State v. Marciano

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State v. Marciano

STATE OF CONNECTICUT v. NICOLAS A. MARCIANO
(AC 46753)
Alvord, Elgo and Cradle, Js.*

Syllabus

The state appealed, on the granting of permission, from the judgment of
the trial court dismissing the information charging the defendant with
operating a motor vehicle while under the influence of alcohol following
the court’s granting of the defendant’s motion to suppress evidence obtained
as a result of his unconstitutional seizure. The state claimed, inter alia,
that no constitutional violation occurred because, at all relevant times, the
arresting officer was acting in his community caretaking capacity during
his encounter with the defendant. Held:

The trial court properly concluded that the community caretaking exception
to the warrant requirement did not apply because the arresting officer was
not acting within his community caretaking capacity when he restricted the
defendant’s liberty, as there was no evidence in the record that the officer
was seeking to prevent the commission of a crime, protect an individual
who was in danger of physical harm, resolve a conflict, or maintain a feeling
of security in the community.

The trial court properly granted the defendant’s motion to suppress because
it properly concluded that the defendant had been seized within the meaning
of the state and federal constitutions when the uniformed, visibly armed,
arresting officer prevented him from driving away by illuminating his vehicle
with takedown lights, approaching him, and nonverbally commanding that he
roll down his window as, at that time, a reasonable person in the defendant’s
position would not have felt free to leave the scene.
Argued November 13, 2024—officially released March 18, 2025

Procedural History

Information charging the defendant with operating a
motor vehicle while under the influence of alcohol,
brought to the Superior Court in the judicial district of
Tolland, geographical area number nineteen, where the
court, Klatt, J., granted the defendant’s motion to sup-
press; thereafter, the court, Klatt, J., on the state’s
motion, rendered judgment dismissing the information,
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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State v. Marciano

and the state, on the granting of permission, appealed
to this court. Affirmed.

Robert J. Scheinblum, special assistant state’s attor-
ney, with whom, on the brief, were Matthew C. Gedan-
sky, state’s attorney, and Jonathan Shaw, deputy assis-
tant state’s attorney, for the appellant (state).

Nicole Van Lear, deputy assistant public defender,
for the appellee (defendant).

Opinion

CRADLE, J. The state of Connecticut appeals from
the judgment of the trial court dismissing an informa-
tion charging the defendant, Nicolas A. Marciano, with
operating a motor vehicle while under the influence
of alcohol in violation of General Statutes § 14-227a,
following its granting of the defendant’s motion to sup-
press evidence obtained as a result of his unconstitu-
tional seizure.1 On appeal, the state claims that no con-
stitutional violation occurred because, at all relevant
times, the arresting officer was acting in his community
caretaking capacity. Alternatively, the state argues that,
even if the officer was not acting in his community
caretaking capacity, the defendant was not unlawfully
seized because the officer’s conduct did not constitute
a show of authority sufficient to cause a reasonable
person in the defendant’s position to believe that he
was not free to leave. We affirm the judgment of the
trial court.

The record reflects the following facts found by the
trial court after an evidentiary hearing on the defen-
dant’s motion to suppress, as supplemented by the
undisputed testimony of the arresting officer and the
1
Pursuant to General Statutes § 54-96, the state requested, and the trial
court granted, permission to appeal from the judgment of dismissal.
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State v. Marciano

video recording from his body camera.2 On May 9, 2022,
Connecticut State Troopers Brandon Godwin and Andrew
Sturmer were on routine patrol in a marked state
police cruiser in the vicinity of Route 44 in Mansfield.
At approximately 1:30 a.m., the troopers were traveling
eastbound on Route 44, near the intersection with Route
195. There is a Cumberland Farms gas station and con-
venience store located on one corner of the intersec-
tion. There are two entrances to the Cumberland Farms
parking lot, neither of which was obstructed in any
way; there were no signs or gates prohibiting entry to or
parking in the lot after business hours. As the troopers
approached the intersection, Godwin observed a lone
vehicle parked in an unlit area of the Cumberland Farms
parking lot, which he found ‘‘abnormal’’ because the
Cumberland Farms gas station and convenience store
were closed at the time. The vehicle was not parked
near the store or the fuel pumps; rather, it was parked
along the side of the lot, parallel to the curb. Godwin
entered the parking lot ‘‘just . . . to make sure every-
thing was all right.’’

When Godwin entered the parking lot, he parked his
cruiser approximately forty to fifty feet from the parked
vehicle, facing the driver’s side, basically in a ‘‘T’’ posi-
tion with the vehicle, and immediately illuminated the
vehicle with his cruiser’s ‘‘takedown lights.’’ He
observed ‘‘an individual inside the car, in the driver’s
seat, with his head looking down toward the steering
wheel.’’ Godwin also observed that there was ‘‘some
kind of damage to the driver’s side rear fender’’ of the
vehicle. Although the cruiser’s lights spotlighted the
vehicle, the cruiser did not block or otherwise hinder
the vehicle’s ability to move. Godwin did not activate
2
The trial court noted, and the parties do not dispute, that the video
recording from the body camera is the best evidence of the incident at issue.
The facts in this case are essentially undisputed.
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State v. Marciano

