Opposition Brief — Connecticut v. Donahue

Supreme Court, U.S.

FILED

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No. 99-1988

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In The

Supreme Court Of The United States

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STATE OF CONNECTICUT,

Petitioner

V.

JEFFREY L. DONAHUE,

Respondent

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ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

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RESPONDENT?’S BRIEF IN OPPOSITION

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KEVIN C. CONNORS*

TREIBER, GUARNACCIA

& CONNORS

25 Church Street

Post Office Box 44

Willimantic, CT 06226

Tel.: (860) 423-6308

Fax: (860) 423-6344

*Counsel of Record

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QUESTION PRESENTED FOR REVIEW

Whether the court below properly concluded that

the police officer did not have a reasonable suspicion to

stop and detain the Respondent in the absence of

circumstances (apart from his mere presence in an area

believed by the police to have experienced a recent

increase in the level of reported criminal activity) tending

to indicate that the Respondent was engaged, or was

about to be engaged, in criminal activity.

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT......... ...

A. Absence of a Federal Question... ...... 00. ce. eee ee

B. Absence of a a Reason to Grant

Certiorari...

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TABLE OF AUTHORITIES

CASES

, 463 US. 1032, 103 S.Ct. 3469,

77 L.Ed.2d 1201 (1983) 9

io, 392 US. 1, 88 S.Ct., 1868,

20 L.Ed.2d 889 (1968) 6

State v. Donahue, 53 Conn. App. 497,

729 A.2d 255 (1999) 5

State v. Donahue, 249 Conn. 931,

733 A.2d 850 (1999) :

State v. Donahue, 251 Conn. 636,

742 A.2d 775 (1999), rehearing denied

(March 8, 2000) 6, 7, 8,9

STATUTES

28 U.S.C. § 1257 1,8

Connecticut General Statutes § 14-227a 2,4

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CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amendment IV

U.S. Constitution, Amendment XIV

Conn. Ccastitution, Article First, Section 7

RULES OF THE SUPREME COURT

OF THE UNITED STATES

Rule 10

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JURISDICTION

The Petitioner’s reliance upon 28 U.S.C. §1257 as

providing the basis of jurisdiction for this Court to

entertain its Petition is misplaced. The decision of the

Connecticut Supreme Court sought to be reviewed does

not involve resolution of a federal question. Further,

there was no federal question presented to or ruled upon

by the Connecticut Supreme Court.

For these reasons alone, the Petition ought to be

denied.

STATEMENT OF THE CASE

The Petitioner’s statement of the case in part

misstates the ruling of the Connecticut Supreme Court.

In Respondent’s view, these misstatements bear on what

issues would be before the Court if certiorari were

granted. The Respondent respectfully offers the

following statement of the case.

This case arises out of the arrest and prosecution

of the Respondent for one count of Operation While

Under the Influence of Liquor or Drug, in violation of

Section 14-227a of the Connecticut General Statutes,

arising out of an incident occurring on December 10,

1997 in Windham, Connecticut. The Respondent filed a

Motion to Suppress on April 14, 1998, seeking

suppression of: any statements of the Respondent

(whether oral or written); the results of any “field tests”

conducted prior to his arrest; and the results of any

chemical test administered to the Respondent following

his arrest. As grounds for this motion, the Respondent

alleged that: (1) the initial stop of the Respondent by the

investigating officer was unlawful in that, it was without

reasonable suspicion to believe that the Respondent was

engaged, or was about to be engaged, in criminal

conduct; (2) the evidence sought to be suppressed was

obtained as a result of the aforedescribed unlawful stop

of the Respondent; and (3) the chemical test was

administered by a person not then-certified by the

Department of Public Health to conduct such a test.

The trial court held a hearing on the

Respondent’s motion on May 14, 1998. At the hearing,

the State and the Respondent stipulated that the officer

conducting the chemical test was not properly certified

at the time the test was administered as was required by

state law. For this reason, the trial court granted so

much of the Respondent’s motion as it pertained to the

results of the chemical test. Following an evidentiary

hearing, the trial court denied the balance of the

Respondent’s motion. In its oral decision, the court

found that the Respondent had been stopped by the

arresting officer, but also found that there was

reasonable suspicion to justify the stop at that time.

Following this action by the court on his motion

to suppress, the Respondent filed a written conditional

plea of nolo contendere to one count of Operation

While Under the Influence of Liquor or Drug, in

violation of Section 14-227a of the Connecticut General

Statutes, conditioned upon his right to appeal from the

denial of his Motion to Suppress. The trial court

accepted the Respondent’s plea, found him guilty, and

sentenced him to six months in the custody of the

commissioner of correction, suspended the execution of

that sentence after the service of forty-eight consecutive

hours, and placed the Respondent on conditional

discharge for a period of six months, with a number of

special conditions not germane to these proceedings. In

lieu of the forty-eight hours in confinement, the court

ordered the Respondent to complete one hundred hours

of community service in accordance with a wnitten plan

of community service submitted by the Respondent. In

addition, the court fined the Respondent and imposed

costs.

