The Law Tribune previews an important or interesting case most weeks when the state Appellate Court or state Supreme Court are in session.

Case: State v. Jeremy Kelly

Court: Connecticut Supreme Court

Date: April 16

Time: 10 a.m.

Attorneys: Margaret G. Radionovas; Timothy H. Everett

Summary: A man who was chased down and arrested on drug charges by police officers who were looking for someone else has made a Fourth Amendment challenge to his arrest and conviction.

Background: On March 27, 2007, Hartford police officers were looking for Pedro Gomez. He was wanted for a probation violation and officers had received information he might be in disguise and carrying a gun.

The plain-clothed officers encountered two men, Rafael Burgos and Jeremy Kelly, in an area of Hartford known for drug dealing. The officers mistook Burgos for Gomez; they noticed Burgos clutching his waistband as if he was carrying a weapon.

The officers displayed their badges and twice asked Burgos and Kelly to approach their vehicle. The two, however, ran away.

The officers pursued the men and eventually caught them. One of the officers retrieved a bag that Kelly had dropped containing what appeared to be illegal drugs. Another bag was confiscated from Kelly’s clenched hand.

Kelly was charged with possession of narcotics with intent to sell, possession of narcotics in a school zone, and interfering with an officer. Prior to trial, he attempted to suppress the evidence, claiming he had been illegally seized by the officers when they displayed their badges and told him to approach their vehicle. His motion was denied and he pled no contest to possession of narcotics with intent to sell and was sentenced to nine years in prison, suspended after 3 1/2 years behind bars.

Kelly appealed the conviction, arguing that the officers violated his Fourth Amendment rights.

The state Appellate Court ruled that the trial court properly determined that police officers were within their rights to chase down Kelly because the public interest in the officers’ safety during the legal stop of Burgos outweighed the defendant’s personal liberty interest in not being inconvenienced.

Appellate Judge Thomas A. Bishop, writing for the court in May 2011, further justified the ruling because the officers thought that Burgos was Gomez, and they had a reasonable suspicion that Gomez was armed and had the mindset to elude capture. Bishop noted that the encounter occurred near a location known for drug dealing and that, under such circumstances, there was a real danger that Kelly would interfere with the police investigation in a manner protective of Burgos and potentially harmful to the officers.

"The risk in the present case was significant and the incremental intrusion was minimal," wrote Bishop. "We conclude, therefore, that the officers made a lawful investigatory stop of the defendant under the facts of this case."

Kelly, with the help of University of Connecticut Professor Timothy Everett and the UConn Legal Clinic, challenged the Appellate Court ruling, taking the case to the state Supreme Court.

The justices will determine whether the Appellate Court properly upheld as constitutional the warrantless seizure of Kelly on a public street because he was in the company of a person who was believed to be wanted for probation violation. Everett and the students argue that the Appellate Court’s ruling has broad implications.

"The issue ultimately is whether permitting police to stop companions and apparent companions of pedestrians on city streets – in the absence of particularized suspicion – will inevitably diminish the civil rights of all pedestrians but especially those who live in more heavily policed, densely populated cities," wrote Everett and the students in their Supreme Court brief.

Senior Assistant State’s Attorney Margaret G. Radionovas believes the state Appellate Court ruled correctly.

"Companions are just as capable of, and may be just as motivated to resist, or inflict sudden violence on the police on the street as they are anywhere else," writes Radionovas. "A companion on the street, therefore, poses a similar potential danger to the police as passengers in vehicle stops or occupants of premises being searched pursuant to a warrant."

Both the Connecticut chapter of the American Civil Liberties Union and the Connecticut Criminal Defense Lawyers Association submitted amicus briefs in support of Kelly’s position.

"The risk to officer safety on the street in the circumstances of Kelly’s seizure was not comparable to the risk posed by passengers while officers are conducting a traffic stop or by occupants of a home where officers are searching a private residence pursuant to a warrant," wrote Sandra Staub and Michael Blanchard for the ACLU. "Law enforcement officers can more easily identify the suspicious movements of an individual in the open, on the street, than is possible from outside a closed vehicle or on the approach to a home."

Richard Emanuel, of the CCDLA, stated that his group is worried that the Appellate Court opinion "comes perilously close to endorsing, or adopting, an ‘automatic companion’ rule—a rule that is unfaithful to the federal and state constitutional protections against unreasonable searches and seizures."

Emanuel said the police should have only dealt with Burgos, whom they thought was Gomez, and told Kelly "he was ‘free to leave’ and should ‘please step away.’"•