241 Conn. 650 | Conn. | 1997
Lead Opinion
Opinion
The defendant, Tramlus Colvin, was charged in a two count information with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b)
The following facts, which are recited in the Appellate Court’s opinion, are relevant to the determination of the issue presented in this case. “On September 16, 1992, several [Hartford police] officers who were in the area conducting an investigation observed the defendant drive to 235 Sergeant Street and park his car. They then watched the defendant walk to 91 Atwood Street, 200 feet away from his car, and sit on a stoop. The officers observed the defendant for twenty-five minutes. During their surveillance, the officers did not witness a sale of narcotics or any act giving the appearance of a sale. At the close of their surveillance, Detectives Keith Knight and Henry Martin approached the defendant. The defendant knew them as police officers, saw their sidearms and badges, and addressed one of the officers by his first name. One of the detectives ordered the defendant to accompany them to his automobile. The defendant reluctantly complied and walked with the officers to the vehicle. While standing on the sidewalk next to the defendant’s automobile, Martin looked through the window of the vehicle and observed
On the basis of these facts, the trial court concluded that the defendant’s detention, while being escorted to his automobile, was a de facto arrest. The trial court then stated: “[T]here appears to now be fruits of a poisonous tree which apparently have to be suppressed, and so the court concludes that . . . those items . . . are suppressed for purposes of this trial.” Subsequently, on November 15, 1994, the trial court dismissed the charges against the defendant and granted the state’s motion for permission to appeal.
On appeal, the Appellate Court concluded that the trial court properly granted the defendant’s motion to suppress and the subsequent judgment of dismissal. State v. Colvin, supra, 42 Conn. App. 542. The Appellate Court based its decision on the state’s inability to prove that the discovery of the narcotics was sufficiently attenuated from the allegedly unlawful arrest to cleanse it of its taint. The attenuation doctrine, as the Appellate Court noted, contains three factors that courts use to determine whether evidence is sufficiently attenuated from the alleged illegality to cleanse it of its taint: (1) “the temporal proximity of the illegal police action and the discovery of the evidence”; (2) “the presence of intervening circumstances”; and (3) “the purpose and flagrancy of the official misconduct.” (Internal quotation marks omitted.) Id., 541; see Brown v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); State v. Cates, 202 Conn. 615, 621, 522 A.2d 788 (1987).
With respect to the three factors of the attenuation doctrine, the Appellate Court stated: “ [Application of these factors to the present case supports the conclu
On appeal, the state contends that “the trial court should not have suppressed the cocaine because it was not obtained by exploitation of [the defendant’s] detention, but rather, by virtue of the fact that it was exposed in plain view in a car parked on a public road.”
Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is “clearly erroneous in view of the evidence and pleadings in the whole record . . . .” Practice Book § 4061; State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992); State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). “[W]here the legal conclusions of the court are challenged, 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 . . . .” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see also State v. Trine, 236 Conn. 216, 225, 673 A.2d 1098 (1996).
“Under the exclusionary rule, evidence must be suppressed if it is found to be the ‘fruit’ of prior police illegality. Wong Sun v. United States, supra, [371 U.S.] 485. All evidence is not, however, a ‘fruit of the poisonous tree’ simply because it would not have been discovered but for the illegal action of law enforcement officials. Id., 487-88; see State v. Villafane, 171 Conn. 644, 655, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). ‘Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploita
Our decision in this case is controlled by our previous decision in State v. Graham, 200 Conn. 9, 509 A.2d 493 (1986). In Graham, “two Waterford police officers went to the defendant’s home and searched the premises pursuant to a ‘search and seizure warrant.’ Although the police did not find any of the stolen property anticipated, the defendant was arrested at that time. While they were leaving the premises, the officers saw the defendant’s car across the street parked in a lot accessible to the public. They walked over to the car and looked into the rear seat with the aid of a flashlight. On the seat they noticed a rope which matched the description of the one used in the robbery. On the basis of this observation, they obtained a warrant and returned later to seize the rope.” Id., 19.
The defendant in Graham argued that his arrest was unlawful, that the discovery of the rope was the “fruit” of that unlawful arrest and, therefore, that the rope must be suppressed. We concluded, however, that “[e]ven if we were to assume, without deciding, that the arrest of the defendant was illegal, we cannot agree with the defendant that the rope is inadmissible. The plain view ‘search’ of the car was wholly unconnected with the
We find the same to be true in the present case. The trial court heard no evidence that would support a conclusion that the discovery of the cocaine was the product of the allegedly unlawful arrest and the trial court made no such finding. More specifically, there is no evidence of any exchange between the defendant and the police officers during the allegedly unlawful detention that might be construed as causing the police officer to look into the defendant’s automobile.
