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STATE v. KELLY—DISSENT

EVELEIGH, J., with whom McDONALD, J., joins, dissenting. I respectfully dissent. When commenting on

the power of government, Benjamin Franklin once said

that ‘‘[t]hose who would give up essential [l]iberty, to

purchase a little temporary [s]afety, deserve neither

[l]iberty nor [s]afety.’’ 6 Papers of Benjamin Franklin

(L. Labaree ed., 1963) p. 242. Today, with the issuance

of the majority opinion, I share Franklin’s concerns.

In this case, we are asked to strike the balance

between the rights of the police to be as safe as possible

in the performance of their essential duties and the

rights of citizens to be protected from unreasonable

searches and seizures. I disagree with the majority’s

conclusion in part I of its opinion that, ‘‘when officers

lawfully detain a suspect who they reasonably believe

poses a threat to their safety, article first, §§ 7 and

9, permit the officers to briefly detain the suspect’s

companion for protective purposes.’’ The majority

strikes that balance, under the circumstances of this

case, on the side of the police. In my view, there must

be more indicia than ‘‘guilt by association’’ before the

police can infringe upon fourth amendment rights.

Accordingly, I respectfully dissent.

I agree with the majority that the police, under certain

circumstances, have the right to perform a protective

sweep in order to ensure their safety. Indeed, if the

defendant, Jeremy Kelly, had been walking with the

suspect and refused to leave when the suspect was

stopped, I would agree with the majority that the police

could have detained the defendant for their own protection. I part ways with the majority, however, on the

premise that the police had an automatic right to detain

the defendant. In my view, if they had been walking

together, the police had to request that the defendant

leave while they detained the suspect. Under the facts

of this case, the situation becomes more of a police

contrivance. The defendant was walking away from

them and they ordered him to stop and come to them.

If they had not said anything the defendant would have

proceeded on his way while they detained the suspect

and this situation would have never occurred. Therefore, in my view, the police have manufactured this

safety excuse in order to justify a search that had its

genesis in the initial illegal stop of the defendant.

I agree with the facts and procedural history set forth

in the majority opinion. I do, however, highlight certain

facts that are essential to my analysis and on which the

majority and I agree. First, the defendant‘‘was seized for

state constitutional purposes when [Detective William]

Rivera and [Lieutenant Jose] Angeles drove up alongside him, displayed their badges, and Rivera told him

to approach their vehicle.’’ Second, Rivera and Angeles
lacked reasonable and articulable suspicion that the

defendant himself was engaged in criminal activity.

I agree with the majority that, on appeal to this court,

the defendant claims that his seizure violated article

first, §§ 7 and 9, of the Connecticut constitution and

‘‘does not seriously contest the conclusion of the Appellate Court that he was not seized for fourth amendment

purposes until the police had probable cause to arrest

him and, therefore, that his seizure did not violate the

federal constitution.’’ Therefore, ‘‘[t]he defendant’s

claim requires us to examine the scope of the rights

afforded by the Connecticut constitution.’’

As the majority properly noted, ‘‘[i]n determining the

contours ofthe protections provided by our state constitution, we employ a multifactor approach that we first

adopted in State v. Geisler, [222 Conn. 672, 684, 610

A.2d 1225 (1992)]. The factors that we consider are ‘(1)

the text of the relevant constitutional provisions; (2)

related Connecticut precedents; (3) persuasive federal

precedents; (4) persuasive precedents of other state

courts; (5) historical insights into the intent of [the]

constitutional [framers]; and (6) contemporary understandings of applicable economic and sociological

norms.’ . . . State v. Dalzell, 282 Conn. 709, 716 n.6,

924 A.2d 809 (2007).’’ Like the majority, we agree that

persuasive federal precedent is particularly relevant to

our state constitutional inquiry.

I would conclude that Ybarra v. Illinois, 444 U.S. 85,

100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), and United States

v. Jaramillo, 25 F.3d 1146 (2d Cir. 1994), are analogous

to the present case and provide the appropriate framework for considering the defendant’s claim because

those cases involve the search of an unsuspicious person in a public place.

First, in Ybarra v. Illinois, supra, 444 U.S. 87–89, the

United States Supreme Court considered the motion to

suppress evidence obtained during the search of a bar

patron by law enforcement officers who were executing

a search warrant. The search warrant authorized the

search of the bar and one of its bartenders. Id., 88.

