30 Conn. App. 783 | Conn. App. Ct. | 1993
The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a).
On August 8, 1990, the defendant was arrested for selling narcotics.
I
The defendant claims that his motion to suppress the narcotics should have been granted because the warrantless search of the tractor trailer did not fall within any of the exceptions to the warrant requirement and,
“The Fourth Amendment to the United States constitution protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.’ Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. ‘[A] search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” ’ Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971) . . . .” (Citations omitted.) State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).
The trial court denied the defendant’s motion to suppress after determining that the state satisfied its burden of proving that the search was valid under two exceptions to the warrant requirement.
The following facts are relevant to the motion to suppress. On August 8,1990, at approximately 3 p.m., the Waterbury police department’s tactical narcotics team set up a surveillance operation in the vicinity of North Square Park, a notorious drug trafficking area in Waterbury. The team utilized 452V2 North Main Street, a public parking lot, for the surveillance because it provided an unobstructed view of the surrounding area. Detective Nicholas DeMatteis had been conducting the surveillance for approximately thirty minutes from an unmarked white van designed for surveillance when he observed what appeared to be a drug transaction between the defendant and a male subsequently identified as Willie Shears.
The defendant had been selling watermelons from the rear of his tractor trailer, which was parked close to the curb along North Main Street. The tractor trailer was owned by the defendant and his name was printed on it. At the time of the surveillance, the trailer’s right rear door was open and the left door was closed. DeMatteis saw Shears pass money to the defendant
After receiving a radio communication from DeMatteis explaining what he had observed, Sergeant Nicholas Guerriero and other members of the Waterbury police department
The officers then proceeded to the parking lot where the defendant was under surveillance. The defendant was arrested for selling narcotics. At the time of his arrest, the defendant was standing at the rear of the tractor trailer near the ladder leading into the trailer portion of the vehicle. The defendant carried $401 in currency and $100 worth of food stamps on his person when he was arrested.
After the defendant was arrested, Guerriero mounted the step ladder leading into the open right hand door at the rear of the trailer and peered into the trailer. There were watermelons, magazines and straw in the trailer. Guerriero also observed a black pouch approximately one foot behind the closed, left door of the trailer. The black pouch is consistent with the type of containers in which dealers store their narcotics. A search of the black pouch produced thirty-two plastic bags containing a rock like substance that was subsequently determined to be crack cocaine, plus six plastic bags containing a white powder that was determined
The trial court determined that the warrantless search was justified under the automobile exception. “The justification for this . . . exception is twofold: (1) the inherent mobility of an automobile creates exigent circumstances; and (2) the expectation of privacy with respect to one’s [vehicle] is significantly less than relating to one’s home or office. California v. Carney, 471 U.S. 386, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Badgett, supra, 428.
As to the first criterion, the trial court found that the tractor trailer was a vehicle and was capable of being moved readily. At the time of the search, the tractor trailer was fully operable and inherently mobile since the dolly wheels were easily retractable. The trailer was parked in an unfenced, open parking lot less than ten feet from the street. Testimony before the court established that when the tractor trailer was taken into custody and towed to the area where it was secured, the tractor trailer had to be operated to park it in the secure lot. Thus, the trial court properly concluded that the inherent mobility of the tractor trailer created exigent circumstances to justify the search. State v. Quinones, 21 Conn. App. 506, 510, 574 A.2d 1308, cert. denied, 215 Conn. 816, 576 A.2d 546 (1990).
“The absence of probable cause, despite the exigency created by the ready mobility of automobiles and the lesser expectation of privacy in them, will render any warrantless search unreasonable.” State v. Badgett, supra, 429. “This exception to the warrant requirement demands that the officers have probable cause to believe that the vehicle contains contraband. Carroll
The trial court found that probable cause existed for the officers to believe that the tractor trailer and the black pouch contained contraband. We agree. The police had probable cause to search the trailer and the pouch because they had reason to believe that narcotics were present in the trailer given the transaction between the defendant and Shears during which the defendant entered the trailer to retrieve the small items he handed to Shears. Those small items were determined to be three small plastic bags containing crack cocaine when they were found on Shears’ person directly following the exchange. Moreover, no narcotics were found on the defendant when he was arrested. On the basis of the officers’ observations, training and experience, there was probable cause to believe that the trailer contained the packets of narcotics. Immediately after he peered inside the trailer, Guerriero noticed the black pouch, which he recognized as the type of container in which dealers store their narcotics. Thus, the warrantless search of the traüer and the black pouch was justified. State v. Quinones, supra. Because the applicability of this exception is dispositive, we will not reach the trial court’s other ground for denying the motion to suppress or alternate grounds set forth by the state.
