State v. Lewis

173 Conn.App. 827

162 A.3d 775

STATE of Connecticut

v.Demetrice LEWIS

AC 38087

Appellate Court of Connecticut.

Argued March 16, 2017

Officially released June 20, 2017

Laila M. G. Haswell, senior assistant public defender, with whom, on the brief, was Lauren Weisfeld, chief of legal services, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Karen A. Roberg, assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Beach and Bishop, Js.

BISHOP, J.

The defendant, Demetrice Lewis, appeals from the judgment of conviction after the court's denial of his motion to suppress evidence in which he sought to suppress the introduction of a pistol found on his person by a police officer. Following the denial of his motion, the defendant entered conditional pleas of nolo contendere to the offenses of carrying a pistol without a permit and criminal possession of a pistol. Subsequently, the court rendered a judgment of conviction and sentenced the defendant to ten years of incarceration, execution suspended after one year, followed by a three year conditional discharge. On appeal, the defendant claims that the court erroneously denied his motion to suppress the pistol because it was obtained from him in violation of his constitutional rights against unlawful search and seizure. We affirm the judgment of the trial court.

The following background facts and procedural history are relevant to our consideration of the issues on appeal. On May 28, 2013, in a short form information, the defendant was charged with carrying a pistol without a permit in violation of General Statutes § 29–35(a), criminal possession of a firearm in violation of General Statutes § 53a–217(a)(1), and criminal possession of a pistol or revolver in violation of General Statutes § 53a–217c(a)(1). These charges were restated in a long form information dated January 9, 2015. Thereafter, on February 19, 2015, the defendant filed a written motion to suppress evidence on the basis of his claim that any evidence taken from him had been unlawfully seized during an unlawful stop and ensuing search of his person by Officer Milton DeJesus.

On October 24, 2014, following an evidentiary hearing on the defendant's motion to suppress at which DeJesus testified, the trial court, Cradle, J. , issued a written memorandum of decision in which it found the following facts, all of which find substantial support in the evidentiary record: "On the evening of May 24 and into the early morning hours of May 25, 2013, Officer DeJesus of the New Haven Police Department was assigned to patrol the area of district four in New Haven. District four encompasses the area of Chapel Street and Derby Avenue, which is known for its problems with drug sales and prostitution. At approximately 4:20 a.m., officers were dispatched to 36 Derby Avenue in response to a report of a domestic disturbance. The call from dispatch indicated that a female had reported that she had been choked by an individual named ‘Antoine’ who had fled the residence. The caller indicated that she believed she heard ‘Antoine’ outside in the bushes. Dispatch described the perpetrator as a black male dressed in all black. Officer DeJesus was working alone that evening, in uniform, in a marked patrol vehicle. At the time of the call, he was in the area of Whalley Avenue, approximately one quarter mile from 36 Derby Avenue and was the only officer nearby. Being in close proximity, he was able to respond to the call and proceeded to 36 Derby Avenue. Approximately one minute after receiving the call from dispatch, while en route to 36 Derby Avenue, he approached the corner of Chapel Street and Derby Avenue and spotted the defendant, a black male, in dark clothing in the driveway to the right of 1494 Chapel Street, which is almost at the corner of Chapel Street and Derby Avenue. The location where the defendant was standing is less than a one minute walking distance from 36 Derby Avenue, and in close proximity to 1494 Chapel Street.

"Based on the testimony provided by Officer DeJesus and photographs taken after his arrest, although the defendant was not wearing all black when he was apprehended, he was wearing dark clothing more specifically, dark blue jeans, a dark grey jacket, and a navy blue skull cap. Officer DeJesus testified, however, that due to the heavy rain that evening, the defendant's clothing appeared to be ‘all black’ when he first spotted the defendant. When Officer DeJesus first identified the defendant on the corner of Chapel and Derby, he was standing alone, in the pouring rain and appeared to be talking on a cell phone. At that hour of the morning it was dark, and the area was only lit by a street lamp that illuminated the street onto the sidewalk area. Although Officer DeJesus could see the defendant, the area was not well lit. Given the circumstances and the nature of the clothing the defendant was actually wearing, he matched the general description provided by dispatch of the suspect in the domestic violence incident.