During the search, seven or eight officers arrived at the

bar, ‘‘announced their purpose and advised all those

present that they were going to conduct ‘a cursory

search for weapons.’ ’’ Id. One of the officers then

engaged in a patdown search of each of the patrons at

the tavern. Id. The other officers engaged in an extensive search of the premises. Id. At the time of the search

Ventura Ybarra was in front of the bar standing by a

pinball machine. Id. During the first patdown of Ybarra,

the officer felt what he described as ‘‘ ‘a cigarette pack

with objects in it.’ ’’ Id. The officer did not remove

the object from Ybarra’s pocket, but continued patting

down the other patrons. Id. After patting down the other

patrons, the officer went back to Ybarra and frisked

him again. Id., 89. During the second search of Ybarra,
which took place between approximately two and ten

minutes after the first, the officer removed the cigarette

pack from Ybarra’s pocket. Id. Inside the pack he found

six tinfoil packets, which later turned out to be heroin. Id.

The United States Supreme Court rejected the state’s

claim that it does not violate the fourth amendment

‘‘to permit evidence searches of persons who, at the

commencement of the search, are on ‘compact’ premises subject to a search warrant, at least where the

police have a ‘reasonable belief’ that such persons ‘are

connected with’ drug trafficking and ‘may be concealing

or carrying away the contraband.’ ’’ Id., 94. Instead,

the court focused on the following: ‘‘Upon entering the

tavern, the police did not recognize Ybarra and had no

reason to believe that he had committed, was committing, or was about to commit any offense under state

or federal law. Ybarra made no gestures indicative of

criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing

of a suspicious nature to the police officers. In short,

the agents knew nothing in particular about Ybarra,

except that he was present, along with several other

customers, in a public tavern at a time when the police

had reason to believe that the bartender would have

heroin for sale.’’ Id., 90–91.

On the basis of the foregoing, the United States

Supreme Court clarified that ‘‘a person’s mere propinquity to others independently suspected of criminal

activity does not, without more, give rise to probable

cause to search that person.’’ Id., 91. Furthermore, the

court in Ybarra further concluded that ‘‘[t]he initial

frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous,

a belief which this [c]ourt has invariably held must form

the predicate to a patdown of a person for weapons.’’

Id., 92–93. Accordingly, the United States Supreme

Court concluded that ‘‘the searches of Ybarra and the

seizure of what was in his pocket contravened the

[f]ourth and [f]ourteenth [a]mendments.’’ Id., 96.

Second, I find the reasoning and rationale of the Second Circuit Court of Appeals in United States v. Jaramillo, supra, 25 F.3d 1146, to be instructive in the

present case. In Jaramillo, the defendant sought to

exclude a firearm from evidence on the ground that it

had been obtained in violation of his rights under the

fourth amendment. Id., 1147. The firearm was obtained

during a raid by law enforcement officers at a bar. Id.

During the course of the raid, one patron took a handgun from his waistband and tossed it into the lap of

another person seated at his table and that person

tossed the handgun onto the floor. Id. As the officer

approached those two people and ordered them against

the wall, the defendant emerged from the bathroom.

Id., 1147–48. When the defendant emerged from the
bathroom, the officer grabbed him and placed him up

against the wall. Id., 1148. When the officer patted down

the defendant, he discovered a firearm underneath the

leg of his pants. Id.

The Second Circuit reviewed Terry v. Ohio, 392 U.S.

1, 21–22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its

progeny, concluding that ‘‘any invasion of a person’s

[f]ourth [a]mendment interests must be justified at least

by ‘specific and articulable facts’ directed to the person

whose interests are to be invaded.’’ United States v.

Jaramillo, supra, 25 F.3d 1151. The Second Circuit then

relied on the Supreme Court’s analysis in Ybarra, and

concluded that the cases ‘‘stand for the proposition that

a Terry-type patdown is permissible with respect to

persons who are believed, on the basis of specific and

articulable facts, to have behaved suspiciously or with

respect to persons who own, occupy, or enter upon

private premises on which the officers have the right

to conduct a search or make a security check; but such

a patdown is not permissible with respect to a person

in a public place where the officers have no specific

and articulable facts on which to base a suspicion of

that person in particular.’’ Id., 1152. The Second Circuit

then concluded ‘‘[w]e think it plain that the present

case is governed by Ybarra, which involved the search

of an unsuspicious person in a public tavern, rather

than the Terry v. Ohio [supra, 1] and Michigan v. Long

[463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983)]

line of cases, which involved searches of persons engaging in suspicious behavior, orthe Michigan v. Summers

[452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981)]

and United States v. Barlin [686 F.2d 81, 87 (2d Cir.

