State v. Gruver, 9763

• Citation: 27 Conn.App. 370,606 A.2d 39
• Decision Date: 14 April 1992
• Docket Number: No. 9763,9763
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Paul GRUVER.

Page 39

606 A.2d 39

27 Conn.App. 370

STATE of Connecticut v. Paul GRUVER.

No. 9763.

Appellate Court of Connecticut.

Argued Oct. 28, 1991.

Decided April 14, 1992.

William Domnarski, Mansfield Depot, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were Donald B. Caldwell, State's Atty., and Sandra Tullius, Deputy Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and LAVERY, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the judgment of conviction of operation of a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a. He entered a conditional nolo contendere plea after denial of his motion to suppress the state's evidence. General Statutes § 54-94a. ¹ On appeal, the defendant contends that the trial court improperly denied his motion to suppress. We affirm the trial court's judgment.

The record discloses that, on the night in question, JoAnne Howell, while working at a convenience store in the Storrs section of Mansfield, saw the defendant drive into the parking lot in front of the store at approximately 11:30 p.m. She observed the defendant stumble as he got out of his car, enter the store with difficulty and continue to stumble and nearly fall to the floor. On the basis of his glassy eyes, stumbling gait, inability to distinguish currency denominations while attempting to make a purchase and his acknowledgement that he was "trashed," Howell concluded that the defendant was inebriated. Howell asked the defendant whether he would be driving, and when he responded that he would be, she telephoned the police.

Howell informed the police that the defendant had just stumbled out of the store and into the driver's seat of a small blue car parked almost directly in front of the store. She also told the police that the vehicle's lights were on but that its engine had not been started. Howell remained on the phone with the police until a cruiser arrived on the scene less than three minutes later.

The arresting officer was dispatched to the store to look for a possibly intoxicated driver who had just left the store and was in a small blue car with its headlights on. Approaching the store, the officer observed a small blue vehicle with its lights on parked facing the store. The officer stopped his cruiser directly behind the car and turned on the cruiser's overhead light. ² The record does not indicate that there was any impediment to driving the defendant's car forward.

As the officer walked toward the defendant's car, he smelled a very strong odor of alcohol through the open window and observed the defendant in the driver's seat, with his face flushed and eyes glassy. At this point, the defendant looked at the officer, turned on his vehicle's ignition and, when asked if he had been drinking, replied in slurred speech, "I had a couple." After being asked to exit his vehicle, the defendant failed field sobriety tests, and was arrested for operating a motor vehicle while under the influence of liquor. Neither the defendant's operation ³ of the vehicle nor his having been under the influence of liquor are contested in this appeal.

As a threshold matter, we note with disapproval the breadth of the defendant's motion. ⁴ Much greater particularity of the material to be suppressed is desirable if not required. See General Statutes § 54-33f; ⁵ Practice Book § 821; ⁶ State v. Criscuolo, 6 Conn.Cir.Ct. 453, 275 A.2d 613 (1970). General Statutes § 54-33f is nearly a verbatim adoption of rule 41(e) of the Federal Rules of Criminal Procedure. As such, we may look to the decisions of the federal courts for assistance in its application. State v. Darwin, 29 Conn.Sup. 423, 425, 290 A.2d 593 (1972). "It is well settled that a party moving for suppression of evidence must state definitely what particular messages he desires suppressed. An allegation to suppress all illegally obtained evidence is insufficient." United States v. Carney, 188 F.Supp. 86, 88 (S.D.N.Y.1960); see also O'Neal v. United States, 222 F.2d 411 (D.C.Cir.1955). Because the adequacy of the motion was not raised by the parties, nor by this court at oral argument, we forego determining the appeal on this issue and will decide the matter on its merits. See Lo Sacco v. Young, 210 Conn. 503, 508, 555 A.2d 986 (1989).

The defendant treats this case as one involving an anonymous informant. The trial court, however, was entitled to believe Howell's testimony that she gave her name to the police and therefore was not an anonymous tipster. Moreover, Howell testified as a state's witness and was cross-examined by the defendant. Thus, the disadvantages to a defendant when the police act on an anonymous tip or refuse to disclose their informant's name are not part of this case. Such disadvantages arise from the fact that the unknown informant does not come forth and testify as a witness. Thus, the defendant is deprived of his right of cross-examination and the trier of fact is deprived of the opportunity to determine the informant's credibility by observing his demeanor on the witness stand. In this case, the court, as the trier of fact, could determine Howell's credibility for itself. See State v. Richardson, 204 Conn. 654, 657-62, 529 A.2d 1236 (1987).

The defendant also mistakenly fixes the point when he was seized as the moment the police officer pulled up behind the defendant's vehicle and turned on the cruiser's light. In California v. Hodari D., --- U.S. ----, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991), the United States Supreme Court recently held that, for fourth amendment purposes, a seizure does not take place until the defendant has submitted to a police officer's show of authority. Id., 204 Conn. at 697, 529 A.2d 1236. A naked show of authority without submission thereto does not constitute a seizure. For example, when a police officer, intent on stopping a motorist, turns on the flashing red and blue lights of his marked police cruiser and activates its siren, he has made a display of his authority. If, however, the offending motorist attempts to evade the officer by increasing his speed and a chase ensues, it cannot be said that a seizure has taken place while the chase is in progress. In this hypothetical scenario, a seizure does not occur until the pursued motorist pulls to the side of the road and stops in submission to the pursuing officer's authority.

Applying the Hodari principle to the present case, we conclude that the defendant incorrectly asserts that a seizure occurred when the officer parked behind the defendant's car. The earliest point at which it can be said that there was submission to the officer's display of authority was when the defendant turned on his ignition as if to leave but instead remained immobile. By this time, the officer had already smelled the odor of alcohol and had observed the defendant's glassy eyes and flushed face. Thus, at a minimum, the officer had reasonable and articulable suspicion that a violation of General Statutes § 14-227a was taking place in his presence.

This court's review of the underlying factual basis of the trial court's decision is limited to whether the court's decision is supported by the evidence or is clearly erroneous. State v. Anderson, 24 Conn.App. 438, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991). "The determination of whether a specific set of circumstances provides a police officer with a reasonable and articulable suspicion of criminal activity is a question of fact for the trial court and is subject to limited appellate review." Id., at 442, 589 A.2d 372. The facts detailed above justified the defendant's detention for the limited intrusion of field sobriety testing to confirm or dispel the officer's suspicion. This was a valid Terry stop as defined in Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968); ⁷ State v. Lamme, 216 Conn. 172, 176, 579 A.2d 484...