author: SULLIVAN, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. JUAN PARRA
    (SC 16030)
    McDonald, C. X, and Berdon, Norcott, Katz and Sullivan, Js.
    Argued September 23
    officially released December 14, 1999

      Jose L. DelCastillo, for the appellant (defendant).

      Ellen A. Jawitz, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Corinne Elatt, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Juan Parra, was charged with, inter alia, manslaughter in the second degree with a motor vehicle in violation of General Statutes § SSa-Sbb, based upon an accident that occurred on November 18, 1990. After rejecting an earlier plea agreement between the defendant and the state, the court accepted the defendant’s plea of nolo contendere on June 28, 1991, and rendered judgment thereon. The defendant subsequently filed a motion to vacate the 1991 judgment and to withdraw his plea on November 4, 1997. The issue to be resolved in this appeal is whether Public Acts 1997, No. 97-256, § 6 (P.A. 97-256), which amended General Statutes § 54-1j by, inter alia, limiting the time within which a defendant may move to vacate a judgment and withdraw a plea, should be applied retroactively to crimes committed prior to October 1,1997, the effective date of the amendment. We conclude that, in enacting P.A. 97-256, § 6, the legislature clearly intended to apply such time limit retroactively. Therefore, because the defendant’s motion to vacate the judgment and withdraw his plea was filed six years after the judgment was rendered, his motion is barred by the three year statute of limitations established by P.A. 97-256, § 6. Accordingly, we affirm the trial court’s denial of that motion.

I

FACTUAL BACKGROUND

The record discloses the following relevant facts. On November 18, 1990, the defendant was the driver of a car that was involved in a motor vehicle accident. That accident caused the death of one of his passengers. The defendant was charged with, inter aha, operating a motor vehicle while intoxicated in violation of General Statutes § 14-227a, and manslaughter in the second degree with a motor vehicle in violation of § 53a-56b. A test of the defendant’s blood performed at a hospital after the accident revealed that the defendant had a blood alcohol level of 0.161 percent.

On May 3, 1991, the defendant attempted to plead guilty to the charge of manslaughter in the second degree with a motor vehicle. During the plea canvass, the trial court informed the defendant of the potential effect of a guilty plea on his immigration status by stating: “You know if you are not a citizen of the United States, when you plead guilty to a charge such as this, a felony charge, you leave yourself open to the possibility of deportation from the United States.” The defendant responded yes. The trial court, however, subsequently rejected that plea agreement.

On June 28, 1991, both the state and the defendant reappeared before the trial court with a revised plea agreement. At the June 28 plea canvass, the court failed to advise the defendant, pursuant to § 54-lj (a), of the consequences that his plea could have on his immigration status. The court accepted the defendant’s plea of nolo contendere to the charge of manslaughter in the second degree with a motor vehicle, rendered a judgment of conviction and sentenced him to eight years incarceration, suspended after five years, followed by three years probation with special conditions. The state nolled all other remaining charges.

On November 4, 1997, the defendant filed a motion to vacate the 1991 judgment and withdraw his plea of nolo contendere on the ground that, during its plea canvass on June 28, 1991, the trial court had failed to inform him of the possible consequences that his plea could have on his immigration status, as required by § 54-lj (a). On July 20, 1998, the trial court concluded that P.A. 97-256, § 6, amended § 54-lj by limiting the time within which a defendant can move to withdraw his or her plea pursuant to § 54-lj to three years from the date of the court’s acceptance of the plea. The court further found that the statute of limitations was procedural in nature and, therefore, applied retroactively. Because more than three years had passed between June 28, 1991, when the court had accepted the defendant’s plea of nolo contendere, and November 4, 1997, when the defendant had filed his motion to vacate the judgment and withdraw his plea, the trial court denied the defendant’s motion. Subsequently, the defendant appealed the denial of his motion to the Appellate Court, and this court transferred the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

II

METHOD OF STATUTORY INTERPRETATION

As the parties recognize, whether P.A. 97-256, § 6, applies retroactively is a question of law to which this court gives plenary review. E.g., Coley v. Camden Associates, Inc., 243 Conn. 311, 318, 702 A.2d 1180 (1997) (employing plenary standard of review to determine whether statute of limitations applies retroactively). Generally, “[i]n construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 195, 708 A.2d 1371 (1998).

In this case, rather than employing the normal means of statutory interpretation, the defendant argues in his brief that P.A. 97-256, § 6, should not be given retroactive application “absent language demonstrating a clear legislative intent” for such application. By the phrase “absent language,” we assume that the defendant means absent statutory language. Thus, the defendant appears to argue that P.A. 97-256, § 6, may have retroactive application only if the words of the public act itself indicate that the legislature intended such retroactive application, without resorting to its legislative history. The state, in contrast, argues that we should examine the public act’s legislative history in determining whether the legislature intended P.A. 97-256, § 6, to apply retroactively. For reasons we discuss hereinafter, we conclude that it is proper to look beyond the words of the public act and to examine its legislative history in determining whether the legislature intended P.A. 97-256, § 6, to apply retroactively.

We begin our analysis by noting that, in State v. Paradise, 189 Conn. 346, 353, 456 A.2d 305 (1983), this court looked solely to the language of the statute it was construing, and not to the statute’s legislative history, in determining whether a statute of limitations applied retroactively. In Paradise, the state argued that an amendment that extended the time within which certain felonies could be prosecuted applied retroactively to the defendants. The court in Paradise held that, because the statute’s language did not “clearly necessitate] ” a retrospective application of the amendment, none would be given. Id. The court reasoned: “Legislative intent is to be found in the language of the statute. . . . There is nothing in [the statute at issue] which indicates a clear legislative intent that the statute have a retrospective effect. Certainly there is no language whatsoever which makes a retrospective construction necessary. State v. Jones, [132 Conn. 682, 685, 47 A.2d 185 (1946)]. . . . [CJriminal statutes are not to be accorded retrospective effect absent language clearly necessitating such a construction . . . .” (Citations omitted; emphasis added.) State v. Paradise, supra, 353.

Thus, the court’s reliance upon the holding in Jones that, “in a criminal case a retrospective construction of a statute should not be adopted unless its language clearly makes such a construction necessary”; (internal quotation marks omitted) id., 352, quoting State v. Jones, supra, 132 Conn. 685; makes clear that the court in Paradise was holding that a criminal statute’s language, not merely its legislative history, must necessitate a retrospective construction in order for one to be given. The court noted in Paradise that the rationale behind its holding was “grounded in the principle that criminal statutes must be strictly construed.” State v. Paradise, supra, 189 Conn. 352.

We agree with the defendant that Paradise created a bright line rule on “matters involving the statutory construction of criminal statutes”; id., 353 n.5; namely, that the language of the statute itself must clearly necessitate a retrospective construction for one to be given. However, the breadth of the holding in Paradise, and, therefore, its application to this case, is limited in two important ways.

First, the court expressly noted in Paradise that its holding that “criminal statutes are not to be accorded retrospective effect absent language clearly necessitating such a construction”; id., 353; was limited. The court wrote: “The civil-criminal distinction enunciated in Jones and affirmed herein, is not necessarily applicable to other areas of the criminal process. Our holding [in Paradise] extends solely to matters involving the statutory construction of criminal statutes.” Id., 353 n.5.

