed a lack of smooth pursuit, and the defendant did not perform the test to standard.  (T–1, pp. 14–16.)   The defendant did not perform the walk and turn test, or the one leg stand test to standard (T–1, p. 29–31), but did perform the alphabet test with slow and deliberate speech.  (T–2, p. 14.) ²  While Maffeo was interacting with the defendant, he noticed that the defendant's speech was slow and slurred.  (T–1, p. 31.)   Based upon all of his observations, Officer Maffeo concluded that the defendant had been driving under the influence of alcohol or drugs and placed the defendant under arrest.  (T–1, p. 35.) ³

III. Discussion

a. Investigatory Stop

The defendant was seized for purposes of an investigatory detention pursuant to the Fourth Amendment to the U.S. Constitution and Article First, Sections 7, 8 and 9 of the Connecticut Constitution at the time at which Maffeo initiated the investigatory traffic stop of the defendant's vehicle.⁴  State v. Milotte, 95 Conn.App. 616, 620 (2006), citing State v. Donohue, 251 Conn. 636, 643, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924 (2000);  State v. Pierog, 33 Conn.App. 107, 634 A.2d 301 (1993).

“In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity.”  State v. Milotte, supra, at 621, citing State v. Donohue, supra, at 644.  (Internal quotation marks omitted.)  “Police have the right to stop for investigation short of arrest where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ․ [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  Id., 645.  (Internal quotation marks omitted.)   A particularized and articulable reason to conduct an investigatory stop must be based on more than mere hunch.  Terry v. Ohio, 392 U.S. 1, 27 (1968);  State v. Oguendo, 223 Conn. 635 (1992).   In evaluating the validity of a stop, the court must consider whether, in light of the totality of the circumstances, the detaining officer had a particularized and objective basis for suspecting the person stopped of criminal activity.   State v. Pierog, supra at 112, citing U.S. v. Cortez, 449 U.S. 441, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

In the case at bar, Officer Maffeo observed the defendant's vehicle drift from the right lane to the left lane, crossing over the center line several times before initiating the stop.   The drifting behavior caused by the defendant's driving was sufficient to cause the officer to reasonably suspect that the defendant was driving under the influence of drugs or alcohol;  in short, it was the defendant's erratic operation that led Maffeo to reasonably suspect that a crime was afoot.   The officer's stop of the defendant's vehicle was not based on a mere hunch, but rather, was based on the specific and articulable conduct the officer observed which led him to reasonably conclude in light of his experience that a crime was afoot.   Based upon the totality of the circumstances, Maffeo had a reasonable and articulable suspicion, on an objective basis to believe that the defendant may have been driving under the influence of alcohol or drugs.   Therefore, the investigatory stop of the defendant was justified.

b. Probable Cause to Arrest

Probable cause for an arrest exists when there are facts and circumstances within a police officer's knowledge sufficient to justify the belief of a reasonable person that an offense has been or is being committed.  State v. Pierog, supra at 115, citing State v. Royce, 29 Conn.App. 512, 516, 616 A.2d 284 (1992).  “While probable cause requires more than mere suspicion ․ the line between mere suspicion and probable cause is often fine and that line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances.”  Id., quoting State v. Royce, supra at 517.

The facts as found sufficiently establish probable cause for the arrest of the defendant.   Officer Maffeo observed the defendant operating his vehicle erratically.   Upon the initial stop, the defendant's breath smelled of alcohol, his speech was slurred, and his eyes were red, glassy and bloodshot.   Also, the defendant admitted drinking alcohol and ingesting marijuana.   Furthermore, the defendant did not perform to standard three of the four field sobriety tests.   Although the defendant claims his failure to perform the field sobriety tests to standard was the result of his alleged physical disability caused from an earlier car accident, there was insufficient evidence to support such a claim.   The overwhelming evidence supports the court's conclusion that the defendant was unable to perform the field sobriety tests to standard due to the fact that he was under the influence of drugs or alcohol, or a combination of both.   See State v. Morelli, supra (failed field sobriety tests indicative of driving under the influence, rather than physical disability).   The facts and circumstances known to Maffeo—the erratic driving, the slurred speech and odor of alcohol, the red, glassy and bloodshot eyes, the admissions to drinking alcohol and ingesting marijuana, the failed sobriety tests—justify the belief of a reasonable person that the defendant had committed the offense of driving under the influence.