the overhead flashing red and blue lights or the sirens
of his cruiser.
When Godwin exited his cruiser, he observed the
defendant sit upright in the driver’s seat, start his vehicle
and illuminate its headlights.3 As Godwin continued to
approach the defendant’s vehicle, he began waving his
flashlight toward the defendant in a circular motion,
signaling the defendant to roll down his window. When
Godwin arrived at the vehicle, the defendant opened
the driver’s side door a few inches and told Godwin
that his window would not roll down. Godwin pulled
the door open completely and asked the defendant what
he was doing there. Godwin smelled the odor of alcohol
emanating from the defendant’s vehicle and believed
that the defendant’s speech was slurred. Godwin
checked the defendant’s eyes and then asked the defen-
dant to exit his vehicle so that he could perform certain
tests. The trial court concluded that it was at this point
that Godwin began a criminal investigation, suspecting
that the defendant was operating under the influence.4
3
Although the parties do not dispute the trial court’s factual findings, we
note that certain of those findings, specifically as to the sequence of certain
events, are imprecise. Specifically, although the court found that the defen-
dant turned on his vehicle in response to Godwin’s signal to him to roll
down his window, Godwin testified, and the video recording from his body
camera confirms, that the defendant started his vehicle as Godwin exited
his cruiser. The parties do not dispute this. Likewise, the court noted that
Godwin observed damage to the defendant’s vehicle when he reached the
defendant’s vehicle. Godwin testified that he observed a ‘‘black . . . discol-
oration’’ near the handle of the driver’s side rear door when he illuminated
his cruiser’s takedown lights. When he reached the defendant’s vehicle, he
realized that the discoloration ‘‘appeared to be melted rubber’’ from the
driver’s side rear tire. Despite that damage, Godwin testified that the vehicle
appeared to be operable.
4
The court found: ‘‘At this time, the trooper also observed that the vehicle
had damage to the rear driver’s side tire with the tread gone and rubber
from the tire melted onto the fender. The defendant indicated to the troopers
that he did not own the vehicle and he was waiting for a friend to pick it
up. The evidence indicated that he had been parked, with the vehicle off,
for some period of time. The defendant had been on his cell phone at the
time of the [Godwin’s] approach and had the phone in his hand. . . . While
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State v. Marciano

As a result of the investigation, the defendant was
arrested and charged with operating a motor vehicle
while under the influence in violation of § 14-227a.
On February 23, 2023, the defendant filed a motion to
suppress ‘‘all evidence derived from law enforcement’s
encounter with [him] on May 9, 2022,’’ on the ground
that ‘‘Godwin lacked a legal basis to approach [the
defendant], and the evidence against [the defendant]
was derived from the illegal approach.’’ On April 21,
2023, the state filed an objection to the defendant’s
motion to suppress. The state argued that Godwin did
not seize the defendant until he smelled the odor of
alcohol emanating from the defendant’s vehicle and
heard his slurred speech, at which time he ‘‘developed
probable cause to detain him.’’5
On April 21, 2023, the court held an evidentiary hear-
ing on the defendant’s motion to suppress and the
[Godwin] approached on his own, the second trooper was at the vehicle
within a minute.’’
5
In its memorandum of law objecting to the defendant’s motion to sup-
press, the state argued: ‘‘The basis of the defendant’s motion [to suppress],
while not explicitly stated, seems to be that by simply driving his police
vehicle into the gas station and parking, [Godwin] had seized the defendant.
However, [Godwin] did not seize the defendant until later in their encounter,
after developing probable cause that the defendant was operating his vehicle
under the influence. . . . The defendant was not seized when [Godwin]
entered the gas station, parked his vehicle, and approached the defendant’s
vehicle.’’ (Citation omitted.) The state asserted that there was no use of
physical force and there was not a ‘‘sufficient show of authority such that
a reasonable person would not have felt free to leave.’’ In support of this
assertion, the state argued that ‘‘Godwin observed a vehicle parked at a
closed gas station at 1:30 in the morning. He parked a significant distance
away from the vehicle, his overhead flashing lights and sirens were not on,
and he did not restrict the vehicle’s ability to move. He approached the
vehicle alone, slowly, did not have a firearm drawn, did not provide any
verbal commands and spoke calmly. It was not until he detected the odor
of alcohol and heard the defendant speak in a slurred manner that he
developed probable cause to detain him.’’ On the basis of those facts, the
state asserted that the defendant was not seized by Godwin and that Godwin
did not require a ‘‘ ‘lawful basis’ ’’ to approach the defendant.
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State v. Marciano

state’s objection to that motion. The state presented
the testimony of Godwin and introduced into evidence
the video recording from Godwin’s body camera. The
defendant did not present any witnesses but introduced
into evidence two portions of the video recording from
Godwin’s body camera, an overhead photograph of the
Cumberland Farms and two photographs from the night
in question.
On May 9, 2023, the defendant filed a posthearing
memorandum of law in support of his motion to sup-
press, wherein he argued: ‘‘[The defendant] was seized,
at the latest, when Godwin waved his lit flashlight in
[the defendant’s] direction as Godwin continued to walk
toward [the defendant]. In the seconds before, Godwin
drove into the Cumberland Farms parking lot and
turned on his ‘takedown’ light[s] as he stopped his patrol
car. The bright spotlight was pointed directly at [the
defendant]—the only person in the parking lot. . . .
Although a reasonable person may have believed he
was not free to leave once the takedown light[s] [were]
trained on him, [the defendant] may have believed oth-
erwise because he started the engine and turned on his
car’s lights. . . . He never left, however, because God-
win waved his lit flashlight in [the defendant’s] direction
at least ten times immediately after [the defendant]
started the engine and turned on the car’s lights. . . .
Godwin also continued to walk toward [the defendant]
as he waved the flashlight at him. Godwin no doubt
understood [the defendant] starting his engine and turn-
ing on the car lights as a manifestation of [the defen-
dant’s] intention to leave the parking lot. Godwin there-
fore waved his flashlight as soon as [the defendant]
started the engine in a way that communicated to [the
defendant] that he was not free to leave. . . . [The
defendant] never moved the car once Godwin started
waving his flashlight as he continued walking in [the
defendant’s] direction because a reasonable person in
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State v. Marciano

