Connecticut Bar Journal
67 Conn. 55.
DEVELOPMENTS IN CONNECTICUT CRIMINAL LAW: 1991-1992
55DEVELOPMENTS IN CONNECTICUT CRIMINAL LAW: 1991-1992By MITCHELL S. BRODY(fn*) As has been the case over the past several years, search and seizure issues decided under the state constitution dominated the criminal dockets of our Supreme and Appellate Courts in the 1991-1992 term. Two of the most noteworthy decisions were State v. Oquendo(fn1) and State v. Geisler.(fn2) In Oquendo, justice Glass, speaking for the majority on the eve of his retirement from Connecticut's Supreme Court, refused under the state constitution to go along with a recent change in the definition of a seizure pursuant to the United States Constitution. The decision in Oquendo marks the initial occasion in which a state constitutional provision governing searches and seizures has been interpreted to furnish greater protection than the federal constitution.
In Geisler, the Connecticut Supreme Court also parted ways with the United States Supreme Court by declining to incorporate into the state constitution a recent exception to the federal exclusionary rule. The Geisler decision was authored by Justice Berdon, a new member of our Supreme Court. Commanding a majority for the first time on an issue involving the state constitution, Justice Berdon made explicit the categories that should be used to interpret that document. These categories include "the textual approach"; "holdings and dicta" of our Supreme and Appellate Courts; "federal precedent"; "sister state decisions"; "the historical approach"; and "economic/sociological considerations."(fn3) Other opinions signaling criminal law departures from prior decisions of Connecticut's Supreme Court will be analyzed below.
As for the Appellate Court, in State v. Miller(fn4) it invoked the state constitution in extending the warrant requirement to a search of an automobile that had been taken to a police garage after its occupant had been lawfully seized. This decision as well as others discussed below attests to a reinvigoration of the
56 Appellate Court - which is apparent to anyone who has presented oral argument to it recently - and a willingness to address issues with a wider impact than the "nuts and bolts" concerns that more often than not come before our intermediate court of appeals.
In the ebb and flow of the powers of law enforcement and the rights of criminal defendants, the constitutional safeguard against unreasonably seizing suspects was strengthened in Oquendo. In that case, the bar on unreasonable seizures was brought into play at a very early point in the encounter between police officers and suspects. On the other hand, in State v. Kyles,(fn5) the prerogatives of law enforcement were enhanced as police officers were given greater flexibility in developing sufficient indicia of suspicion to justify detaining suspects for purposes of brief investigations.
In Oquendo, our Supreme Court determined that the police violated article first, §§ 7 and 9 of the Connecticut Constitution when they briefly seized the accused for investigative purposes in the absence of reasonable and articulable suspicion.(fn6) The Oquendo court parted company with federal constitutional jurisprudence in declining to incorporate into sections 7 and 9 the fourth amendment test for gauging when a seizure has occurred.(fn7) Under the fourth amendment, as set out recently in California v. Hodari D., (fn8) a suspect is seized if the police either (1) apply physical force to restrain a suspect's movements or (2) make a show of authority that would convey to a reasonable person that he was not free to leave and the suspect submits to the show of authority.(fn9) Instead, Oquendo retained the United States Supreme Court's definition of a fourth amendment seizure that was in effect prior to the decision in Hodari D. Pursuant to this definition, a suspect is seized when law enforcement restricts his freedom of movement by either (1) physical force or (2) a show of authority that would convey to a reasonable person that he was not free to leave.(fn10)
57In determining that a seizure may occur prior to a suspect's submission to a police show of authority, Oquendo has limited the information that may be used in calculating the indicia of suspicion needed to support a stop. The fourth amendment allows a police officer to consider information obtained between his show of authority and a suspect's submission in determining whether the officer has reasonable and articulable suspicion to support an investigative detention. In contrast, sections 7 and 9 are more restrictive. They oblige the police to have reasonable and articulable suspicion before making a show of authority. Thus, under Oquendo, after the police had made a show of authority, they could not justify their seizure of the accused on the basis of his subsequent flight and discarding of contraband.
In defining the meaning of a seizure for purposes of the state constitution, the Oquendo court relied exclusively on the meaning of that term at common law in Connecticut. (fn11)In a departure from its past approach to construing the state constitution, the court in Oquendo declined to consider the policy or practical implications of its disavowal of the fourth amendment definition of a seizure. (fn12) Although the court's reason for this departure was the state's failure to develop substantively the policy reasons in support of the Hodari D. test, it is startling that our highest court would ignore the practical implications of a test that marks the starting point for ordering encounters between the police and suspects.
In applying its newly formulated definition of a seizure, the Oquendo court found that a seizure had occurred after the accused and a female friend were approached by a visibly armed police officer, at a late hour, on a city street with no one else in the vicinity. The officer asked them where they were going, inquired about the accused's name, and told the accused to approach a nearby cruiser and bring a bag that his friend had handed to him. (fn13) The court held that this brief, investigative seizure could not be justified on the basis of (1) a series of recent crimes in the area; (2) the fit between the dress of the accused and his friend and a police profile of burglars; (3) the officer's awareness that the accused's friend was a recent arrestee; and (4) the friend's false answers to the officer's questions. In the
58 court's view, there was an absence of reasonable and articulable suspicion tying the accused to particular criminal activity in the area. (fn14)
Justice Borden, in his dissent, deemed "unnecessary and imprudent" the majority's decision to reach the question of the state constitutional meaning of a seizure. (fn15) Justice Borden would have left this question to another day because, in his view, the investigative stop was justified by (1) the indicia of suspicion considered by the majority; (2) the quickened pace of the accused and his friend upon first seeing the police cruiser; (3) the nervous behavior of the accused and his friend while being questioned by the police; and (4) the accused's handing over a bag to his friend after an officer asked him to approach the cruiser. (fn16) According to Justice Borden, the majority's analysis was flawed by its apparent willingness to require the police to "draw only benign inferences in favor of the defendant . . . ." (fn17)Justice Borden opined that such an approach would "eviscerate" the doctrine which permits brief investigatory stops, because "on any given set of facts amounting to reasonable and articulable suspicion there would inevitably be different inferences that could have been, but were not, drawn by the police officer." (fn18) Yet, Justice Borden's warning about the demise of investigative stops as an effective tool for law enforcement appears overstated. As the majority opinion makes clear, the police had obtained very little information before the stop that reasonably could have tied the accused in Oquendo to specific criminal activity.
In Kyles, our Supreme Court turned its attention to another facet of the jurisprudence governing investigative stops: the extent to which the police must confirm their suspicion of criminal activity in order to continue detaining a suspect. Speaking for the court in Kyles, justice Borden determined that law enforcement had reasonable and articulable suspicion to justify the stop of an automobile in which the defendant was riding based on (1) a match between the description of that car
59 and the number and race of its occupants and the police broadcast description of the car and its occupants that had been involved in a gas station holdup; and (2) the proximity of the car in time and place-less than two minutes and two milesfrom the crime scene. (fn19) Kyles held as well that the police were justified in conducting a protective frisk of the occupants of the car and searching its passenger compartment because of the reasonable belief that the suspect was armed and presently dangerous. (fn20) According to the Kyles court, the police were not obliged, after the stop of the car, to investigate further and determine "whether the physical features of one of the occupants [of the car] matched the description of the perpetrator" before neutralizing the threat to their physical security by patting down the defendant and searching the vehicle...