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STATE OF CONNECTICUT v. JEREMY KELLY

(SC 18849)

Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh,

McDonald and Vertefeuille, Js.*

Argued April 16, 2013—officially released August 12, 2014

Timothy H. Everett, assigned counsel, with whom,

on the brief, were Blake Holler, Victoria Mueller and

Nicole Vaswig, certified legal interns, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant

state’s attorney, with whom, on the brief, were Gail

P. Hardy, state’s attorney, and Robert Diaz, assistant

state’s attorney, for the appellee (state).

Richard Emanuel and Leonard M. Crone filed a brief

for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Michael A. Blanchard, Sandra J. Staub and Amy

Breglio, legal intern, filed a brief for the American Civil

Liberties Union Foundation of Connecticut as amicus

curiae.
Opinion

PALMER, J. The defendant, Jeremy Kelly, was convicted, on a conditional plea of nolo contendere; see

General Statutes § 54-94a;1 of possession of narcotics

with intent to sell in violation of General Statutes § 21a277 (a). The defendant entered his plea following the

trial court’s denial of his motion to suppress cocaine

that the police had discovered after stopping him incident to the detention of another individual, who the

police reasonably believed was armed and dangerous

and who was the subject of an arrest warrant, while

the two men were walking together on a public street.

The defendant appealed to the Appellate Court, and

that court affirmed the trial court’s judgment. State v.

Kelly, 129 Conn. App. 109, 126, 19 A.3d 223 (2011).

We granted the defendant’s petition for certification to

appeal, limited to the following issues: ‘‘[1] Whether

the Appellate Court properly held constitutional the

warrantless seizure of the defendant on a public street

because he was in the company of a person believed

to be an individual wanted for [a] violation of probation

and [2] [W]hether the Appellate Court, in doing so,

properly relied on facts not [expressly] found by the

trial court when it denied the defendant’s motion to

suppress . . . .’’ State v. Kelly, 302 Conn. 920, 28 A.3d

338 (2011). We agree with the Appellate Court that the

trial court properly determined that the police were

authorized to stop and briefly detain the defendant, as

a reasonable safety measure, in connection with the

lawful detention of the individual he was accompanying, because the police reasonably believed that that

other individual was armed and dangerous. With

respect to the second certified question, that issue has

been rendered moot by virtue of an articulation, which

the trial court issued in response to this court’s order

following oral argument, explaining that it had credited

certain suppression hearing testimony on which the

Appellate Court relied in its recitation of the facts.

Because we conclude that the protective stop of the

defendant passes muster under both the federal and

state constitutions, we affirm the judgment ofthe Appellate Court.

The opinion of the Appellate Court sets forth the

following facts, which were based on testimony

adduced at the evidentiary hearing on the defendant’s

motion to suppress. ‘‘On March 27, 2007, Detective William Rivera of the Hartford [P]olice [D]epartment

received information from a reliable confidential informant that . . . Pedro Gomez, [who resided] in the area

of Brown Street in [the city of] Hartford, was in possession of a firearm. Having also discovered that Gomez

was the subject of an outstanding arrest warrant for

[a] violation of probation, Rivera and Lieutenant Jose

Angeles of the [D]epartment of [C]orrection drove to

the area in an unmarked car [while] dressed in plain
clothes. They had a description of Gomez as a Hispanic

male of medium complexion with short hair, twenty to

twenty-two years of age, between 130 and 150 pounds

and between five feet, five inches and five feet, seven

inches tall. The informant also had alerted Rivera that

[Gomez] sometimes . . . disguised himself by wearing

a dark wig.

‘‘At approximately 11 a.m., the officers observed two

men, later identified as the defendant and Rafael

Burgos, walking and talking together on the sidewalk.

There was a gas station on the corner that was a known

location for drug dealing, and Rivera suspected that the

men had just left that location. As the officers

approached, they determined that Burgos fit the

description of Gomez. As Burgos and the defendant

walked into the driveway at 13-15 Brown Street, they

made eye contact with the officers, and Burgos moved

his foot as if he was going to run. Both men continued

to walk slowly toward the rear of the building, looking

backwards. Angeles noticed that the defendant was

clutching his waistband. Stopping his vehicle in front

of the driveway, Rivera displayed his badge and stated

‘I’m a police officer’ and ‘come to the vehicle.’ Angeles

also displayed his badge. Burgos replied, ‘for what?’

and the defendant stated, ‘I live here.’ Burgos and the

defendant continued walking up the driveway. Rivera

then pulled the car into the driveway east of 13-15

Brown Street. The officers did not activate [the] vehicle’s lights or siren and had not drawn their firearms.

‘‘As Angeles began to step out of the vehicle, he

ordered the men to ‘stop, stop, come here.’ At that point,

[Burgos and the defendant] fled. The defendant ran

behind the house. Rivera drove the car to the front of

13-15 Brown Street and observed the defendant run

around the front of the house and up the street, still

clutching his waistband, while Angeles chased him on

foot. Rivera drove alongside them up the street and

then turned into a driveway to block the defendant’s

path. The defendant changed course, and Rivera began

chasing him on foot. Rivera saw the defendant drop a

clear plastic bag containing a white substance [that

subsequently was determined to be cocaine]. When the

defendant tripped and fell, Rivera tackled him and handcuffed him after a thirty second struggle. Rivera seized

the bag that the defendant had dropped and also seized

another clear plastic bag containing a large amount

of a white, rock like substance from the defendant’s

clenched hand.’’ (Footnote omitted.) State v. Kelly,

supra, 129 Conn. App. 112–13. The white substance

seized from the defendant’s hand also was determined

to be cocaine.

Thereafter, the defendant was charged with possession of narcotics with intent to sell by a person who is

not drug-dependent in violation of General Statutes

(Rev. to 2007) § 21a-278 (b), possession of narcotics
within 1500 feet of a school in violation of General

Statutes § 21a-279 (d), possession of narcotics in violation of General Statutes § 21a-279 (a), interfering with

an officer in violation of General Statutes (Rev. to 2007)

§ 53a-167a, and criminal trespass in the third degree in

violation of General Statutes (Rev. to 2007) § 53a-109.

The defendant moved to suppress the cocaine, claiming

that he had been unlawfully seized because Rivera and

Angeles had no reason to believe that the defendant

had committed or was committing a criminal offense,

and the discovery of the cocaine was the fruit of that

illegal seizure.

Following an evidentiary hearing on the defendant’s

motion to suppress, the trial court denied the motion.

In support of its decision, the trial court explained that,

because Rivera and Angeles reasonably believed that

Burgos was Gomez, they were justified in stopping

Burgos in light of the outstanding arrest warrant for

Gomez. The trial court further found that, because that

warrant was for the offense of ‘‘felony . . . possession

of a firearm,’’ the officers were authorized to briefly

detain the defendant, as a legitimate safety precaution,

incident to the lawful stop of Burgos.2 The trial court

reasoned that, when the police lawfully stop a suspect

who they reasonably believe may be armed and dangerous, and that suspect is accompanied by a companion,

the police also must be permitted to temporarily restrict

the companion’s freedom of movement lest they place

themselves at risk that the companion will ‘‘[step] back

. . . and open fire’’ on them. In reaching its conclusion,

the trial court analogized the companions of a suspect

on a public street to passengers in a vehicle driven by

a suspect, who, under Brendlin v. California, 551 U.S.