[the defendant’s] position would not have felt free to
leave.’’ (Citations omitted; emphasis omitted.)
On May 22, 2023, the state filed its posthearing memo-
randum of law in support of its objection to the defen-
dant’s motion to suppress. In support of its contention
that Godwin’s stop of the defendant was not unconstitu-
tional, the state alleged: ‘‘Godwin observed a vehicle
parked in a closed gas station at 1:30 in the morning.
Utilizing his role as a community caretaker, [he] entered
the gas station parking lot. Upon entering, he observed
an individual in the driver’s seat who appeared to be
hunched over or asleep, and he wanted to inquire if
he needed assistance. [Godwin] parked a significant
distance away from the defendant, did not utilize his
overhead lights, and his siren was not on. He
approached the defendant’s vehicle alone, in a slow and
calm manner, did not have his firearm drawn, and did
not give any commands to the defendant. As [Godwin]
exited his vehicle, he heard and observed the [defen-
dant] start his vehicle. [Godwin] did not return to his
vehicle and try to stop the defendant, he did not try to
block him in or prevent him from driving, and he did
not chase after him or verbally tell him to stop, evidenc-
ing the fact that the defendant was not being detained at
that time. During his approach of the vehicle, [Godwin]
noticed that the vehicle had significant, recent damage
and that the rear driver side tire had nearly no tread.6
. . . When the defendant opened his car door, due to
his window not working, [Godwin] immediately
detected the odor of alcohol emanating from the vehi-
cle. Upon speaking with the defendant, [Godwin] noted
that his speech was slurred. Due to the overwhelming
6
As noted in footnote 3 of this opinion, Godwin testified that he observed
discoloration near the driver’s side rear tire of the defendant’s vehicle when
he illuminated his takedown lights. Godwin testified that, when he reached
the defendant’s vehicle, he realized that the discoloration ‘‘appeared to be
melted rubber’’ from the driver’s side rear tire.
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State v. Marciano

odor of alcohol, the defendant’s slurred speech, and
the damage to the [defendant’s] vehicle, [Godwin] had
reason to believe that the defendant was operating his
motor vehicle under the influence of alcohol and asked
him to step out of the vehicle for further examination.
It was at this point that [Godwin] seized the defendant.’’
(Footnote added.)
On June 6, 2023, the defendant filed a reply to the
state’s objection to his motion to suppress wherein he
reiterated his argument that a reasonable person in his
position would not have felt free to leave the parking
lot under the circumstances and that his ‘‘seizure was
not justified under the community caretaking doctrine.’’
The defendant asserted that ‘‘Godwin lacked the empiri-
cal facts necessary to interfere with [the defendant’s]
freedom of movement under the community caretaking
doctrine’’ because ‘‘the location and manner in which
[the defendant’s] car was parked did not give rise to a
belief that he was in distress or in need of aid,’’ there
had been no reports of any concerns related to the
defendant’s vehicle, and, ‘‘upon Godwin’s arrival, there
was no indication that [the defendant] was in any dis-
tress or need of aid.’’ The defendant also asserted that,
‘‘even if [the defendant’s] mere presence in a safe park-
ing lot with open ingress and egress that serviced a
convenience store that was brightly lit initially justified
Godwin’s decision to check on his well-being, including
due to the observation of [the defendant’s] lowered
head, any concerns Godwin may have felt for [the defen-
dant’s] health were dispelled once [the defendant] lifted
his head, started the car’s engine and turned on the
lights and/or pressed the brake pedal upon Godwin’s
approach . . . .’’ (Footnote omitted.)
On June 21, 2023, the court issued a memorandum
of decision wherein it granted the defendant’s motion
to suppress. The court agreed with the defendant’s argu-
ment that he was seized, at the latest, when Godwin
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State v. Marciano

waved his flashlight at him and ordered him to roll
down his window. The court reasoned: ‘‘The defendant
was in a parked vehicle, alone in a dark parking lot in
the early morning hours. He was in a completely iso-
lated, rural location, [with] no other pedestrians or vehi-
cles in the near vicinity [and] no other businesses open
at that time. He was on his phone, presumably waiting
for a friend to pick up the vehicle.
‘‘[Godwin’s] approach, while not blocking the defen-
dant’s path, also clearly indicated the officer’s intent to
speak with him and [that the defendant should] not
leave the area. The video demonstrates that the ‘take-
down lights’ spotlighted the defendant and the vehicle in
an intimidating fashion. The defendant was effectively
pinned in place by the lights. There was no question
that the lights were coming from a clearly marked police
cruiser. Within seconds, an armed police officer was
approaching the defendant, signaling with his flashlight
to roll down the window of the vehicle. These actions
clearly communicate to an individual: ‘Do not leave
because I want to speak with you.’ ’’
The court found that, ‘‘in consideration of the totality
of the circumstances, a reasonable person in the defen-
dant’s position, with the location, with the lights used,
the trooper’s approach, and the motioning with the
flashlight, would not believe he would be free to leave.’’
The court also found that, at the time of the seizure,
Godwin lacked a reasonable and articulable suspicion
of criminal activity.
The court rejected the state’s argument that Godwin
approached the defendant’s vehicle in his role as a
community caretaker and ruled that the community
caretaking exception to the warrant requirement did
not apply in this case. The court explained: ‘‘The sole
evidence offered by the state was [Godwin’s] testimony,
indicating that, while on patrol, he observed a lone car
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State v. Marciano