Second, this court’s subsequent decision in In re Daniel H., 237 Conn. 364, 678 A.2d 462 (1996), made clear that there are instances in which neither Paradise nor Jones prevents this court from considering the legislative history of a criminal statute in determining whether such a statute should be applied retroactively. In In re Daniel II., we determined whether a statutory amendment eliminating the right to an immediate appeal from an order transferring a juvenile matter to the regular criminal docket applied retroactively. Id., 366-67. While we specifically held that the statutory amendment at issue was a criminal statute that affected substantive rights; see generally id., 373-76; we, nonetheless, looked to its legislative history to determine whether the amendment should be applied retroactively. Id., 376. Thus, we did not limit our analysis to a determination of whether the language of the amendment clearly necessitated a retrospective application, but, rather, used the normal tools of statutory construction to determine the legislature’s intent on the issue of retroactive application of the amendment.

Thus, we agree with the defendant that Paradise stands for the proposition that, for certain types of criminal statutes, such as a statute of limitations for the prosecution of a crime, the language of the statute must “clearly necessitate] ”; State v. Paradise, supra, 189 Conn. 353; a retrospective application in order for one to be given. We agree with the state, however, that footnote 5 of Paradise and the holding in In re Daniel H. make clear that statutes affecting “other areas of the criminal process”; State v. Paradise, supra, 353 n.5; may be given retrospective effect if the legislative history evinces a clear and unequivocal intent for such a retrospective application. Id.; see In re Daniel H., supra, 237 Conn. 376 (holding that substantive criminal statute could not be applied retrospectively because there was “nothing ... in the language or the legislative history” that was “a clear and unequivocal expression of legislative intent” to rebut presumption of prospective application only).

Our task, then, is to determine whether P.A. 97-256, § 6, covers one of those “other areas of the criminal process”; State v. Paradise, supra, 353 n.5; to which the holding of Paradise does not extend. We hold that, for reasons discussed hereinafter, this case is governed by the method of statutory interpretation employed by this court in In re Daniel H. See generally In re Daniel H., supra, 237 Conn. 376.

Public Act 97-256, § 6, affects an area of the criminal process far removed from the actual criminal conduct for which the defendant originally was charged. For example, P.A. 97-256, § 6, does not change the elements of the crime with which the defendant was charged, alter the elements of his defense to that crime or make more burdensome the punishment for that crime, after its commission. Unlike that in Paradise or State v. Crowell, 228 Conn. 393, 636 A.2d 804 (1994); see footnote 6 of this opinion; the legislation at issue in this case does not affect the period of time within which the defendant was susceptible to prosecution for his conduct. Therefore, the proper test for determining whether P.A. 97-256, § 6, should be applied retroactively is whether the language of P.A. 97-256, § 6, or its legislative history, indicates that the legislature clearly and unequivocally intended for the statute to apply retroactively. See In re Daniel H., supra, 237 Conn. 376.

Ill

APPLICATION OF STATUTORY INTERPRETATION

Although we have determined that we are not limited solely to the language of P.A. 97-256, § 6, in determining whether it should be applied retroactively, we, nevertheless, begin our search for the legislature’s intent by examining the words of the statute itself. E.g., Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 122, 735 A.2d 782 (1999). Section 6 of P.A. 97-256 provides in relevant part: “(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: ‘If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’ . . .

“(c) If the court fails to advise a defendant as required in subsection (a) of this section and the defendant not later than three years after the acceptance of the plea shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.”

As the state concedes, P.A. 97-256, § 6, on its face, is ambiguous with respect to whether it is to be applied retroactively. The legislative history surrounding the enactment of P.A. 97-256, § 6, however, clearly and unequivocally demonstrates a legislative intent to apply this statute of limitations retroactively.

The strongest evidence of such intent came during a debate over the bill that later became P.A. 97-256, § 6, on the floor of the House of Representatives, in which one legislator expressed his concerns over possible retroactive application to one of the bill’s sponsors. Representative Robert Farr stated: “I guess to Representative [Michael P.] Lawlor, my understanding of what’s going on out there now is that the Immigration and Naturalization Service is now going through records and finding people who have been convicted years ago and starting to deport them. I guess my concern with this language would be that somebody who might have pleaded guilty to a drug type of situation, in many cases not knowing the consequences, it might have been a simple possession of marijuana. It might have been some other charge for which they did not understand the consequences, it might have been ten years ago. If the [Immigration and Naturalization Service] now picks that up, and they didn’t understand the consequences, I am not sure why we want to say that [if] they weren’t informed, that they only have three years.

“Through you, Mr. Speaker to Representative Lawlor, I am not sure why justice would suggest that we ought to be doing this.” (Emphasis added.) 40 H.R. Proc., Pt. 13, 1997 Sess., pp. 4700-4701.

Thus, Representative Farr clearly contemplated that the proposed amendment to § 54-lj would apply retroactively, and expressed his concern over such application. In response, Representative Lawlor did not dispute that the proposed amendment would apply retroactively. Rather, he noted that there was a practical reason for such retroactive application: “[Apparently a practical problem that has cropped up is that in some courts it’s been difficult to obtain the records of exactly what happened years and years ago, whether or not defendants were in fact advised and this would eliminate that problem.” (Emphasis added.) Id., p. 4701.

Clearly, Representative Lawlor also envisioned that the proposed amendment would have retroactive effect. Otherwise, the statute would not “eliminate [the] problem” of potentially improper plea canvasses in cases that happened “years and years ago.” Id. Thus, one of the express purposes of P.A. 97-256, § 6, necessitates retrospective application. Because “[i]t is well settled that statutory construction involves a reasoned search for the legislature’s intent . . . including the purpose and policies behind [the statute’s] enactment”; Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 346, 736 A.2d 824 (1999); our conclusion that P.A. 97-256, § 6, should be given retroactive effect is further supported.

Representative Lawlor also pointed out that the “language [of the proposed amendment to § 54-lj] would not prohibit a court from re-opening a case and allowing a person to essentially re-negotiate [his or her] plea agreement. This simply modifies language which requires a court to do so. . . .

“So ... in the event that there were a compelling case, nothing that we are doing here today would prohibit a court from reconsidering it. We are just eliminating^ — we are limiting the mandatory re-opening to a window of three years.” 40 H.R. Proc., supra, p. 4701.

Representative Farr responded: “I’ll take Representative Lawlor’s representation that the court would still have the power to re-open these cases and withdraw any objection.” Id., pp. 4701-4702.

