11 Conn. App. 140 | Conn. App. Ct. | 1987
The defendant appeals from the judgment of his conviction of the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b). The conviction followed his conditional plea of nolo contendere which was entered, pursuant to General Statutes § 54-94a,
At the hearing on the defendant’s motion to suppress, the trial court found the following relevant facts. Detective Robert L. Kanaitis of the Hartford police department received a tip from a known informant that on the next day, at about 7:30 p.m., the defendant would be arriving at 363 Capitol Avenue, in Hartford, from New York. He would be arriving in a yellow Chevrolet Monte Carlo and would be in possession of 600 silver heat sealed bags of heroin. Kanaitis testified that
At the time Kanaitis and Howard emerged from the camper, the defendant had been approaching the north side of the car while his two companions had been approaching the south side. As these two people placed their hands on the south side roof of the car, Howard observed a silver heat sealed bag fall to the ground between them. Howard stated “I got the dope.” Thereafter, Kanaitis arrested the defendant and Howard arrested his companions. Kanaitis conducted a search
The defendant moved to suppress the evidence of the heroin claiming that the trial court erred in concluding (1) that Kanaitis had a reasonable and articulable suspicion to justify stopping the defendant in the first place under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),
“It is well established that police may momentarily detain an individual for investigative purposes if the police have ‘a “reasonable and articulable” suspicion that [he has] engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980); Terry v. Ohio, [supra].’ State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983). What constitutes a reasonable and articulable suspicion depends on the ‘totality of the circumstances.’ United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). ‘The test to be applied, however, is an objective one: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, supra, 22. In justifying the particular intrusion “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 21 . . . .’” (Citations omitted.) State v. Aversa, 197 Conn. 685, 690-91, 501 A.2d 370 (1985).
Under the circumstances of this case, the trial court did not err in determining that the officers had reasonable and articulable suspicion to believe that the defendant was engaged in criminal activity. Kanaitis had received a tip that the defendant would be arriving at 363 Capitol Avenue at about 7:30 p.m. from New York in a yellow Chevrolet Monte Carlo and would have 600 silver heat sealed bags of heroin in his possession. At the hearing, Kanaitis testified that he received this tip from a reliable informant whose information had led to arrests and convictions in the past. Further, Kanaitis testified that the informant’s tip was based on personal knowledge since he had been present when the defendant discussed his impending plans. Based on
The defendant argues, however, that because the police officers were unable to corroborate any aspects of the informant’s tip, its reliability was undermined and therefore it could not justify stopping the defendant. The trial court found that the only corroboration of the tip was that the defendant arrived at the approximate time and place indicated by the informant. The court specifically gave very little weight to these corroborating facts because the place of arrival also happened to be the the defendant’s home. We are not convinced that such corroboration is necessary to justify a Terry stop. The defendant has not claimed that this seizure was an arrest, and therefore we need not decide whether corroboration of non-innocent aspects of the informant’s tip would have been required to establish probable cause to arrest. An informant’s unverified tip may not be sufficient for a narcotics arrest or search warrant, but may nonetheless carry enough indicia of reliability to justify an officers’ forcible stop of a suspect. Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); see also State v. Love, 169 Conn. 596, 363 A.2d 1035 (1975). “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations—for example, . . . when a credible informant warns of a specific impending crime—the subtleties of the hearsay rule should not thwart an appropriate police response.” Adams v. Williams, supra, 147.
In this case, it was established that the informant was credible and had personal knowledge of the information he conveyed. Additionally, the trial court specifi
II
Immediately following an investigative stop, events or circumstances may arouse further suspicion in an officer’s mind or dispel questions that arose. If suspicion is dispelled, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances. State v. Acklin, 171 Conn. 105, 111, 368 A.2d 212 (1976). The defendant claims that the events that occurred after the stop did not raise the level of suspicion to the level of probable cause. The trial court found that the sole event to have occurred after the initial stop was that one of the defendant’s two companions dropped a silver heat sealed bag containing suspected contraband. We must determine whether this single event was sufficient to establish probable cause to arrest the defendant.
