By Mitchell S. Brody [*]
I. Introduction
In State v. Dukes,[1] the Connecticut Supreme Court adopted a "living" approach to analyzing the Connecticut Constitution, deriving its meaning primarily from society's contemporary beliefs and requirements rather than exclusively from that document's original constitutional meaning.[2] But the Court employed this analysis for the purpose of expanding state constitutional rights beyond the rights afforded by the U.S. Constitution, which reflected the shared values amongst the Court's membership and the strength of its commitment to a bedrock belief in, or ideology of,[3] expansive rights. And in two early and seminal cases, State v. Linares[4] and State v. Oquendo,[5] the Court made clear that this ideology was paramount by running roughshod over its analysis of the state constitution as a living document in order to expand rights.
First, in Linares, the Court considered the contemporary meaning of article first, sections 4 and 5, the Connecticut Constitution, and concluded that these free speech provisions provided greater protection than the First Amendment to the U.S. Constitution. As I have argued before,[6] the Linares Court transparently misinterpreted the original meaning of sections 4 and 5 in order to construe the contemporary meaning of these provisions as requiring the expansion of state free-speech rights. Second, here, I examine and discuss the Oquendo Court's conclusion that the Connecticut Constitution, article first, section 7, furnishes greater protection than the Fourth Amendment to the U.S. Constitution in defining the seizure of a person.[7] I posit that the Oquendo Court, in order to expand state constitutional rights, unjustifiably discarded its living approach to constitutional analysis and considered only the original meaning of a seizure under section 7, based on transparently misconstruing Connecticut's common law of arrests. What the decisions in Linares and Oquendo show is that, at its inception, the Connecticut Supreme Court's approach to interpreting the state constitution was founded on neither original nor contemporary constitutional meaning, but rather on a fixed belief in the value of expanding state constitutional rights. Finally, I conclude that the consequences of the Court's choice to direct the development of the law in this way selects a definition of "seizure" without first assessing how it triggers constitutional safeguards and constrains criminal investigations, ignores society's contemporary interest in the definition of the term (which seeks to accommodate safeguards and investigations), and assumes that changes in the federal definition can only erode those safeguards, warranting state constitutional intervention, rather than incentivize adherence to them.
II. Overview of Oquendo
In Oquendo, the Connecticut Supreme Court's expansion of rights via the state constitution grew out of its refusal to read into section 7 of the Connecticut Constitution the Fourth Amendment's seizure definition as set out in the U.S. Supreme Court's decision in California v. Hodari D.[8] The Oquendo Court reasoned that: (1) it already had incorporated into section 7 the Fourth Amendment definition of a seizure as set out in the U.S. Supreme Court's decision in United States v. Mendenhall;[9] (2) it adopted Mendenhall's definition before it was replaced for Fourth Amendment purposes by Hodari D.'s definition; and (3) Hodari D. derived its seizure definition from the definition of a common law arrest around the time of the adoption of the Fourth Amendment that differed from Connecticut's less restrictive definition of a common law arrest around the time of the adoption of section 7.[10] But the Oquendo Court's reasoning was flawed because it: (1) erroneously maintained that Mendenhall's seizure definition already had been incorporated into section 7; (2) misinterpreted Connecticut's common law definition of an arrest to be inconsistent with Hodari D.'s definition; and (3) failed to compare the two definitions in terms of their effect on section 7 rights by employing a living state constitutional analysis.
Historically, under Connecticut jurisprudence, an analysis of our state constitution as a living document may also include an examination of its original meaning along with pertinent case law,[11] but the analysis principally has focused on public policy issues and treated originalism intermittently, and only then as a secondary consideration.[12] Notwithstanding this approach to state constitutional interpretation, the Oquendo Court relied exclusively on the original meaning of section 7, and narrowly on Connecticut's common law of arrests, while declining to consider the policy issues implicated in a seizure's definition.[13] Yet policy issues are an inherent part of analyzing the state constitution as a living document because they address public consequences that necessarily involve societal interests and preferences. What the Oquendo Court failed to consider is that society has an interest in ensuring that seizures are constitutionally lawful, that securing this interest is dependent upon how a seizure is defined because the occurrence of a seizure brings into play the safeguards of the Fourth Amendment and section 7, and that such a definition sets the terms of initial encounters between the police and suspects according to how their respective interests in investigating criminality and protecting rights are valued and accommodated by these provisions.