Thus, on the floor of the House of Representatives, two representatives clearly and unequivocally stated that they understood that the proposed amendment to § 54-lj would apply retroactively. Furthermore, the value of these statements in determining the intent of the legislature is heightened by the fact that this understanding that the law would apply retroactively came both from a representative who expressed concerns over the bill and one of the bill’s sponsors. See Haroco, Inc. v. American National Bank & Trust Co. of Chicago, 747 F.2d 384, 390 (7th Cir. 1984), aff'd, 473 U.S. 606, 105 S. Ct. 3291, 87 L. Ed. 2d 437 (1985) (fact that both supporters and opponents of bill interpreted proposed legislation similarly is indication of legislative intent); 2A J. Sutherland, Statutory Construction (5th Ed. Singer 1992) § 48.13, p. 356 (“federal courts hold that statements by any members during legislative debates may be considered in the interpretation of a statute where they show a common agreement in the legislature about the meaning of an ambiguous provision”); cf. Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 395-97, 709 A.2d 1116 (1998) (statements by bill’s sponsor made legislative intent clear).

In addition to this exchange, Representative Lawlor, in urging the bill’s passage, noted that the bill “would close a wide loop hole available to convicted offenders in order to obtain a new trial” by responding to the growing problem of defendants seeking to withdraw their pleas many years after they had been entered. 40 H.R. Proc., supra, pp. 4699-4700. Representative Lawlor also noted that the bill “eliminates a problem that was cropping up on the appellate level in certain cases”; id., p. 4698; and that the bill was “suggested in the aftermath of several cases where there was an unfortunate result in a pending criminal case.” Id., p. 4699.

These statements strengthen the conclusion that the legislature intended P.A. 97-256, § 6, to apply retroactively so as to close what legislators perceived as a “wide loop hole”; id., p. 4700; and eliminate “unfortunate result[s].” Id., p. 4699. Any interpretation that applies the statute only prospectively would allow this wide loophole to continue in spite of the legislators’ understanding that the bill would apply to defendants who were “convicted years ago . . . [even] ten years ago”; id., p. 4700, remarks of Representative Farr; on the basis of plea canvasses that happened “years and years ago.” Id., p. 4701, remarks of Representative Lawlor. We decline to interpret the statute so as to lead to this bizarre and unintended result. See, e.g., State v. DeFrancesco, 235 Conn. 426, 437, 668 A.2d 348 (1995).

The judgment is affirmed.

In this opinion MCDONALD, C. J., and NORCOTT and KATZ, Js., concurred.

BERDON, J.,

dissenting. The majority, contrary to our established principles of law, applies retroactively a legislative enactment, Public Acts 1997, No. 97-256, § 6 (1997 amendment), which limits the time in which a judgment may be vacated and a defendant be allowed to withdraw a plea.

In State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983), this court put the legislature on notice that we had reaffirmed the bright fine rule enunciated in State v. Jones, 132 Conn. 682, 685, 47 A.2d 185 (1946), that “in a criminal case a retrospective construction of a statute should not be adopted unless its language clearly makes such a construction necessary.” (Internal quotation marks omitted.) In addition to the constitutional implications of such ex post facto laws, the prospective statutory construction rule is grounded in this court’s long-standing principles “that criminal statutes must be strictly construed . . . [and] must be liberally construed in favor of the accused.” (Citations omitted.) State v. Paradise, supra, 352. Indeed, the majority ignores the fact that not long after Jones was decided by this court, the legislature enacted General Statutes § 55-3, which provides: “No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.” (Emphasis added.)

Furthermore, the majority opinion is bewildering. It hangs its hat on footnote 5 of Paradise, which provides: “The civil-criminal distinction enunciated in Jones and affirmed herein, is not necessarily applicable to other areas of the criminal process. Our holding [of prospective application] extends solely to matters involving the statutory construction of criminal statutes.” State v. Paradise, supra, 189 Conn. 353 n.5. That is precisely what we have here — a question of statutory construction of whether the legislature intended that the 1997 amendment have retroactive application.

In Jones and Paradise, the court did not reference the legislative history of the amendments in question, but, rather, concluded that the statutory language must clearly indicate that it is to be retroactively applied. See State v. Paradise, supra, 189 Conn. 352; State v. Jones, supra, 132 Conn. 685. The majority in the present case relies on our decision in In re Daniel H., 237 Conn. 364, 678 A.2d 462 (1996). But In re Daniel H. made clear the following: “In criminal cases, to determine whether a change in the law applies to a defendant, we generally have applied the law in existence on the date of the offense, regardless of its procedural or substantive nature. See, e.g., State v. Ross, 230 Conn. 183, 283, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) (relying on date of offense in retroactivity analysis of change in law ultimately found to be procedural); State v. Jones, [supra, 132 Conn. 684-85] (application of statute requiring court in certain pending cases to order examination of defendant for venereal disease, enacted after date of offense but prior to arrest, would impermissibly give it retroactive effect); see also State v. Millhouse, 3 Conn. App. 497, 501, 490 A.2d 517 (1985) (in construing penal statute to determine whether application is retroactive, date of crime controls). In fact, we recently have rejected an argument analogous to the argument made by the state in the present case. See State v. Crowell, 228 Conn. 393, 636 A.2d 804 (1994). In Crowell, the state had contended that to apply a revised statute of limitations, which the legislature had extended from five years to seven years, to a defendant who allegedly had committed a child sexual abuse offense less than five years prior to the revision, would not constitute a retroactive application. Id., 398. Specifically, the state had argued that, although the change had been made after the date of the offense, it had occurred prior to the expiration of the original five year period and, therefore, the defendant’s right to a statute of limitations defense had never vested. Id. We rejected this approach and, relying on the date on which the offense was committed, concluded that to apply the seven year statute of limitations to the defendant would constitute a retroactive application of the law. Id., 401. Similarly, in the present case, to determine whether applying the 1994 amendment to the respondents would constitute retroactive application of the amendment, we look to the law in effect on the date of their alleged offenses. We conclude that to apply the 1994 amendment to the respondents would constitute a retroactive application. Accordingly, we conclude that the 1994 amendment does not apply to juveniles charged with crimes that occurred prior to its effective date.” In re Daniel H., supra, 377-78. Additionally, this court previously has held that “[w]e presume that the legislature is aware of the judicial construction placed upon its enactments. . . . State v. Paradise, supra, [352] put the legislature on notice that if it intends that a criminal statute of limitations should apply retrospectively, it must make that intent clear.” (Citations omitted.) State v. Crowell, supra, 401.

I must concede that the opinions in In re Daniel H., supra, 237 Conn. 364, and State v. Crowell, supra, 228 Conn. 393, included references to “legislative history.” In neither case, however, did the analysis of the court turn on an interpretation of the legislative history, but, rather, depended on the express language of the statutory enactment. Nevertheless, even if the vague legislative history is to be considered in this case, it could not pass the clear intention requirement of Jones, Paradise, Crowell and In re Daniel H. Not one legislator expressed the view that the limitation period at issue in this case was intended to have retroactive effect. The majority’s disingenuous construction lifts phrases such as “convicted years ago” or “ten years ago” from the legislative history and places them in a contrived context to support its conclusion. Not one exchange among the legislators, however, when contextually examined, offers even a glimmer of support for the proposition that the legislature clearly intended that the 1997 amendment was to apply retrospectively. The legislative history indicates only that the general purpose of the amendment was clear — to close an apparent loophole in the statute. That history does not indicate the legislature clearly intended the amendment was to apply retroactively.