249, 255–58, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007),

lawfully may be detained incident to the lawful stop of

the driver. The trial court concluded that, because the

officers had justifiably detained the defendant for safety

reasons, the defendant could not prevail on his claim

that the cocaine seized by the police following his detention was the fruit of unconstitutional police conduct.

The defendant subsequently entered a plea of nolo

contendere to the crime of possession of narcotics with

intent to sell in violation of § 21a-277 (a), conditioned

on his right to appeal from the trial court’s denial of

his motion to suppress. See State v. Kelly, supra, 129

Conn. App. 114. The trial court rendered judgment of

conviction in accordance with the plea and sentenced

the defendant to nine years imprisonment, suspended

after three and one-half years, and three years probation. Id.

The defendant appealed to the Appellate Court from

the judgment of the trial court, claiming, inter alia, that

the police had detained him in violation of the fourth

amendment to the United States constitution3 and article first, §§ 7

4 and 9,5 of the Connecticut constitution.
Id. Specifically, the defendant argued that the officers

had seized him in violation of Terry v. Ohio, 392 U.S.

1, 27, 30–31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see

also State v. Donahue, 251 Conn. 636, 643–45, 742 A.2d

775 (1999) (Terry stop permitted under article first, §§ 7

and 9, of state constitution), cert. denied, 531 U.S. 924,

121 S. Ct. 299, 148 L. Ed. 2d 240 (2000); because they

lacked a reasonable and articulable suspicion that he

had committed or was about to commit a crime.6 See

State v. Kelly, supra, 129 Conn. App. 118. The defendant

also asserted that the trial court’s conclusion that the

officers had stopped him as a reasonable safety measure

was flawed for a second reason, namely, that it was

based on the clearly erroneous factual finding that

Gomez was the subject of an outstanding warrant for

felony possession of a firearm when, in actuality, the

testimony adduced at the suppression hearing established that the warrant was for a violation of probation

that had been imposed for an unspecified felony conviction.

During the pendency of his appeal before the Appellate Court, the defendant moved for an articulation by

the trial court of several of its factual findings. After

the trial court denied the motion, the defendant filed

a motion for review with the Appellate Court, which

granted the motion in part and ordered, inter alia, that

the trial court identify the offense alleged in the outstanding warrant for Gomez. In its articulation, the trial

court reiterated that the warrant was for felony possession of a firearm.

On appeal, the Appellate Court concluded that the

trial court properly had denied the defendant’s motion

to suppress. Id., 124. The Appellate Court commenced

its analysis by rejecting the defendant’s claim that his

seizure violated the fourth amendment, explaining that,

‘‘[u]nder federal law, a person is seized by a show of

authority only if he submits to it; California v. Hodari

D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d

690 (1991); which did not occur in the present case.

Accordingly, the first seizure under the fourth amendment occurred when Rivera tackled the defendant. By

the time that physical force was applied, Rivera had

probable cause to believe that the defendant was

engaged in criminal conduct when he fled and visibly

tossed away a plastic bag [containing a white substance]

while being pursued.’’ State v. Kelly, supra, 129 Conn.

App. 117 n.6.

With respect to the defendant’s claim that his seizure

violated article first, §§ 7 and 9, of the state constitution,

the Appellate Court relied on State v. Oquendo, 223

Conn. 635, 649–50, 613 A.2d 1300 (1992),7

in concluding

that the defendant was seized for state constitutional

purposes when Rivera and Angeles drove up alongside

him, displayed their badges, and Rivera told him to

approach the vehicle. See id., 116–17. The Appellate
Court also concluded, however, that, even though

Rivera and Angeles lacked reasonable and articulable

suspicion to believe, at the time of that encounter, that

the defendant was engaged in criminal activity, they

nevertheless lawfully had detained him because the

stop was reasonable, and therefore justified, under the

state constitution. See id., 122–24. Like the trial court,

the Appellate Court analogized the defendant’s detention to the legitimate detention of a vehicle’s passengers

incident to the stop of the driver; see Brendlin v. California, supra, 551 U.S. 255–58; observing that, ‘‘[i]n the

context of a traffic stop, the United States Supreme

Court has taken the unprecedented step of authorizing

seizures that are unsupported by any individualized suspicion whatsoever and [has] held that, during a traffic

stop, an officer may also order any passenger out of

the car as a precautionary [safety] measure.’’ State v.

Kelly, supra, 129 Conn. App. 119. The Appellate Court

also likened the stop of a suspect’s companion on a

public street to the suspicionless detention of the occupants of a residence during the execution of a search

warrant, which the United States Supreme Court

declared to be constitutionally permissible in Michigan

v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L.

Ed. 2d 340 (1981). See State v. Kelly, supra, 122. The

court ultimately concluded that, in light of the state’s

‘‘weighty interest in promoting the safety of its police

officers’’; (internal quotation marks omitted) id., 118;

and the minimal intrusion on the defendant’s liberty

interest; id., 123; it was reasonable for the officers to

briefly detain the defendant for safety purposes incident

to their investigative stop of Burgos.8

Id., 124. Accordingly, the Appellate Court affirmed the trial court’s judgment of conviction.9

Id., 126.

This certified appeal followed. Following oral argument, this court, sua sponte, ordered the trial court to

issue an articulation addressing two questions. First,

‘‘[u]pon reconsideration, and notwithstanding its finding that . . . Gomez was wanted for a felony firearms

violation, did the trial court credit the testimony

adduced at the hearing on the defendant’s motion to

suppress that there was an outstanding felony violation

of probation warrant for Gomez?’’ Second, ‘‘[d]id the

trial court credit the testimony that the police had

received information from a reliable informant that

Gomez might well be in possession of a firearm?’’ The

trial court answered both questions in the affirmative.

In the present appeal, the defendant 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.10 See State v. Kelly, supra, 129 Conn. App. 117 n.6.

Relying on the fact that he was seized under the state

constitution when the officers approached him and told

him to stop, the defendant claims,rather, that the Appel-
late Court incorrectly concluded that article first, §§ 7

and 9, permit the police to detain an individual on a

public street, even if the officers have no reason to

believe that the individual has committed or is committing a criminal offense, if that individual is accompanied

by a person whom the police have lawfully detained,

and the police reasonably suspect that that other person

is armed and dangerous. The defendant also claims that

the Appellate Court, in concluding that the trial court

correctly determined that Rivera and Angeles were justified in detaining the defendant, improperly relied on

facts that the trial court had not expressly found. With

respect to the defendant’s first claim, we conclude that

the state constitution permits the kind of brief, protective stop that occurred in the present case and, further,

that the evidence supported the trial court’s determination that the stop of the defendant was lawful. We also

reject the defendant’s second claim because it has been

rendered moot by virtue of the trial court’s response

to this court’s order for an articulation. We address

each of the defendant’s claims in turn.