1982)] line of cases, which involved detentions or patdowns in connection with permissible searches of private homes.’’ United States v. Jaramillo, supra,

1152–53.

Applying that rationale to the facts of Jaramillo, the

Second Circuit determined that the government had

failed to show that there was any reasonable articulable

suspicion to Jaramillo in particular, where the agents

did not know him, had no information about him, and

where Jaramillo did not make any suspicious statements or threatening gestures. The Second Circuit also

pointed to the fact that there was no evidence that

Jaramillo had any connection to the man who tossed

the gun. Id., 1153. Accordingly, the Second Circuit concluded that the motion to suppress should have been

granted. Id., 1154.

The Third Circuit Court of Appeals and Fourth Circuit

Court of Appeals have also recently relied on and

applied the rationale of Ybarra on facts similar to the

present case. First, in United States v. Navedo, 694 F.3d

463, 468–69 (3d Cir. 2012), the Third Circuit determined

that the seizure of an individual, Alexander Navedo,

who police had seen talking with another individual
who was in possession of a handgun was impermissible

under the fourth amendment. The court relied on the

fact that ‘‘police did not have any information from

any source that would have supported a reasonable

suspicion that Navedo was involved in firearms trafficking or that he intended to purchase a gun from [the

suspect who was seen holding the gun]. As we have

just noted, the officers knew of nothing that would have

suggested Navedo was connected to any prior criminal

activity. His residence at 315 Park Avenue was not even

the focus of police surveillance. That surveillance was

aimed at the building at 323 Park Avenue. A shooting

had been reported at that address, and the shooting

was not even that recent. The stop here appears to be

based on nothing more than an attempt to transfer the

reasonable suspicion the police had as to [the suspect]

onto Navedo.’’ (Footnote omitted.) Id.

Second, the Fourth Circuit also found a seizure of a

companion withoutreasonable suspicion related to that

individual to violate the fourth amendment in United

States v. Black, 707 F.3d 531, 539 (4th Cir. 2013). In

reaching its conclusion, the court reasoned as follows:

‘‘Here, the totality of the factors outlined by the [D]istrict [C]ourt—an individual’s presence at a gas station;

prior arrest history of another individual; lawful possession and display of a firearm by another; [the defendant’s] submission of his [identification] showing an

out-of-district address to [the police officer], all of

which occurred in a high crime area at night—fails to

support the conclusion that [the police officer] had

reasonable suspicion to detain [the defendant].’’ Id.

I would conclude that the facts of the present case

are most similar to Ybarra and its progeny, because the

present case involves the detention of an unsuspicious

person in a public place. Like the defendants in Ybarra,

Jaramillo, Navedo, and Black, the defendant in the present case did not engage in any suspicious behavior

and the police did not have any specific information

about him or know the nature of his relationship with

the suspect.1

I would agree with the majority that the police would

have been entitled to detain the defendant if they had

asked him to leave while they detained his companion,

and he refused. The refusal to leave alone, in my view,

would have been enough to constitute reasonable suspicion of the defendant. Under the facts of this case,

however, the police contrived this situation and then

used the safety reason as an excuse for the detention.

The defendant was walking in the driveway of a house.

Instead of asking only the suspect to stop, the police

ordered both to halt. It was at this stage that the defendant was seized. The police were several feet away

when they issued this order. The defendant responded

that he lived in the house.2 The police had no authority

to yell halt to the defendant.
This is not a situation where the police received information that two people had committed a crime nearby

a short time ago and they had a good description of

one such that it would be reasonable to detain the other.

Nor, is it like the case cited by the majority, Trice v.