Therefore, I can conclude only that the majority’s opinion is result oriented.

Accordingly, I dissent.

       General Statutes § 53a-56b provides in relevant part: “A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug. ...”

       At the time the defendant committed the crime and at the time he entered his plea of nolo contendere, General Statutes § 54-lj provided: “Court instruction on possible immigration and naturalization ramifications of guilty or nolo contendere plea, (a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: ‘If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’
      “(b) The defendant shall not be required at the time of the plea to disclose his legal status in the United States to the court.
      “(c) If the court fails to advise a defendant as required in subsection (a) of this section and the defendant later at any time shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. In the absence of a record that the court provided the advice required by this section, the defendant shall be presumed not to have received the required advice.” (Emphasis added.) General Statutes (Rev. to 1991) § 54-lj; accord General Statutes (Rev. to 1989) § 54-lj.
      In 1997, § 54-lj was amended by P.A. 97-256, § 6, limiting the time within which a defendant can move to vacate a judgment and withdraw his or her plea, and eliminating the presumption contained in the last sentence of subsection (c). The retroactivity of this time limit, as it applies to the defendant’s motion to vacate his judgment of conviction and withdraw his plea, is the sole issue of this appeal.
      The relevant portion of the amended version of § 54-lj provides: “If the court fails to advise a defendant as required in subsection (a) of this section and the defendant not later than three years after the acceptance of the plea shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.” (Emphasis added.) General Statutes (Rev. to 1997) § 54-lj (c), as amended by Public Acts 1997, No. 97-256, § 6.

       In light of our conclusion that P.A. 97-256, § 6, applies retroactively, we need not reach the state’s two alternative grounds for affirmance, namely that: (1) the trial court’s ruling should be affirmed because the defendant had failed to malee a threshold showing that his plea of nolo contendere and conviction could have one of the consequences enumerated in § 54-lj (a) on his immigration status; and (2) the trial court’s ruling should be affirmed because the defendant was advised, at a prior plea canvass, just two months before he entered his plea of nolo contendere, that his plea could result in deportation.

       General Statutes (Rev. to 1989) § 14-227a provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating hquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating hquor or any drug or both if he operates a motor vehicle on a pubhc highway of this state ... (1) while under the influence of intoxicating hquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight. . .

       In his brief to this court, the defendant argues that, “[h]ad the legislature intended [P.A. 97-256, § 6] to apply retroactively, it would have made its intent clear in the language of the statute.” (Emphasis added.) Therefore, we treat ihe defendant’s subsequent argument examining the legislative history of § 54-lj as an argument in the alternative, were this court to conclude lhat it is free to look beyond the language of P.A. 97-256, § 6, in determining whether ihe legislature intended it to apply retroactively.

       In 1994, this court reaffirmed the rationale of Paradise in State v. Crowell, 228 Conn. 393, 636 A.2d 804 (1994), in which we again considered whether a statute of limitations could be applied to an offense committed prior to the statute’s effective date. Id., 394-95. We noted in Crowell that the court in Paradise had considered “the identical issue”; id., 397; and we cited to Paradise for the proposition that “criminal statutes [of limitations] are not to be accorded retrospective effect absent language clearly necessitating such a construction . . . .” (Internal quotation marks omitted.) Id., 401. Thus, we do not believe that the court in Crowell intended to weaken this component of Paradise when it implied that the legislative history of a criminal statute of limitations might be relevant to a determination of its retroactivity. See id. (“[t]he state cannot point to anything in the language of the statute or in its legislative history that expresses such an intent” [emphasis added]).

       Therefore, P.A. 97-256, § 6, does not violate the ex post facto clause of the United States constitution. U.S. Const., art. I, § 10, cl. 1 (“[n]o State shall . . . pass any ... ex post facto Law”); see, e.g., Lynce v. Mathis, 519 U.S. 433, 441, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997) (“[t]o fall within the ex post facto prohibition, a law must be retrospective — that is, it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime” [citation omitted; emphasis in original; internal quotation marks omitted]). Public Act 97-256, § 6, does nothing to alter the definition of the criminal conduct for which the defendant ~was charged, nor does it impose a “a greater punishment, than the law annexed to the crime, when committed." (Internal quotation marks omitted.) Lynce v. Mathis, supra, 441; see also California Dept. of Corrections v. Morales, 514 U.S. 499, 506-507 n.3, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995) (“the locus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of disadvantage . . . but on whether any such change . . . increases the penalty by which a crime is punishable” [emphasis in original; internal quotation marks omitted]); Beasley v. Commissioner of Correction, 50 Conn. App. 421, 432-33, 718 A.2d 487 (1998), aff'd, 249 Conn. 499, 733 A.2d 833 (1999) (“[t]he final step in an ex post facto analysis is to determine whether the effect of the newly enacted law increases the amount of the punishment imposed for the crime’s commission”).

       Therefore, we need not decide whether the statute is substantive or procedural. Even substantive criminal statutes may be applied retroactively when there is “a clear and unequivocal expression of legislative intent”; In re Daniel H., supra, 237 Conn. 376; for such application, and the statute does not violate the ex post facto clause of the United States constitution. See footnote 7 of this opinion.

       This case, however, does not present us with the issue of whether the trial court abused its discretion by refusing to reopen the defendant’s case.

       Justice Norcott cogently set forth in In re Daniel H., 237 Conn. 364, 376 n.10, 678 A.2d 462 (1996): “Our conclusion that [the 1994 amendment, which eliminated the right to an immediate appeal from a court order transferring a juvenile matter to the regular criminal docket of the Superior Court (1994 amendment)] applies prospectively only is also supported by the canon of statutory construction that instructs us to read statutes to avoid, rather than to create, constitutional questions. In re Valerie D., 223 Conn. 492, 534, 613 A.2d 748 (1992). In the present case, a retroactive application of the 1994 amendment would raise significant concerns about the amendment’s constitutionality insofar as it arguably makes the punishment for a crime more burdensome after its commission and, therefore, might be found to be an ex post facto law under Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990).”

         Paradise, Crowell and In re Daniel H., have their roots firmly planted in Jones, wherein this court stated: “The application of [the amended statute] in this case would give it a retrospective effect The court’s refusal to apply the act was correct. There is nothing in this legislation which indicates any intent on the part of the legislature to give it such operation, and an act is never given retrospective effect unless its terms absolutely require it. Bridgeport v. Greenwich, 116 Conn. 537, 543, 165 [A.] 797 [1933]. In Bryant v. Hackett, 118 Conn. 233, 238, 171 [A.] 664 [1934], we said that a law will not be given retrospective effect unless the legislature has manifested that intent ‘by very plain and explicit words.’ In Massa v. Nastri, 125 Conn. 144, 146, 3 [A.2d] 839 [1939], we said that laws are to be interpreted as operating prospectively and considered as furnishing a rule for future cases only, ‘unless they contain language unequivocally and certainly embracing past transactions.’ It is true that the cases cited above are civil cases. There are apparently few criminal cases where the rule has been applied, probably because they usually turn on the claim that a statute, if applied retrospectively, would be invalid as an ex post facto law. In Crawford, Statutory Construction, p. 573, it is said that in a criminal case a retrospective construction of a statute should not be adopted ‘unless its language clearly makes such a construction necessary.’See. also [59 C.J. 1173, Statutes § 698(1932)].” State v. Jones, supra, 132 Conn. 684-85.


source: Caselaw Access Project

author:
NORCOTT, J.
      MCDONALD, C. J.,
      CALLAHAN, J., with whom MCDONALD, C. J., and PALMER, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY L. DONAHUE
    (SC 16143)
    McDonald, C. J., and Berdon, Norcott, Katz, Palmer, Peters and Callahan, Js.
    Argued September 21
    officially released December 21, 1999

      Kevin C. Connors, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Roger Caridad, assistant state’s attorney, for the appellee (state).
   Opinion

NORCOTT, J.