I

The defendant contends that the Appellate Court

incorrectly concluded that it is permissible under the

state constitution for the police to briefly detain the

companion of a suspect, incident to the lawful stop of

that suspect, even though the police lack reasonable

suspicion to believe that the companion himself has

engaged or is engaging in criminal behavior. In support

of this contention, the defendant argues that the state

constitution does not permit the warrantless ‘‘seizures

of citizens in public places except upon a particularized

showing of suspicion of criminal activity’’ and that the

mere geographic proximity of a companion to a suspect,

however potentially dangerous that suspect may be, is

insufficient, without more, to justify the stop of the

companion. The state disagrees, asserting that,

although no preexisting framework for evaluating the

reasonableness of a state intrusion into a suspect’s liberty under article first, §§ 7 and 9, expressly authorizes

the suspicionless detention of a suspect’s companion,

such action is reasonably necessary, and therefore permissible under the state constitution, for the protection

of the investigating officer when, as in the present case,

that officer has lawfully stopped the suspect and has

a reasonable concern for his safety. The state further

asserts that ‘‘the governmental interests involved in

‘companion’ situations consistently will be so strong

that this court should recognize a bright line rule to the

effect that, when reasonable and articulable suspicion

supports a stop of a suspect, the police reasonably may

stop the companion of the suspect . . . .’’11 Although

we decline to adopt the bright line rule proposed by

the state, we agree with the state 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 defendant’s claim requires us to examine the

scope ofthe rights afforded by theConnecticut constitution. ‘‘It is well-established that federal constitutional

and statutory law establishes a minimum national standard for the exercise of individual rights and does not

inhibit state governments from affording higher level

of protection for such rights.’’(Internal quotation marks

omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d

1225 (1992). In determining the contours of the protections provided by our state constitution, we employ a

multifactor approach that we first adopted in Geisler.

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.’’ (Internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709,

716 n.6, 924 A.2d 809 (2007). In addition, as we previously have noted, these factors may be ‘‘inextricably

interwoven,’’ and ‘‘not every [such] factor is relevant

in all cases.’’ State v. Morales, 232 Conn. 707, 716 n.10,

657 A.2d 585 (1995).

As to the first Geisler factor, namely, the relevant

constitutional text, ‘‘this court repeatedly has observed

that the language of article first, § 7, of the state constitution closely resembles the language of the fourth

amendment to the federal constitution.’’12 State v.

Davis, 283 Conn. 280, 306, 929 A.2d 278 (2007). In light

of this textual similarity, it is not surprising that, with

respect to the second Geisler factor, namely, this state’s

precedent, we consistently have recognized that, ‘‘in

determining whether article first, § 7, has been violated,

we employ the same analytical framework that would

be used underthe federal constitution.’’(Internal quotation marks omitted.) Id., 310. Indeed, although we previously have held that, in some circumstances, article

first, § 7, provides greater protections than those

afforded under the federal constitution,13 we also have

observed that the standards governing our analysis for

purposes of article first, § 7, ‘‘mirror those set forth by

the United States Supreme Court . . . with regard to

[federal] fourth amendment analysis . . . .’’ (Citation

omitted.) State v. Oquendo, supra, 223 Conn. 654.

Accordingly, we next consider the third Geisler factor,

namely, relevant federal precedent, to determine

whether the fourth amendment permits the protective

stop of a suspect’s companion when the police reasonably believe that the suspect is armed and dangerous.

Because reasonableness is the touchstone of both the

fourth amendment and article first, § 7, persuasive federal precedent applying that standard is particularly

relevant to our state constitutional inquiry.14
The fourth amendment, like article first, § 7,15 proscribes only ‘‘unreasonable’’ searches and seizures. U.S.

Const., amend. IV; accord Conn. Const., art. I, § 7. A

search or seizure is presumptively unreasonable when

it is conducted without a warrant issued upon probable

cause. See, e.g., Katz v. United States, 389 U.S. 347,

356, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Nevertheless,

several categories of searches and seizures have been

deemed reasonable, and therefore lawful, even when

officers lack probable cause or a warrant. See, e.g.,

National Treasury Employees Union v. Von Raab, 489

U.S. 656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989)

(‘‘neither a warrant nor probable cause . . . is an indispensable component ofreasonableness in every circumstance’’). For instance, under Terry, officers may temporarily seize an individual if they have a reasonable

and articulable suspicion that he is involved in criminal

activity. See Terry v. Ohio, supra, 392 U.S. 30–31. As

the court stated in Terry, ‘‘we deal here with an entire

rubric of police conduct-—necessarily swift action

predicated [on] the on-the-spot observations of the officer on the beat—which historically has not been, and

as a practical matter could not be, subjected to the

warrant procedure. Instead, the conduct involved in

this case must be tested by the [f]ourth [a]mendment’s

general proscription against unreasonable searches and

seizures.’’ Id., 20. After balancing the state’s legitimate

interests in crime prevention and detection against a

suspect’s liberty interest; see id., 21–25; the court concluded that, when an officer has a reasonable basis

for suspecting that an individual is committing or has

committed a criminal offense, it is constitutionally permissible for the officer to briefly detain the individual

for investigative purposes. Id., 30–31. An accompanying

patdown search is similarly justified if the police also

have a reasonable basis to believe ‘‘that the person

stopped is armed and dangerous.’’ Arizona v. Johnson,

555 U.S. 323, 327, 129 S. Ct. 781, 172 L. Ed. 2d 694

(2009); see Terry v. Ohio, supra, 27, 30. This latter action

does not violate the fourth amendment because of the

‘‘immediate interest of the police officer in taking steps

to assure himself that the person with whom he is

dealing is not armed with a weapon that could unexpectedly and fatally be used against him.’’ Terry v. Ohio,

supra, 23.

Since Terry, the United States Supreme Court has

made it clear that an individual’s mere geographic proximity to ‘‘premises where an authorized narcotics

search is taking place’’ does not itself justify a patdown

search of that individual because that proximity, without more, is insufficient to create a reasonable suspicion that he is armed and dangerous. Ybarra v. Illinois,

444 U.S. 85, 94, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979);

see also United States v. Jaramillo, 25 F.3d 1146, 1152

(2d Cir. 1994) (‘‘[t]he 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’’). Courts

have applied this reasoning in concluding that the mere

geographic proximity between an individual who officers reasonably suspect has committed oris committing

a crime and his companion does not alone rise to the

level of reasonable suspicion of criminal activity by the

companion. See, e.g., United States v. Black, 707 F.3d

531, 539 (4th Cir. 2013); United States v. Navedo, 694

F.3d 463, 468–69 (3d Cir. 2012); People v. Trapier, 47

App. Div. 2d 481, 483–84, 367 N.Y.S.2d 276 (1975).