United States, 849 A.2d 1002, 1004 (D.C. 2004), in which

the police received information that there had been a

stabbing at a local hospital and two minutes later saw

two men, including one who fit the description of the

suspect, walking near the location of the stabbing. In

that type of case, the companion’s presence with a

suspect in such geographic and temporal proximity creates a reasonable suspicion of the companion, as either

a participant in or a witness to criminal activity. Id.,

1008. In finding the search of the companion permissible in Trice, the court reasoned as follows: ‘‘As he was

walking with [the suspect, Tyrone Trice] appeared to

be the companion of a potentially violent, fleeing criminal and not a mere bystander. Moreover, given the

recency of the crime, it was reasonable to think that if

[the suspect] committed it, his companion Trice likely

was aware of that fact and was a witness if not also

an accomplice or an accessory after the fact.’’ Id.

None of the facts that allowed for the seizure of the

companion in Trice are involved in the present case.

The police only had information that Pedro Gomez was

wanted for a violation of probation charge. There was

no information that the crime had happened recently

so as to make the defendant either a witness or accomplice or accessory afterthe fact. Therefore, unlike Trice,

the present case involves a stop predicated solely on

the basis of association. As the Fifth Circuit Court of

Appeals has noted, ‘‘[l]est there be any doubt, we state

here that ‘reasonable suspicion’ must be specifically

directed to the person to be searched. While in narrowly

limited circumstances the degree of suspicion as to an

already suspicious individual may be somewhat

enhanced by virtue of suspicious activity by a closely

linked traveling companion at the border . . . the

fourth amendment does not permit any automatic or

casual transference of ‘suspicion.’ ’’ (Citation omitted;

footnote omitted.) United States v. Afanador, 567 F.2d

1325, 1331 (5th Cir. 1978).

The majority acknowledges that the seizure of the

defendant in the present case is impermissible under

Terry v. Ohio, supra, 392 U.S. 1, and its progeny. I agree.

Nevertheless, the majority explains that ‘‘[t]he mere

fact that the suspicionless detention of a suspect’s companion cannot be justified under Terry does not resolve

the issue before us, however, because such a detention

otherwise may be reasonable for fourth amendment

purposes. Indeed, the United States Supreme Court has

used the same balancing approach that it applied in

Terry in concluding that certain warrantless searches

and seizures pass muster under the fourth amendment
even though they are not supported by probable cause

or reasonable suspicion.’’ The majority then relies on

Michigan v. Summers, supra, 452 U.S. 693–94 (holding

that, for purposes of fourth amendment, police executing search warrant for home may detain occupants during search), Maryland v. Buie, 494 U.S. 325, 327–28,

110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990) (while effecting

arrest of suspect in his home pursuant to arrest warrant,

officer may conduct warrantless protective sweep of

all or part of premises), and Maryland v. Wilson, 519

U.S. 408, 415, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997)

(‘‘an officer making a traffic stop may order passengers

to get out of the car pending completion of the stop’’).

I respectfully disagree with the majority’s reliance on

these cases. I take each in turn.

First, I do not agree that the United States Supreme

Court did not require reasonable suspicion regarding

the defendant in Michigan v. Summers, supra, 452 U.S.

692. To the contrary, I would conclude that the United

States Supreme Court determined that the state established specific and articulable facts directed to the

defendant in Summers by virtue of the fact that he was

an occupant in the home for which the police had a

warrant. Id., 703.

Indeed, in Michigan v. Summers, supra, 452 U.S.

703–704, the United States Supreme Court specifically

addressed the reasonable suspicion the officers had

directed to the defendant. The United States Supreme

Court reasoned as follows: ‘‘It is also appropriate to

considerthe nature of the articulable and individualized

suspicion on which the police base the detention of the

occupant of a home subject to a search warrant. We

have already noted that the detention represents only

an incremental intrusion on personal liberty when the

search of a home has been authorized by a valid warrant. The existence of a search warrant, however, also

provides an objective justification for the detention. A

judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral magistrate rather than

an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home.

The connection of an occupant to that home gives the

police officer an easily identifiable and certain basis

for determining that suspicion of criminal activity

justifies a detention of that occupant.’’ (Emphasis

added; footnote omitted.) Id.