The dispositive issue in this appeal is whether the Appellate Court, in affirming the judgment of the trial court, properly concluded that the police had a reasonable and articulable suspicion to justify stopping the defendant’s vehicle and detaining him. We conclude that the Appellate Court improperly affirmed the trial court’s determination concerning the existence of the requisite reasonable and articulable suspicion. Accordingly, we reverse the judgment of the Appellate Court.

The defendant, Jeffrey L. Donahue, pleaded nolo contendere to a charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. The trial court had denied in part and granted in part the defendant’s motion to suppress evidence of his statements to the police and the results of the field sobriety tests the police had conducted prior to his arrest. In its denial of the defendant’s motion, the trial court, Schuman, J., held that the defendant had been stopped by the arresting officer pursuant to a reasonable suspicion justifying the stop and that, therefore, the resulting statements and field tests were admissible. Following the defendant’s conditional plea of nolo contendere pursuant to General Statutes § 54-94a, the trial court rendered a judgment of conviction and sentenced the defendant to a term of six months imprisonment, execution suspended, and six months conditional discharge. The trial court also suspended the defendant’s license, imposed a fine and ordered community service and counseling. The execution of the sentence was stayed to allow the defendant the opportunity to appeal.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court improperly had denied his motion to suppress. The Appellate Court affirmed the judgment of the trial court. State v. Donahue, 53 Conn. App. 497, 502, 729 A.2d 255 (1999). This certified appeal followed.

On appeal, the defendant claims that the Appellate Court improperly affirmed the trial court’s denial of his motion to suppress. He claims that the police did not have a reasonable and articulable suspicion to justify his detention. The state claims that the police did have a reasonable and articulable suspicion, and that the trial court properly denied the motion to suppress.

The Appellate Court determined that the following facts were undisputed. “On December 10, 1997, Sergeant Todd Lynch of the Connecticut state police was on routine patrol on Club Road in Windham. As a shift supervisor, Lynch normally would not be on street patrol. This area, however, had experienced a dramatic increase in criminal activity in the previous four to six weeks, which he was attempting to counteract with his help on patrol. Specifically, Lynch was patrolling a cemetery next to a public housing project located on Club Road where drug dealing and prostitution often took place. Individuals would often park their vehicles at the commercial establishments along Club Road and then walk through the cemetery into the housing project to engage in these illegal activities.

“As Lynch was leaving the cemetery at approximately 1:50 a.m., he noticed a vehicle operated by the defendant turn abruptly from Club Road into the vacant parking lot of the French Club, a private social club that had closed for the evening. The defendant had a passenger with him in the car. As the defendant parked his vehicle and kept the engine running . . . Lynch drove his vehicle across the street toward the defendant’s vehicle. By the time Lynch actually entered the French Club parking lot, the defendant had positioned his vehicle so that it was facing the exit of the parking lot. Lynch then made a U-tum in the parking lot so that he could approach the defendant’s vehicle from behind and activated his red, yellow and blue flashers, but not his light bar. Before exiting his vehicle, Lynch radioed the defendant’s license plate number to the Colchester barracks to find out whether the defendant’s vehicle was stolen and if there were any outstanding warrants for its registered owner. Lynch learned that the vehicle was neither reported stolen, nor were there any outstanding warrants.

“Upon receiving this information, Lynch exited his vehicle and approached the defendant’s vehicle to ask the defendant for his license and registration. The defendant rolled down his window when he saw Lynch at his driver’s side window. At that point, Lynch detected alcohol on the defendant’s breath and, after the defendant failed a field sobriety test, Lynch arrested him for operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a.” Id., 498-99.

At trial, the defendant moved to suppress evidence obtained after his initial detention on the ground that such detention had been unlawful. The defendant claimed that Lynch lacked a reasonable and articulable suspicion to stop his vehicle and that the ensuing detention, therefore, violated his rights pursuant to the fourth and fourteenth amendments to the United States constitution, and article first, § 7, of the Connecticut constitution. The trial court ruled that “there’s a reasonable and articulable suspicion that criminal activity was afoot when given the vicinity, the time of night the defendant pulls into the dirt parking lot of a club that is closed. And there’s no other businesses in the area that could have been opened at that time. So I find that there was [a] reasonable suspicion to justify the stop at that time.” Accordingly, the trial court denied the defendant’s motion in part.

The Appellate Court affirmed the trial court’s decision, concluding that “[t]he defendant’s actions . . . were particularly consistent with the type of suspicious activity that often preceded . . . crime in this area. Under these circumstances, Lynch had an objective basis to suspect that the defendant may have been involved in the crimes .... The facts of this case support the determination that a reasonable and articulable suspicion existed to justify the stop of the defendant’s vehicle.” Id., 501.

Before this court, the defendant claims that the Appellate Court improperly concluded that the police had a reasonable and articulable suspicion to justify stopping his vehicle. The state argues in response that Lynch’s investigatory stop of the defendant was justified based upon the fact that the defendant was driving his lawfully registered vehicle in a commercial area that recently had seen an increase in criminal activities, especially drug dealing, prostitution, larceny and vandalism, and that “individuals would often park their vehicles at establishments along Club Road and walk across the cemetery into the adjacent public housing project to engage in drug dealing and prostitution.” We agree with the defendant that the facts of this case do not reveal a reasonable and articulable basis for a police stop.

As a threshold matter, we set forth the standard by which we review the Appellate Court’s ruling. “[W]e undertake a two-part analysis. First, we ascertain whether the trial court’s underlying factual findings were clearly erroneous. State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980) .... Second, in light of the facts found by the trial court, we determine whether the Appellate Court was correct in concluding that the police officer [had] a reasonable and articulable suspicion of criminal activity on which to base his initial investigative approach to the defendant’s car. The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. State v. Torres, supra, [625]; State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983).” (Citation omitted; internal quotations marks omitted.) State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). We conclude that the Appellate Court’s conclusion that Lynch had a reasonable and articulable suspicion of criminal activity is legally and logically inconsistent with the facts before us.

