State v. Pompei ( 2021 )

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STATE OF CONNECTICUT v. GREGORY
JOHN POMPEI
(SC 20530)
Robinson, C. J., and D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of two counts of the crime of interfering with an officer, the
defendant appealed, claiming that the trial court had improperly denied
his motion to suppress certain evidence obtained after a police officer,
L, positioned his cruiser behind the defendant’s car and blocked the
defendant’s egress from the parking lot in which he was parked. L had
reported to the parking lot in response to a dispatch concerning a
possibly unconscious man in a parked car. L eventually aroused the
defendant by tapping on the driver’s side window, and, when the defen-
dant lowered the window, L smelled alcohol. The defendant was uncoop-
erative and slurring his words, and subsequently was arrested. Prior to
trial, the defendant moved to suppress the evidence of his statements
and actions in the parking lot, claiming that he had been seized in
violation of the fourth amendment as soon as L positioned his cruiser
behind the defendant’s car and prevented him from leaving. The trial
court denied the motion to suppress, concluding that the defendant’s
encounter with L did not become a seizure until after the defendant
awoke and lowered the window, as, up until that point, L was checking
on the defendant’s well-being pursuant to his community caretaking
function rather than engaging in an investigatory stop. The court further
concluded that, once the defendant awoke and began to interact with
L, L had a reasonable and articulable suspicion that the defendant had
been operating his vehicle under the influence of alcohol. On the defen-
dant appeal, held that the trial court properly denied the defendant’s
motion to suppress on the ground that L was acting in his community
caretaking capacity when he positioned his cruiser behind the defen-
dant’s car, as the limited intrusion on the defendant’s liberty was reason-
able and justified under the fourth amendment: L’s arrival in the parking
lot was in response to information, which made no mention of erratic
driving or possible drunkenness, from a concerned citizen about an
unconscious man in a parked car at nearly 2 a.m., L did not activate
his lights, and, consistent with his purpose of determining whether the
defendant required medical attention, L’s first question upon arousing
the defendant was whether he was okay; moreover, L testified that he
positioned his cruiser where he did to ensure that the defendant’s car
did not roll backward or backup while he was ascertaining the situation,
and there was no evidence that L was engaging in a general exploratory
or pretextual stop when he parked his cruiser behind the defendant’s car.
Argued January 11—officially released April 26, 2021*
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crime of operating a
motor vehicle while under the influence of intoxicating
liquor or drugs and two counts of the crime of interfer-
ing with an officer, and, in the second part, with
operating a motor vehicle while his license was under
suspension, brought to the Superior Court in the judicial
district of Hartford, geographical area number fourteen,
where the court, Prats, J., denied the defendant’s
motion to suppress certain evidence; thereafter, the
case was tried to the jury before Prats, J.; verdict and
judgment of guilty of two counts of interfering with an
officer, from which the defendant appealed. Affirmed.
Jerald M. Lentini, with whom was Robert T. Fon-
taine, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Sharmese L. Walcott, state’s
attorney, Gail P. Hardy, former state’s attorney, and
Brenda L. Hans, senior assistant state’s attorney, for
the appellee (state).
Opinion
ECKER, J. A jury found the defendant, Gregory John
Pompei, guilty of two counts of interfering with an
officer in violation of General Statutes § 53a-167a (a).
The sole issue on appeal is whether the trial court
properly denied the defendant’s pretrial motion to sup-
press alleging that the defendant was seized in violation
of the fourth amendment to the United States constitu-
tion when a marked police cruiser blocked the egress
of his motor vehicle, which was parked with its engine
running and the defendant asleep in the driver’s seat.
The state claims that no violation of the fourth amend-
ment occurred because the responding officer was not
engaged in an investigatory stop involving criminal
activity but, rather, was checking on the defendant’s
well-being pursuant to the officer’s community caretak-
ing function. We agree with the state and affirm the
judgment of conviction.
The record reflects the following facts found by the
trial court after an evidentiary hearing on the defen-
dant’s motion to suppress evidence, as supplemented
by the undisputed testimony of the arresting officer.
On October 5, 2017, at approximately 1:56 a.m., Officer
John Loud of the Manchester Police Department was on
a routine patrol when he received a dispatch regarding
a ‘‘possibly unconscious [male] in a white Ford Focus
parked at Cumberland Farms . . . .’’ Upon arriving at
Cumberland Farms, Loud parked his patrol car behind
the Focus in order ‘‘to keep it from being able to roll
backwards or backup until [he] could ascertain the
situation at hand.’’ When he approached the Focus,
Loud observed a male, whom he later identified as the
defendant, sleeping or unconscious in the driver’s seat
with the key in the ignition and the engine running.