Second, in Maryland v. Buie, supra, 494 U.S. 325,

the United States Supreme Court did not state that a

reasonable suspicion about a companion was unnecessary. Indeed, Buie did not even involve a companion,

but instead was a motion by the defendant, for whom

the officers had a valid warrant for his arrest, to suppress evidence that was found in the basement of his
home during a protective sweep of the home incident

to his arrest. Id., 328. While in the defendant’s home

to execute the warrant for his arrest, the defendant

eventually emerged from the basement. Id. In response,

the police entered the basement to do a protective

sweep, in case there was anyone else in the basement.

Id. The defendant filed a motion to suppress the evidence found in the basement on the ground that the

police violated the fourth amendment by entering the

basement without a warrant after arresting the defendant. Id.

Although Buie did not deal with whether the police

needed a reasonable suspicion about a companion, the

United States Supreme Court did address whether the

police needed a reasonable suspicion to enter the basement. In doing so, the United States Supreme Court,

specifically stated as follows: ‘‘We conclude that the

[f]ourth [a]mendment would permit the protective

sweep undertaken here if the searching officer possesse[d] a reasonable belief based on specific and articulable facts which, taken together with the rational

inferences from those facts, reasonably warrant[ed] the

officer in believing . . . that the area swept harbored

an individual posing a danger to the officer or others.’’

(Citations omitted; internal quotation marks omitted.)

Id., 327. The United States Supreme Court further

explained that, ‘‘[w]e agree with the [s]tate . . . that

a warrant was not required. We also hold that as an

incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable

suspicion, look in closets and other spaces immediately

adjoining the place of arrest from which an attack could

be immediately launched. Beyond that, however, we

hold that there must be articulable facts which, taken

together with the rational inferences from those facts,

would warrant a reasonably prudent officer in believing

that the area to be swept harbors an individual posing

a danger to those on the arrest scene. This is no more

and no less than was required in Terry and Long, and as

in those cases, we think this balance is the proper one.

‘‘We should emphasize that such a protective sweep,

aimed at protecting the arresting officers, if justified

by the circumstances, is nevertheless not a full search

of the premises, but may extend only to a cursory

inspection of those spaces where a person may be

found. The sweep lasts no longer than is necessary to

dispel the reasonable suspicion of danger and in any

event no longer than it takes to complete the arrest and

depart the premises.’’ (Footnotes omitted.) Id., 334–36.

In allowing for the protective sweep, the United States

Supreme Court reasoned that ‘‘unlike an encounter on

the street or along a highway, an in-home arrest puts

the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of

unknown configuration is more to be feared than it is

in open, more familiar surroundings.’’ Id., 333.
Third, I also disagree with the majority’s reliance on

Maryland v. Wilson, supra, 519 U.S. 408, which involved

whether passengers in a motor vehicle could be

required to exit the vehicle. In Wilson, a state trooper

stopped a motor vehicle for speeding and not having a

regular license plate. Id., 410. Once the car stopped,

the driver voluntarily exited the vehicle and appeared

very nervous. Id. The trooper ordered the driver back

into the vehicle and asked him to provide the rental

papers. Id., 410–11. During this time, the trooper noticed

that the front seat passenger, Jerry Lee Wilson, was

sweating and also appeared extremely nervous. Id.

While the driver was seated in the vehicle looking for

the rental papers, the trooper ordered Wilson out of

the car. Id., 411. When Wilson exited the vehicle, a bag

filled with crack cocaine fell to the ground. Id. Wilson

was then arrested and charged with possession of

cocaine with intent to distribute. Id. Wilson filed a

motion to suppress the evidence, claiming that the

trooper violated the fourth amendment when he

ordered Wilson out of the vehicle. Id.

In Wilson, the United States Supreme Court balanced

the serious dangers presented to officers during motor

vehicle stops with the minimal additional intrusion on

passengers of an already stopped vehicle. Id., 413–14.

The United States Supreme Court reasoned that ‘‘as a

practical matter, the passengers are already stopped by

virtue of the stop of the vehicle. The only change in

their circumstances which will result from ordering

them out of the car is that they will be outside of, rather

than inside of, the stopped car.’’ Id. The United States

Supreme Court, therefore, concluded as follows:

‘‘[D]anger to an officer from a traffic stop is likely to

be greater when there are passengers in addition to the

driver in the stopped car. While there is not the same

basis for ordering the passengers out of the car as there

is for ordering the driver out, the additional intrusion

on the passenger is minimal. We therefore hold that an

officer making a traffic stop may order passengers to

get out of the car pending completion of the stop.’’