The 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. For example, in Michigan v. Summers, supra, 452 U.S. 692, the

court reasoned that Terry’s mandate of individualized

suspicion is inapplicable to the detention of the occupants of a dwelling incident to the execution of a search

warrant forthose premises. See id., 701–705. In reaching

its conclusion that such a seizure is permissible, the

court explained that the state’s interests in preserving

evidence, preventing flight, and protecting officer safety

outweighed the occupants’ liberty interests. See id.,

702–703; see also Maryland v. Wilson, 519 U.S. 408,

413–15, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (balancing

state’s interest in officer safety against individual’s liberty interest and holding that officers, while performing

traffic stop, may lawfully order passengers to exit vehicle, despite lack of suspicion that they are dangerous

or engaged in criminal activity); cf. Maryland v. Buie,

494 U.S. 325, 333–36, 110 S. Ct. 1093, 108 L. Ed. 2d

276 (1990) (balancing interests in officer safety and

individual privacy and concluding that, when police

enter premises to arrest suspect pursuant to warrant,

and police have reasonable belief that potentially dangerous companions of suspect may be hiding nearby,

police may conduct protective sweep of premises incident to execution of arrest warrant). Furthermore, we

have used the same balancing test that the United States

Supreme Court employed in Terry and Summers in

concluding that an individual’s suspicionless detention

may be reasonable under the Connecticut constitution.

See, e.g., State v. Mikolinski, 256 Conn. 543, 550, 554,

557, 775 A.2d 274 (2001) (applying reasonableness balancing test in holding that suspicionless sobriety checkpoints operated pursuant to neutral criteria are per-
missible under article first, §§ 7 and 9, of state constitution).

The Eleventh Circuit Court of Appeals recently

applied this balancing approach in determining that

the detention of the companions of two suspects ‘‘was

reasonable, in light of the substantial risks to the officers’ safety,’’ despite a lack of individualized suspicion

that the companions were involved in criminal activity.

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

2012). In Lewis, two police officers encountered four

men in a parking lot, one of whom was the defendant,

Omar Oneil Lewis. Id., 1300. During a conversation with

the men, the officers asked them whether they were

carrying firearms. Id. Two of the men, not including

Lewis, responded in the affirmative, and the police then

brandished their weapons and ordered all four men to

sit on the ground with their hands showing. Id., 1300–

1301. The officers subsequently discovered a semiautomatic pistol underneath a vehicle parked near Lewis,

whom they arrested and charged with carrying a concealed firearm. Id., 1301. The District Court subsequently granted Lewis’ motion to suppress the pistol,

reasoning that the police had illegally seized Lewis

when they ordered him to the ground at gunpoint

because, at the time, they lacked reasonable and articulable suspicion to believe that he had committed or was

committing a criminal offense, and the pistol was a fruit

of that unlawful seizure. Id., 1301–1302. The Eleventh

Circuit reversed the District Court’s ruling, concluding

that, ‘‘for safety reasons, officers may, in some circumstances, briefly detain individuals about whom they

have no individualized reasonable suspicion of criminal

activity in the course of conducting a valid Terry stop

as to other related individuals.’’ Id., 1306. In balancing

the safety interests of the officers against Lewis’ liberty

interest, the court concluded that it was reasonable

for the police ‘‘to control the movements of nearby

associates and exercise command over the situation

once the officers had reasonable suspicion of criminal

activity that warranted further investigation.’’ Id., 1308.

In arriving at this conclusion, the court focused on the

specific dangers associated with firearms, explaining

that ‘‘the very rationale underpinning Terry—the protection of officer safety and the safety of others nearby,

especially from the dangers posed by firearms—[was]

presented by the facts of [the] case.’’ Id., 1309.

We agree with Lewis that, for purposes of the reasonableness requirement of the fourth amendment, the

state’s interest in officer safety is sufficiently compelling that, when officers have a reasonable concern for

their safety while lawfully detaining a suspect, it is

permissible for the officers to briefly detain the suspect’s companion as a precautionary measure. As the

court in Lewis recognized, ‘‘individualized suspicion is

not an absolute prerequisite for every constitutional

search or seizure.’’ Id., 1305; see also Samson v. Califor-
nia, 547 U.S. 843, 855 n.4, 126 S. Ct. 2193, 165 L. Ed.

2d 250 (2006)(‘‘[t]he touchstone ofthe [f]ourth [a]mendment is reasonableness, not individualized suspicion’’).

Although the protective stop of a companion authorized

by Lewis does not meet the requirements for a Terry

stop, ultimately, the determination of whether such a

stop is reasonable for fourth amendment purposes

entails a balancing of ‘‘the need to search [or seize]

against the invasion which the search [or seizure]

entails.’’ (Internal quotation marks omitted.) Terry v.

Ohio, supra, 392 U.S. 21; see also State v. Wilkins, 240

Conn. 489, 503, 692 A.2d 1233 (1997) (reasonableness

is evaluated by measuring state’s ‘‘intrusion on the individual’s interests against its promotion of legitimate

. . . governmental interests’’ [internal quotation marks

omitted]). In evaluating the reasonableness of the protective stop of a suspect’s companion, we therefore

must consider the state’s interest in officer safety in

light of the companion’s liberty interest.

To be sure, the fourth amendment guarantees all persons the right to be free from unwarranted police interference while on a public street, as in the present case,

or elsewhere. A protective stop of the kind that

occurred here, however, represents a relatively limited

intrusion into that interest. A protective stop typically

will be of short duration, and, unless the officer has

reason to believe that the subject of the stop is armed,

ordinarily, there will be no need for an accompanying

patdown for weapons.16 On the other side of the ledger,

the state has a weighty interest in ensuring officer safety

when an officer stops a suspect who he reasonably

believes is armed and dangerous. Should an officer

determine that it is necessary to detain a suspect in

furtherance of a criminal investigation, the officer may

well encounter one or more persons accompanying the

suspect, and the presence of those companions both

increases the possibility of interference with the officer’s investigation and, as the Appellate Court observed,

multiplies the sources of potential harm to the officer.

See State v. Kelly, supra, 129 Conn. App. 122–23. ‘‘Certainly it would be unreasonable to require that police

officers take unnecessary risks in the performance of

their duties. American criminals have a long tradition

of armed violence, and every year in this country many

law enforcement officers are killed in the line of duty,

and thousands more are wounded.’’ Terry v. Ohio,

supra, 392 U.S. 23. Consequently, the fourth amendment

permits ‘‘swift action by police officers who, while conducting lawful investigations, find themselves in a position of imminent peril.’’ State v. Mann, 271 Conn. 300,

315, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125

S. Ct. 1711, 161 L. Ed. 2d 527 (2005). Such action is

permissible when, as the state contends occurred in

the present case, an officer reasonably believes that,

in order to avoid or defuse a potentially dangerous

situation, he must take control of that situation by tem-
porarily maintaining the status quo.17

As we have indicated, our analysis comports with

the reasoning of the United States Supreme Court that,

in certain circumstances implicating police safety, it is

constitutionally permissible for the police to detain an

individual, even in the absence of particularized suspicion that the individual has engaged in criminal conduct. For example, the detention of a suspect’s companion on a public street bears important similarities

to the lawful detention of a vehicle’s passengers incident to the stop of the driver. See Brendlin v. California, supra, 551 U.S. 256–57. In the same manner that

a traffic stop curtails the freedom of a passenger, so,

too, does the protective stop of a suspect’s companion.