"Observing the defendant and believing him to match the description of the suspect, Officer DeJesus stopped his patrol vehicle on the left side of the Chapel–Derby intersection about fifteen to twenty feet away from the defendant to investigate further. While seated within his patrol vehicle, Officer DeJesus rolled down the window and inquired, ‘yo my man, what's your name?’ The defendant did not respond or acknowledge Officer DeJesus in any way. Officer DeJesus then exited his patrol vehicle to investigate further. As he approached the defendant, he attempted to engage the defendant in a dialogue to determine who he was and what he was doing in the area. He asked for his name and identification but the defendant did not give a coherent answer and was ‘just ... mumbling back’ and ‘trying to make words, but not being clear or concise ....’ Based upon the defendant's conduct [and] appearance, Officer DeJesus believed the defendant to be intoxicated and/or under the influence of drugs. The officer approached the defendant at an angle, so as not to appear confrontational, and again asked for the defendant's name. The defendant mumbled what sounded like ‘Michael,’ and continued to appear to talk on his cell phone.

"Officer DeJesus observed that the defendant was ‘not ... staying stable,’ and kept ‘swaying’ and ‘moving around.’ He noted the defendant's ‘eyes were not right’ and that he was not acting normal. The officer further described the defendant's stance as ‘guarded.’ When Officer DeJesus asked the defendant where he was coming from, the defendant muttered, ‘I'm in a program.’ On the basis of his training and experience, Officer DeJesus deduced that because (1) the defendant fit the description of the suspect wanted in connection with a violent domestic assault in that area, (2) the defendant acted in a guarded and evasive manner, and (3) individuals under the influence of alcohol or narcotics are more likely to be violent or aggressive, a patdown of the defendant was warranted for officer safety.

"Officer DeJesus approached the defendant and conducted a brief patdown that he described as a ‘sweep’ for weapons. The entire encounter lasted less than one minute. During the course of the patdown, the defendant dropped his hand toward his side at which point Officer DeJesus told him ‘no, hold on a second.’ Officer DeJesus simultaneously reached for the defendant's waistband and felt the butt end of a firearm. He then removed a nine millimeter handgun from the defendant's waistband. Upon removing the gun, the defendant initiated a struggle for the weapon and the two wrestled for a brief moment, ultimately rolling into the street. In the interim, responding officers arrived on the scene and were able to subdue the defendant with the assistance of a canine. The defendant was then arrested and taken into custody."

In denying the defendant's motion to suppress, the trial court concluded first that the police officer had not seized the defendant at the moment he stopped his patrol car nearby the defendant, but rather later, after DeJesus had approached the defendant and physically touched him. The court found: "When Officer DeJesus first approached the defendant in his police cruiser, he stopped fifteen to twenty feet away from him. He did not activate his lights or sirens, and he did not use any language that connoted a display of authority. He asked his initial question from a seated position within his cruiser. In fact, the initial colloquial dialog with the defendant beginning with Officer DeJesus addressing the defendant as ‘my man,’ connotes a casual encounter." The court continued: "After the defendant failed to respond to his inquiry, Officer DeJesus exited his vehicle and approached the defendant to merely ask questions to determine his identity and investigate. The officer approached the defendant at an angle, so as not to appear confrontational and at no time did Officer DeJesus brandish his weapon. The officer did not engage in coercive or threatening behavior." The court concluded: "In the present case, the officer did not display any authority until he observed the defendant's questionable and guarded behavior. On the basis of this evidence, the court concludes that the defendant was not seized until Officer DeJesus physically touched him and commenced the patdown."

The court next concluded that the seizure was justified because DeJesus had a reasonable and articulable suspicion that the defendant was engaged in criminal activity. The court found: "[T]he nature of the 911 call coupled with Officer DeJesus' observations of the defendant immediately after the crime occurred, warranted a brief stop of the defendant. Here, the alleged criminal activity had occurred only moments before Officer DeJesus encountered the defendant in very close proximity to the location of the alleged crime....