Id., 414–15.

In concluding that the trooper did not violate Wilson’s

fourth amendment rights by ordering him out of the

vehicle, the United States Supreme Court noted that

Wilson was ‘‘subjected to no detention based on the

stopping of the car once he had left it.’’ Id., 415 n.3.

The United States Supreme Court refused to address

the state’s request that they ‘‘go further and hold that

an officer may forcibly detain a passenger for the entire

duration of the stop.’’ Id.

On the basis of the foregoing, I disagree that the

United States Supreme Court precedent supports the

majority’s position. These cases are distinguishable

from the facts of the present case in that the subject

of the search in these cases is a car or a house—a
confined area—and the subjects are detained for: (1)

police safety; (2) to prevent the removal of evidence;

and (3) their known association to the subject of a

warrant. In the present case, the defendant was

detained in an open area where police could have

avoided the safety issue by letting the defendant proceed on his way, there was no possibility that the defendant would have been able to remove evidence, and

the police did not have knowledge of his relationship

with the suspect beyond the fact that they were walking

together for a brief period of time.

As the Second Circuit reasoned, ‘‘[t]he difference lies

in the factthat while it is obviously reasonable to believe

that individuals in a private home or vehicle have some

connection with one another, it is not reasonable to

assume that all of the persons [in a public place] have

such a connection. The sole fact that an individual as

to whom the officers have no reasonable and articulable

factual suspicion of wrongdoing happens to be in a

public place where another person possesses a weapon

or contraband does not provide a basis for a Terrytype search if the possessor is a person with whom the

searched individual has no known connection.’’ United

States v. Jaramillo, supra, 25 F.3d 1152.

I also disagree with the majority’s reliance on United

States v. Lewis, 674 F.3d 1298, 1309 (11th Cir. 2012),

as support for its holding in the present case. As the

majority explains, in Lewis, two police officers encountered four men in a parking lot, one of whom was the

defendant, Omar Lewis. Id., 1300. When asked if they

were carrying firearms, two of the men, not including

Lewis, responded in the affirmative. Id. One of the men

responded that he had a handgun on his person. Id. The

majority neglects, however, to mention an important

fact—one ofthe men indicated thatthere was a handgun

in the backpack in the open trunk of a car parked

nearby. Id. The car was in such close proximity that

one of the police officers could see the top of the backpack. Id. It was only at this point that the officers drew

their weapons, ordered all four men to sit down on the

ground and show their hands, thereby seizing them for

purposes of the fourth amendment. Id., 1301.

In concluding that the seizure of the men in the parking lot was reasonable, the Eleventh Circuit Court of

Appeals determined that ‘‘[t]he officers faced substantial, immediate danger when confronted with the known

possession of two firearms.’’ (Emphasis added.) Id.,

1306. In applying the balancing test, the Eleventh Circuit

reasoned that ‘‘[t]he reasonableness of the officers’ conduct under the totality of the circumstances was heightened greatly by the admitted presence of two firearms,

which posed a serious risk to the safety of the officers

as well as the other individuals present in the crowded

parking lot.’’ Id., 1308.

Although I agree with the majority that the Eleventh
Circuit ‘‘focused on the specific dangers associated with

firearms . . . .’’ I disagree that the safety concerns present in Lewis are applicable to the present case. In

Lewis, the police officers were faced with the known

possession of two firearms in a crowded parking lot,

one of which was on the person of a suspect and one

that was ‘‘well within the reach of all four individuals

at the time the officers drew their weapons.’’ United

States v. Lewis, supra, 674 F.3d 1309. In the present

case, nothing in the record indicates that the police

officers had a reasonable belief that the suspect was

armed at the point they encountered him on the street.3

In determining whether the officers in the present case

had a reasonable concern for their safety, that distinction is dispositive. In Lewis, the Eleventh Circuit was

clear that ‘‘under the totality of the circumstances . . .

the officers were entitled to control the scene and exercise command over the situation in the course of briefly

detaining [the individual who admitted to carrying a

handgun on his person] for further investigation. A brief

detention of all four associated individuals was reasonable, in light of the substantial risks to the officers’

safety.’’ Id. Under the totality of the circumstances in

the present case, I would conclude that the detention

of the defendant was not reasonable because the state

did not demonstrate a substantial risk to the officers’

safety.