Nevertheless, in the case of a traffic stop, an officer

may detain the vehicle’s passengers because ‘‘[t]he risk

of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned

command of the situation.’’ (Internal quotation marks

omitted.) Id., 258. Indeed, in the context of a traffic

stop, the state’s overriding interest in officer safety has

been deemed to provide sufficient justification for the

officer to order the passengers out of the vehicle without any individualized suspicion that those passengers

pose a threat or otherwise were involved in conduct

warranting their removal from the vehicle. See Maryland v. Wilson, supra, 519 U.S. 413–15; cf. United States

v. Vaughan, 718 F.2d 332, 334–36 (9th Cir. 1983)

(applying balancing test used by United States Supreme

Court in Summers and concluding that brief, protective

detention of passenger, who repeatedly attempted to

walk away from vehicle, was lawful). Furthermore, the

protective stop of a suspect’s companion is analogous

to a traffic stop of a vehicle with one or more passengers

in that ‘‘a sensible person would not expect a police

officer to allow people to come and go freely from

the physical focal point of an investigation into faulty

behavior or wrongdoing.’’ Brendlin v. California,

supra, 257.

In addition, as the Appellate Court explained; see

State v. Kelly, supra, 129 Conn. App. 120; the holding

in Michigan v. Summers, supra, 452 U.S. 705, permitting

the detention of a dwelling’s occupants during the execution of a search warrant at the dwelling provides

further support for the conclusion that the protective

stop of a suspect’s companion incident to the lawful

stop of the suspect does not violate the fourth amendment when the investigating officer has a reasonable

concern for his safety. An officer who detains a suspect

accompanied by a companion faces safety concerns

similar to those that are present during the execution

of a search warrant, especially when, as in the present

case, the officer has reason to believe that the suspect

is armed and dangerous: the companion’s physical proximity to the officer and the suspect makes it very easy

for the companion to interfere with the police investiga-
tion and to cause harm to the officer. The state’s interest

in mitigating this risk is substantial in both contexts

and justifies police action without individualized suspicion. As this court previously has recognized, ‘‘the

notion is abhorrent that police who are investigating a

crime and suddenly find themselves at risk are precluded from acting reasonably in response to that risk

merely because they have not yet established’’ the requisite level of cause to believe that a crime has been

committed.18 (Internal quotation marks omitted.) State

v. Mann, supra, 271 Conn. 318.

We do recognize that some of the factors on which

the court in Summers relied to support its conclusion

that it is constitutionally permissible for the police to

detain the occupants of a dwelling while executing a

search warrant are not present in the case of a protective stop of the companion of a lawfully detained and

potentially dangerous suspect. For example, when executing a search warrant for a dwelling, ‘‘[a] neutral

and detached magistrate [has] found probable cause to

believe that the law was being violated in that house and

[has] authorized a substantial invasion of the privacy of

the persons who [reside] there.’’ Michigan v. Summers,

supra, 452 U.S. 701. In addition, the detention of the

dwelling’s occupants usually is less intrusive than the

scope of the judicially authorized search itself. Id. The

fact that these considerations are not present in the

case of a protective stop of a suspect’s companion,

however, does not render protective stops per se unreasonable; rather, it is reason for concluding that the

permissible degree to which the state may intrude on

a companion’s personal liberty must be correspondingly

circumscribed. Consequently, a protective stop must

be limited, in both time and manner, to the minimum

intrusion necessary for officers to reasonably ensure

their safety. In addition, the propriety of the protective

stop is contingent on the constitutional validity of the

underlying seizure of the suspect, and the state must

point to specific facts that support the conclusion that

the safety concerns of the police officer involved in

the protective stop were objectively reasonable.19 When

these requirements have been met, a protective stop

is significantly less intrusive than the detention of a

dwelling’s occupants authorized by Summers; indeed,

in stark contrast to a protective stop, a detention incident to the execution of a search warrant potentially

could last for hours and could involve the use of significant physical restraints on the individual’s liberty. See,

e.g., Muehler v. Mena, 544 U.S. 93, 96, 100, 102, 125 S. Ct.

1465, 161 L. Ed. 2d 299 (2005) (reasonable to handcuff

defendant for two to three hours during execution of

search warrant); see also State v. Read, 132 Conn. App.

17, 21, 29 A.3d 919 (execution of search warrant lasted

approximately eight to ten hours), cert. denied, 303

Conn. 916, 33 A.3d 740 (2011). Furthermore, unlike the

preventive detention of a suspect’s companion, the
police need not have a reasonable concern for their

safety when detaining the occupant of a dwelling in

accordance with Summers.

20 See Michigan v. Summers, supra, 703–704.

Thus, federal cases construing the fourth amendment’s reasonableness requirement strongly support

the conclusion that it is reasonable under article first,

§§ 7 and 9, of the state constitution forthe police to stop

a suspect’s companion, as a reasonable safety measure,

when the police, having lawfully detained the suspect,

reasonably believe that the suspect is armed and dangerous. We therefore turn to the remaining Geisler factors, none of which supports the defendant’s claim.

As to the fourth Geisler factor, namely, persuasive

sister state precedents, state courts invariably have concluded that a police officer, while lawfully detaining a

suspect, also may briefly stop the suspect’s companion

when that stop is justified by considerations of officer

safety. See, e.g., Trice v. United States, 849 A.2d 1002,

1006 (D.C. 2004) (‘‘[d]espite the general rule, immediate

safety concerns may justify police in stopping, or stopping and frisking, a person based on his association

with someone else whom the police reasonably suspect

of criminal activity’’), cert. denied, 543 U.S. 1078, 125

S. Ct. 934, 160 L. Ed. 2d 820 (2005); Commonwealth v.

Rucker, Massachusetts Superior Court, Docket No. 06-

00530 (Mass. Sup. 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, or the public at large, even if the officer has

no reason to believe the individual would intentionally

cause harm’’), transfer denied, Missouri Supreme Court,

Docket No. SC92290 (Mo. March 6, 2012); State v. Sparr,

13 Neb. App. 144, 153–55, 688 N.W.2d 913 (2004) (officer’s actions were reasonable when, while seizing driver

of one vehicle that already was stopped, he detained

driver of nearby vehicle as safety precaution); see also

United States v. Maddox, 388 F.3d 1356, 1367–68 (10th

Cir. 2004) (permitting protective stop of arrestee’s companions incident to his arrest when officers had reasonable safety concerns), cert. denied, 544 U.S. 935, 125 S.

Ct. 1689, 161 L. Ed. 2d 504 (2005); cf. People v. Samples,

48 Cal. App. 4th 1197, 1206–1207, 56 Cal. Rptr. 2d 245

(1996) (using balancing test and concluding that, after

defendant parked his vehicle without prompting, officers acted reasonably in detaining him incident to seizure of his passengers, whom officers reasonably
suspected had engaged in sale of narcotics, because

state’s interest in officer safety outweighed relatively

minor limitation on defendant’s liberty), review denied,

California Supreme Court, Docket No. S056442 (Cal.

December 18, 1996). Indeed, 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.

Nevertheless, the defendant contends that the final

potentially relevant Geisler factor, namely, sociological

and policy considerations,21 supports his claim that the

state constitution precludes the protective stop of a

suspect’s companion. In essence, the defendant claims

that permitting the police to conduct such a stop will

lead to abuse by overzealous officers. We do not believe

that any such risk outweighs the state’s strong interest

in officer safety. Moreover, to the extent that the defendant’s concern may have some legitimacy, our courts

are well equipped to address any claim of police impropriety with respect to the protective stop of a suspect’s

companion and to enforce the conditions that we have

placed on such detentions by ensuring that the failure

of the police to abide by those conditions in any given

case does not go unremedied.

