CopLaw Update

September 16, 2008

Editor's Comments: The below excerpts from linked and cited Connecticut State Supreme Court ruling identifies a public policy responsibility of Connecticut's Law Enforcement officers to conduct 'basic police work' investigations short of a defined 'seizure'. When and 'if' a seizure occurs is identified by the 'totality of circumstances' and is a question of mixed facts and law. Both the facts and the law (Federal & State) of when a seizure occurs are identified within the language of this case.

STATE OF CONNECTICUT v. DAVID BURROUGHS

(SC 17894)

Rogers, C. J., and Katz, Vertefeuille, Zarella and Schaller, Js.

Argued May 22—officially released September 23, 2008

The sole issue in this appeal is whether the Appellate Court properly concluded that the defendant, David Burroughs, was seized within the meaning of article first, '' 71 and 9,2 of the Connecticut constitution when two uniformed, armed police officers exited their patrol car and approached his vehicle.

 The defendant appealed to the Appellate Court, claiming that he was the victim of an illegal seizure and that the trial court improperly had denied his motion to suppress. The Appellate Court agreed and reversed with respect to the trial court’s decision on the motion to suppress, concluding that a ‘‘seizure occurred at the time that the officers left their marked patrol car and

began their approach [toward] the defendant’s vehicle because a reasonable person would not have felt free to leave in that situation.’’

 On appeal to this court,4 the state claims that the defendant was not seized until after the police had developed a reasonable and articulable suspicion that he was engaged in criminal activity, which occurred when Duguay came close enough to the defendant’s vehicle to detect the smell of marijuana.

 The defendant responds that he was seized illegally prior to the existence of probable cause or a reasonable and articulable suspicion justifying an investigative stop when the police officers exited their patrol car and began to approach his vehicle. We agree with the state and conclude that there was an insufficient show of police authority before the officers detected the smell of marijuana to establish a seizure under the state constitution.

 We next articulate the legal test used to determine when a person is ‘‘seized’’ within the meaning of article first, '' 7 and 9, of our state constitution. We previously have concluded that a person is seized when, ‘‘by means of physical force or a show of authority, his freedom of movement is restrained.’’ (Internal quotation marks omitted.) State v. Ostroski, 186 Conn. 287, 291, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982).6 The key consideration is whether, ‘‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’’7 (Internal quotation marks omitted.)

Id., 292, quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). The inquiry is objective, focusing on a reasonable person’s probable reaction to the officer’s conduct. See, e.g., State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004) (‘‘[i]n determining the . . . question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard’’ [internal quotation marks omitted]).

 A proper analysis of this question is necessarily fact intensive, requiring a careful examination of the entirety of the circumstances in order to determine whether the police engaged in a coercive display of authority such that a reasonable person in the defendant’s position would not have felt free to leave. See State v. Ostroski, supra, 186 Conn. 292; see also People v. Bora, 83 N.Y.2d 531, 535, 634 N.E.2d 168, 611 N.Y.S.2d 796 (1994) (‘‘There are no bright lines separating various types of police activity. Determining whether a seizure occurs . . . involves a consideration of all the facts and a weighing of their individual significance . . . .’’).

In United States v. Mendenhall, supra, 446 U.S. 554, the Supreme Court listed a number of factors that, ‘‘in view of all of the circumstances surrounding the incident,’’ might indicate a sufficient show of authority to create a seizure. ‘‘Examples of circumstances that might

indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’’ Id.; see also Michigan v. Chesternut, 486 U.S. 567, 575, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988) (‘‘[T]he police conduct involved . . . would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [the] respondent’s freedom of movement. The record does not reflect that the police activated a siren or flashers; or that they commanded [the] respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block [the] respondent’s course or otherwise control the direction or speed of his movement.’’). Relevant factors described by other courts as useful in assessing ‘‘the degree of authority exhibited by the police officer during his interaction with an individual’’ include ‘‘restricting a defendant’s freedom of movement or . . . isolating him in some manner . . . parking [the police] cruiser in close proximity to a defendant’s vehicle, displaying weapons . . . [or using verbal commands to indicate that the defendant is not free] to terminate the encounter.’’ (Citations omitted.) State v. Kimble, 106 Conn. App. 572, 589, 942 A.2d 527, cert. denied, 287 Conn. 912, 950 A.2d 1289 (2008); see also People v. Bora, supra, 83 N.Y.2d 535–36 (relevant inquiries include ‘‘was the officer’s gun drawn, was the individual prevented from moving, how many verbal commands were given, what was the content and tone of the commands, how many officers were involved and where the encounter took place’’).