Loud attempted to rouse the defendant ‘‘to ascertain
[his] physical well-being.’’ The officer knocked ‘‘[v]ery
hard’’ on the driver’s side window, and the defendant
eventually awoke. The defendant rolled down the win-
dow, and Loud asked whether he was okay. The defen-
dant responded, ‘‘I’m fine.’’ Loud immediately smelled
the odor of alcohol emanating from the defendant.
Loud asked the defendant for his name and identifica-
tion. The defendant responded with his first name, but
Loud could not ascertain with clarity if his name was
Craig or Greg because the defendant was mumbling
and slurring his words. When asked for his last name,
the defendant kept repeating his first name. The defen-
dant indicated that his identification was in the trunk.
When the defendant exited the car and walked to the
trunk to retrieve his identification, he appeared to be
unbalanced and had to hold on to the vehicle to keep
himself steady. After the defendant opened the trunk
of the Focus, Loud observed in plain view two twelve-
packs of Bud Light; one pack was empty, and the other
appeared to have a few bottles missing.
The defendant never found his identification and was
uncooperative about giving his full name to Loud and
a second police officer who had arrived on the scene.
The officers spotted a piece of mail with the defendant’s
name and, on that basis, were able to confirm his iden-
tity. The engine of the car was running during the entire
encounter, and the defendant kept repeating, ‘‘I don’t
know how I got here.’’ The officers contacted dispatch
and discovered that the defendant’s driver’s license had
been suspended.
The defendant kept trying to walk away from the
officers despite their verbal commands to stop. Loud
decided to restrain the defendant in order to ‘‘continue
his investigation, based [on] what he noted at this point,
the odor of alcohol, the defendant’s inability to perform
on the undivided tasks, his slurred speech, and his gait
. . . .’’ Loud attempted to handcuff the defendant, but
the defendant resisted by clenching and pulling away.
The officers then called for backup. With the assistance
of additional officers, the defendant finally was
restrained, placed in handcuffs, and taken to the Man-
chester Police Department.
The defendant was charged with one count of
operating under the influence of alcohol in violation of
General Statutes § 14-227a (a) (1) and two counts of
interfering with an officer in violation of § 53a-167a (a).1
Prior to trial, the defendant moved to suppress the
evidence of his statements and actions in the Cumber-
land Farms parking lot, claiming that he was seized
in violation of the fourth amendment the moment his
‘‘vehicle was blocked and [he was] unable to leave.’’
The trial court held an evidentiary hearing on the defen-
dant’s motion. Following that hearing, the trial court
concluded that ‘‘Loud’s initial encounter with the defen-
dant was in his community caretaking capacity. . . .
Loud was not engaged in an investigatory stop of crimi-
nal activity but, rather, was acting in [the] capacity of
the [wellness] check or community caretaking func-
tion.’’ The trial court elaborated that ‘‘[t]he facts in this
case [support the conclusion] that the officer was acting
only on information from the concerned citizen that
the person was either asleep or unconscious in a parked
car. There was no mention that the person might be
drunk or engaging in erratic driving. The officer, when
he arrived, never engaged his police lights. He parked
the [patrol] car behind the defendant for security rea-
sons, and he observed a person who was either sleeping
or unconscious in the parked car, and the engine was
running. The officer knocked on the window to ask if
the defendant was okay. There was never a display of
any physical force or . . . any threats made to the
defendant by the officer. Therefore, up to this point,
there ha[d] been no intrusion [on] any constitutionally
protected rights.’’
The trial court determined that the defendant’s
encounter with Loud did not become a seizure until
after ‘‘the defendant woke up and rolled down his win-
dow and the officer smelled alcohol coming off of his
body . . . .’’ The smell of alcohol was the ‘‘first indic-
i[um] that this may not be a [wellness] check at all, but
that this [was] turning into a motor vehicle investigatory
stop . . . .’’ The trial court further concluded that Loud
‘‘developed a reasonable and articulable suspicion that
the defendant had been operating a motor vehicle while
under the influence of alcohol when he smelled the
odor of alcohol on the defendant emanating from the
car,’’ heard the defendant’s ‘‘mumbling’’ and ‘‘slurring’’
speech, observed the defendant’s ‘‘unsteady gait,’’ and
found ‘‘two twelve-packs of beer that were in clear
view when the defendant opened his [trunk] . . . .’’
Accordingly, the trial court denied the defendant’s
motion to suppress.