“ ‘ “Probable cause means more than mere suspicion. There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being com
The defendant claims that his mere proximity to others suspected of criminal activity, without more, does not constitute facts within the officer’s knowledge sufficient to give rise to probable cause to arrest and search him. He relies on Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), reh. denied, 444 U.S. 1049, 100 S. Ct. 741, 62 L. Ed. 2d 737 (1980), and other cases, only one of which, United States v. Sporleder, 635 F.2d 809 (10th Cir. 1980), bears on his claim. These cases, however, are not on point. They involve warrantless searches of persons on the basis of their presence during the execution of a valid search warrant for a specific place. It is in this context that mere presence, without more, is insufficient to justify a warrantless search. The issue before this court is different, namely, whether there was probable cause to arrest the defendant, after a valid Terry stop, once Howard discovered that one of the defendant’s two companions had dropped the silver bag of heroin. In
A review of Connecticut law has revealed only one case that incidentally bears on this issue. In State v. Acklin, supra, police officers stopped a vehicle driven by Acklin on the suspicion that he and the two occupants, one of whom along with Acklin was a defendant in one of the cases on appeal, had been involved in an earlier robbery. During a patdown, an officer discovered a handgun on Acklin. After concluding that the frisk was justified, the court stated: “[ajfter the ‘frisk’ had revealed a handgun [on Acklin], the officers had probable cause to arrest the defendants and to search their persons and their automobile contemporaneously with their arrest.” (Emphasis added.) Id., 113. While this case provides some guidance, we note that the specific issue of whether the discovery of a handgun on Acklin created probable cause to arrest and search the other occupants of the automobile was not raised. In the present case, unlike in State v. Acklin, supra, the defendant and his companions were in a public place and not together in a car. In State v. Acklin, supra, the police officers might more readily have inferred joint activity with respect to the possession of the gun. This inference is more difficult to draw in this case, especially in light of the absence of testimony by either Kanaitis or Howard that the people who were in the car with the defendant when he first approached the area were the same people who were walking with him toward the station wagon.
Our research has revealed some cases in other jurisdictions involving the issue of “mere presence” in public places. In Nast v. State, 333 So. 2d 103 (Fla. 1976), the court held that a police officer lacked probable cause to arrest the defendant for possession of contraband
We accept the proposition that the mere fact, without more, that a person is associating with or in the presence of others who are suspected of criminal activity, does not by itself establish probable cause to arrest or search that person. Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948). When there is “more,” however, probable cause may exist. In this case, the raison d’etre for the initial stop was a tip that the defendant would be bringing silver heat sealed bags of heroin from New York to Hartford. The focus of attention was on the defend
There is no error.
In this opinion the other judges concurred.
General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”
In order for a defendant to preserve the right to appeal the court’s decision, there must be some indication in the record that the plea of nolo contendere was conditional upon the right to appeal. State v. Gilnite, 202 Conn. 369, 376, 521 A.2d 547 (1987). The defendant’s written plea of nolo contendere does not indicate that it was entered conditionally pursuant to General Statutes § 54-94a. Our review of the transcript of the plea proceedings, however, establishes that the plea was entered pursuant to General Statutes § 54-94a.
While the officers were armed with a search warrant, the state chose not to rely on it at the suppression hearing. On the contrary, the state specifically proceeded on a theory of “a simple, on-site, probable cause arrest.”
We note some confusion in the trial court memorandum with respect to the nature of this initial seizure. The court held that at the time the officers approached the defendant and his companions, they had probable cause to search the defendant. The court also stated that “[t]his initial detention was for investigatory purposes and did not constitute an actual arrest of the person of the defendant.” The term “probable cause” whether in the context of an arrest or search, has a constant meaning. Therefore, the memorandum of decision could be read, despite the reference to an investigatory stop, to support a finding of probable cause to arrest. Since neither the defendant nor the state has characterized the initial seizure as an arrest, however, we will read the memorandum as the litigants do, namely, to uphold the initial seizure as an investigative stop.