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The Respondent appealed to the Appellate Court

from the judgment of conviction rendered upon his

conditional plea of nolo contendere. The Appellate

Court affirmed the judgment of the trial court. State v,

Donahue, 53 Conn.App. 497, 729 A.2d 255 (1999). In

its opinion, the Appellate Court concluded that the facts

of the case supported the trial court’s determination that

a reasonable and articulable suspicion existed to justify

the stop of the Respondent’s vehicle; therefore, the trial

court properly denied the Respondent’s motion to

suppress.

Thereafter, the Respondent petitioned for

certification to appeal to the Connecticut Supreme

Court. That court granted the petition for certification

to appeal, limited to the issue of whether the Appellate

Court properly concluded that the police had reasonable

and articulable suspicion to justify stopping the

Respondent’s vehicle. State v, Donahue, 249 Conn. 931,

733 A.2d 850 (1999).

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The Connecticut Supreme Court reversed the

judgment of the Appellate Court. State v, Donahue, 251

Conn. 636, 742 A.2d 775 (1999), resaaing dened (March 8,

2000). In a 4-3 e Aaie decision, the court held that,

under the applicable provisions of the Connecticut

Constitution and precedents of that court construing

those provisions, the officer had no reasonable and

articulable suspicion that the Respondent had committed

or was about to commit a crime. With only one dissent,

the court also rejected, again on state constitutional

grounds, the Petitioner’s alternative ground for

affirmance of the Appellate Court decision, namely that

the Respondent had not been seized at all. In its

opinion, the state supreme court specifically noted that it

was deciding the case on state constitutional grounds and

declined to address the Respondent’s additional claims

that his rights under the United States Constitution were

violated. State v. Donahue, 251 Conn. at 644 n.10. In

dicta, the majonty observed that in its view the detention

of the Respondent was in violation of the standard set

forth in Terry v, Ohio, 392 U.S. 1, 20-22, 88 S.Ct., 1868,

20 L.Ed.2d 889 (1968). In its note, the majority

distinguished the federal precedents relied upon by the

dissent from the case at hand in light of the additional

facts present in those precedents which supported a

finding of reasonable suspicion, facts which were absent

in the case under review. State vy. Donahue, 251 Conn. at

644 n.10.

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REASONS FOR DENYING THE WRIT

A. Absence of a Federal Question

Jurisdiction of this Court under 28 U.S.C. §1257

is predicated on the presence of a substantial federal

question in the case. In the present case, the federal

question was presented to the Connecticut Supreme

Court to the extent that a Fourth and Fourteenth

Amendment claim was made in the Respondent’s

original motion to suppress. However, the court below

specifically, and in clear and express terms, declined to

address this claim grounded in the federal constitution.

The court’s holding was grounded upon its

interpretation of the provisions of Article First, Section 7

of the Connecticut Constitution. State v. Donahue, 251

Conn. at 648. As noted supra, the court below explicitly

eschewed reliance upon the federal constitution in its

holding but merely, in dicta, noted its disagreement with

the applicability of the federal precedents relied upoh by

the dissent on the dispositive issue in the case.

In addition, there was an adequate and

independent state ground for the decision of the court

below. As discussed in the majority opinion,

Connecticut has developed a substantial body of law on

the issue of investigative detention, a body of state law

which it relied upon in reaching its decision. This is not

a case where the interpretation of the state constitutional

provision at issue is governed by federal precedents, nor

is the state constitutional ground interwoven with federal

law. The clear language of the majority opinion leaves

no doubt that the decision was compelled by an analysis

of state constitutional jurisprudence; the opinion

contains a plain statement to this effect. Jbid.. For this

reason, Petitioner’s reliance on Michigan v. Long, 463

USS. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) is

unavailing.

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B. Absence of a Compelling Reason to Grant

Certiorari

Rule 10 of the Supreme Court states that

certiorari will be granted only for compelling reasons.

The petitioner here has provided no such reason, and

has in fact rested its claim on a basis which this Court, in

Rule 10 itself, indicates will rarely warrant a grant of

certiorari: the misapplication of a properly stated rule of

law. The Respondent disagrees with the Petitioner and

contends that the Connecticut Supreme Court properly

applied the principle that an investigative detention is

warranted only when reasonable suspicion exists.

However, there is no question that the Connecticut court

properly stated the principle to be applied; the parties

only diverge when the application of that principle is

examined in the context of the facts of this case. In the

absence of a compelling reason to grant the petition, it

ought to be denied.

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CONCLUSION

In the absence of a substantial federal question

and in the absence of a compelling reason, the petition

for wnit of certiorari filed on behalf of the State of

Connecticut ought to be denied.

Respectfully submitted,

Kevin C. Connors *

Treiber, Guarnaccia &

Connors

25 Church Street

Post Office Box 44

Willimantic, CT 06226

Tel: (860) 423-6308

Fax: (860) 423-6344

* Counsel of Record