Following a jury trial, the defendant was found not
guilty of driving under the influence of alcohol but found
guilty of both counts of interfering with an officer. The
trial court rendered judgment consistent with the jury’s
verdict and sentenced the defendant to one year impris-
onment, execution suspended after thirty days, fol-
lowed by one year of probation, on each count of
interfering with an officer. The defendant appealed
from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursu-
ant to General Statutes § 51-199 (c) and Practice Book
§ 65-1.
On appeal, the defendant does not challenge the trial
court’s determination that, once Loud smelled the odor
of alcohol, reasonable, articulable suspicion of criminal
activity existed to justify the defendant’s detention
under Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968). Instead, the defendant chal-
lenges the trial court’s conclusion that there was no
fourth amendment violation prior to the Terry stop,
arguing that the community caretaking exception ‘‘is
. . . irrelevant’’ to the present case because the defen-
dant was seized ‘‘the moment . . . Loud pulled behind
the defendant’s vehicle and blocked his egress . . . .’’
The state responds that the trial court properly denied
the defendant’s motion to suppress on the ground that
Loud was acting in a community caretaking capacity
when he parked his police cruiser behind the defen-
dant’s vehicle.2 Alternatively, the state argues that, even
if the trial court improperly denied the defendant’s
motion to suppress, the record is inadequate to demon-
strate harm.3
The standard of review for a motion to suppress is
well settled. ‘‘A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [W]hen a
question of fact is essential to the outcome of a particu-
lar legal determination that implicates a defendant’s
constitutional rights, [however] and the credibility of
witnesses is not the primary issue, our customary defer-
ence to the trial court’s factual findings is tempered by
a scrupulous examination of the record to ascertain
that the trial court’s factual findings are supported by
substantial evidence. . . . [W]here the legal conclu-
sions of the court are challenged, [our review is plenary,
and] we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision . . . .’’
(Internal quotation marks omitted.) State v. Kendrick,
314 Conn. 212, 222, 100 A.3d 821 (2014). Consistent with
this general standard, in reviewing the applicability of
the community caretaking exception, the trial court’s
‘‘subordinate factual findings will not be disturbed
unless clearly erroneous and the trial court’s legal con-
clusion regarding the applicability of the [community
caretaking] doctrine in light of these facts will be
reviewed de novo.’’ (Internal quotation marks omitted.)
State v. DeMarco, 311 Conn. 510, 518–19, 88 A.3d 491(2014).
The fourth amendment to the United States constitu-
tion prohibits unreasonable searches and seizures by
government agents.4 ‘‘Subject to a few well defined
exceptions, a warrantless search and seizure is per se
unreasonable. . . . The state bears the burden of prov-
ing that an exception to the warrant requirement applies
when a warrantless search [and seizure have] been con-
ducted.’’ (Citations omitted; internal quotation marks
omitted.) State v. Rolon, 337 Conn. 397, 409, 253 A.3d
943 (2020).
The exception to the fourth amendment’s warrant
requirement applicable to the present case is known as
the community caretaking exception. The community
caretaking exception has ‘‘evolve[d] outside the context
of a criminal investigation and does not involve proba-
ble cause as a prerequisite for the making of an arrest
or the search for and seizure of evidence.’’ (Internal
quotation marks omitted.) State v. Fausel, 295 Conn.
785, 794, 993 A.2d 455 (2010). This exception does not
give police officers carte blanche to effectuate searches
and seizures in the absence of probable cause or a war-
rant issued by a neutral and detached judicial officer.
The police must have a valid reason ‘‘grounded in empir-
ical facts rather than subjective feelings’’ to believe that
a limited intrusion into liberty or property interests is
justified for the exception to apply. (Internal quotation
marks omitted.) Id., 795. ‘‘It is an objective and not a
subjective test’’; (internal quotation marks omitted) id.;
that ‘‘looks to the totality of the circumstances.’’5 State
v. DeMarco, supra, 311 Conn. 535.
The community caretaking exception was first recog-
nized by the United States Supreme Court in Cady v.
Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d
706 (1973). The defendant in Cady was convicted of
murder after incriminating evidence was found during
a warrantless search of his motor vehicle following an
automobile accident. Id., 434, 442. The police officers
searched the defendant’s motor vehicle because they
knew that he was an off duty Chicago police officer
who was required by regulation to carry his service
revolver at all times. Id., 436–37. The court in Cady
rejected the defendant’s contention that the search was
illegal, concluding that the search ‘‘was ‘standard proce-
dure in [that police] department,’ to protect the public
from the possibility that a revolver would fall into
untrained or perhaps malicious hands.’’ Id., 443. The
court reasoned that police officers frequently ‘‘engage
in what, for want of a better term, may be described as
community caretaking functions, totally divorced from
the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute.’’ Id., 441.