The facts of the Pierog case are similar to the facts before this court.   In Pierog, the defendant was afforded a pre-trial hearing on a Motion to Dismiss based on the defendant's identical claims that the investigatory stop was unjustified, and that there was insufficient probable cause to justify the arrest.   The court in Pierog upheld the trial court's determination that a reasonable and articulable suspicion existed to justify the stop, and that probable cause existed for the arrest.  Pierog, supra.   The officer in Pierog had received dispatched communications relating to a driver operating erratically, along with a description and license plate of the vehicle.   The last dispatch included the name and address of the owner of the vehicle.   The officer went to the owner's home and found the vehicle, parked oddly in the driveway, with the engine running and the lights on.   The defendant was slumped behind the wheel of the car with his head back and mouth open;  his speech was slurred, and his breath had a strong odor of alcohol.   The court found that based upon these facts, the officer possessed a reasonable and articulable suspicion to further his investigation.  Id. When the defendant exited his vehicle, the officer observed that the defendant had urinated on himself and was unsteady on his feet.   Concluding that field sobriety tests were both unnecessary and unsafe, and based upon the officer's observations, the defendant was arrested for driving while under the influence of drugs or alcohol.   The court concluded that based upon all of the circumstances, probable cause existed for the arrest.  Pierog, supra at 115.

As in the Pierog case, the facts and circumstances before the court establish probable cause for the arrest.   Maffeo's knowledge of the circumstances included the defendant's erratic driving, the defendant's slurred speech, the odor of alcohol, the appearance of his eyes, the admission of drinking alcohol and ingesting marijuana, and the failed sobriety tests.   All of these facts and circumstances reasonably justify the officer's belief that the defendant was driving while under the influence of drugs or alcohol (or both), therefore, justifying the defendant's arrest.

IV. Conclusion

Based upon a totality of the circumstances, there existed a reasonable and articulable suspicion to justify the investigatory stop.   Based upon the facts and circumstances of the case, there existed a reasonable belief that the defendant had committed the offense of driving while under the influence of drugs or alcohol.   Therefore, the Motion to Dismiss is denied.

BY THE COURT

Goodrow, J.

FOOTNOTES

FN1. In his Motion to Dismiss, the defendant claims that there existed no reasonable and articulable suspicion to justify the stop, and that no probable cause existed to justify the arrest.   At argument on the Motion to Dismiss, defense counsel argued:  “․ It's a different standard—probable cause—to arrest under these circumstances than it is just for a motor vehicle stop and we're not questioning the stop, but it's what happened after the stop ․” (Transcript 10/16/13, p. 18, hereinafter T–2.) Based upon the entire record regarding the Motion to Dismiss, the court concludes that the defendant's claim is two-fold, both as to the stop and as to the arrest..  FN1. In his Motion to Dismiss, the defendant claims that there existed no reasonable and articulable suspicion to justify the stop, and that no probable cause existed to justify the arrest.   At argument on the Motion to Dismiss, defense counsel argued:  “․ It's a different standard—probable cause—to arrest under these circumstances than it is just for a motor vehicle stop and we're not questioning the stop, but it's what happened after the stop ․” (Transcript 10/16/13, p. 18, hereinafter T–2.) Based upon the entire record regarding the Motion to Dismiss, the court concludes that the defendant's claim is two-fold, both as to the stop and as to the arrest.

FN2. At the request of Maffeo, the defendant blew into a portable breath test.   At the hearing on the Motion to Dismiss, the defendant objected to the admissibility of the evidence of the portable breath test, and the test result, claiming that the test is not scientifically reliable and that Maffeo had not properly administered the test pursuant to regulations promulgated by the Department of Motor Vehicles.   The court makes no finding as to the reliability of the portable breath test, its admissibility for purposes of the Motion to Dismiss, or any claim of any regulatory violations.   Further, the court has not considered the evidence involving the portable breath test in rendering its decision..  FN2. At the request of Maffeo, the defendant blew into a portable breath test.   At the hearing on the Motion to Dismiss, the defendant objected to the admissibility of the evidence of the portable breath test, and the test result, claiming that the test is not scientifically reliable and that Maffeo had not properly administered the test pursuant to regulations promulgated by the Department of Motor Vehicles.   The court makes no finding as to the reliability of the portable breath test, its admissibility for purposes of the Motion to Dismiss, or any claim of any regulatory violations.   Further, the court has not considered the evidence involving the portable breath test in rendering its decision.

FN3. State's Exhibit 2 for Identification is a copy of Maffeo's police incident report.   State's Exhibit 3 (full) is a redacted copy of the incident report, excluding the breathalyzer strip and any post-arrest statements made by the defendant..  FN3. State's Exhibit 2 for Identification is a copy of Maffeo's police incident report.   State's Exhibit 3 (full) is a redacted copy of the incident report, excluding the breathalyzer strip and any post-arrest statements made by the defendant.

FN4. The Fourth Amendment to the United States Constitution provides in pertinent part.  “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated ․” Article First, Section Seven of the Connecticut Constitution provides in pertinent part:  “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures ․” Article First, Section Eight of the Connecticut Constitution provides in pertinent part:  “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law ․” Article First, Section Nine of the Connecticut Constitution provides in pertinent part:  “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”.  FN4. The Fourth Amendment to the United States Constitution provides in pertinent part.  “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated ․” Article First, Section Seven of the Connecticut Constitution provides in pertinent part:  “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures ․” Article First, Section Eight of the Connecticut Constitution provides in pertinent part:  “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law ․” Article First, Section Nine of the Connecticut Constitution provides in pertinent part:  “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

Goodrow, Karen, J.