in the parking lot of a closed business, which he thought
was ‘unusual’ and ‘abnormal.’ There was nothing about
how the vehicle was parked to indicate worry or con-
cern. There were no complaints regarding that vehicle,
no reports of criminal activity or accidents. There was
nothing readily observable about the vehicle itself, i.e.,
no flashers, hood extended, etc., that would render a
belief that the operator needed assistance. The video
evidence revealed the defendant, who was seated
upright, look toward the cruiser once the ‘takedown
lights’ illuminated him.
‘‘Not every lone vehicle parked along the side of the
road or in an empty lot, even in a rural location, is or
should be considered ‘abnormal.’ If the concern was a
need for medical assistance, that concern should have
dissipated once the defendant looked and responded
to the officer’s presence. While the trooper testified
that he had observed damage in the rear driver’s side
of the vehicle, this would not have been visible to the
officer at the time the vehicle was first observed and
only after the trooper began his approach. Further, the
trooper testified that the vehicle . . . still appeared
operational.’’
On the basis of the foregoing, the court concluded
that the evidence obtained that night was seized in
violation of the fourth and fourteenth amendments to
the United States constitution and article first, § 7, of
the Connecticut constitution and ordered that it be sup-
pressed.
The state thereafter asked the court to dismiss the
charge against the defendant and sought permission to
appeal the court’s granting of the motion to suppress,
which the court granted. This appeal followed.
The standard of review for a motion to suppress is
well settled. ‘‘A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
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State v. Marciano

and pleadings in the whole record . . . . [W]hen a
question of fact is essential to the outcome of a particu-
lar legal determination that implicates a defendant’s
constitutional rights, [however] and the credibility of
witnesses is not the primary issue, our customary defer-
ence to the trial court’s factual findings is tempered by
a scrupulous examination of the record to ascertain
that the trial court’s factual findings are supported by
substantial evidence. . . . [W]here the legal conclu-
sions of the court are challenged, [our review is plenary,
and] we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision . . . .’’
(Internal quotation marks omitted.) State v. Pompei,
338 Conn. 749, 756, 259 A.3d 644 (2021).
Here, the state does not challenge the trial court’s
factual findings but, rather, contends that the court
erred in concluding that Godwin was not acting within
his community caretaking capacity and that the defen-
dant was seized when Godwin signaled the defendant
with his flashlight to roll his window down. We address
each claim in turn.
I
The state first claims that the court erred in granting
the defendant’s motion to suppress because Godwin
was acting in his community caretaking capacity at
all times during his encounter with the defendant. We
disagree.
Consistent with our standard of review pertaining to
a court’s ruling on a motion to suppress, ‘‘in reviewing
the applicability of the community caretaking [doc-
trine], the trial court’s subordinate factual findings will
not be disturbed unless clearly erroneous and the trial
court’s legal conclusion regarding the applicability of
the [community caretaking] doctrine in light of these
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State v. Marciano

facts will be reviewed de novo.’’ (Internal quotation
marks omitted.) Id.
‘‘The fourth amendment to the United States constitu-
tion prohibits unreasonable searches and seizures by
government agents. Subject to a few well defined excep-
tions, a warrantless search and seizure is per se unrea-
sonable. . . . The state bears the burden of proving
that an exception to the warrant requirement applies
when a warrantless search [and seizure have] been con-
ducted.’’ (Footnote omitted; internal quotation marks
omitted.) Id., 757.
The exception to the fourth amendment’s warrant
requirement that the state argues applies to the present
case is known as the community caretaking exception.
The United States Supreme Court first described the
community caretaking functions in Cady v. Dombrow-
ski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).
There, the Supreme Court explained that ‘‘[l]ocal police
officers, unlike federal officers, frequently . . . engage
in what, for want of a better term, may be described as
community caretaking functions, totally divorced from
the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute.’’ Id., 441.7
7
‘‘The defendant in Cady was convicted of murder after incriminating
evidence was found during a warrantless search of his motor vehicle follow-
ing an automobile accident. . . . The police officers searched the defen-
dant’s motor vehicle because they knew that he was an off duty Chicago
police officer who was required by regulation to carry his service revolver
at all times. . . . The court in Cady rejected the defendant’s contention that
the search was illegal, concluding that the search was standard procedure
in [that police] department, to protect the public from the possibility that
a revolver would fall into untrained or perhaps malicious hands. . . . The
police had not violated the defendant’s fourth amendment rights when they
searched the trunk of his parked vehicle, the court held, because they
reasonably believed that it contained a loaded revolver that could endanger
the public if left unsecured.’’ (Citations omitted; internal quotation marks
omitted.) State v. Pompei, supra, 338 Conn. 758–59. Like Cady, the majority
of cases that discuss the community caretaking function of police officers
involve inventory searches of motor vehicles.
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State v. Marciano

It has since been explained that ‘‘[s]afeguarding individ-
uals and their property from harm is the essence of the
community caretaking function of the police.’’ (Internal
quotation marks omitted.) United States v. Best, 415 F.
Supp. 2d 50, 56 (D. Conn. 2006). It ‘‘involves routine,
nonemergency duties undertaken to protect the public
. . . .’’ State v. Pompei, supra, 338 Conn. 758 n.5.