The police had not violated the defendant’s fourth
amendment rights when they searched the trunk of his
parked vehicle, the court held, because they reasonably
believed that it contained a loaded revolver that could
endanger the public if left unsecured. Id., 447.6
This court followed Cady in State v. Tully, 166 Conn.
126, 348 A.2d 603 (1974), in which we recognized that a
police officer acting in a community caretaking capacity
may make ‘‘a reasonable intrusion not prohibited by the
fourth amendment.’’ Id., 133. In Tully, a police officer
discovered marijuana in plain view when he made a
warrantless intrusion into a car for ‘‘the purpose of
removing a guitar from the motor vehicle for [safekeep-
ing].’’ (Internal quotation marks omitted.) Id., 129. We
held that the trial court properly denied the defendant’s
motion to suppress the marijuana, partly because there
was ‘‘no evidence that this was a general exploratory
search on the part of the policeman on the pretext of
protecting the defendant’s property . . . . On the con-
trary, the [trial] court expressly found that the purpose
of the officer’s entry was to remove the guitar for safe-
keeping.’’ Id., 136. Furthermore, the defendant ‘‘was
unable to obtain anyone to remove’’ the vehicle, which
was parked in a vacant lot and ‘‘incapable of being
secured’’ due to a missing vent window. (Internal quota-
tion marks omitted.) Id., 137. Under these circum-
stances, ‘‘[w]here there [was] no indication that a search
for evidence of a crime was being made . . . [and]
. . . [w]here a search is conducted as a service to an
individual . . . evidence of a crime accidentally dis-
covered need not be suppressed.’’ (Citation omitted;
internal quotation marks omitted.) Id.; see also State
v. Foote, 85 Conn. App. 356, 362, 857 A.2d 406 (2004)
(holding that officer who seized disabled vehicle on
side of road initially ‘‘was not engaged in an investiga-
tory stop of criminal activity, but rather was acting in
accordance with his community caretaking function’’),
cert. denied, 273 Conn. 937, 875 A.2d 44 (2005), and
cert. denied, 273 Conn. 937, 875 A.2d 43 (2005).
Applying these principles to the present case, we
conclude that the intrusion on the defendant’s liberty
in the Cumberland Farms parking lot was reasonable
under the fourth amendment because Loud was acting
in a community caretaking capacity when he parked
his patrol car behind the defendant’s vehicle, knocked
on the window, and inquired about his well-being. The
evidence supports the trial court’s determination that
Loud was not acting in a criminal investigatory capacity
when he parked his patrol car behind the defendant’s
motor vehicle but, rather, was responding to a dispatch
from a concerned citizen who had reported an uncon-
scious male in a Ford Focus in the Cumberland Farms
parking lot at 1:56 a.m. Loud did not activate the lights
on his patrol car and parked behind the defendant’s
vehicle because he wanted ‘‘to keep it from being able
to roll backwards or backup until [he] could ascertain
the situation at hand.’’ Loud exited his patrol car and
observed the unconscious or sleeping defendant in the
driver’s seat with the engine running. Loud knocked on
the driver’s side window to rouse the defendant and to
ascertain whether he required medical attention.
Indeed, consistent with this purpose, the first question
Loud asked the defendant was whether he was okay.
In light of the limited ‘‘purpose and scope of the intru-
sion,’’ as well as the complete dearth of evidence indi-
cating that ‘‘this was a general exploratory’’ or
‘‘pretext[ual]’’ stop; State v. Tully, supra, 166 Conn. 136,
138; we conclude that the defendant’s encounter with
Loud falls squarely within the community caretaking
doctrine.7
The judgment is affirmed.
In this opinion the other justices concurred.
* April 26, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendant also was charged in a part B information with one count
of operation of a motor vehicle with a suspended license in violation of
General Statutes § 14-215 (c) (1). The disposition of this charge is unclear
from the record.
2
The state also contends that the defendant’s claim is unreviewable
because he abandoned it in the trial court and failed to brief it adequately
in this court. We disagree. In the trial court, defense counsel argued that
the defendant was seized the moment the defendant’s ‘‘vehicle was blocked
and [he was] unable to leave.’’ Although defense counsel later conceded
that the defendant ‘‘was asleep at this time and would not have known
that he was blocked in,’’ defense counsel nonetheless maintained that ‘‘[a]
reasonable person awakened [by] a forceful knocking by [the] police with
a police car blocking him in late at night is not going to feel free to terminate
the encounter. . . . [The defendant] was effectively constitutionally seized
at the moment that [Loud] blocked him in and he became aware of the fact
that he was blocked.’’ Thus, defense counsel consistently maintained that
the defendant was seized before Loud smelled the odor of alcohol and there
was a reasonable, articulable suspicion to justify the defendant’s detention.