I

Although the issue of whether Lynch’s detention of the defendant constituted a “seizure” is not a certified issue before this court, the state asserts, as an alternative ground for affirming the decision of the Appellate Court, that Lynch’s stop of the defendant was not a seizure. Indeed, the state cites State v. Hill, 237 Conn. 81, 87, 675 A.2d 866 (1996), for this court’s definition of “seizure.” “[A] person [is defined] as seized under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained. ... In determining whether a seizure has occurred, so as to invoke the protections of our state constitution ... a court is to consider whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Internal quotation marks omitted.) Id. The trial court ruled that Lynch’s detention of the defendant did constitute a seizure and the Appellate Court did not disturb that finding.

The state’s argument is difficult to sustain in light of its counsel’s concession, at oral argument before this court, that under the circumstances in the present case, he — or any other reasonable person — would not have felt free to leave after Lynch pulled up behind the defendant’s caí and activated the vehicle’s overhead flashing lights. Accordingly, we do not disturb the trial court’s finding that the defendant was seized for the purpose of an investigative detention at the point at which Lynch pulled up behind the defendant’s vehicle and activated the police car’s red, yellow and blue flashing lights.

II

Having concluded that the defendant was seized by the action of Lynch, we must now decide whether the defendant’s detention was legally justified. We conclude that it was not.

“Article first, §§ 7 and 9 of our state constitution permit a police officer ‘in appropriate circumstances and in an appropriate manner’ to detain an individual for investigative purposes even though there is no probable cause to make an arrest. State v. Mitchell, [204 Conn. 187, 195, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987)]; State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990).” State v. Oquendo, 223 Conn. 635, 654, 613 A.2d 1300 (1992). “In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. ... A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. . . . These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 20-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, §§ 7 and 9 of our state constitution.” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, supra, 654.

“In the present case, we must decide whether article first, §§ 7 and 9 of the Connecticut constitution afford greater protection to the citizens of this state than does the federal constitution in the determination of what constitutes a seizure. We conclude that they do.” Id., 649-50. “Police have the right to stop for investigation short of arrest where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Citations omitted; internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 584-85, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974).

Upon our careful review of the record in the present case, we conclude that Lynch’s detention of the defendant was based on nothing more than the location of the defendant’s vehicle at an early hour of the morning. Obviously, these factors are not criminal in and of themselves, and they do not form the proper bases for rational inferences that warrant Lynch’s intrusion. Furthermore, they do not rise to the standard of a reasonable suspicion that we have found in other cases. See State v. Cofield, supra, 220 Conn. 46-47 (“[vjiewing the totality of the circumstances in this case, we conclude that the informant had supplied [the police officer] with information that had sufficient indicia of reliability and corresponded adequately to his observations in the parking lot to provide him with [a] reasonable and articulable suspicion sufficient to justify approaching the defendant’s car for further investigation”); State v. Lamme, supra, 216 Com. 175 (after hearing police broadcast describing vehicle driven by intoxicated individual, officer was justified in stopping car that matched description driving without its headlights illuminated in violation of General Statutes § 14-96a [d]); State v. Januszewski, 182 Com. 142, 149, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981) (“[t]he plainly furtive conduct of the occupants of that vehicle observed by the officer as he approached certainly justified the limited intrusion upon the defendant’s personal liberty”); State v. Watson, supra, 165 Com. 585-86 (police stop of defendants was justified when their vehicle was observed pulling into parking lot of motel at 11:30 p.m., discharging four occupants and moving next to exit, and four occupants were then observed coming from rear of motel, walking “hurriedly and cautiously” back to car).

The state’s argument that Lynch was justified in stopping the defendant due to an increase in crime in the area is unpersuasive. We considered and rejected a similar argument in State v. Oquendo, supra, 233 Com. 655. In Oquendo, we held that the officer’s detention of the defendant was not justified when the officer’s suspicions were based on the following factors: the clothing worn by the defendant; the increased crime rate in the area in which the defendant was walking; the fact that the officer knew the defendant’s companion was a recent arrestee for larceny and burglary; and the officer’s “ ‘hunch’ ” that the defendant was about to commit a crime. Id., 641. We fomd that those factors were considered insufficient to make the officer’s stop of the defendant “constitutionally reasonable.” Id., 657. Commenting specifically on the officer’s suspicion of the defendant based upon the fact that others recently had committed burglaries in the area, we noted: “Although burglaries had been reported in the general area . . . [the officer] had not received any report that a burglary had been committed in that area on [that] evening . . . nor did he possess information linking the defendant... to a particular burglary in the area.” Id., 655. “A history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality.” (Internal quotation marks omitted.) Id., 655 n.ll.

Here, the state argues that the following five factors produced a reasonable suspicion that the defendant was engaged or about to engage in criminal activity: (1) he was driving in a deserted area late at night; (2) he made an abrupt turn into the parking lot; (3) he pulled into an empty, unlit parking lot of an establishment that had closed for the evening; (4) his vehicle was in an area that had experienced a rise in criminal activity; and (5) his behavior was “consistent with the type of behavior that often preceded the criminal activity Lynch was out on patrol investigating.” We disagree and conclude that, as in Oquendo, the officer did not have a reasonable and articulable suspicion. We are unpersuaded that the totality of circumstances in this case reach the level of a reasonable suspicion found in our precedents. Here, the defendant had not committed any traffic violation. He had not been driving erratically. Neither he nor his passenger had exhibited any furtive conduct. Indeed, neither the defendant nor his passenger had exited the vehicle. Furthermore, the vehicle had not been the subject of any police investigation; indeed, Lynch even checked with the Colchester barracks and determined that the vehicle was not stolen, and that neither the vehicle nor its registered owner were wanted by the police.

Thus, we conclude that the police officer had no reasonable and articulable suspicion that the defendant had committed or was about to commit a crime. According to the principles of our state constitution as articulated in State v. Oquendo, supra, 223 Conn. 654, we conclude that the trial court improperly denied the defendant’s motion to suppress.

While there is no evidence or suggestion in the record that Lynch or any other individual involved in law enforcement was engaged in the practice, the present case does raise the insidious specter of “profiling”: the criminalizing of locations, neighborhoods or even individuals due to generalized perceptions of supposedly identifying and suspicious characteristics. This court cannot permit such a suspension of constitutional protections.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court, and remand the case to that court with direction to vacate the plea of nolo contendere and to grant the defendant’s motion to suppress.

In this opinion BERDON, KATZ and PETERS, Js., concurred.

MCDONALD, C. J.,

dissenting. I join Justice Callahan’s dissent. In addition, I would hold that the police officer’s approach of the defendant was not an investigative stop. In Terry v. Ohio, 392 U.S. 1, 20-27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court recognized that police officers, upon reasonable and articulable suspicion, may take “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat . . . [that] as a practical matter could not be, subjected to the warrant procedure.” Id., 20. Terry concerned a police officer who approached three men on the street and asked their names. The actions of the men had aroused his interest. After the men mumbled their response, the officer physically seized one of them and conducted a “pat down.” After he felt a gun in the man’s coat, he ordered them into an adjacent store where he searched the man and seized a revolver. Id., 6-7. It was under these circumstances that the United States Supreme Court upheld the constitutionality of a police officer conducting “a stop and frisk” when there is reasonable and articulable suspicion. Id., 30-31.

