State v. Tyner

State of Connecticut v. Jonathan Tyner

No. F02BCR180300554S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport, Geographic Area 2

May 20, 2019

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Dayton, Tracy Lee, J.

MEMORANDUM OF DECISION

Tracy Lee Dayton, Judge

On February 7, 2019, defendant Jonathan Tyner filed a motion to suppress evidence seized from his car on January 27, 2018. The defendant alleges that the police lacked reasonable suspicion to conduct a motor vehicle stop and that any evidence seized following the stop was unlawfully obtained.

The court conducted an evidentiary hearing on February 8, 2019 February 21, 2019, and February 25, 2019. Both parties filed post-hearing briefs. On April 1, 2019, the court heard post-hearing argument.

FINDINGS OF FACT

Based upon the evidence presented at the hearing, the court finds the following facts:

A. The January 19, 2018 "Threatening with a Firearm" Incident

Bridgeport Police Officer Rosemarie Thibodeau testified that on January 19, 2018 she was dispatched to the area of Stillman Street and Pembroke Street in response to a 911 call. Tr.^[1] 11-12. The caller stated that there had been a hit-and-run accident and that the driver who left the scene of the accident had threatened him with a gun. Tr 11-12.

Upon arrival, Officer Thibodeau spoke with a woman who had been involved in the incident. The woman explained that she backed her car out of her driveway in order to park on the street in front of her house. Tr. 12. As she was reversing, there was a white Ford Taurus behind her on the street that was blocking her vehicle. Tr. 12. The woman said that the driver of the Taurus would not move out of her way and instead kept "launching" his vehicle toward hers. Tr. 12. The woman and the driver of the Taurus got out of their respective cars and "words were exchanged." Tr. 12. As the woman got back into her vehicle, her husband (hereinafter "complainant") came out of the house and tried to explain to the driver of the Taurus that his wife was just trying to park her car. Tr. 12. Once again, words were exchanged. Tr. 12. The driver of the Taurus, who the complainant described as a tall, black male with a heavy-set build, pulled a gun from behind his back, cocked it, and pointed it at the complainant’s face. Tr. 11-12. When the complainant said that he was going to call the police, the suspect got back in his car, reversed it into a Jeep that was behind him, and then sped off.^[2] Tr. 12, 28. As the Taurus fled the scene, the complainant took photographs and a video of the fleeing car. Tr. 14.

Officer Thibodeau viewed the complainant’s photographs. Tr. 14-16; State’s Exhibits 3 and 4. From those, Officer Thibodeau obtained the license plate number and a description of the suspect vehicle, including the damage to the ear of the vehicle. Tr. 14, 16, 26. Officer Thibodeau then called dispatch to request that a "be-on-the-lookout" (hereinafter "BOLO") be broadcast to police officers in the area advising them that the Taurus "was involved in a threatening with a firearm" incident. Officer Thibodeau explained that the BOLO was necessary "for officer safety and for the public’s safety." Tr. 16, 19. Officer Thibodeau testified that the BOLO contained a description of the suspect; a description of the vehicle, including the license plate number and the damage on the rear of the vehicle; and the type of incident in which the vehicle was involved, i.e., "threatening with a firearm." Tr. 19, 22; State’s Exhibit 5. Officer Thibodeau read the information contained in the BOLO into the record. Specifically, she stated that it was broadcast as a hit and run:

Responsible vehicle is Connecticut reg [ ] AC05286 on a 2005 Ford Taurus color white. It comes back to 46 Herkimer Street [ ]. Vehicle should have a large dent on the rear bumper and a crack on the lower, right side of the exhaust. The operator is a black male, dark skin, 6’2," heavy set, over 300 pounds. He was last seen wearing a black sweatshirt, black pants and a beanie. This party displayed a black firearm, a possible Berretta and was last seen heading west on Ogden Street.

Tr. 23-24.

Police dispatch determined that the car was registered to the defendant, and Officer Thibodeau testified that the description of the suspect matched the information on the defendant’s driver’s license. Tr. 26. Dispatch identified multiple addresses associated with the vehicle registration and/or the defendant. Tr. 25. Police officers went to several of those locations in an unsuccessful attempt to locate the suspect and the suspect vehicle. Tr. 25.