Our Supreme Court has observed that ‘‘it is not always
a simple matter to delineate precisely pursuant to which
function [the] police are acting in carrying out a particu-
lar search or seizure. In fact . . . [p]olice often operate
in the gray area between their community caretaking
function and their function as criminal investigators.
Often there is no bright line separating the one from
the other . . . . In many instances, however, it is possi-
ble to discern whether the police are acting in their
crime control or investigative functions, or instead are
acting pursuant to their community caretaking function.’’
(Internal quotation marks omitted.) State v. Curet, 346
Conn. 306, 324, 289 A.3d 176 (2023). ‘‘[T]he police have
complex and multiple tasks to perform in addition to
identifying and apprehending persons committing seri-
ous criminal offenses; by design or default, the police
are also expected to reduce the opportunities for the
commission of some crimes through preventive patrol
and other measures, aid individuals who are in danger
of physical harm, assist those who cannot care for them-
selves, resolve conflict, create and maintain a feeling
of security in the community, and provide other services
on an emergency basis. . . . Constitutional guarantees
of privacy and sanctions against their transgression do
not exist in a vacuum but must yield to paramount
concerns for human life and the legitimate need of
society to protect and preserve life . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
DeMarco, 311 Conn. 510, 537, 88 A.3d 491 (2014).
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State v. Marciano

Our Supreme Court has held that a police officer
acting in a community caretaking capacity may make
‘‘a reasonable intrusion not prohibited by the fourth
amendment.’’ State v. Tully, 166 Conn. 126, 133, 348
A.2d 603 (1974). ‘‘There is no formula for the determina-
tion of reasonableness. Each case is to be decided on
its own facts and circumstances.’’ (Internal quotation
marks omitted.) Id., 144. ‘‘The police must have a valid
reason grounded in empirical facts rather than subjec-
tive feelings to believe that a limited intrusion into lib-
erty or property interests is justified . . . . It is an
objective and not a subjective test . . . that looks to
the totality of the circumstances.’’ (Citations omitted;
internal quotation marks omitted.) State v. Pompei,
supra, 338 Conn. 757–58.

