34 Conn. App. 492 | Conn. App. Ct. | 1994
The defendant appeals from the judgment of conviction, rendered after a plea of nolo contendere made pursuant to General Statutes § 54-94a
The defendant claims that the trial court improperly (1) found that the defendant had consented to undercover Detective Anthony Battistone’s entry into the apartment, (2) applied the doctrine of inevitable discovery, and (3) failed to resolve the factual dispute as to whether Battistone signaled the undercover team before or after he saw the narcotics. We affirm the judgment of the trial court.
The trial court found the following facts. On January 31,1991, Battistone received information from an informant that persons were selling heroin to anyone who came to the door of apartment 203 at 101-103 Wyllys Street, Hartford. Battistone and three other undercover police officers, Detective Arvid Leftwich, Detective James Mullen and Detective Richard Perotta, went to the apartment with the intent of conducting a “buy-bust.”
After Battistone entered the apartment he observed several people seated at the kitchen table. The codefendant, Mable Mercado, was facing Battistone while holding a black purse on the table in front of her. Battistone immediately observed glassine bags of heroin, magazine paper wrappings,
On the basis of those factual findings, the trial court determined that the officer’s warrantless entry into the defendant’s apartment was justified because the defendant consented when he unlatched the door and motioned to Battistone to follow him into the apartment.
I
The defendant first claims that the trial court improperly found that the defendant had consented to Battistone’s entry into the apartment. We do not agree.
The fourth amendment to the United States constitution
The parties do not dispute that the police conducted a warrantless search of the defendant’s apartment. The parties also agree that there were no exigent circumstances and that the validity of the search and seizure depends entirely on whether the defendant consented to the warrantless entry.
The question of whether a defendant has given voluntary consent to enter or search his or her premises is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the entry or search. State v. Ortiz, 17 Conn. App. 102, 103, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988). “It is to be decided by the trial court on the basis of the evidence before it that it finds credible, along with the reasonable inferences that may be drawn from that evidence. State v. Reagan, [209 Conn. 1, 8, 546 A.2d 839 (1988)]; Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978). The ultimate question ‘is whether the will of the consenting individual was overborne, or whether the consent
Here, the trial court made the specific finding that the defendant had consented to Battistone’s entry into the apartment.
The defendant claims that the trial judge erroneously stated that it was Battistone who testified that the defendant unlatched the screen door and motioned to
After a careful review of the record, we cannot conclude that it was clearly erroneous for the trial court to conclude that the defendant consented to Battistone’s entry to his apartment.
II
The defendant next claims that the trial court improperly applied the doctrine of inevitable discovery. The defendant argues that the entry into the apartment by the three other officers, after the prearranged signal by Battistone, was a warrantless entry not provided for by an exception and, therefore, the evidence seized must be suppressed. We do not agree.
“Under the inevitable discovery rule, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. [Nix v. Williams, 467 U.S. 431, 444,104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984).] To qualify for admissibility the state must 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. United States v. Cherry, 759 F.2d 1196, 1205 (5th Cir. 1985); United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1985). In Nix v. Williams, supra, 443, the United States Supreme Court observed that the operation of the exclusionary rule in situations where the police would have inevitably discovered the evidence by legal means already initiated would put the state in a worse position than it would have been in if no police misconduct had transpired. ‘Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place.’ Id., 447.” State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).
The defendant raises a myriad of claims as to why the doctrine of inevitable discovery should not apply in this case and, thus, why the evidence should be suppressed. He claims that Battistone’s signaling to the other officers, “inviting them in,” exceeded the scope of consent, if any, destroying any legal basis for Batti
We previously held that the trial court properly found that Battistone was in the apartment pursuant to the defendant’s consent. The trial court also found that the heroin was in plain view in the purse on the kitchen table. Thus, prior to the time the other officers entered the apartment, Battistone was actively pursuing his investigation by lawful means that made the discovery of the heroin inevitable. Had the other officers not entered the apartment, Battistone would have inevitably discovered the heroin, even if he had not discovered it prior to giving the signal.
As in the first issue, the resolution of this issue turns on a question of fact. Thus, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous in view of the evidence in the whole record. See also State v. Roseboro, 221 Conn. 430, 446, 604 A.2d 1286 (1992). We conclude, considering the totality of the evidence and the inferences reasonably to be drawn therefrom, that the trial court reasonably could have concluded that the state had met its burden of proving inevitable discovery by a preponderance of the evidence.
The defendant’s final claim is that the trial court improperly failed to resolve the factual dispute as to whether Battistone signaled the undercover team before or after he saw the narcotics. Because we conclude that the doctrine of inevitable discovery does apply, it is irrelevant for our purposes whether Battistone saw the heroin before or after he signaled the other officers to enter the apartment. We, therefore, need not address this issue.
The judgment is affirmed.
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, motion to suppress statements and evidence based on the involuntariness of a statement 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.”
The hearing was a joint evidentiary hearing, involving the defendant and Mable Mercado, a codefendant.
A “buy-bust” occurs when a police officer attempts to purchase illegal drugs and then arrests the person who offers to sell the drugs to the officer.
The trial court found that the defendant was the occupant and lessee of the apartment.
The witnesses testified that “a bag of dope” is $20 worth of heroin.
The trial court found that, in accordance with the trade and custom of heroin sellers, magazine paper is used to wrap heroin into “bundles” and “bricks.”
The fourth amendment to the Unites States constitution was made applicable to the states through the fourteenth amendment’s due process clause. Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949).
In its oral decision, the trial court stated that there was no precedent in Connecticut for the standard of proof by which the state must prove consent by the defendant, either by a fair preponderance of the evidence or by clear and convincing evidence. The trial court used the higher standard of clear and convincing evidence in making its determination that the defendant had consented to Battistone’s entry. Because the trial court used the higher standard and because this question was not raised before this court, we do not address it.