Thus, our review of the Geisler factors leads to only

one conclusion: the defendant cannot prevail on his

claim that the state constitution categorically bars the

police from detaining a suspect’s companion as a precautionary safety measure. On the contrary, it is reasonable, and therefore permissible, under article first, §§ 7

and 9, of the state constitution, for officers to briefly

detain a suspect’s companion incident to the lawful

stop of the suspect when the officers reasonably believe

that the suspect presents a threat to their safety.

Finally, the state maintains that the interest in officer

safety is so weighty that we should go further and adopt

a bright line rule pursuant to which it always is permissible for an officerto detain a suspect’s companion, whenever the suspect is detained, regardless of whether the

officer is reasonably concerned for his safety. We

decline the state’s invitation to adopt such a broad rule

because we do not believe that it is necessary for the

protection of the police, and, consequently, we are

doubtful that it would satisfy the constitutional reasonableness requirement. For example, under the state’s

proposed standard, an officer could lawfully detain a

suspect’s companion even if the officer had no reason

to believe that either the suspect or the companion

posed any threat to the officer’s safety. Similarly, an

officer would be free to automatically detain a suspect’s

young child or a group of obviously disinterested

bystanders, merely because of their physical proximity

to the suspect, even though the officer could not articulate a rational justification for the detention.22 Although

itis true that an officerinvariably may detain the passen-
gers of a car incident to the stop of the driver; see

Brendlin v. California, supra, 551 U.S. 255–58; because

of the nature of such a stop; see, e.g., Pennsylvania v.

Mimms, 434 U.S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d

331 (1977)(recognizing ‘‘the inordinate risk confronting

an officer as he approaches a person seated in an automobile’’); there will be some circumstances when it

is not reasonable for an officer to detain a suspect’s

companion incident to the stop of the suspect. Consequently, we do not agree with the state that the generalized interest in police safety inevitably outweighs the

companion’s liberty interest. We are persuaded, rather,

that permitting the protective stop of a suspect’s companion when the officer has reason to be concerned

for his safety strikes an appropriate balance between

the competing state and individual interests.

II

The defendant next claims that the Appellate Court

incorrectly concluded that the trial court properly had

found that Detective Rivera and Lieutenant Angeles

were justified in detaining the defendant because they

had a reasonable concern for their safety. In support

of this claim, the defendant asserts that the trial court’s

conclusion was based on clearly erroneous factual findings and, further, that the Appellate Court ignored those

erroneous findings and improperly upheld the trial

court’s ruling on the basis of facts that the trial court

never found.

The record reveals the following additional facts and

procedural history that are relevant to this issue. At

the hearing on the defendant’s motion to suppress the

cocaine seized by the police following his detention

incident to the stop of Burgos, Rivera testified that,

shortly before the defendant’s arrest, a confidential

informant, who previously had provided accurate information about individuals in possession of firearms, told

the police that Gomez, who lived in the Brown Street

area of Hartford, likely was carrying a firearm. After

receiving this information, Rivera discovered that

‘‘there was an outstanding felony violation of probation

warrant’’ for Gomez. At the hearing, the defense conceded that the officers lawfully had stopped Burgos

because they reasonably believed that he was Gomez

and had a reasonable and articulable suspicion that

Gomez had committed a criminal offense.

At the conclusion of the suppression hearing, the trial

court made the following factual findings. ‘‘This [case]

involves a series of events that happened on Brown

Street, in Hartford, in the midday hours of March 27,

2007. The Hartford police had a warrant for . . .

Gomez. And this warrant was a felony warrant for

possession of a firearm. The police also had reason to

believe that . . . Gomez was located in the Brown

Street area of Hartford. The police went to this

address—or went to this location—and saw walking
on the street two gentlemen, one of whom, although

neither person was . . . Gomez—it happened that one

person matched a physical description given to the

police of . . . Gomez. And they did not have a photograph; they just had a physical description.’’ (Emphasis

added.) Thereafter, however, the Appellate Court, in

upholding the trial court’s denial of the defendant’s

motion to suppress, relied in part on testimony adduced

at the suppression hearing establishing, first, that

Gomez was the subject of an outstanding warrant for

a violation of probation and, second, that the police

had received information from a reliable confidential

informant that Gomez was carrying a firearm. State v.

Kelly, supra, 129 Conn. App. 112. Finally, while this

appeal was pending, and in response to this court’s

order for an articulation, the trial court stated that it

had credited the officers’ testimony that there was an

outstanding felony violation of probation warrant for

Gomez, and that a reliable informant had told the police

that Gomez was in possession of a firearm.

We agree with the defendant that the trial court’s

initial finding concerning the charge in the outstanding

arrest warrant for Gomez, that is, felony possession of

a firearm, was unsupported by the record because the

unchallenged testimony adduced by the state established that Gomez was the subject of a warrant for an

‘‘outstanding felony violation of probation . . . .’’ As

we have explained, however, in the trial court’s articulation, which it issued during the pendency of the present

appeal, the court reconsidered that initial finding and

stated that it credited the suppression hearing testimony that Gomez had an outstanding felony warrant

for a violation of probation. The trial court also stated

that it credited the testimony that the officers had

received information from a reliable confidential informant that Gomez likely was in possession of a firearm.

In light of these factual findings by the trial court, the

defendant’s claim that the Appellate Court improperly

relied on certain erroneous factual findings is moot.23

Furthermore, as the Appellate Court explained, the evidence was sufficient to support a reasonable belief by

Rivera and Angeles that Gomez was armed and dangerous. Finally, the defendant himself conceded thatRivera

and Angeles lawfully had stopped Burgos because they

reasonably believed that he was Gomez, for whom they

had an arrest warrant, when they observed Burgos on

Brown Street. For the reasons set forth in part I of this

opinion, the facts also support the conclusion of the trial

court and the Appellate Court that Rivera and Angeles

reasonably detained the defendant, as a legitimate

safety precaution, incident to the stop of Burgos, even

though they lacked any individualized suspicion to

believe thatthe defendant himself was involved in criminal activity or was armed and dangerous.

III
In sum, we agree with the Appellate Court that ‘‘the

interest in the officers’ safety during the investigatory

stop of Burgos outweighed the defendant’s personal

liberty interest in not being inconvenienced. To mitigate

the risk of harm, the officers exercised command of

the entire scene, including the defendant. See, e.g.,

Michigan v. Summers, supra, 452 U.S. 702–703. When

making a ‘split second’ decision, an officer is ‘not

required to calculate the probability that the defendant

would proceed in a certain way before taking reasonable steps to protect himself and his fellow officers.’

State v. Mann, supra, 271 Conn. 328. For example, when

making a suspicionless detention of a passenger during

a traffic stop, a police officer ‘surely [is] not constitutionally required to give [the defendant] an opportunity

to depart the scene after he exit[s] the vehicle without

first ensuring that, in so doing, [he is] not permitting

a dangerous person to get behind [him].’ Arizona v.