II
The defendant’s second claim challenges the trial court’s denial of his motion for judgment of acquittal. The defendant contends that the evidence adduced at trial was insufficient to sustain his conviction under
The defendant moved for judgment of acquittal at the completion of the state’s case. Practice Book § 864. This motion was denied and the defendant offered evidence in his defense. The defendant did not move for a judgment of acquittal a second time.
Even if the defendant had properly made a second motion for judgment of acquittal, his claim would
“It should also be noted that [i]n this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . State v. Allen, 216 Conn. 367, 381, 579 A.2d 1066 (1990). . . . State v. Salz, 26 Conn. App. 448, 458, 602 A.2d 594, cert. granted, 222 Conn. 901, 606 A.2d 1329 (1992). This court will not reweigh the evidence or resolve questions of credibility in making such a determination. State v. Melillo, 17 Conn. App. 114, 117, 550 A.2d 319 (1988). It is within the province of the jury to draw reasonable and logical inferences from the facts proven. State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). . . . State v. Ruth, 16 Conn. App. 148, 154, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).” (Internal quotation marks omitted.) State v. Ogrinc, 29 Conn. App. 694, 697, 617 A.2d 924 (1992).
“In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Parent, [8 Conn. App. 469, 473, 513 A.2d 725 (1986)].” (Internal quotation marks omitted.) State v. Melillo, supra, 117-18. “Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact.” State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990).
Here, the observations of DeMatteis indicated that the defendant was the only person to enter and exit the trailer during the period of observation. The truck was registered in his name and his name was printed on the truck. The jury could have discredited the testimony of the defendant’s son that he also had been in the truck that day while helping his father sell the watermelons. Even if such testimony was found to be credible, other incriminating circumstances support the inference that the defendant constructively possessed the thirty-eight packets of narcotics. The defendant owned the tractor trailer. State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989). The occurrence of the sale and the defendant’s proximity to the rear of the truck at all times further buttress an inference of possession. See State v. Williams, 12 Conn. App. 225, 236, 530 A.2d 627 (1987).
Thus, the jury could reasonably and logically have found from the evidence elicited at trial that the defendant possessed the narcotics.
Moreover, sufficient evidence of the defendant’s intent to sell was offered to support his conviction. Proof of intent is usually established through circumstantial evidence from which the jury may draw reasonable and logical inferences. State v. Napoleon, 12 Conn. App. 274, 284, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987); State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). “We note that it is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving circumstantial evidence. State v. Napoleon, supra, 284-85.” (Internal quotation marks omitted.) State v. Ogrinc, supra, 699. We find from the evidence presented that the jury could reasonably and logically have determined that the defendant possessed narcotics with the intent to sell them.
“The quantity of narcotics found in the defendant’s possession [is] probative of whether the defendant intended to sell the drugs. State v. Jennings, 19 Conn. App. 265, 270, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989). Also indicative of the defendant’s intent to sell narcotics is the manner in which the narcotics are packaged. State v. Ruth, supra, 155; State v. Napoleon, supra, 284. Evidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell. State v. Ruth, supra, 155.” (Internal quotation marks omitted.) State v. Ogrinc, supra.
The defendant was found to have $401 in currency and $100 in food stamps on his person. He was present in an area notorious for drug trafficking. The black pouch containing small bags of cocaine and crack cocaine was located just inside the trailer portion of the tractor trailer that the defendant owned and from
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 21a-277 (a) provides in pertinent part: “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 controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance ... for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned
The defendant was charged by an original information in three counts for violating the following provisions: General Statutes § 21a-278 (b), sale of certain illegal drugs by a person who is not drug-dependent; General Statutes § 21a-277 (b), sale of a controlled substance; and General Statutes § 21a-278 (a), sale of certain illegal drugs by a person who is not drug-dependent.
Because the defendant has not provided an independent analysis of his claim under our state constitution, we will review it only under the federal constitution. Our Supreme Court and this court have declined to review a defendant’s state constitutional claim, deeming it to be abandoned, when the defendant has not separately briefed and analyzed that claim. State v. Migliaro, 28 Conn. App. 388, 394 n.2, 611 A.2d 422 (1992).
There is no dispute that there was, indeed, a search and that the defendant’s arrest was lawful.
The trial court also relied upon the exception for searches made “ ‘incident to a lawful custodial arrest’; New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Shaw, 186 Conn. 45, 48, 438 A.2d 872 (1982) . . . .” (Citations omitted.) State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).
Only DeMatteis and Guerriero testified at the suppression hearing.
Our rules of practice provide for motions for judgment of acquittal at the close of the state’s case; Practice Book §§ 863, 864; at the completion of all of the evidence; Practice Book §§ 863 and 865; and after a verdict of guilty. Practice Book § 899.