We therefore conclude that the defendant’s fourth amendment claim was
not abandoned in the trial court.
The state also contends that the defendant’s fourth amendment claim is
unreviewable due to inadequate briefing because the defendant simply
alleges that ‘‘the community caretaking exception is irrelevant.’’ We agree
with the state that the defendant’s analysis of the community caretaking
exception to the fourth amendment’s warrant requirement is somewhat
conclusory, but we nonetheless exercise our discretion to review the defen-
dant’s claim. See, e.g., Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259(2004) (exercising discretion to review claim even though appellant had
‘‘failed to analyze in depth the issues presented’’).
3
The defendant has not provided this court with the transcripts of the
trial, and the state claims that, in the absence of such transcripts, the record
is inadequate to establish that the challenged evidence was presented to
the jury in support of the crimes of conviction. In light of our conclusion
that the trial court properly denied the defendant’s motion to suppress, we
need not address the state’s argument. See, e.g., State v. Salgado, 257 Conn.
394, 400 n.9, 778 A.2d 24 (2001).
4
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 affirma-
tion, and particularly describing the place to be searched, and the persons
or things to be seized.’’ U.S. Const., amend. IV.
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. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S.
Ct. 1684, 6 L. Ed. 2d 1081 (1961).
5
Both Fausel and DeMarco involve the emergency doctrine, which ‘‘is
rooted in the community caretaking function of the police . . . .’’ State v.
Blades, 225 Conn. 609, 619, 626 A.2d 273 (1993); see also State v. DeMarco,
supra, 311 Conn. 536–40; State v. Fausel, supra, 295 Conn. 799–802. Although
the emergency doctrine and the community caretaking doctrine have a
common origin, they are two separate and distinct exceptions to the fourth
amendment’s warrant requirement. As we explain in greater detail in this
opinion, the community caretaking exception involves routine, nonemer-
gency duties undertaken to protect the public, whereas the emergency doc-
trine requires state actors to have a reasonable belief ‘‘that life or limb is
in immediate jeopardy and that the intrusion [on the defendant’s liberty] is
reasonably necessary to alleviate the threat.’’ (Internal quotation marks
omitted.) State v. DeMarco, supra, 536.
6
We recognize that the United States Supreme Court has granted certiorari
to consider whether the community caretaking exception to the fourth
amendment’s warrant requirement extends to the home. See Caniglia v.
Strom, U.S. , 141 S. Ct. 870, 208 L. Ed. 2d 436 (2020). Compare
Caniglia v. Strom, 953 F.3d 112, 124 (1st Cir. 2020) (applying community
caretaking exception to warrantless intrusion of defendant’s home but noting
that ‘‘the doctrine’s reach outside the motor vehicle context is ill-defined
and admits of some differences among the federal courts of appeals’’), cert.
granted, U.S. , 141 S. Ct. 870, 208 L. Ed. 2d 436 (2020), with Sutterfield
v. Milwaukee, 751 F.3d 542, 554 (7th Cir.) (‘‘taking the narrow view [of the
community caretaking exception that] . . . has confined the doctrine to
automobile searches’’ but noting that ‘‘state and federal courts have divided
over the scope of the community caretaking doctrine recognized in Cady’’),
cert. denied, 574 U.S 993, 135 S. Ct. 478, 190 L. Ed. 2d 362 (2014). Because
the present case does not involve the warrantless intrusion into a home,
the outcome of Caniglia has no bearing on the resolution of this appeal.
7
The defendant argues that he was seized in violation of the fourth amend-
ment pursuant to State v. Edmonds, 323 Conn. 34, 145 A.3d 861 (2016), in
which this court determined that an unlawful seizure had taken place when,
inter alia, ‘‘two marked police cruisers converged on the defendant from
opposite directions, effectively blocking him from exiting the [parking] lot
. . . .’’ Id., 57. We reject the defendant’s contention that this case is analo-
gous to Edmonds. In Edmonds, the defendant’s initial encounter with law
enforcement originated as a result of an investigation into potential criminal
activity. See id., 40–41. No such suspicion of potential criminal activity
existed when Loud approached the defendant. We consider Edmonds inap-
posite.