Johnson, [supra, 555 U.S. 334]. Similarly, for example, in

determining the reasonable duration of an investigative

stop, a court ‘should take care to consider whether the

police are acting in a swiftly developing situation, and

in such cases the court should not indulge in unrealistic

second-guessing.’ United States v. Sharpe, 470 U.S. 675,

686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). The risk

in the present case was significant, and the incremental

intrusion was minimal.’’ State v. Kelly, supra, 129 Conn.

App. 124. Accordingly, the protective stop of the defendant incident to the stop of Burgos did not violate the

defendant’s rights under the state constitution, and,

therefore, the Appellate Court properly upheld the trial

court’s ruling that the defendant is not entitled to suppression of the cocaine that the police had seized following his detention.

The judgment of the Appellate Court is affirmed.

In this opinion ROGERS, C. J., and NORCOTT, ZARELLA and VERTEFEUILLE, Js., concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1 General Statutes § 54-94a provides: ‘‘When a defendant, prior to the

commencement of trial, enters a plea of nolo contendere conditional on the

right to take an appeal from the court’s denial of the defendant’s motion

to suppress or motion to dismiss, the defendant after the imposition of

sentence may file an appeal within the time prescribed by law provided a

trial court has determined that a ruling on such motion to suppress or motion

to dismiss would be dispositive of the case. The issue to be considered in

such an appeal shall be limited to whether it was proper for the court to

have denied the motion to suppress or the motion to dismiss. A plea of nolo

contendere by a defendant under this section shall not constitute a waiver

by the defendant of nonjurisdictional defects in the criminal prosecution.’’

2 We note that the trial court’s finding that Gomez had an outstanding

warrant for the offense of ‘‘felony . . . possession of a firearm’’ was incorrect. Rather, the undisputed testimony, elicited from Angeles, reflects that

Gomez was the subject of an ‘‘[a]ctive felony warrant for . . . a violation

of probation . . . .’’ As we explain more fully hereinafter, however, this

error is harmless because the trial court subsequently issued an articulation

that included a correction of its erroneous finding concerning the nature

of the offense alleged in the warrant. See part II of this opinion.

3 The fourth amendment to the United States constitution provides: ‘‘The

right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons

or things to be seized.’’

The fourth amendment’s protection against unreasonable searches and

seizures is made applicable to the states through the due process clause of

the fourteenth amendment to the United States constitution. See, e.g., Mapp

v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

4 Article first, § 7, of the Connecticut constitution provides: ‘‘The people

shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to

seize any person or things, shall issue without describing them as nearly

as may be, nor without probable cause supported by oath or affirmation.’’

5 Article first, § 9, of the Connecticut constitution provides: ‘‘No person

shall be arrested, detained or punished, except in cases clearly warranted

by law.’’

6

In Terry, the United States Supreme Court held that police may detain

an individual when the following three conditions are met: ‘‘(1) the officer

must have a reasonable suspicion that a crime has occurred, is occurring,

or is about to occur; (2) the purpose of the stop must be reasonable; and

(3) the scope and character of the detention must be reasonable when

considered in light of its purpose.’’ State v. Cyrus, 297 Conn. 829, 837, 1

A.3d 59 (2010).

7

In Oquendo, this court held that, in contrast to fourth amendment jurisprudence, ‘‘a consensual encounter becomes a seizure [under article first,

§ 7, of the Connecticut constitution] if, on the basis of a show of authority

by the police officer, a reasonable person in the defendant’s position would

have believed that he was not free to leave.’’ State v. Oquendo, 223 Conn. 653.

8

In reaching its conclusion,theAppellate Courtrelied on certain testimony

that the state had adduced at the suppression hearing but which the trial

court initially did not expressly credit or otherwise mention. In particular,

the Appellate Court’s conclusion was predicated on testimony that the police

were reliably informed that Gomez was in possession of a firearm and

that he was the subject of an outstanding arrest warrant for a violation of

probation. State v. Kelly, supra, 129 Conn. App. 112. In focusing on that

testimony, the Appellate Court essentially disregarded the trial court’s erroneous finding that there was an outstanding warrant for Gomez for felony

possession of a firearm. See footnote 2 of this opinion. As we discuss in

this opinion, during the pendency of the present appeal, the trial court issued

an articulation indicating that it also had credited the same testimony on

which the Appellate Court’s recitation of the facts was predicated. See part

II of this opinion.

9 On appeal to the Appellate Court, the defendant also asserted that the

trial court improperly allocated the burden of proof to him for purposes of

the motion to suppress when, in fact, it is the state’s burden to establish

that a warrantless search or seizure is constitutionally permissible. See State

v. Kelly, supra, 129 Conn. App. 125–26. The Appellate Court rejected that

claim; id., 126; and it is not at issue in this certified appeal.

10 Indeed, the defendant would have no reasoned basis on which to disagree with that determination by the Appellate Court.

11 The state also contends that the defendant’s seizure was lawful because

Rivera and Angeles had a reasonable suspicion that the defendant himself

was engaged in criminal conduct when they ordered him to approach their

car. We need not address this claim in light of our determination that

the brief detention of the defendant incident to the lawful stop of Burgos

constituted a reasonable safety precaution.

12 See footnotes 3 and 4 of this opinion.

13 See, e.g., State v. Oquendo, supra, 223 Conn. 649–50, 652 (declining to

adopt, for purposes of state constitution, fourth amendment principle that

seizure of individual does not occur until individual submits to show of

authority); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990)(declining

to recognize, for purposes of state constitution, good faith exception applicable to fourth amendment exclusionary rule).

14 Consequently, our discussion of federal precedent is significantly more

extensive than our discussion of the other, less relevant Geisler factors.

15 We note that the defendant asserts that article first, § 9, of the state

constitution provides protections greater than those afforded under article

first, § 7, because article first, § 7, grants rights to the ‘‘people,’’ whereas

article first, § 9, uses the singular term ‘‘person’’ in describing its protections.

We reject the defendant’s claim with respect to the alleged import of this
minor linguistic difference in the two provisions because, as we previously

have observed, ‘‘in the search and seizure context, article first, § 9, is our

criminal due process provision [and] does not provide protections greater

than those afforded by eitherthe fourth amendment orits coordinate specific

state constitutional provision, article first, § 7.’’ State v. Jenkins, 298 Conn.

209, 259 n.39, 3 A.3d 806 (2010).

16 We note that some courts have adopted the so-called automatic companion rule, under which officers may conduct a patdown search of the companion of a lawfully detained suspect even though the officers lack a reasonable

suspicion to believe that the companion is armed and dangerous. See, e.g.,

United States v. Poms, 484 F.2d 919, 922 (4th Cir. 1973); United States v.

Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971); State v. Clevidence, 153 Ariz.

295, 298, 736 P.2d 379 (App. 1987). But see United States v. Bell, 762 F.2d

495, 499 (6th Cir.) (rejecting automatic companion rule and stating that it

did ‘‘not believe that the Terry requirement of reasonable suspicion . . .

ha[d] been eroded to the point that an individual may be frisked based [on]

nothing more than an unfortunate choice of associates’’ [citation omitted]),

cert. denied, 474 U.S. 853, 106 S. Ct. 155, 88 L. Ed. 2d 128 (1985). Although we

need notreach this issue for purposes of the present appeal, it is questionable

whether such a rule would satisfy the reasonableness requirement of the

fourth amendment. See Arizona v. Johnson, supra, 555 U.S. 326–27 (under

Terry, patdown search of suspect who has been lawfully stopped on basis

of reasonable and articulable suspicion cannot also be frisked unless police

reasonably suspect that suspect is armed and dangerous).