I also disagree with the majority’s reliance on Commonwealth v. Rucker, Superior Court of Massachusetts,

Essex County, Docket No. 06-00530, 2006 WL 4323674,

*4 (November 27, 2006) (‘‘when an officer legitimately

comes into contact with the companion of the target

of a Terry stop, particularly when the stop is related

to a crime of violence or involves firearms, [he] may

[stop and] frisk the suspect’s companion if [he] consider[s] [the companion] dangerous, even if [he does] not

have reasonable, articulable grounds to stop [the companion] for suspicion of criminal activity’’), State v.

Drury, 358 S.W.3d 158, 163 (Mo. App. 2011) (‘‘[p]rotective detention is reasonable when it is for a limited

duration, and when the individual’s presence could create a risk of harm to the officer, the individual detained,

orthe public at large, even if the officer has no reason to

believe the individual would intentionally cause harm’’),

State v. Sparr, 13 Neb. App. 144, 153, 688 N.W.2d 913

(2004) (officer’s actions were reasonable when, while

seizing driver of one vehicle that was already stopped,

he detained driver of nearby vehicle as safety precaution), and United States v. Maddox, 388 F.3d 1356,

1367–68 (10th Cir. 2004) (permitting protective detention of arrestee’s companions incident to his arrest

when officers have reasonable safety concerns), cert.

denied, 544 U.S. 935, 125 S. Ct. 1689, 161 L. Ed. 2d 504

(2005). In each of these cases, the officers were able

to point to particularized facts about the companion

that amounted to a reasonable fear for their safety
related to the presence of the companion. In the present

case, the officers do not allege any particularized facts

about the defendant that caused them to reasonably

fear for their safety, only facts related to the suspect.

Accordingly, Ifind the majority’s reliance on these cases

to be misplaced.

I agree with the majority that the police have a legitimate interest in protecting themselves. There must be,

however, some restrictions placed on the intent. In my

view, there are several potential unconscionable ramifications to the majority opinion. For instance, if a suspect with an outstanding warrant is talking to his

neighbor’s family near the property line, can the police

now detain the entire family as part of the encounter

with the suspect? If the suspect is waiting at a bus stop

with six other strangers, can they all be detained?4

If the

same suspectis observed leaving a house and stopped in

the front yard, can the police now seize everyone in

the house to ensure that no one will shoot them while

they question the suspect? What if the suspect is

detained in a neighborhood known to have a high incident of crime, can the police now seize everyone in the

entire neighborhood to ensure their safety while they

detain the suspect? There simply is no definition of

who is a ‘‘companion’’ in the majority opinion. I would

require more than mere ‘‘guilt by association.’’ Ever

mindful of Franklin’s admonition, we cannot use the

omnipresent specter of safety as a guise to authorize

government intrusion. Therefore, I respectfully dissent.

1 The majority indicates that ‘‘we are particularly puzzled by [this] dissent’s

reliance on Ybarra v. Illinois, supra, 444 U.S. 85, and its progeny. . . .

Because our decision in the present case permits only the brief detention

of the defendant and does not entail or authorize a search of the defendant

. . . .’’ (Emphasis in original.) I respectfully disagree. Summers involved a

premises search in a private home whereas Ybarra involved a public place,

a tavern. The Supreme Court noted in Summers that ‘‘[t]he connection of

an occupant to that home gives the police officer an easily identifiable and

certain basis for determining that suspicion of criminal activity justifies a

detention of that occupant.’’ Michigan v. Summers, supra, 452 U.S. 703–704.

Further, many of the cases cited in this opinion namely: the Second Circuit’s

decision in Jaramillo, the Third Circuit’s decision in Navedo, and the Fourth

Circuit’s decision in Black, all concerned detentions of nonsuspects in public

places. All of these cases were decided after both Ybarra and Summers

and they all engaged in a Ybarra-type analysis while citing Ybarra. Navedo

actually involved a case where the police had observed Navedo’s companion

with a gun on the front porch of a multiunit building located in a mixed

residential and industrial neighborhood. United States v. Navedo, supra, 694

F.3d 477. When the police approached the two men, the suspect ran in one

direction and Navedo ran up the stairs to his home with one officer pursuing

him. As he chased Navedo, the officer yelled ‘‘[p]olice’’ and ‘‘stop.’’ Id., 466.

