Academic journal article Harvard Law Review

Criminal Procedure - Fourth Amendment - Connecticut Supreme Court Upholds Suspicionless Street Stop of Suspect's Companion

Academic journal article Harvard Law Review

Criminal Procedure - Fourth Amendment - Connecticut Supreme Court Upholds Suspicionless Street Stop of Suspect's Companion

Article excerpt


Under the Fourth Amendment, a search or seizure must be "reasonable." (1) Traditionally, it has been presumed that the police meet this requirement only if they act with a warrant based on probable cause. (2) In Terry v. Ohio, (3) this warrant presumption yielded to a general reasonableness test under which the Supreme Court balanced the government and individual interests involved in the search and seizure. (4) The Court held that police officers may briefly detain and pat down a suspect on the street based only on a "reasonable suspicion" (5) that the suspect was armed and committing a crime. (6) Since Terry, courts have used the reasonableness balancing test to craft several more exceptions to the warrant requirement, widening what one scholar discussing an early post-Terry case called "the kind of very small hole ... which customarily begins the process by which entire tapestries unravel." (7)

Recently, in State v. Kelly, (8) the Connecticut Supreme Court further

unraveled the tapestry when it held that the state's police officers may seize a legitimate suspect's "companion" if the officers "reasonably believe that the suspect presents a threat to their safety." (9) Eclipsing Terry's holding while embracing the balancing test that Terry inaugurated, the court carefully detailed the state's "weighty interest in ensuring officer safety" (10) but scarcely explained the assertion that police stops impose a mere "inconvenience[]" (11) and a "relatively limited intrusion" on their targets. The individual interests at stake are much greater than the court acknowledged, and in an era of Fourth Amendment balancing, courts must account more fully for the factors weighing on this side of the scale.

Driving in an unmarked car around 11 a.m., Hartford police officers William Rivera and Jose Angeles saw Rafael Burgos and Jeremy Kelly walking together near a gas station that was a "known location for drug dealing." (13) Thinking Burgos might be Pedro Gomez, a man with an arrest warrant out for violating his probation, Rivera stopped the car, displayed his badge, and told the men to come to the vehicle. (14) Kelly and Burgos kept walking. (15) When Angeles then repeated Rivera's order, Burgos and Kelly ran. (16) The officers chased on foot, and Kelly dropped a clear plastic bag of cocaine. (17) Rivera eventually tackled and arrested Kelly; in the process, he found another bag of cocaine on Kelly's person. (18)

Kelly was charged with various drug-related crimes. (19) At trial, he moved to suppress the cocaine, claiming his seizure was illegal because the officers initially had no reasonable suspicion that he had committed a crime. (20) The trial court denied the motion: because the officers had reasonably stopped Burgos, thinking he was the wanted and potentially armed Gomez, (21) they were justified on safety grounds in briefly stopping Kelly too. (22) The stop was therefore permissible under the U.S. and Connecticut Constitutions. (23) Kelly pleaded nolo contendere conditioned on his right to appeal the denial; he was ordered to serve three and a half years of a nine-year prison sentence and three years of probation. (24)

The Connecticut Appellate Court affirmed. Acknowledging that the U.S. Supreme Court had yet to sanction a suspicionless street stop, (25) it analogized to precedent in which the Court, putting heavy weight on officer safety in applying the reasonableness balancing test, had found permissible the suspicionless seizures of certain car passengers (26) and occupants of houses. (27) Taken together, these decisions convinced the Appellate Court that "the interest in the officers' safety during the investigatory stop of Burgos outweighed [Kelly's] personal liberty interest in not being inconvenienced." (28)

The Connecticut Supreme Court affirmed. …

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