89 Conn. App. 789 | Conn. App. Ct. | 2005
Opinion
The defendant, Robert Days, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere
On October 20, 2003, the defendant filed a motion to suppress items seized by officers with the Bridgeport police department after a search and seizure that occurred in Bridgeport on July 22, 2003. The defendant asserted that the police seized six “small plastic ties containing an off white rock like substance” and eleven “small white glassine folds, each bearing a stamp of a green palm tree, containing an off white powdery substance . . . .” The defendant argued that the search and seizure violated his rights under the federal and state constitutions because it was not conducted pursuant to a warrant, was not supported by probable cause and was not incident to a lawful arrest.
In November, 2003, the court conducted a hearing on the defendant’s motion. The state presented testimony from Raymond Long and Orlando Rosado, police officers with the Bridgeport police department. The state also presented testimony from Christopher LaMaine, a lieutenant with the Bridgeport police department. Those witnesses were involved in the events that occurred up to and including the search and seizure
The court ruled as follows: “[T]his court finds all the police officers’ testimony to be credible as it does Thomas Russell’s testimony to be credible. On July 2, 2003, at approximately 10:30 p.m., Bridgeport police officers [with] experience in drug interdiction and drug enforcement law were conducting a surveillance in the area of Claremont Avenue near Willow Street here in Bridgeport. They received information that a black male in a dark colored vehicle with dark tinted windows was coming into the area to possibly make a drug delivery. This was an area that, in their opinion, they considered to be a high drug area. They parked their car, an unmarked car, in a position to see what occurred. While conducting their surveillance, they noticed another black male standing there, who seemed to be looking around. Shortly thereafter, a dark colored Chevy sedan with dark tinted windows that matched the description entered Claremont Avenue [and] backed into [a] well lit apartment building. The officers could see the window come down on the passenger side [of the vehicle]. [The officers] observed the black male, who was on the street, hand the defendant . . . who was in the front passenger seat, what appeared to be something in his hand. It appeared to be some sort of paper or currency in exchange for items that the defendant handed to him.
“In their training and expertise, [the officers] believed that this was to be a drug transaction and, also, the court notes [that this] belief is consistent with the testimony of Investigator Russell that the buyer in a case
“At this point, the officers had a reasonable and articulable suspicion that a crime had just occurred. They then radioed to their other people who were in the area to stop the vehicle. The vehicle then turned down Willow Street. At that point, the other officers stopped the vehicle. The officers advanced to the car. They were able to see, they could see and they did see through the windshield [that] the defendant had what appeared to be plastic bags of narcotics that he was putting down his pants.
“This is, in the eyes of the court, also completely common sense, because the officer . . . [was] trained on using his eyes for his own safety, and his eyes would be focused on the hands of the defendant. And then when he saw what appeared to be narcotics, the case then ripened into — in plain view of the officer at that point — it ripens into probable cause both for the arrest and the subsequent search.
“So, therefore, the court finds that . . . there was a reasonable and articulable suspicion to stop the car. It was then through plain view sufficient evidence for probable cause to make the arrest and the search. The motion to suppress is denied.”
The defendant claims that the court improperly denied his motion to suppress because the search and seizure violated the rights afforded him by article first, §§ 7
“Our review of the defendant’s claim is governed by well established principles. Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. ... On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [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 .... Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights, however, we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 42-43, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
I
CHALLENGES TO THE COUET’S FINDINGS OF FACT
We first turn to the defendant’s challenges to factual determinations that underlie the court’s decision. The defendant argues that there was no evidence to support
The defendant also claims that “the trial court erroneously found that . . . LaMaine saw [him] putting plastic bags of narcotics down his pants.” The defendant mischaracterizes the court’s factual determination. The court found that upon approaching the defendant’s vehicle on Willow Street, police officers “did see through the windshield [that] the defendant had what appeared to be plastic bags of narcotics that he was putting down his pants.” (Emphasis added.) LaMaine testified that at about 10:30 p.m. on July 22,2003, he was in an unmarked police vehicle in the area of the defendant’s arrest, working in conjunction with Long and Rosado. LaMaine testified that he received information from Long and Rosado that the drug transaction they had been waiting for had taken place. Long and Rosado notified LaMaine that “a black Lumina [automobile], with tinted windows,” which contained the suspects, was traveling in his direction. LaMaine further testified that when he observed a vehicle matching that description, what he
LaMaine testified that he observed two people in the vehicle, the defendant and a driver. LaMaine further testified: “I approached [the vehicle] from the front. And, as I said, I blocked the front of their vehicle. And through the windshield I could see both the driver and the front seat passenger shoving plastic bags down the front of their pants.” At that point, according to LaMaine, he and another officer, whom he identified as Officer Reilly, removed the defendant from the vehicle. LaMaine testified: “Officer Reilly immediately started to pat down for weapons. I quietly told Officer Reilly that I saw [the defendant] shove the bag down the front of his pants. He simultaneously told me, ‘Yes, I feel it.’ And we then, together, handcuffed [the defendant] and placed him under arrest.” LaMaine recalled that Reilly subsequently removed “a plastic bag” from the front of the defendant’s pants. LaMaine also testified that another officer simultaneously was removing the driver from the vehicle, and that he walked around the vehicle and told that officer that he observed the driver “put the drugs down his pants.”