Here, the state has steadfastly maintained, before the
trial court and now this court, that the defendant was
not seized until Godwin smelled the odor of alcohol,
heard the defendant’s slurred speech, and asked the
defendant to step out of his vehicle so he could com-
mence an investigation to determine whether the defen-
dant was operating while under the influence. The state
acknowledges, however, that there was ‘‘some restric-
tion on . . . [the defendant’s] liberty’’ when Godwin
turned on his takedown lights, approached the defen-
dant and signaled to him to roll down his window.
The state argues that this restriction of the defendant’s
liberty was justified because Godwin was acting in his
community caretaking capacity. The state argues that,
‘‘[c]ontrary to the trial court’s conclusion, from the time
that the troopers were on routine patrol and first saw
the defendant’s car until the defendant opened the driv-
er’s door and the troopers smelled alcohol and heard
his slurred speech, the troopers’ activities were ‘totally
divorced from the detection, investigation or acquisi-
tion of evidence relating to the violation of a criminal
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statute.’ ’’ The lack of empirical facts supporting a rea-
sonable belief that the exercise of their community
caretaking function was the basis of their conduct belies
this argument.
Godwin testified that he first noticed the defendant’s
vehicle in the Cumberland Farms parking lot when he
was driving through the intersection on routine patrol.
He further testified that, at that time, he did not notice
if the vehicle was occupied. In fact, the defendant’s
vehicle was off and parked on private property. It was
parked parallel to the curb and was not askew. There
was nothing about the manner in which it was parked,
or its appearance, to indicate that it was disabled when
Godwin entered the parking lot. There were no gates
or other barriers preventing the public from accessing
or parking in the lot when the business was closed, and
there were no signs prohibiting entry or trespassing.
There had been no reports that the vehicle had been
involved in any type of incident or had been stolen.
There had been no report as to how the vehicle got
there or how long it had been there. There was no sign
of distress or threat to life or property. Other than a
parked car on the private property of a closed business,
there was simply no basis for Godwin’s stated purpose
of entering the parking lot—to ‘‘make sure everything
was all right.’’8
Once Godwin pulled into the parking lot, he noticed
the defendant in the driver’s seat of the vehicle, with
his head looking down toward the steering wheel, and
8
On cross-examination at the suppression hearing, Godwin was asked
whether there was any sign of an individual in the vehicle being in distress.
Godwin began to explain: ‘‘No, but, you know, in reference to, you know,
what’s been going on in Mansfield, and, you know, the past couple years
there’s been . . . .’’ His explanation was interrupted by defense counsel,
who objected to the testimony as beyond the scope of his question and
asked that the testimony be stricken. The court sustained the objection but
did not strike the testimony.
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what appeared to be damage to the vehicle near the
rear driver’s side tire. Godwin testified that, at that
point, he thought there was a possible emergency, in
that he believed the defendant could be in distress.
Godwin testified that he heard the engine of the defen-
dant’s vehicle go on and observed the brake lights illu-
minate when he was exiting his cruiser, and the defen-
dant’s head was not down anymore. At that point, when
the defendant raised his head and started his vehicle,
the stated basis for Godwin’s exercise of his community
caretaking function—to check on the defendant’s well-
being—ceased to exist. Godwin, however, was unde-
terred by the defendant’s movement. Although the
defendant did not, at any point, show any signs of dis-
tress or in any way indicate that he needed assistance,
Godwin nevertheless continued to approach the defen-
dant’s vehicle and waved his flashlight at the defendant
several times, essentially ordering him to stay where
he was located and to roll down his window. Because
it was clear that the defendant was not in distress once
he started the car and lifted his head, Godwin had no
reasonable basis to restrict the defendant’s liberty.9
In support of the state’s argument that Godwin acted
in his community caretaking capacity when he restricted
the defendant’s liberty, the state relies on our Supreme
Court’s decision in State v. Pompei, supra, 338 Conn.
749.10 In Pompei, our Supreme Court affirmed the denial
9
Although Godwin asked the defendant if he was okay, he first asked
him what he was doing there.
10
The state also relies on State v. Drummond, 305 N.J. Super. 84, 701
A.2d 958 (App. Div. 1997), in which the Appellate Division of the Superior
Court of New Jersey held that the arresting officers were justified in making
a community caretaking inquiry when they observed a vehicle parked with
its lights off next to a closed car wash facility shortly before midnight
because those experienced officers deemed it ‘‘atypical for the location.’’
Id., 88. Not only are we not bound by New Jersey case law, but the reasoning
of that case fails to account for the principle, stated therein, that ‘‘a reason-
ably objective police officer’’ acting in his community caretaking capacity
is justified in ‘‘making an inquiry on property and life . . . .’’ (Internal
quotation marks omitted.) Id. Other than stating that the circumstance was
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of the defendant’s motion to suppress, explaining that
‘‘[the arresting officer] was not acting in a criminal
investigatory capacity when he parked his patrol car
behind the defendant’s motor vehicle but, rather, was
responding to a dispatch from a concerned citizen who
had reported an unconscious male in a Ford Focus in
the Cumberland Farms parking lot at 1:56 a.m. [The
officer] did not activate the lights on his patrol car
and parked behind the defendant’s vehicle because he
wanted ‘to keep it from being able to roll backwards
or backup until [he] could ascertain the situation at
hand.’ [The officer] exited his patrol car and observed
the unconscious or sleeping defendant in the driver’s
seat with the engine running. [The officer] knocked on
the driver’s side window to rouse the defendant and to
ascertain whether he required medical attention.
Indeed, consistent with this purpose, the first question
[the officer] asked the defendant was whether he was
okay.’’ Id., 760. The court held: ‘‘In light of the limited
‘purpose and scope of the intrusion,’ as well as the
complete dearth of evidence indicating that ‘this was
a general exploratory’ or ‘pretext[ual]’ stop . . . we con-
clude that the defendant’s encounter with [the officer]
falls squarely within the community caretaking doc-
trine.’’ (Citation omitted.) Id., 760–61.
The present case is factually distinguishable from
Pompei in important ways. First, the officer in Pompei
was responding to a report from a citizen that there
was an unconscious male in a vehicle parked in the
Cumberland Farms parking lot at 1:56 a.m. Id. The state
asserts that this is a ‘‘distinction without a difference
. . . because in both instances the police had no reason
‘‘atypical,’’ the officers offered no other facts in support of their initial
approach of the defendant. Id. As noted herein, Connecticut case law does
not support a restraint on one’s liberty in furtherance of community caretak-
ing in the absence of empirical facts that support an objective belief that
life or property are at risk.
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State v. Marciano