In this case, the defendant and his passenger were parked with the car’s engine running at 1:50 a.m. in a dimly lit and otherwise deserted parking lot adjacent to a public highway. See State v. Donahue, 53 Conn. App. 497, 498, 729 A.2d 255 (1999). The officer parked his vehicle behind the defendant’s car, which faced the exit of the parking lot. Before approaching the defendant’s car, the officer put on his flashing lights; id.; in the trial court’s words, “largely for his own protection.”

The majority’s decision expands the Terry doctrine to find that a police officer merely approaching and speaking with a defendant seated in a parked vehicle is an “investigative stop”; Terry v. Ohio, supra, 392 U.S. 20-27; or, as this court described, “a brief investigatory detention.” State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). This holding runs counter to our prior decisions that recognize that a police officer’s mere approach is not an investigative stop. In State v. Damon, 214 Conn. 146, 153-54, 570 A.2d 700 (1990), this court quoted the United States Supreme Court’s holding that “[pjolice officers do not violate an individual’s constitutional rights by approaching him, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering into evidence in a criminal prosecution his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Brown, 199 Conn. 47, 52-53, 505 A.2d 1225 (1986).”

Here, the police cruiser’s flashing lights were, in the darkness, the only means to mark the vehicle as a police car and identify the police officer approaching the defendant’s vehicle. Police officers wearing a uniform and displaying a badge often approach either on foot, bicycle or in a marked police cruiser to question persons. Detectives in plain clothes, showing a badge or credentials, must interview people to conduct police investigations. Although one may feel obligated to cooperate with an officer in these circumstances, the law should not require, as the majority does today, that the officer have a reasonable and an articulable suspicion of criminal activity before approaching a person. The majority’s decision prohibits a police officer from approaching and talking to anyone unless the officer has such suspicion.

The safety and security of law-abiding citizens strongly mitigates against the result of this case. The use of beat patrols on foot or bicycle, which encourage such encounters, has been recognized as effective in preventing and reducing crime.

Moreover, the government’s core function is to protect the public. The United States Supreme Court observed in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 2d 135 (1803), that “[o]ne of the first duties of government is to afford . . . protection.” Among the basic duties of any government is to protect the lives and property of its citizens through effective law enforcement. The framers of the United States constitution, in the wake of Shays’ Rebellion, perceived “an opportunity to strengthen the national government to deal with internal disorders . . . .” J. Bybee, “Insuring Domestic Tranquility: Lopez, Federalization of Crime and the Forgotten Role of the Domestic Violence Clause,” 66 Geo. Wash. L. Rev. 1, 22, and generally 19-24 (1997). The framers’ broader purpose was reflected in the preamble to the constitution, which provides: “We the People of the United States, in Order to form a more perfect Union . . . insure domestic Tranquility . . . do ordain and establish this Constitution for the United States of America.” (Emphasis added). In article four, § 4, of the United States constitution, the framers provided that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government . . . .” The majority’s decision unreasonably frustrates Connecticut law enforcement’s ability to protect its citizens from domestic violence and its obligation to ensure domestic tranquility as insured by the federal constitution.

For these reasons, I would affirm the Appellate Court’s decision upholding the trial court’s ruling in this case.

Accordingly, I dissent.

CALLAHAN, J., with whom MCDONALD, C. J., and PALMER, J.,

join, dissenting. I disagree with the majority’s conclusion that the police lacked a reasonable and articulable suspicion to make an investigatory stop of the car driven by the defendant, Jeffrey L. Donahue.

The Appellate Court summarized the undisputed facts as follows. “At 1:50 a.m. [on the morning of Wednesday, December 10, 1997], [Sergeant Todd] Lynch [of the state police] observed the defendant’s vehicle pull abruptly into a dimly lit, deserted parking lot [adjacent to a closed social club] in an area known for a recent increase in illicit drug sales, prostitution, theft, vandalism and assaults. Moreover, Lynch testified that he was patrolling Club Road specifically because his subordinate police officers needed help to respond to this increase in crime. Moreover, individuals would often park their vehicles along Club Road and walk across the cemetery into the public housing project to engage in drug dealing and prostitution.” State v. Donahue, 53 Conn. App. 497, 501, 729 A.2d 255 (1999).

“Under both the federal and state constitutions, police may detain an individual for investigative purposes if there is a reasonable and articulable suspicion that the individual is engaged in or about to engage in criminal activity.” State v. Groomes, 232 Conn. 455, 467-68, 656 A.2d 646 (1995). A determination of reasonable suspicion must be based on the whole of the circumstances “viewed through the eyes of a reasonable and cautious police officer on the scene guided by his experience and training.” United States v. Delos-Rios, 642 F.2d 42, 45 (2d Cir.), cert. denied, 451 U.S. 941, 101 S. Ct. 2025, 68 L. Ed. 2d 330 (1981); see also State v. Anderson, 24 Conn. App. 438, 441, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991). To state the proposition another way, we may inquire whether an officer’s failure to investigate under the circumstances might have constituted a dereliction of his duty. See Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111, cert. denied, 474 U.S. 950, 106 S. Ct. 349, 88 L. Ed. 2d 297 (1985); W. Schaefer, The Suspect and Society (1967) pp. 41-42.

Because otherwise innocuous behavior reasonably may arouse suspicion if it occurs at certain times and places; United States v. Dawdy, 46 F.3d 1427 (8th Cir. 1995) (reasonable suspicion where car parked in commercial lot at 10 p.m. on Sunday night and driver began to leave when police entered lot); United States v. Briggman, 931 F.2d 705 (11th Cir. 1991) (reasonable suspicion where car parked in commercial lot in high crime area at 4 a.m. and began to leave when police entered lot); United States v. Landry, 903 F.2d 334 (5th Cir. 1990) (reasonable suspicion where truck parked in front of closed business at approximately 11:30 p.m.); Tyler v. United States, 302 A.2d 748 (D.C. 1973) (police had right to investigate where defendant sitting in car in alley at 3:30 a.m. with engine and lights off); 4 W. La Fave, Search and Seizure (3d Ed. 1996) § 9.4 (f); our law allows the police to make a minimally intrusive inquiry even before probable cause exists to believe a crime has been or will be committed.

“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” (Citation omitted.) Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).

“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers.” United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).

To conclude, as the majority does, that a reasonable and articulable suspicion did not exist in the present case is to conclude that a police officer may neither exercise the common sense of any layman, nor conduct the most rudimentary investigation that is basic to his law enforcement function. Instead, he is reduced “to simply shrug[ging] his shoulders and allow[ing] a crime to occur or a criminal to escape.” Adams v. Williams, supra, 407 U.S. 145. This runs contrary to the spirit and purpose of both state and federal jurisprudence on investigatory stops. I respectfully dissent.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense . . . if he operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one percent or more of alcohol, by weight.”

       The defendant’s motion to suppress also sought suppression of the results of any chemical tests administered following his arrest. At the hearing on this motion on May 14, 1998, the state and the defendant stipulated that the officer who had conducted the chemical test had not been properly certified to conduct such test at that time. The trial court granted the defendant’s motion as it pertained to the results of the chemical test.