The court heard testimony that LaMaine and his fellow officers approached the defendant’s vehicle in pursuit of a drug dealer. LaMaine testified that during his career, he had “made over a thousand narcotic arrests and witnessed another thousand, at least.” The evidence demonstrates that when LaMaine approached the vehicle, he observed the defendant and the driver doing the same thing: Putting bags down the front of their pants. LaMaine told another officer that the driver had “put the drugs down his pants.” It was not unreasonable for the court to infer that LaMaine, on the basis of his expertise in drug related arrests as well as his knowledge of the events that immediately preceded his obser
II
THE INVESTIGATORY DETENTION
In determining that the search and seizure was lawful, the court first concluded that at the time that police officers stopped the vehicle in which the defendant was a passenger, the officers had a reasonable and articulable suspicion that one or more persons in the vehicle had engaged in criminal activity. Accordingly, the court concluded that the officers lawfully stopped the vehicle.
The defendant claims that he was seized illegally by the officers when they came upon the vehicle in which he was a passenger. “[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.) State v. Donahue, 251 Conn. 636, 642-43, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000). The court explicitly found that the police lawfully stopped the vehicle, and the court implicitly found that a seizure had occurred at that point.
On the basis of the court’s findings, we conclude that the court properly concluded that the officers lawfully seized the defendant for proposes of an investigatory detention when they surrounded the vehicle in which
The defendant argues in relevant part: “The court erred in concluding that what the officers believed they
The defendant further argues that “the trial court should have only considered what Officers Long and Rosado knew at the time of their observations” in evaluating whether there was a basis for the investigatory stop. (Emphasis in original.) According to the defendant, the officers presumably knew only that some type of transaction or interaction had occurred between somebody in the vehicle in which the defendant was a passenger and the individual standing near the apartment building. The defendant argues that the transaction did not appear to be unlawful or suspicious.
That argument is flawed because in evaluating whether a reasonable and articulable suspicion exists, the court is permitted to examine all of the circumstances known to police as well as any rational inferences to be drawn therefrom. The quantum of proof is not the quantum of proof necessary either to arrest or to convict; the point of an investigatory detention merely is to permit investigation of criminal activity that may be afoot. Given the nature of the predictive information and the fact that the defendant’s behavior occurred at night in an area known for drug related activity, it was not unreasonable for the police to infer that the defendant’s conduct was not innocuous, but was consistent
Ill
SEARCH INCIDENT TO A LAWFUL ARREST
After concluding that the police officers lawfully stopped the defendant, the court concluded that when LaMaine observed the defendant and the vehicle’s driver putting bags down the front of their pants, the officers had probable cause to arrest the defendant without a warrant. Accordingly, the court concluded that the subsequent search and seizure by the officers was incident to a lawful arrest. The defendant challenges the court’s conclusion that the officers had probable cause to arrest him at the time that they searched him and seized the narcotics.
“It is well established . . . that a warrant is not required when a search is conducted incident to a lawful custodial arrest. . . . When an arrest is made, it is reasonable for a police officer to search for, and seize, any weapons or evidence within the immediate control of the arrested person in order to ensure officer safety and prevent the destruction or concealment of evidence. . . .
“In order for a warrantless felony arrest to be valid, it must be supported by probable cause. . . . The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a totality of circumstances test. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient
“We consistently have held that [t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. . . . [P]roof of probable cause requires less than proof by a preponderance of the evidence. . . . Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . The probable cause determination is, simply, an analysis of probabilities. . . . The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act. . . . Probable cause is not readily, or even usefully, reduced to a neat set of legal rules. . . . Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause. . . .
“In reviewing a trial court’s determination that probable cause to arrest existed, we consider whether [it is] legally and logically correct and whether [it] find[s] support in the facts set out in the memorandum of decision .... Because a trial court’s determination of the existence of probable cause implicates a constitutional claim, we must review the record carefully to ensure that its determination [is] supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Clark, supra, 255 Conn. 291-94.
We conclude, on the basis of our review of the record, that LaMaine had probable cause to arrest the defendant
The court found that as the officers approached the stopped vehicle, they “did see through the windshield [that] the defendant had what appeared to be plastic bags of narcotics that he was putting down his pants.” The court found that the defendant’s conduct occurred in “plain view” of the officers.
