State v. Aversa

Citation501 A.2d 370,197 Conn. 685
CourtConnecticut Supreme Court
Decision Date03 December 1985
PartiesSTATE of Connecticut v. Benny AVERSA.

Eugene J. Riccio, Public Defender, with whom, on brief, was Michael D. Neubert, Asst. Public Defender, for appellant (defendant).

Robert A. Lacobelle, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).



After a jury trial, the defendant, Benny Aversa, was convicted of attempted robbery in the first degree in violation of General Statutes §§ 53a-134(a) and 53a-49. He was sentenced to a term of not less than eight nor more than sixteen years.

The jury could reasonably have found the following facts: The defendant and a male companion entered a liquor store in Stamford at about 4 p.m. on September 29, 1977. The store was located on Prospect Street, approximately 300 yards from the town's police station. The defendant was in the store for around ten or twelve minutes. During that time, the defendant and his friend bought some beer and waited for the other customers in the store to leave. When they were alone with the store owner, the defendant pulled a gun from his pocket. Upon seeing the gun, the store owner fled to an adjacent donut shop. The defendant and his companion also ran from the store and headed down Prospect Street toward their car.

At the donut shop, the store owner met Officer Joseph Gentle of the Stamford police department and told him what had happened. He told the officer that both suspects were white males and relatively thin, that one had long hair and the other short, and that the individual with the long hair wore a blue pullover jacket or shirt. He also had enough time to point out the two men to the officer as they ran down Prospect Street toward North Street. Gentle immediately radioed to police headquarters the information he had obtained from the store owner. He told headquarters that there had been an attempted holdup, that two white males were involved, one wearing a blue windbreaker "or something like that," and that they had been observed running down Prospect Street onto North Street.

Sergeant Clifton Wood, who was at police headquarters, heard Gentle's transmission and immediately went outside to see if he could find the two suspects. Wood crossed Prospect Street and went onto North Street. He observed the defendant and his companion pull out of a parking lot onto North Street in a blue-gray Thunderbird. Only a couple of minutes had elapsed between the broadcast of Gentle's report and Wood's observation of the car. The parking lot was approximately 100 yards from the site of the attempted holdup. Wood noticed that the two men in the car appeared to match the description he had heard. Neither man had on a blue shirt or sweatshirt, but rather both men had on only white tee shirts. At the time, it seemed odd to Wood that these men were wearing only tee shirts in rather brisk fall weather. It also seemed suspicious to him that the car was moving at a very slow speed and that the two men looked at the officer out of the corners of their eyes.

The sergeant was joined by another officer and they decided to pull the car over. While the other officer was asking the driver for identification, Wood peered into the back seat of the car and observed in plain view a blue sweatshirt, a maroon windbreaker and a white sweater. Once the articles of clothing were noticed, the two men were ordered from the car and given a patdown search. They were held there for approximately three minutes until the store owner came and identified them as the two men who had attempted to rob him. Fifteen to twenty minutes had elapsed between the attempted robbery and the identification. The defendant and his companion were then formally arrested.

The suspects were transported to the police station by car. While in transit, both men were read their Miranda 1 rights, but they were asked no questions. After they arrived at the station, they were booked and brought to the detective bureau. There they were asked by Detective Joseph Falzetti if they had been in the liquor store. The defendant responded, "no." The detective then asked: "You mean to tell me that you weren't in the liquor store?" The defendant replied: "Okay, we were standing in front." These were the only questions asked at that time. The questioning was completed within one-half hour of the arrest.

Later that afternoon, the defendant was brought back into the detective bureau from his cell. Detective James Washington read the defendant his Miranda rights again and the defendant indicated that he understood those rights. The defendant was not asked to sign any rights form or waiver. The detective asked the defendant a series of questions about the attempted robbery. The defendant admitted that he had been in the liquor store but denied that he had had a gun or that he had tried to rob the owner.

At trial, the state introduced as evidence the clothing found in the defendant's car and the defendant's statements to the police after he was arrested. The store owner also made an in-court identification of the defendant. The defendant had filed pretrial motions challenging the admissibility of this evidence on fourth and fifth amendment grounds, but the court ruled the evidence admissible and denied the defendant's motions.

On appeal, the defendant claims the trial court erred in denying his pretrial motions because: (1) the clothing found in the car, the store owner's in-court identification and the defendant's statements to the police were fruits of an illegal seizure under the fourth amendment; (2) the store owner's in-court identification was the product of an impermissibly suggestive police procedure; and (3) his statements to the police were obtained by questioning which violated his fifth amendment rights. We find no error. 2


The defendant first claims that his detention by the police was unlawful under the fourth amendment and, as a result, the evidence obtained from the plain view search, the later in-court identification of him by the store owner and his statement to the police were inadmissible as "fruits of the poisonous tree." See United States v Crews, 445 U.S. 463, 472-77, 100 S.Ct. 1244, 1250-53, 63 L.Ed.2d 537 (1980); Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963). He argues that, as required by the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police lacked a reasonable, articulable suspicion to stop him under the circumstances. He also claims that even if the original stop had been legal, his further detention by the police constituted an arrest and a "seizure" under the fourth amendment for which the police lacked probable cause. We find that the initial stop of the car was legal under Terry v. Ohio, supra, and that once the police saw the blue sweatshirt in the rear seat of the defendant's car, they were justified in further detaining the defendant.

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 [2753] 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, 694, 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 [392 U.S. at] 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 [at] 21 ; see United States v. Brignoni-Ponce, [422 U.S. 873, 884, 95 S.Ct. 2574 [, 2581, 45 L.Ed.2d 607 (1975) ]; State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973). While general investigation may be based upon suspicion and guesswork, a police officer's decision to restrain a person's liberty or the use of his property must be made on more than a mere hunch. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Terry v. Ohio, supra [392 U.S. at] 22 ; Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Watson, supra [165 Conn. at] 585 ." State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981).

In the totality of the circumstances, the police here were justified in stopping the defendant's car. Wood testified that there were a number of facts which gave rise to the police suspicion. First, the defendant was stopped within a few hundred yards of the place where the crime took place. Second, the defendant was stopped within fifteen to twenty minutes after the attempted robbery. "Proximity in time and place of the stop to the crime is highly significant" in the determination of whether the police action was reasonable. State v. Carter, supra, 189 Conn. at 616-17, 458 A.2d 369; 3 LaFave, Search and Seizure § 9.3(d). Third, the defendant and his companion generally fit the description given the police. Also, the facts that the suspects were wearing only tee shirts on a cool day, that they looked at the observing officer nervously and that they were driving at a very slow rate of speed all added to the police suspicion. Under the circumstances we cannot say that the police action in stopping the defendant was inappropriate or...

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