B. The January 27, 2018 Arrest of the Defendant

Bridgeport Police Officer Michael Cavaliere testified that he is assigned to the Patrol Anti-Crime Division.^[3] Tr. 35. His responsibilities include patrolling areas of Bridgeport that are experiencing high levels of violent crime and narcotics trafficking activity. On January 27, 2018, Officer Cavaliere started his shift at 4 p.m. Tr. 67; Tr. 4 (2/21/19). He testified that at the beginning of the shift there was a broadcast over channel one, which is the Bridgeport Police Department’s main emergency channel, for a "wanted vehicle with a party threatening another with a firearm"; the broadcast included a description of the suspect. Tr. 37; Tr. 17 (2/21/2019). Officer Cavaliere said that there were also printouts available during lineup with photographs of the suspect vehicle which, he explained, is common practice for stolen vehicles and wanted parties. Tr. 37-38, 67. Officer Cavaliere kept copies of many such printouts in his patrol car, including one related to the January 19, 2018 threatening with a firearm incident. Tr. 68; Tr. 6 (2/21/2019); Tr. 3 (2/25/2019).

After lineup, Officer Cavaliere drove to the area of Iranistan Avenue and Park Avenue to patrol the area due to reports of rampant narcotics trafficking activity. Tr. 39. Officer Cavaliere was alone in his patrol vehicle. However, there were several other members of his unit separately patrolling in the same vicinity. Tr. 39, 73-74. As Officer Cavaliere drove northbound on Iranistan Avenue, he observed a white Ford Taurus with a low hanging bumper parked on the side of the road. Tr. 40, 71. The Taurus matched the description and bore the same license plate as the vehicle involved in the January 19, 2018 threatening with a firearm incident. Tr. 40, 42.

Officer Cavaliere drove past the Taurus, turned his patrol vehicle around, and parked 100 to 150 feet away in a spot that permitted him to watch the vehicle. Tr. 40, 44, 79. Officer Cavaliere did not immediately approach the Taurus because he wanted to determine if the driver of the vehicle matched the description of the suspect involved in the January 19, 2018 incident. Tr. 45. Approximately 30 to 45 minutes later, Officer Cavaliere observed a large, black male get into the Taurus; the individual did, in fact, match the description of the suspect. Tr. 40, 65, 71, 79; Tr. 5 (2/21/2019). As the suspect drove the Taurus northbound on Iranistan Avenue, Officer Cavaliere turned his patrol vehicle around and positioned himself behind the Taurus. Tr. 40, 42. He then radioed over channel one that he was behind the vehicle wanted for threatening with a firearm and requested backup for safety reasons. Tr. 40, 43, 81. Officer Cavaliere explained that he intended to conduct an investigatory stop related to the January 19, 2018 incident and "wanted ample coverage in case there was a firearm." Tr. 43, 61, 82.

Officer Cavaliere followed the Taurus for approximately three blocks until cover vehicles arrived. Tr. 40-41. Once he reached a well-lit area, Officer Cavaliere activated his overhead lights and siren. Tr. 40-41, 47. When the Taurus pulled to the side of the road, Officer Cavaliere stopped behind the car and shined his spotlight on the rear windshield of the vehicle so he could see if there was any movement in the car. Tr. 47, 62-63. At that point, Officer Cavaliere observed the driver dip his right shoulder. Tr. 47, 63. Officer Cavaliere stepped out of his patrol vehicle and carefully approached the driver’s side of the Taurus. Tr. 47. He testified that, by that time, there were approximately seven other patrol vehicles on scene. Tr. 47, 75. While Officer Cavaliere had his hand on his holster for safety reasons, neither he nor any other officer on scene drew their weapons. Tr. 47-48, 78.

Officer Cavaliere approached the driver of the car, who was later determined to be the defendant, and asked him to step out of the vehicle. Tr. 48, 64. The defendant was cooperative and complied with the request. Tr. 48, 83. Officer Cavaliere advised the defendant that he was going to pat him down for weapons both for his (Officer Cavaliere’s) and the defendant’s safety. Tr. 48. Officer Cavaliere conducted the pat down and, finding no weapons, asked the defendant to step toward the rear of the vehicle to stand with other officers. Tr. 49, 83; Tr. 10 (2/21/2019). The defendant was neither handcuffed nor placed in a patrol vehicle. Tr. 49. Officer Cavaliere then asked the female passenger to step out of the vehicle so that he could "check the wingspan of where the driver was sitting." Tr. 49. Officer Cavaliere explained that he had seen the defendant dip his shoulder down and was concerned there could be a weapon underneath the seat or within reach of the driver’s seat. Tr. 53. Based upon the BOLO, he also believed that the defendant could be in possession of a black Berretta. Tr. 53. Therefore, for officer safety reasons, Officer Cavaliere looked within the driver’s wingspan to ensure that there were no weapons within reach of the driver’s seat before he let the defendant re-enter the vehicle. Tr. 53.

...