For both the Hodari D. and Oquendo definitions, the seizure of a person, "however brief,"[14] interferes with his freedom of movement, triggers the prohibition against unreasonable seizures, and can pass constitutional muster with a reasonable and articulable suspicion of criminal activity to justify an investigative stop[15] (as was the case in Oquendo) and probable cause to justify an arrest.[16] The physical seizure of a person is common to both events,[17] but an arrest's seizure is normally of a protracted duration, or more permanent, and "typically leads to a trip to the station house and prosecution for crime."[18] The definitions differ in that, under Mendenhall, [19] a seizure occurs when, in response to a police officer's show of authority, a reasonable person would believe that he was not free to leave, irrespective of whether the actual suspect submitted or fled. In contrast, under Hodari D.,[20] a seizure occurs when an officer: (1) applies physical force to a suspect, even by just touching him, and even if the officer fails to gain control over the suspect;[21] or (2) makes a show of authority without applying physical force and the suspect submits.[22]
III. The Oquendo Case
In Oquendo, following a jury trial, the defendant was convicted of the crimes of felony murder, robbery in the first degree, burglary in the second degree, conspiracy to commit robbery in the first degree, and conspiracy to commit burglary in the second degree.[23] The defendant's connection to these crimes was based largely on evidence the police found in the woods near Center Street in Wallingford, and, in particular, the contents of an open duffle bag lying on the ground.[24] Four days after the murder, the police searched the woods as an offshoot of a police officer encountering the defendant and Nanette Williams near Center Street at 12:50 a.m.[25] The officer, who was in uniform and armed, was patrolling in a marked cruiser in a neighborhood that was primarily residential and where small businesses had closed.[26] The officer was aware that there had been a recent series of burglaries nearby, that Williams recently had been arrested on larceny and burglary charges, that the defendant was wearing a thick winter jacket despite the warm weather, and that burglars typically wear heavy clothing to protect themselves when gaining entry to buildings by breaking through windows.[27] The defendant and Williams looked at each other and quickened their pace upon seeing the cruiser, and, on a hunch, the officer stopped the cruiser seven yards away, exited, stood by the cruiser's door, and asked what they were doing.[28] Williams replied that she and the defendant were coming from a nearby cafe, but the officer knew that the cafe had closed two hours earlier and that the two were walking in the cafe's direction.[29] When the officer asked the defendant to identify himself, he said his name was Freddy Velez, and he and Williams started glancing nervously at each other.[30] The officer asked the defendant to approach the cruiser; the defendant handed the duffle bag to Williams and approached the officer; the officer instructed the defendant to bring the bag with him; and the defendant grabbed the bag from Williams and fled.[31] The officer yelled, "Stop," and pursued the defendant on foot and into a wooded area, where the officer observed the defendant throwing the bag away before escaping.[32]
At trial, the defendant, relying on article first, section 7, of the Connecticut Constitution and the Fourth Amendment to the U.S. Constitution,[33] unsuccessfully sought to suppress the evidence in the duffle bag and the identification of him as the person who discarded the bag as the fruit of an illegal investigative seizure.[34] The trial court concluded that the police seized the defendant "at some point after [the officer] exited his cruiser and began to question [him] and Williams," and that the officer had reasonable and articulable suspicion of criminal activity to justify the seizure for constitutional purposes based on: the recent burglaries in the area of the seizure; Williams's arrest record; the defendant's clothing that, in the officer's experience, tied him to the commission of the recent burglaries; Williams's response to the officer's...