The defendant, however, attempts to distinguish Graham by focusing on the fact that the officers in Graham
In response to the state’s contention that the “plain view” doctrine is applicable to this case, the defendant argues that “[s]ince the police officers came to be in a position to view the contraband because of the illegal arrest, the resultant seizure of the contraband must be suppressed.” For the purposes of this argument, the defendant presumes that the illegal arrest placed the officers next to the defendant’s car. As noted previously, there is no evidence in the record to support this assumption. The only link between the allegedly unlawful arrest and the discovery of the cocaine that is supported by the evidence is that the defendant was allegedly being unlawfully detained when the police observed the cocaine. The defendant, however, has provided no authority to support the contention that the concurrent nature of two causally distinct events, in and of itself, is a sufficient basis in this case to conclude that the discovery of the cocaine was tainted by the allegedly unlawful arrest.
If we were to adopt the defendant’s position and suppress the cocaine as the fruit of an illegal arrest, we would place the police in a worse position than they would have been if the allegedly unlawful police conduct had not occurred, because if the allegedly unlawful arrest had not occurred, the police would have been free to approach the defendant’s automobile and view the cocaine.
We determine that the cocaine in this instance was not discovered as a result of the allegedly unlawful arrest. The police had a perfect right to be where they were and to observe the cocaine, notwithstanding any arrest. The suppression of the cocaine, therefore, is not
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court with direction to deny the motion to suppress and to reinstate the information and proceed according to law.
In this opinion NORCOTT, PALMER and MCDONALD, Js., concurred.
General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, halluci
General Statutes § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, tire real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place. For the purposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.”
We granted the state’s petition for certification to appeal limited to the following question: “Whether the Appellate Court, under the circumstances of this case, properly ruled that cocaine discovered in the defendant’s automobile must be suppressed?” State v. Colvin, supra, 239 Conn. 922.
The parties have agreed to assume, arguendo, that there was an illegal seizure of the defendant on Atwood Street. Accordingly, we have no occasion to consider the trial court’s finding that the police action was a de facto arrest.
This lack of evidence favors the state. In Alderman v. United States, 394 U.S. 165, 183, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), the United States Supreme Court discussed the proper allocation of burdens in a motion to suppress the fruit of a poisonous tree. The court stated: “The United States concedes that when an illegal search has come to light, it has the ultimate burden of persuasion to show that its evidence is untainted. But at the same time petitioners acknowledge that they must go forward with specific evidence demonstrating taint. ‘[T]he trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.’ Nardone v. United States, 308 U.S. 338, 341, [60 S. Ct. 266, 84 L. Ed. 307] (1939).” (Emphasis added.) Alderman v. United States, supra, 183. The defendant in the case at issue here has not sustained
“The police, ‘no less than any other citizen,’ have a right to be on a public street, ‘stand beside the defendant’s car and peer in.’ State v. Kuskowski, 200 Conn. 82, 85, 510 A.2d 172 (1986).” State v. Sailor, 33 Conn. App. 409, 416, 635 A.2d 1237, cert. denied, 239 Conn. 911, 642 A.2d 1208 (1994). “It is well established . . . that if a police officer is in a public area and . . . peer[s] into a vehicle through a window, his action does not constitute a ‘search’ and, as a result, is not considered violative of the car owner’s fourth amendment rights.” State v. Graham, supra, 200 Conn. 20.
On appeal, the defendant makes the additional claim that article first, § 7, of the Connecticut constitution provides broader protection with respect to the suppression of fruits of unlawful searches and seizures than do the fourth and fourteenth amendments to the United States constitution. The defendant, however, provides no support for his claim that the Connecticut constituí ion should be interpreted to require suppression of evidence that was not the product of an allegedly unlawful arrest. We, therefore, decline to address this issue. State v. Tweedy, 219 Conn. 489, 510 n.17, 594 A.2d 906 (1991).