In the present case, the Appellate Court concluded that the defendant was seized at some point after the officers parked their patrol car behind his vehicle but before Officer Duguay detected the smell of marijuana. See State v. Burroughs, supra, 99 Conn. App. 421.

The circumstances on which the Appellate Court relied in drawing this conclusion included the time of night, the marked police cruiser, the fact that the officers were uniformed and armed, the fact that the patrol car’s headlights were illuminated when the officers pulled up behind the defendant’s vehicle, and the fact that the officers approached from behind on both sides of the defendant’s vehicle. Id., 421–22. The Appellate Court thus rejected the reasoning of the trial court, which had relied on State v. Lewis, 60 Conn. App. 219, 759 A.2d 518, cert. denied, 255Conn. 906, 762 A.2d 911 (2000), in reaching the opposite conclusion.

In Lewis, a police officer was dispatched at night to investigate an anonymous report of a suspicious vehicle. Id., 234. Upon arriving at the location, the officer, who was alone, parked his patrol car behind the suspicious vehicle but did not activate his car’s flashing lights or siren. Id. He then exited the car carrying a flashlight, approached the suspicious vehicle, tapped on the window and asked the occupants what they were doing there. Id. The driver responded that his car had broken down and that he was waiting for assistance. Id. After failing to produce identification, the driver told the officer his name, at which point the officer recognized him as someone wanted on an outstanding warrant. Id., 234–35. Upon confirming that the driver was indeed the individual named in the warrant, the officer arrested him.8 Id., 235.

The trial court denied the motion, ruling that, under the circumstances, the police had a right to investigate the report of a suspicious vehicle and to inquire as to the activity of its occupants. See id. The Appellate Court affirmed the judgment, concluding that no seizure had occurred. Id., 241.

We agree with the trial court that the salient facts of the present case are similar to those in Lewis, Mendenhall and other previously cited cases in which it was concluded that the police conduct in question did not constitute a seizure. See Michigan v. Chesternut, supra, 486 U.S. 574–76; United States v. Mendenhall, supra, 446 U.S. 555; State v. Kimble, supra, 106 Conn. App. 589–91; State v. Lewis, supra, 60 Conn. App. 241; People v. Bora, supra, 83 N.Y.2d 535–36. The officers in the present case were dispatched to investigate an anonymous report of a suspicious vehicle. Reaching the address indicated in the dispatcher’s report, the officers observed a vehicle essentially matching the description in the report. After they drove past the defendant’s vehicle, they turned around and parked behind it. At no time prior to detecting the smell of marijuana did the officers activate their overhead flashing lights,9 side spotlights or sirens, direct any verbal commands to the defendant or communicate with him in any way. The officers were uniformed and armed but never unholstered or even gripped their firearms. Although we recognize that a uniformed law enforcement officer is necessarily cloaked with an aura of authority, this cannot, in and of itself, constitute a show of authority sufficient to satisfy the test for a seizure under Mendenhall. See State v. Hill, 237 Conn. 81, 91, 675 A.2d 866 (1996) (‘‘[t]he mere approach by a police officer, either in a police car or on foot, does not alone constitute a show of authority sufficient to cause the subject of the officer’s attention reasonably to believe that he or she is not free to leave’’); see also State v. Kimble, supra, 590–91. The consequences of a contrary conclusion would be significant indeed, for any police presence at all would then necessitate a finding of a show of authority sufficient to satisfy the test for determining whether a seizure occurred.We thus conclude that the mere presence of the two officers, unaccompanied by any aggressive or coercive police conduct, did not constitute a show of authority within the meaning of Mendenhall and that it was not improper for the officers to make a brief inquiry of the defendant to determine whether he or his passenger required assistance.

The defendant argues that the facts of the present case more closely resemble those of State v. Donahue, 251 Conn. 636, 643, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000), in which this court concluded that the police conduct in question constituted a seizure. It is important to note that ‘‘the issue of whether [the officer’s] detention of the driver constituted a ‘seizure’ [was] not a certified issue before this court . . . .’’ Id., 642.

We ultimately reversed the judgment of the Appellate Court; id., 648; concluding that the seizure of the driver was not warranted by sufficient indicia of suspicion. Id., 645 (factors cited by officer as reasons for detention ‘‘[did] not form the proper bases for rational inferences that warrant[ed] [the officer’s] intrusion [and] . . . [did] not rise to the standard of a reasonable suspicion that we have found in other cases’’).