The search of the defendant and the seizure of the narcotics he endeavored to conceal from the officers did not violate our state constitution.
The judgment is affirmed.
In this opinion the other judges concurred.
See General Statutes § 54-94a; Practice Book § 61-6.
The court subsequently signed a transcript of its ruling, thereby bringing its decision into compliance with Practice Book § 64-1.
Article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
The defendant argues that a reasonable and articulable suspicion did not exist because the information received by police could not have formed the basis of such a degree of suspicion. The defendant argues that the present case is similar to State v. Hammond, 257 Conn. 610, 778 A.2d 108 (2001), in which our Supreme Court held that police, acting on the basis of an anonymous tip, illegally seized a defendant to investigate criminal activity. In Hammond, police received a telephone call from an anonymous caller who complained of drug related activity at a specific location in an area known for its drug related activity. Id., 615. The caller provided the police with a partial description of individuals engaged in the criminal activity of which she complained, describing their gender, skin color and the color of the coats that they were wearing. Id. On the basis of the information, a patrol officer went to the location and observed two individuals matching the description provided by the caller. Id. Patrol officers approached the individuals, who were observed walking away from the police, surrounded them and ultimately ordered them to stop. Id., 616. Officers surrounded the defendant, who was one of the individuals, and observed him drop a bundle to the ground. Id. Police took the defendant and the other individual into custody and determined that the bundle contained narcotics. Id.
The defendant later moved to suppress the narcotics that the police seized, arguing that the narcotics were the fruit of an illegal stop. Id., 613. The trial court denied the motion to suppress, concluding that the police had detained the defendant legally for the purpose of an investigative detention. Id., 616. Our Supreme Court reversed the defendant’s conviction after concluding that the police did not have a reasonable and articulable suspicion that he had engaged in criminal activity. Id., 626. The court observed that the informant was unknown to police and that police were unaware of her basis of knowledge concerning the information provided to police. Id., 621-22. The court further concluded that in those circumstances, the police did not conduct sufficient investigation to determine whether the information was trustworthy. Id., 623. The court explained: “[T]he police in this case were unable to corroborate the anonymous allegations of drug dealing . . . despite their attempts to do so, and notwithstanding their close surveillance of the suspects. Rather, all they could corroborate were the ‘innocuous facts’ . . . that two black males, one taller than the other, whose clothing fit the partial description by the anonymous caller, were walking ... on a busy city street in the middle of the afternoon.” (Citation omitted.) Id., 623-24. The court concluded that the police investigation did nothing more than pinpoint the targets of the accusation; it did not corroborate the allegation of criminal activity. Id., 624. The court also concluded that the police allegation that the defendant and his acquaintance walked away as police approached did not constitute evidence of flight. Id., 625. Finally, the court concluded that, prior to the investigatory detention, the police had not ordered the individuals to stop. Id.
The defendant also argues that the court improperly relied on the testimony of his expert witness, Russell, in determining whether the police had a reasonable and articulable suspicion to justify the seizure. Contrary to the defendant’s claim, it is readily apparent from our review of the court’s decision that the court did not rely on Russell’s testimony to determine whether Long and Rosado had witnessed a drug transaction. Instead, the court referred to Russell’s testimony in its task of evaluating the testimony of Long and Rosado. That was not improper.
The defendant argues that the court improperly relied on the plain view doctrine in concluding that the officers had probable cause to arrest him. He argues that the court improperly relied on that doctrine because at the time that the officers observed the defendant’s actions in the vehicle, they had no way of knowing what was in the bags he was putting down his pants. Under the plain view doctrine, evidence of an incriminating character may be seized without a search warrant in well delineated circumstances. See State v. Krause, 163 Conn. 76, 81-84, 301 A.2d 234 (1972); State v. Blackwell, 20 Conn. App. 193, 199-200, 565 A.2d 549, cert. denied, 213 Conn. 810, 568 A.2d 794 (1989). The defendant’s argument rests on a misinterpretation of the court’s decision. The court unambiguously stated that the defendant’s actions in putting bags of what the police believed to be narcotics down his pants occurred “in plain view of the officer . . . .” The court’s mere use of the term “plain view” did not indicate that it relied on the plain view doctrine in this case.
The defendant argues that the police observations of the transaction that occurred prior to his arrest, as well as LaMaine’s observations of the defendant’s actions when he approached the vehicle, could not form the basis of probable cause. The defendant argues that Long and Rosado did
The defendant also argues that a patdown search of him by the officers was improper because they did not reasonably believe that he was armed and dangerous. Because we conclude that the police searched the defendant incident to a lawful arrest, we need not address that claim.