During the pendency of this appeal, it has come to our attention that the defendant, whose actions on September 16, 1992, are the subject of this case, was charged with a crime that did not exist on that date, i.e., possession of narcotics with intent to sell within 1500 feet of a housing project in violation of § 21a-278a (b). See Public Acts 1992, No. 92-82 (effective October 1, 1992). Because this issue was not briefed or argued before us, we do not address it, but remand the case with the understanding that this ex post facto issue will be addressed on remand.
Dissenting Opinion
dissenting. I disagree with the majority opinion that the seizure of the narcotics was not the result of the defendant’s detention. Because the evidence was seized as a consequence of police misconduct and its discoveiy was not sufficiently attenuated to divest it of the taint of the defendant’s unlawful arrest, I would affirm the judgment of the Appellate Court.
The exclusionary rule is a judicially prescribed remedial measure that prohibits the introduction in a
The Supreme Court of the United States has never held that evidence is to be suppressed as “ ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Id.; Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); Brown v. Illinois, 422 U.S. 590, 599, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). By the same token, those Supreme Court cases make it clear that evidence will not be excluded as “fruit” unless the illegality is at least the “but for” cause of the discovery of
What the majority opinion ignores in the present case is the “but for” language that is essential to the holding of the previously cited Supreme Court cases. Although the court in Wong Sun v. United States, supra, 371 U.S. 488, rejected a “but for” test for determining whether to suppress evidence gathered following a fourth amendment violation, that court nevertheless imposed the test as a threshold matter to the issue of whether the seized evidence was a “fruit.” After the court determines that, but for the illegality, the evidence “would not have come to light,” only then does the court inquire into whether the evidence is tainted. Id. The focus turns to whether the prior illegality and the seizure of the evidence in question were so interconnected as to render the evidence tainted, or whether the connection between the illegality and the seizure of the evidence was so attenuated as to render the evidence untainted.
In the present case, the majority relies on the state’s argument that the discovery of the evidence was not at all connected to the illegal seizure of the defendant because, as in State v. Graham, 200 Conn. 9, 20, 509 A.2d 493 (1986), the police knew which automobile belonged to the defendant, and, therefore, presumably would have looked into the car even if they had not arrested the defendant. The majority’s treatment of the issue, however, is couched in language generally used to invoke exceptions to the exclusionary rule. See Nix v. Williams, 467 U.S. 431, 448, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); see also S. LaCount & A. Girese, “The ‘Inevitable Discovery’ Rule, An Evolving Exception to the Constitutional Exclusionary Rule,” 40 Albany L. Rev. 483 (1976); R. Maguire, “How to Unpoison the Fruit—The Fourth Amendment and the Exclusionary Rule,” 55 J. Crim. L. Criminology & Police Sci. 307, 313-17 (1964). Such analysis implicitly recognizes that
In my view, the proper analysis should focus on whether the seizure of the evidence owed its origin in material part to the seizure of the defendant. The trial court found that “[o]ne of the detectives ordered the defendant to accompany them to his automobile. The defendant reluctantly complied and walked with the officers to the vehicle.” State v. Colvin, 42 Conn. App. 537, 539, 680 A.2d 1360 (1996). Under the circumstances of this case, the trial court found that this was a sufficient causal connection between the arrest and the discovery of the evidence. I see no reason to disagree with that determination as a matter of law, based upon the facts the trial court reasonably could have found. See Segura v. United States, supra, 468 U.S. 806 (“if all the contents of the apartment were ‘seized’ at the time of the illegal entry and securing [of the premises], presumably the evidence [being] challenged would be suppressible as primary evidence obtained as a direct result of that entry”). This is not a case in which the chain between the challenged evidence and the primary illegality is long or in which the linkage is being demonstrated by sophistic argument.
Indeed, relying on the various factors specified by the Supreme Court to assess attenuation, I consider the record in this case to be devoid of any evidence of intervening circumstances to otherwise break the causal connection. The record supports the temporal proximity of the arrest and the seizure of the evidence, the first factor generally examined by the Supreme Court when faced with the question of attenuation. Brown v. Illinois, supra, 422 U.S. 604. Another factor considered by the Supreme Court is whether there
Although there may indeed have been different theories upon which the state could have relied to circumvent the fourth amendment violation, including, but not limited to, inevitable discovery, the trial court rejected the state’s proposition in that regard and expressly found that the state had not “ ‘demonstrate^!] that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation.’ ”
Therefore, I respectfully dissent.
This is the same procedural step that was passed over by the court in State v. Graham, supra, 200 Conn. 20.