to suspect any criminal wrongdoing when they encoun-
tered the motorist [and] approached his car . . . .’’ We
disagree. The report from a citizen to the police that
there was an unconscious male in a running motor
vehicle provided empirical facts upon which the officers
in Pompei reasonably relied in believing that the driver
of the vehicle may have needed assistance. See State
v. Pompei, supra, 338 Conn. 760. Here, Godwin’s initial
decision to enter the parking lot was based solely upon
his belief that it was abnormal for a car to be parked
in the lot of a closed business late at night. He had
no knowledge at that time that the vehicle was even
occupied. That decision, therefore, was more akin to
investigating a suspicious vehicle than to safeguarding
life or property. Additionally, in Pompei, the defen-
dant’s vehicle was running; id.; whereas the defendant’s
vehicle in the present case was not. An unconscious
driver of a running vehicle can be, for obvious reasons,
more concerning than a driver sitting in a vehicle that
is not running. Lastly, even if we were to agree that
Godwin was acting in his community caretaking capac-
ity on the basis of his limited explanation that he
believed that it was abnormal for a car simply to be
parked in the parking lot of a closed business, that he
was concerned for the defendant’s well-being because
the defendant’s head was facing down toward the steer-
ing wheel and there appeared to be damage to the
vehicle, that concern would have been dispelled when
the defendant lifted his head and then turned on his
car and illuminated the headlights of his own vehicle.
In Pompei, the defendant was unconscious when the
officer knocked on his window. Id. When the defendant
here lifted his head and started his vehicle, there was
no basis, rooted in community caretaking, for Godwin
to restrict the defendant’s liberty, as the state concedes
that he did, by continuing to approach him and com-
manding that he roll down his window.
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The present case is also distinguishable from State
v. Foote, 85 Conn. App. 356, 857 A.2d 406 (2004), cert.
denied, 273 Conn. 937, 875 A.2d 43 (2005), and cert.
denied, 273 Conn. 937, 875 A.2d 44 (2005), also cited
by the state, in which this court held that an officer
who observed a disabled vehicle on the shoulder of a
highway with its hazard lights on and people standing
outside of it initially ‘‘was not engaged in an investiga-
tory stop of criminal activity, but rather was acting in
accordance with his community caretaking function.’’
Id., 358, 361–62. Unlike the case at hand, it was clear
that the vehicle in Foote was disabled and therefore
needed assistance. See id., 358. It also was on a public
roadway, presenting a hazard to the public in general
and to the vehicle’s occupants. See id.
In the absence of any empirical facts to support a
reasonable belief that the defendant in the present case
was in distress, which was Godwin’s stated basis for
approaching him, the state has failed to demonstrate
that Godwin’s encounter with him was not an impermis-
sible general exploratory stop. As stated herein, the
presence of such facts is necessary to ensure that the
community caretaking doctrine is not abused and relied
upon as pretext to justify an unconstitutional restriction
of one’s liberty. We emphasize that our determination
of whether Godwin was exercising his community care-
taking function is a fact intensive analysis. On the basis
of the record before us, we are persuaded that this is
not a case in which Godwin was seeking to prevent the
commission of a crime, protect an individual who was in
danger of physical harm, resolve a conflict or maintain
a feeling of security in the community. There were no
empirical facts demonstrating the existence of a threat
to anyone’s life or property or to the public at large.
Accordingly, we agree with the trial court’s conclusion
that Godwin was not acting within his community care-
taking capacity when he restricted the defendant’s lib-
erty.
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II
Alternatively, the state claims that, even if the trial
court correctly determined that Godwin was not acting
within his community caretaking capacity when he
restricted the defendant’s liberty, the court erred in
concluding that the defendant was unconstitutionally
seized when Godwin illuminated his vehicle with take-
down lights, approached his vehicle and signaled to
him to roll down his window.11 Specifically, the state
argues that the defendant was not seized at that point
because Godwin’s conduct did not constitute a show
of authority sufficient to cause a reasonable person in
the defendant’s position to believe that he was not free
to leave. We disagree.12
We begin by setting forth the legal test used to deter-
mine when a person is seized for purposes of the federal
and state constitutions.13 ‘‘[A] person is seized when,
11
As noted herein, the state concedes that the defendant’s liberty was
restricted to ‘‘some’’ extent at that point. The state argues, however, that
the defendant was not seized until Godwin smelled the odor of alcohol
emanating from the defendant’s vehicle, causing him to commence a criminal
investigation.
12
The state concedes that Godwin did not have a reasonable and articula-
ble suspicion to seize the defendant until he smelled the odor of alcohol
emanating from his vehicle and heard his slurred speech.
13
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 . . . .’’
Article first, § 7, of the Connecticut constitution provides in relevant part:
‘‘The people shall be secure in their persons, houses, papers and possessions
from unreasonable searches or seizures . . . .’’
Article first, § 9, of the Connecticut constitution provides: ‘‘No person
shall be arrested, detained or punished, except in cases clearly warranted
by law.’’
Although our Supreme Court has determined that, under certain circum-
stances, the relevant provisions of the state constitution provide broader
protection from unreasonable search and seizure than does the fourth
amendment; see, e.g., State v. Oquendo, 223 Conn. 635, 649–50, 613 A.2d
1300 (1992); our analysis and resolution of the present appeal would be the
same under either constitution.
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by means of physical force or a show of authority,
his freedom of movement is restrained. . . . The key
consideration is whether, in view of all the circum-
stances surrounding the incident, a reasonable person
would have believed that he was not free to leave.
. . . The inquiry is objective, focusing on a reasonable
person’s probable reaction to the [officers’] conduct.
. . . In situations in which the police have not applied
any physical force, we must conduct a careful [fact
intensive] examination of the entirety of the circum-
stances in order to determine whether the police engaged
in a coercive display of authority [such that a reasonable
person in the defendant’s position would not have
believed he was free to leave] . . . .
‘‘Factors to be considered in determining whether
police conduct projects coercion include, but are not
limited to: the number of officers and vehicles involved;
whether the officers are uniformed; whether the offi-
cers are visibly armed or have their weapons drawn;
whether the vehicles involved are marked police cruis-
ers, whether the vehicles’ sirens and emergency lights
are activated, and whether the vehicles’ headlamps or
spotlights illuminate the defendant; whether the defen-
dant is alone or otherwise appears to be the target of
police attention; the nature of the location, including
whether it is public or private property; whether the
defendant is surrounded or fully or partially blocked
in by the police; the character of any verbal communica-
tions or commands issued by the police officers;
whether the officers advise the detainee of his right to
terminate the encounter; the nature of any physical
contact; whether the officers pursue after an initial
attempt by the defendant to leave; whether the officers
take and retain possession of the defendant’s papers
or property; and any other circumstance or conduct
that bespeaks aggressiveness or a show of force on the
part of the police, or suggests that the defendant is
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State v. Marciano

