Let’s try a little game. I will give you the opening lines of a recent Connecticut Supreme Court decision [pdf] and you tell me (you can do this silently, sitting at your computer) what the outcome is. Ready?
The sole issue in this appeal is whether the Appellate Court properly concluded that the defendant, David Burroughs, was seized within the meaning of article first, §§ 71 and 9,2 of the Connecticut constitution when two uniformed, armed police officers exited their patrol car and approached his vehicle. The state appeals from the Appellate Court’s judgment, claiming that that court improperly reversed the trial court’s determination that the conduct of the officers did not amount to an unconstitutional seizure of the defendant. The state specifically argues that such conduct would not have caused a reasonable person in the defendant’s position to believe that he was not free to leave.
So. Raise your hands if you think the Appellate Court was wrong. Okay. You – the only one with the raised hand, there’s a job waiting for you at the State’s Attorney’s Office of Delusion.
The Court, naturally, finds that the Appellate Court was incorrect and that when two cops approach a stationary car – one from either side – a reasonable individual in that position would feel free to leave.
The car was parked in front of a private residence. At the time the cops got out of their police cruiser and began to approach the vehicle, there was no criminal activity and they had no R & AS. It was only when the approached an open window did they “smell” marijuana and the dance began. So it was essential to determine whether the defendant was “seized” when the cops began to approach his car.
The Court agreed with the State that there was “an insufficient show of authority” before the cops smelled the marijuana to constitute a seizure.
So, in essence, you’re free to go. Try it next time. I dare you.
This argument endorsed by the Court and proposed by the State is also rather troublesome. Consider the knowledgeable defendant who reads the Court’s decision and now knows that he is free to leave when cops approach his car. What is the natural reaction of “a reasonable person”? Drive away. This will lead to several things: cops and prosecutors putting forth the rather (dis)ingenuous argument that the act of driving away was sufficient to create reasonable suspicion and prosecutors relentlessly arguing consciousness of guilt. Of course, we can always argue that the defendant was merely exercising his Constitutional right to drive away, but that and a dollar will get you 50 cents.
Hidden in this reasoning is the disturbing notion of “if you’ve done nothing wrong, you’ve got no reason to run”, implying that anyone who drives off when a cop approaches has something to hide. Will that be enough, in future cases, to establish reasonable suspicion?
Officer: “Well, Mr. Prosecutor, when I approached the car, I was just trying to determine if the man needed help. But as soon as I started to approach, he put his car in gear and took off. In my training and experience, only criminals drive away from the police and based on my years in the force, I knew criminal activity was afoot. Why else would he drive away?”
The Court: “I find probable cause”.
The Supreme Court: “Affirmed”.
Someone please try this. I’m not brave enough.
After all that, we have a poll. Imagine you are legally parked by the side of a road. A police cruiser parks behind you and the officer disembarks and starts walking toward your vehicle. At that point, would you feel free to drive away?