We conclude that the facts in Donahue are distinguishable from those in the present case. We agree that a reasonable person in the defendant’s position would not have felt free to leave if, as in Donahue, the officers in the present case had demonstrated their authority by pulling up behind the defendant’s vehicle and activating their patrol car’s overhead flashing lights. See id., 643. In the present case, however, there was no significant show of authority by the police officers when they simply pulled up behind the defendant’s vehicle without activating their patrol car’s sirens or flashing lights, exited the patrol car and approached the defendant’s vehicle for the purpose of determining whether the defendant needed assistance. The defendant’s argument is therefore unpersuasive.

It is well established that an officer’s subjective intent in pulling over a motorist is irrelevant to the question of whether the officer’s conduct violates the constitution.See, e.g., Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (‘‘foreclose[ing] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved’’); see also State v. Rodriguez, 239 Conn. 235, 245 n.17, 684 A.2d 1165 (1996) (‘‘the standard for determining whether reasonable suspicion or probable cause existed in a given scenario is an objective, rather than a subjective, one’’). It follows that an officer’s speculation regarding his own hypothetical future conduct, even if such conduct would have been unconstitutional, is irrelevant to an analysis of the actions actually taken by the police in any given case.

There are also strong policy arguments in support of the officers’ conduct in this case. As the Appellate Court stated in State v. Lewis, supra, 60 Conn. App. 219, ‘‘[i]f [an officer is] constitutionally prohibited from investigating a dispatcher’s report regarding a suspicious car and making brief inquiries of its occupants, not only would it stifle basic police work and be inexplicably unprotective of the general public, but it . . . would greatly disserve the experience of sensible police officers in evaluating the totality of the circumstances, which must be taken into account.’’ Id., 243–44; see also State v. Foote, 85 Conn. App. 356, 361, 857 A.2d 406 (2004) (discussing community caretaking functions of local police officers, such as assisting motorists, apart from functions of ‘‘detection, investigation, or acquisition of evidence relating to the violation of a criminal statute’’ [internal quotation marks omitted]), certs. denied, 273 Conn. 937, 875 A.2d 43, 44 (2005); State v. Kidd, 59 Conn. App. 598, 602, 757 A.2d 1168 (2000) (‘‘[c]ourts have made clear that police officers do not bring about a seizure merely by asking questions of a citizen, even when the officer identifies himself as a police officer’’ [internal quotation marks omitted]), cert. denied, 255 Conn. 932, 767 A.2d 106 (2001). It is axiomatic that the constitution does not prohibit, or even discourage, healthy, mutually beneficial intercourse between the public and the police sworn to protect them. See, e.g., Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984) (‘‘[o]bviously, not all personal intercourse between policemen and citizens involves seizures of persons’’ [internal quotation marks omitted]), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 20 L.Ed. 2d 889 (1968); Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (‘‘law enforcement officers do not violate the [f]ourth [a]mendment by merely approaching an individual on the street or in another public place, by asking him 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 in a criminal prosecution his voluntary answers to such questions’’); United States v. Mendenhall, supra, 446 U.S. 554 (‘‘characterizing every street encounter between a citizen and the police as a ‘seizure,’ while not enhancing any interest secured by the [f]ourth [a]mendment, would impose wholly unrealistic restrictions [on] a wide variety of legitimate law enforcement practices’’); United States v. Thompson, 941 F.2d 66, 69 (2d Cir. 1991) (‘‘[e]ven if officers have no basis to suspect an individual, they may generally ask him questions’’); State v. Davis, 85 Conn. App. 755, 761, 859 A.2d 50 (2004) (‘‘[t]he police officers’ questioning of the defendant alone did not constitute a seizure or illegal activity’’). This is the primary reason why an individual is not considered seized by the police, thus implicating constitutional safeguards, unless and until, ‘‘by means of physical force or a show of authority, his freedom of movement is restrained’’ such that ‘‘a reasonable person would have believed that he was not free to leave.’’ (Internal quotation marks omitted.) State v. Hill, supra, 237 Conn. 87.

Police officers must be given some measure of reasonable discretion and flexibility to fulfill their duties. See, e.g., Florida v. Royer, supra, 460 U.S. 497; United States v. Mendenhall, supra, 446 U.S. 554; State v. Lewis, supra, 243–44

We therefore conclude that, because the conduct of the officers did not constitute a show of authority sufficient to cause a reasonable person in the defendant’s position to believe that he was not free to leave, and in light of the important public policy considerations that we previously have enumerated, no illegal seizure occurred.