17 To conclude otherwise would enable a suspect’s companion to walk

away from the officer, and out of his line of sight, while the officer is

confronting the armed and dangerous suspect. If the companion is allowed

to walk away, he easily could be out of the officer’s view in a few short

steps, and, in order to keep track of the companion—whose relationship

to the suspect provides strong reason for the officer to keep the companion

in his sight until the officer gains sufficient command of the situation—the

officer would have to divert his attention from the suspect. This is an

untenable position in which to place the officer, who must be able to devote

his full attention to the dangerous suspect. We therefore reject the dissent’s

contention that, instead of briefly detaining the defendant, the police ‘‘had

to request that the defendant leave while they detained the suspect.’’ We

are fully persuaded, rather, that the officer, and not the companion, must

be permitted to control the situation by detaining the companion briefly for

the purpose of avoiding the potentially catastrophic consequences that might

result if the officer were denied the right to keep the companion in his sight

while dealing with the suspect. Notably, the dissent does not explain how

an officer may reasonably ensure his safety if he is unable to monitor the

activities of the companion while he is confronting the dangerous suspect.

18 The defendant and the dissent indicate that Summers provides little or

no support for the conclusion that a protective stop is permissible under

the fourth amendment because the court in Summers observed that the

search warrant itself provided an objective basis for believing that the

dwelling’s occupants were involved in criminal activity, and that belief provided a basis for the detention of the occupants. See Michigan v. Summers,

supra, 452 U.S. 703–704 (‘‘The existence of a search warrant . . . 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 [the] occupant.’’ [Footnote omitted.]). This,

however, was only one of several justifications for the detention of the

occupants in Summers, the holding of which was predicated on balancing

the various ‘‘special law enforcement interests’’ implicated when a search

warrant is executed, including officer safety, and the relatively limited intrusion on the occupants’ liberty interests occasioned by the detention. See

id., 699–704. Indeed, the court in Summers made it clear that the ‘‘central

inquiry under the [f]ourth [a]mendment’’ is ‘‘the reasonableness in all the

circumstances of the particular governmental invasion of a citizen’s personal

security,’’ not individualized suspicion. (Internal quotation marks omitted.)

Id., 700 n.11.

19 Thus, contrary to the assertion of the dissent, our decision does not

give rise to any ‘‘unconscionable ramifications . . . .’’ In support of this
assertion, the dissent posits a number of hypothetical scenarios and suggests

that, in each such situation, the state might seek to rely on our holding in

the present case to justify the detention of persons based solely on their

proximity to an armed and dangerous suspect. The dissent’s concern appears

to be based on the fact that ‘‘[t]here simply is no definition of who is a

‘companion’ in the majority opinion.’’ Although the present case does not

require us to define ‘‘companion’’—because the defendant makes no claim

that he and Burgos were not companions—it suffices to say that the police

may detain a person in the belief that that person is accompanying an

armed and dangerous suspect only if that belief is based on reasonable and

articulable facts. In other words, the police must reasonably believe that

the person is accompanying the suspect. Because the police must abide by

this reasonableness standard, the dissent’s concern that our decision might

somehow authorize the police to detain one or more persons merely because

of their proximity to the suspect, and without regard to whether the facts

give rise to the justified belief that any such person or persons were accompanying the suspect, is unfounded.

20 The defendant asserts that, in contrast to the duly authorized search of

the dwelling in Summers and the lawful stop of the vehicle in Brendlin, the

police have no such preexisting and independent justification forinitiating an

intrusion into the liberty interest of a suspect’s companion. According to

the defendant, this distinction leads to the conclusion that an officer may

detain the companion only if he has an individualized and reasonable suspicion that the companion has committed or is committing a criminal offense.

Contrary to the defendant’s claim, the protective stop of the companion is

indeed dependent on prior, lawful police action: in the same manner that

an officer lawfully detains the passengers of a motor vehicle when he has

sufficient cause to stop the driver; see Brendlin v. California, supra, 551

U.S. 255–58; the protective stop of a suspect’s companion is predicated on,

and justified by, the lawful stop of a suspect who the police reasonably

believe is armed and dangerous.

In addition, although we disagree generally with the dissent’s analysis of

the relevant case law, we are particularly puzzled by the dissent’s reliance

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

court held that the police were not entitled to search a person who merely

was present in a bar that was the subject of a search warrant. Id., 88, 94,

96. Subsequently, however, in Michigan v. Summers, supra, 452 U.S. 705,

the court made it clear that the police are authorized to detain a person

who, like the defendant in Ybarra, is present on the premises during the

execution of a search warrant for those premises. 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, Ybarra, in contrast to

Summers, has little or no bearing on the outcome of the present case.

Perhaps even more important, however, the dissent, in asserting that Ybarra

provides the ‘‘appropriate framework’’ for purposes of the present case,

ignores the fact that, as the United States Supreme Court made clear in

Summers and, thereafter, in Wilson and Buie, a person may be detained

without particularized suspicion of criminal activity when the detention is

reasonable, and therefore justified for fourth amendment purposes, in the

interest of officer safety. As we explained, in determining the constitutional

propriety of such an intrusion, we must balance the state’s interest in police

safety against the individual’s liberty interest, with due regard for the nature

and extent of the intrusion. 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. We note, finally, that the dissent’s reliance on United States v. Navedo,

supra, 694 F.3d 463, is similarly misplaced because the court in that case

simply concluded that the detention of the defendant, Alexander Navedo,

was impermissible under Terry and never considered the argument—

because the government did not make it—that Navedo’s detention was a

reasonable protective stop. See id., 468–69.

21 The defendant does not contend that the fifth Geisler factor, the historical underpinnings of article first, § 7, provides support for his claim.

22 We recognize, of course, that there frequently are safety risks when an

officer detains a suspect in a public setting, and that the protective stop of

the suspect’s companion often will be warranted. Moreover, in posing the

foregoing examples, we do not suggest that any particular category of companion necessarily is immune from a protective stop. Our point, rather, is

simply that, when an officer detains a suspect’s companion incident to the

stop of the suspect, the officer must have a legitimate reason for doing so.
23 The defendant also claims that the Appellate Court improperly relied

on other facts that, although the subject of testimony at the suppression

hearing, the trial court never expressly found. Those facts are that the

defendant clutched at his waistband, that Gomez sometimes disguised himself by wearing a wig, and that the stop of Burgos and the defendant occurred

near a gas station located in an area known for drug dealing. See State v.

Kelly, supra, 129 Conn. App. 112–13. For purposes of resolving the issue

presented by this appeal, however, it is irrelevant whether the Appellate

Court relied on those facts because other facts that the trial court found

and on which the Appellate Court relied, namely, that the police had a felony

arrest warrant for Gomez and had been told by a reliable informant that

Gomez likely was carrying a firearm; id., 112; were sufficient to support the

conclusion that Rivera and Angeles had a reasonable belief that Gomez was

armed and dangerous.