under suspicion or otherwise not free to leave. . . .
Although it is true that not all personal intercourse
between [the police] and citizens involves seizures of
persons . . . and that law enforcement officers must
be free to engage in healthy, mutually beneficial inter-
course with the public . . . it is equally true that use
of coercion beyond that inherent in any police-citizen
encounter transforms these sorts of informal, voluntary
interactions into seizures.’’ (Citations omitted; internal
quotation marks omitted.) State v. Edmonds, 323 Conn.
34, 50–51, 145 A.3d 861 (2016).
‘‘It is well established that we must undertake a more
probing factual review of allegedly improper seizures,
so that we may come to an independent legal determina-
tion of whether a reasonable person in the defendant’s
position would have believed that he was not free to
leave. . . . A proper analysis of this question is neces-
sarily fact intensive, requiring a careful examination of
the entirety of the circumstances in order to determine
whether the police engaged in a coercive display of
authority . . . . Although we must, of course, defer to
the trial court’s factual findings, our usual deference
. . . is qualified by the necessity for a scrupulous exam-
ination of the record to ascertain whether [each] finding
is supported by substantial evidence . . . . Further-
more, in reviewing the record, we are bound to consider
not only the trial court’s factual findings, but also the
full testimony of the arresting officers; in particular, we
must take account of any undisputed evidence that does
not support the trial court’s ruling . . . but that the trial
court did not expressly discredit.’’ (Citations omitted;
internal quotation marks omitted.) Id., 38–39.
Here, the defendant was in the sole car parked on
private property, ‘‘where police would not be expected
to routinely patrol’’; id., 58; when Godwin entered the
parking lot, parked his cruiser and spotlighted him with
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its takedown lights, making it clear that he was the
14

target of police attention. Although Godwin did not
have his weapon drawn when he emerged from his
cruiser and approached the defendant waving his flash-
light, he was uniformed and visibly armed. The defen-
dant started his vehicle and illuminated its headlights,
presumably to leave. At that point, Godwin, by his actions
of continuing to approach the defendant and command-
ing him with his flashlight to roll down his window,
stopped the defendant from leaving. In other words,
Godwin’s response to the defendant starting his vehicle
and illuminating its lights—to continue to approach the
defendant and emphatically signaling him to roll down
his window—would have caused a reasonable person
to believe that the only available response was to stop
and engage with Godwin. There could have been no
other reasonable interpretation of Godwin’s nonverbal
command.
‘‘It is well settled that a reasonable citizen would not
feel free to disregard a verbal command to stop issued
by an armed, uniformed police officer. See State v.
Benton, [304 Conn. 838, 844 n.4, 43 A.3d 619 (2012)]
(state conceded that police officer’s command to stop
constitutes seizure for purposes of state constitution);
State v. Oquendo, [223 Conn. 635, 647–48 n.8, 613 A.2d
1300 (1992)] (similar); State v. Williamson, 10 Conn.
App. 532, 540, 524 A.2d 655 (order to halt, standing
alone, constituted seizure), cert. denied, 204 Conn. 801,
525 A.2d 965 (1987); see also United States v. Stover,
808 F.3d 991, 995 (4th Cir. 2015) (command to halt is
example of police conduct that conveys to reasonable
person that he is not free to leave) [cert. denied, 580
14
The state also argues that the court erred ‘‘in concluding that the troop-
ers’ use of their cruiser’s spotlights, in conjunction with [Godwin’s] use of
a flashlight to signal to the defendant to roll down his window, constituted
a coercive display of authority.’’ We disagree. In light of the surrounding
circumstances, we consider the use of the takedown lights a factor further
supporting the conclusion that the defendant had a reasonable belief that
he was not free to leave. See State v. Edmonds, supra, 323 Conn. 58–59.
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State v. Marciano

U.S. 901, 137 S. Ct. 241, 196 L. Ed. 2d 184 (2016)]; In
re Martin H., Docket No. B151148, 2002 WL 1732650,
*3 (Cal. App. July 25, 2002) (when an officer commands
a citizen to stop, this constitutes a detention because
the citizen is no longer free to leave . . . ); Blake v.
State, 939 So. 2d 192, 195 (Fla. App. 2006) ([i]f . . . the
officer phrases his or her inquiries as commands, this
action would indicate that the individual was not free
to leave); M. Raymond, ‘The Right to Refuse and the
Obligation to Comply: Challenging the Gamesmanship
Model of Criminal Procedure,’ 54 Buff. L. Rev. 1483,
1493 (2007) ([P]olice commands or orders create sei-
zures. The quintessential command is the order to stop
. . . .).’’ (Internal quotation marks omitted.) State v.
Edmonds, supra, 323 Conn. 59–60. Similarly, the cir-
cumstances of the present case support the trial court’s
conclusion that Godwin’s continued approach, after the
defendant started his vehicle, coupled with the motion
of the flashlight toward the defendant to roll down his
window, constituted a command to stop. Accordingly,
having considered all of the relevant circumstances and
all of the undisputed evidence in the record, we are
compelled to conclude that a reasonable person in the
defendant’s position would not have felt free to leave
the scene and that the defendant was seized no later
than when Godwin successfully commanded him to
stop.
In sum, we agree with the trial court’s conclusions
that Godwin was not acting in his community caretaking
capacity when he stopped the defendant and that the
defendant was seized within the meaning of the state
and federal constitutions when Godwin prevented him
from driving away by approaching him and command-
ing that he roll down his window. Accordingly, we con-
clude that the court properly granted the defendant’s
motion to suppress.
The judgment is affirmed.
In this opinion the other judges concurred.