State v. Bardales

• Court: Connecticut Court of Appeals
• Writing for the Court: BEAR, J.
• Decision Date: 19 April 2016
• Docket Number: AC 36371
• Citation: State v. Bardales, AC 36371 (Conn. App. Apr 19, 2016)
• Parties: STATE OF CONNECTICUT v. JACK SEVERO BARDALES

STATE OF CONNECTICUT v. JACK SEVERO BARDALES

AC 36371

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued December 1, 2015

April 19, 2016

DiPentima, C. J., and Mullins and Bear, Js.

(Appeal from Superior Court, judicial district of New Britain, Alander, J.)

David K. Jaffe, with whom, on the brief, was Cody N. Guarnieri, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Brett J. Salafia, senior assistant state's attorney, for the appellee (state).

Opinion

BEAR, J. The defendant, Jack Severo Bardales, appeals from the judgments of conviction, rendered after a jury trial on three consolidated dockets, of three counts of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b); two counts of possession of marijuana with intent to sell in violation of § 21a-278 (b); one count of possession of narcotics in violation of General Statutes § 21a-279 (a); and one count of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant claims on appeal that the trial court (1) erred by denying his motion to suppress his statement, which he alleges was obtained in violation of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and the cocaine retrieved from his car, which he alleges is fruit of the poisonous tree; (2) abused its discretion by admitting evidence of the defendant's prior uncharged misconduct; and (3) erred by denying his motion to suppress evidence seized during a search of the defendant's residence at 90 Pinebrook Terrace in Bristol (Bristol residence) that he alleges violated his constitutional rights under the fourth and fourteenth amendments. We affirm the judgments of the trial court.

The following facts were found by the court in its memorandum of decision on the defendant's motion to suppress. After investigating the defendant's narcotics distribution activities, the Statewide Narcotics Task Force (task force), which is a coalition of state and local police officers assigned to investigate violations of state narcotics laws, took a statement from a credible confidential informant who told a task force member that the defendant used a stash house other than his own residence to store illegal firearms for sale. The same informant also told the task force that he had observed three firearms in the defendant's possession at the defendant's New Britain residence. Relying on these statements, the task force obtained two warrants on March 29, 2011. The first warrant authorized the police to conduct a search of the defendant's residence at 233 Country Club Road in New Britain (New Britain residence). The second warrant authorized the police to search the defendant's person.

The police executed these warrants on April 5, 2011. At approximately 3 p.m., officers searched the New Britain residence. On arrival, they discovered William Cote living at the residence and immediately detained him. He sat in the house under guard while it was searched, and after the search, he was arrested because he admitted to possessing cocaine located among his personal effects. Cote remained in police custody throughout the New Britain search and until the early morning hours of the following day. During the New Britain search, the police seized a pistol, ammunition, $25,000 in cash, five ounces of cocaine, and various drug processing and packaging materials.

After the completion of the New Britain search, at approximately 8 p.m., on April 5, 2011, the police observed the defendant leaving his Bristol residence in his car. They stopped him to execute the search warrant for his person. The defendant exited his car when instructed to do so by the police. Sergeant Thomas Bennett, a task force supervisor, approached the defendant and explained that he had a warrant to search the defendant's person. Bennett then asked the defendant whether there was anything in the car that he needed to be concerned about. The defendant answered that there was cocaine in the pocket of the car door. Bennett discovered cocaine in this location. The police arrested the defendant. It was the defendant's statement and the evidence to which it led that gave rise to the defendant's conviction of one count of possession of narcotics.

After the police finished searching the New Britain residence, they prepared an application for a warrant to search the Bristol residence because Cote, who was in their custody following his arrest during the New Britain search, informed the police that he had seen a gun and cocaine in the defendant's possession at the Bristol residence. This information both motivated and provided the basis for the search warrant, and, despite Cote's statement that he had been inside the Bristol residence, the only information about that premises that was included in the warrant application was a description of its exterior.

After the police searched the defendant and his car, they entered the Bristol residence and looked into each room and closet to ensure that there was no one present who might destroy evidence before the search warrant could be signed and delivered to them. Finding no one inside, the police remained in the Bristol residence while they waited for the search warrant to arrive.

The police, however, did not limit their pre-warrant search activities to looking into rooms and closets. Before the search warrant was obtained and executed, the police conducted an additional search of the entire Bristol residence to locate and photograph contraband. The first time stamp on a photograph taken from inside the Bristol residence indicates that the photograph was taken at 8:41 p.m. Ciarra Ennis, a social worker from the Department of Children and Families (department), testified that she received a call at 9:12 p.m. indicating that the defendant's home had been searched and that narcotics had been found. Although the police photographed items inside the residence before the search warrant arrived, they did not seize or remove anything from the residence until after they received the signed warrant.

The defendant ultimately was charged in a long form information with three counts of possession with intent to sell narcotics in violation of § 21a-278 (b); two counts of possession of marijuana with intent to sell in violation of § 21a-278 (b); one count of possession of narcotics in violation of § 21a-279 (a); and one count of criminal possession of a firearm in violation of § 53a-217 (a) (1). The defendant was found guilty by the jury of each count of the long form information and was sentenced by the court to a total of nineteen years incarceration, execution suspended after twelve years, with five years of probation. This appeal followed.

I

The defendant first claims that the trial court erred in denying his motion to suppress his statement, made in response to Bennett's question that was asked prior to the defendant receiving Miranda warnings, and in not suppressing the cocaine that was discovered in his automobile as a result of his response to the question. The defendant argues that the court improperly applied the public safety exception¹ to questions asked of him in violation of the requirement, articulated in Miranda v. Arizona, supra, 384 U.S. 444, that in order for statements made in response to custodial interrogation to be admissible in a prosecution against the person who made them, the prosecutor must demonstrate the use of procedural safeguards sufficient to secure the privilege against self-incrimination. We disagree.

The following additional procedural history is relevant. The defendant moved to suppress his answer to Bennett's question to him and the cocaine that the police discovered in his car as a result of that answer.² In his memorandum in support of his amended motion to suppress, the defendant argued, inter alia, that his answer to Bennett's question was made during a custodial interrogation without him previously being warned about, and waiving, his rights under Miranda, and that his statement and the evidence discovered as a result should be suppressed.

The court, on July 1 and 2, 2013, held a hearing on the defendant's motion to suppress. During the hearing, Bennett testified about the circumstances surrounding the search of the defendant's person. In particular, Bennett testified about the timing of the Miranda warnings he gave the defendant and about the actual content of the question he asked that led to the discovery of cocaine. On direct examination by the prosecutor, Bennett testified that he gave the defendant Miranda warnings "[a]fter explaining the search warrant to him." Bennett then testified that after advising the defendant of his Miranda rights, he asked him whether "there was anything in the truck that we need to be concerned about." Bennett testified that the defendant responded that there was a small quantity of cocaine in the driver's side door pocket.

During cross-examination by defense counsel, however, Bennett equivocated both about the timing of and the content of his question to the defendant. Bennett testified that he gave the defendant Miranda warnings "at some point," and then, in response to questioning by the court, Bennett further conceded that he was "not sure of the exact timing of it. It could have been afterwards." Bennett also responded "[y]es, sir," when defense counsel asked, "[a]nd then you asked him if he had any contraband, correct," and later testified that he "asked [the defendant] if there was anything in the car." When pressed by defense counsel as to whether the question was "designed to elicit perhaps an incriminating response," Bennett answered, "[a]nd also officer safety. If there's a gun in the vehicle that we should know about it. Yes, sir."

The court found that the state had not met its burden of proving that the police had advised the...