Foot-Notes:

1 Article first, ' 7, of the Connecticut constitution provides in relevant part: ‘‘The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .’’

2 Article first, ' 9, of the Connecticut constitution provides: ‘‘No person shall be arrested, detained or punished, except in cases clearly warranted by law.’’

4 We granted the state’s petition for certification to appeal limited to the following issue: ‘‘Did the Appellate Court properly conclude that, under the state constitution, the police conduct constituted a seizure when the police left their patrol car and began to approach the defendant’s vehicle?’’ State v. Burroughs, 282 Conn. 909, 922 A.2d 1099 (2007).

5 We note that, although the United States Supreme Court articulated this standard in the context of reviewing a trial court’s determination that a defendant was in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); see Thompson v. Keohane, 516 U.S. 99, 112–13, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995); the test for determining custody for Miranda purposes is the same in all material respects as the test that this court uses to determine whether an individual is seized, that is, whether a reasonable person in the defendant’s position would have believed that he was not free to leave. We also note that this court has been inconsistent in articulating the test for reviewing whether a seizure has occurred. In one line of cases, we have stated that whether a seizure occurred is a question of fact. E.g., State v. Santos, 267 Conn. 495, 504, 838 A.2d 981 (2004); State v. Hill, 237 Conn. 81, 87, 675 A.2d 866 (1996); State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). In other cases, we have distinguished between the trial court’s findings of ‘‘historical’’ fact, which we do not overturn unless they are clearly erroneous, and the ultimate question of whether a seizure occurred, which is subject to a ‘‘scrupulous independent review of the record to ensure that the trial court’s determination was supported by substantial evidence.’’ State v. James, 237 Conn. 390, 405–406, 678 A.2d 1338 (1996); see also State v. Atkinson, 235 Conn. 748, 759 & n.17, 670 A.2d 276 (1996). We now clarify that appellate review of whether a seizure occurred is a mixed question of law and fact, and when there is no dispute as to the underlying facts, as in the present case, or when the trial court’s finding of historical facts is not clearly erroneous or is supported by substantial evidence, it is the duty of the reviewing court to make an independent legal determination of whether a reasonable person in the defendant’s position would have believed that he was not free to leave. See Thompson v. Keohane, supra, 516 U.S. 112–13; see also State v. Atkinson, supra, 235 Conn. 773 n.3 (Berdon, J., dissenting).  Although the majority in Atkinson noted that we never have expressly labeled this determination a mixed question of law and fact; State v. Atkinson, supra, 759 n.17; we do so now to avoid confusion in future cases in which appellate review is required.

6 We recognize that the United States Supreme Court has clarified the operation of the Mendenhall test in determining whether an individual is seized under the fourth amendment to the federal constitution. In California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), the court declared that Mendenhall ‘‘states a necessary, but not a sufficient, condition for seizure—or, more precisely, for seizure effected through a ‘show of authority.’ Mendenhall establishes that the test for existence of a ‘show of authority’ is an objective one . . . .’’ (Emphasis in original.) Id., 628. The court in Hodari D. equated seizure with common-law arrest and fashioned a bright line test on that basis, stating that ‘‘[a]n arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority.’’ (Emphasis in original.) Id., 626. We expressly have declined, however, to incorporate the Supreme Court’s definition of ‘‘seizure’’ in Hodari D. into our own constitutional jurisprudence. State v. Oquendo, 223 Conn. 635, 652, 613 A.2d 1300 (1992) (‘‘we decline to adopt the restricted definition of a seizure employed by the United States Supreme Court in Hodari D. and adhere to our precedents in determining what constitutes a seizure under the state constitution’’). Although the state urges us to address the continued validity of our decision in Oquendo to reject Hodari D., we do not believe that the facts in the present case provide the appropriate context for consideration of the question and we therefore decline to do so.

9 We find it insignificant that the officers in the present case kept their headlights on, as this is a reasonable practice that would seem necessary, or at least advisable, for the officers’ and the occupants’ safety when the event occurs at night

Editor's Comment: The reader is encouraged to provide this information to their agency's Legal Advisor for clarification and understanding as it relates to their respective Constitutional and Statutory law as filtered through their respective agency Use of Force Policy.

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