After climbing two flights of stairs, Navedo reached the third floor and

attempted to open the door to his apartment. Id. He was then tackled by

the officer. Id. The officer testified that the door had been opened at the

time he tackled Navedo, and he observed a shotgun, two long rifles on the

bed, one of the floor, and a stock of ammunition on the floor. Id. Navedo

was charged with illegally possessing the weapons that were recovered from

inside his apartment, and those weapons were admitted against him to

support the sole count upon which he was tried and convicted. Id., 467.

The Third Circuit opined that ‘‘[t]he reasonable suspicion required under

Terry is specific to the person who is detained. The circumstances ‘must

raise a suspicion that the particular individual being stopped is engaged in

wrongdoing.’ United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66

L. Ed. 2d 621 (1981). The Supreme Court has never viewed Terry as a
general license to detain everyone within arm’s reach of the individual whose

conduct gives rise to reasonable suspicion. Rather, the [c]ourt has stressed

that ‘this demand for specificity in the information upon which police action

is predicated, is the central teaching of this [c]ourt’s [f]ourth [f]mendment

jurisprudence.’ Id. [quoting Terry v. Ohio, supra, 392 U.S. 21 n.18]’’ . . . .

(Emphasis omitted.) United States v. Navedo, supra, 468. The Third Circuit

further stated that ‘‘[a]lthough the [c]ourt in Ybarra was discussing probable

cause to arrest rather than the reasonable suspicion for a stop under Terry,

the [c]ourt’s pronouncement is equally applicable to this situation. See

Brown v. Texas, 443 U.S. 47, 49–52, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979).’’

United States v. Navedo, supra, 469. In words that apply equally to the

present case, the Third Circuit further stated that ‘‘[w]e do not suggest that

the officers had to sit idly by without approaching and investigating merely

because they could not be certain about what was transpiring. However,

given the limitations on investigative detentions under Terry, and the

[c]ourt’s clear pronouncement in Cortez, they could not detain Navedo

merely because their reasonable suspicions justified a brief investigative

detention of [the suspect].’’ Id., 468. ‘‘[A] person whom police approach is

free to avoid a potential encounter with police by leaving the scene, and

the rate of acceleration of the person’s gate as [he or she leaves] is far too

ephemeral a gauge to support a finding of probable cause, absent some

other indicia of involvement in criminal activity.’’ Id., 474. Thus, the court

held that the police had no reason to suspect that Navedo was himself

involved in criminal activity, and even if they had appropriately formed such

a suspicion, they would have been entitled only to detain and investigate,

not arrest. The court, therefore, concluded ‘‘that the police lacked probable

cause to arrest Navedo under the circumstances here and that the District

Court erred in denying his motion to suppress the physical evidence that

was seized following that arrest.’’ Id. The majority maintains that ‘‘neither

the defendant nor the dissent has identified a single case in which a court,

either federal or state, has determined that such a protective stop of the

companion was unreasonable.’’ In my view, Navedo supports the conclusion

that the stop in the present case was unreasonable. In fact, Navedo is a

much stronger case for the state’s position in view of the presence of a gun

observed by the police, yet the state’s argument was rejected in Navedo.

As articulated by the trial court in the present case, there was no indication

of firearms in the violation of probation warrant, and no firearms were

observed at the scene.

The majority maintains that, in the present case, ‘‘the dissent fails to

explain why the state’s interest in the safety of the investigating officers

did not outweigh the relatively minimal intrusion into the defendant’s liberty

interest.’’ In my view, without some justification, there can be no ‘‘minimal

intrusion’’ into a liberty interest. When we engage in such semantics, I

believe that we begin the process of eroding essential constitutional rights.

2

I note that the record in the present case is not clear as to whether the

defendant, in fact, lived in the house.

3

In fact, the trial court initially found that the suspect had an outstanding

warrant for the offense of ‘‘felony . . . possession of a firearm,’’ which was

incorrect. The trial court, in response to this court’s articulation request,

corrected its erroneous finding to the effect that the suspect was the subject

of an ‘‘active felony warrant for violation of probation.’’

4

I note that, during oral argument before this court, the state suggested

that this question should be answered in the affirmative.