       General Statutes § 54-94a provides in relevant part: “When a defendant . . . enters a plea of nolo contendere conditional on the right to taire an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. 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 . . . .”

       The specific question certified in this appeal is: “Did the Appellate Court properly conclude that the police had a reasonable and articulable suspicion to justify stopping the defendant’s vehicle?” State v. Donahue, 249 Conn. 931, 733 A.2d 850 (1999).

       The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”
      The fourth amendment’s exclusionary rule is applicable to the states through the fourteenth amendment to the United States constitution. Mapp
        v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72 (1961).

       Article first, § 7, of the Connecticut constitution provides in relevant pari,: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . .

       See footnote 2 of this opinion.

       The trial court, stated: “I do find that the sergeant and the trooper stopped the defendant[’s] vehicle. The sergeant pulled up reasonably close to the vehicle — granted, did not block the vehicle but reasonably close, turned his flashers on, largely for his own protection but to a reasonable person that indicates a police stop.”

       Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       Because we conclude that Lynch’s detention of the defendant was in violation of article first, §§ 7 and 9, of the Connecticut constitution, we need not address the defendant’s contention that his rights pursuant to the United States constitution were violated. We do conclude, however, that the detention of the defendant was in violation of the standard set forth in Terry v. Ohio, supra, 392 U.S. 20-22. Furthermore, the federal cases relied upon by the dissent are distinguishable from the present case in that they all conclude that reasonable suspicion existed in light of distinct, articulable facts specific to the defendant in question. See United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981) (reasonable suspicion where border patrol, based on cumulation of facts and deductions taken therefrom, stopped specific vehicle at specific place and time); Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) (reasonable suspicion where information supplied by reliable informant led to stop of defendant); United States v. Dawdy, 46 F.3d 1427 (8th Cir. 1995) (reasonable suspicion where car parked in commercial lot at 10 p.m. on Sunday night and driver began to leave when police entered lot); United States v. Briggman, 931 F.2d 705 (11th Cir. 1991) (reasonable suspicion where car parked in commercial lot in high crime area at 4 a.m. and began to leave when police entered lot); United States v. Landry, 903 F.2d 334 (5th Cir. 1990) (reasonable suspicion where truck with absent driver parked infront of closed business at approximately 11:30 p.m.); United States v. Delos-Rios, 642 F.2d 42 (2d Cir.), cert. denied, 451 U.S. 941, 101 S. Ct. 2025, 68 L. Ed. 2d 330 (1981) (reasonable suspicion where Immigration and Naturalization Service inspectors received specific information from reliable informant). The level of specificity and the indicia of reliability inherent to these cases distinguishes them from the general, nonspecific aura of suspicion existent in the present case. Accordingly, we disagree with the dissent’s reliance on these federal cases and conclude that the facts of the present case do not rise to the standard of reasonable and articulable suspicion presented in the federal precedents.

       As defined in the racial context, “profiling” has come to refer to the practice of “singling] out black and Hispanic drivers based on ostensible traffic violations and subjecting] them to criminal searches.” State v. Harvey, 159 N.J. 277, 368, 731 A.2d 1121 (1999) (Handler, J., dissenting); see also D. Harris, “ ‘Driving While Black’ and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops,” 87 J. Crim. L. & Criminology 544 (1997); H. Gates, “Thirteen Ways of Looking at a Black Man,” New Yorker, October 23, 1995, p. 59 (constant stops by police is what “many African-Americans know as D.W.B.: Driving While Black”). As is obvious in the present case, the defendant is not a member of a racial minority. The concern that is identified in the context of racial profiling is, however, applicable here, as it was in Oquendo, in that the constitutional rights of the defendant are violated as a result of a police stop predicated on no reasonable and articulable suspicion.

       A number of studies show that community policing strategies result in overall crime reduction and quality of life improvements. See generally D. Livingston, “Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing,” 97 Colum. L. Rev. 551, 582-83 (1997); G. Kelling, “Police and Communities: the Quiet Revolution,” United States Department of Justice, Perspectives on Policing (June, 1988); G. Kelling, “Foot Patrol,” United States Department of Justice, Crime File, Study Guide (1988).
      In one study, police officers engaged in “citizen contact patrol” in Houston, Texas. Officers patrolled in cars and made direct contact with residents. W. Skogan, Disorder and Decline: Crime and the Spiral of Decay in American Neighborhoods (1990) pp. 100-107. As a result of these efforts, physical and social disorder declined while citizens’ satisfaction with the area and police performance improved.
      In another study, police officers on bicycle patrol were credited with reducing crime by 23 percent in one neighborhood in Kansas City, Kansas. See E. Cleaver II, “Violent Crime Control and Law Enforcement Act of 1994: The Proactive Approach to Preventing Crime,” 20 Dayton L. Rev. 733, 735 (1995).
      Another study in Flint, Michigan, looked at the implementation of “community-based foot patrols” that “serve[d] as catalysts in the formation of neighborhood associations . . . .” D. Payne & R. Trojanowicz, “Peformance Profiles of Foot Versus Motor Officers,” National Center for Community Policing, School of Criminal Justice, Michigan State University (1985). “The Neighborhood Foot Patrol Program reduced crime rates by 8.7 percent. More dramatic were the reductions in calls for service, which decreased by 42 percent over the period 1979-1982. Citizens began handling minor problems themselves, or the foot officer acted as mediator on an informal basis, negating ihe need for a formal complaint. . . . [Additional evidence indicated that citizens felt safer, were satisfied with the program, felt that it had impacted the crime rates, and that it had improved police-community relations.” Id.
      Police officials in New York City credited more officers “on the beat” with significant crime reduction. See W. Bratton, “New Strategies for Combating Crime in New York City,” 23 Fordham Urb. L.J. 781, 786-78. Between 1994 and 1995, overall crime was reduced by 27 percent and by 40 percent from 1991 to 1995. See id., 788.
      In a Newark, New Jersey, study, police officers’ foot patrol lowered citizens' fear of crime and self-protective actions and increased their perception of safety. See D. Livingston, supra, 97 Colum. L. Rev. 582-83.

       The police officer’s actions in this case protected the public from the dangers posed by a drunk driver. See, e.g., South Dakota v. Neville, 459 U.S. 553, 558, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983) (“[t]he carnage caused by drunk drivers is well documented”); State v. Swain, 245 Conn. 442, 456, 718 A.2d 1 (1998) (“[i]n Connecticut, the legislature has promulgated an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers” [internal quotation marks omitted]).

       The majority decision considered in light of our earlier ruling in Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998) (creating state analogue to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 [1971], for damages under article first, §§ 7 and 9, of Connecticut constitution), may give rise to an action for damages whenever the police make a minimally intrusive inquiry of a person who is in an area where at the time he has no apparent right or reason to be. Such a result will discourage legitimate police investigation and detract from the safety of Connecticut’s citizens and their property.

       The majority’s concern about racial profiling is misplaced. This is not a case of racial profiling. The defendant is not a member of a racial minority. Lynch detained the defendant because the circumstances — irrespective of race — gave rise to a reasonable and articulable suspicion. The “insidious specter of ‘profiling’ ” should not blind us to the facts here.