State v. Butler, No. 18466.

• Court: Supreme Court of Connecticut
• Writing for the Court: ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js
• Citation: 993 A.2d 970,296 Conn. 62
• Parties: STATE of Connecticut v. Christopher BUTLER.
• Docket Number: No. 18466.
• Decision Date: 04 May 2010

993 A.2d 970
296 Conn. 62

STATE of Connecticut
v.
Christopher BUTLER.

No. 18466.

Supreme Court of Connecticut.

Argued February 9, 2010.

Decided May 4, 2010.

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John R. Williams, New Haven, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom were John P. Doyle, Jr., assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.

KATZ, J.

The defendant, Christopher Butler, appeals¹ from the trial court's judgment of conviction, following a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b).²

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On appeal, the defendant first claims that the trial court, Damiani, J., improperly denied his motion to suppress narcotics seized from the automobile he was driving incident to a routine traffic stop because the seizure of the narcotics violated his fourth amendment rights pursuant to Arizona v. Gant, 559 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The defendant also claims that the trial court, Vitale, J., improperly denied his motion for acquittal of the charge of possession with intent to sell on the ground that the state had failed to prove beyond a reasonable doubt that the defendant was in possession of the seized narcotics. With respect to the first claim, we conclude that, because the defendant was not arrested at the time of the search and seizure, Gant does not control in this case and that the search complied with the applicable requirements for protective searches of automobiles established in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). With respect to the second claim, we conclude that the state presented adequate evidence from which the jury reasonably could have concluded that the defendant had constructive possession of the narcotics. Accordingly, we affirm the trial court's judgment

The record reveals the following facts, which the jury reasonably could have found. On April 1, 2006, Officers Craig Miller, David Rivera and Charles Gargano of the New Haven police department were patrolling the Fair Haven neighborhood as part of their duties with that city's drug interdiction unit. The neighborhood was known for frequent drug trafficking activity. The officers were in an unmarked patrol car, operated by Rivera. At approximately 5:15 p.m., the officers observed a Chevrolet Impala turn right from Ferry Street onto Grand Street without signaling. The officers followed the Impala around the block, during which time they also observed that the defendant, who was operating the car, was not wearing a seat belt. Pursuant to police department policy, the officers called dispatch to request a marked cruiser in order to effectuate a motor vehicle violation stop.

Three marked patrol cars responded to the dispatch call,³ and stopped the Impala at the corner of Ferry Street and Grand Street. The unmarked patrol car stopped approximately one half of a car length behind the Impala. While still in their unmarked patrol car, Rivera, Miller and Gargano observed the defendant make a movement toward his right side, which led them to believe that the defendant might be concealing a weapon.⁴ The three officers then approached the Impala. As they were approaching, Miller observed the defendant close the center console in the front seat.

Rivera removed the defendant from the vehicle, handcuffed him, and frisked him for weapons. While frisking the defendant for weapons, Rivera discovered $1369 in cash and several cell phones⁵ on his person.

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At the same time, Miller and Gargano, as well as several officers from the other patrol cars, removed the two passengers from the vehicle, handcuffed them, and frisked them for weapons. Miller then returned to the car and observed some plastic protruding from the center console. He opened the console and removed plastic bags that he believed to contain crack cocaine. The officers also determined that the Impala was owned by a rental car company. Subsequent testing revealed that the bags discovered in the console contained approximately 21.5 grams⁶ of freebase cocaine, commonly referred to as crack cocaine

The record also reveals the following procedural history. The defendant was arrested and charged by substitute information with possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d).⁷ The defendant then filed a motion to suppress all evidence seized during the search of the Impala. The defendant claimed that the search was illegal because: (1) the police stopped his vehicle without probable cause; (2) they searched the vehicle without a valid search warrant; (3) the seized evidence did not fall within any exception to the warrant requirement; and (4) the defendant did not provide police with consent to search the vehicle. Following a suppression hearing, the trial court, Damiani, J., denied the motion to suppress on the grounds that the initial investigatory stop of the vehicle was valid and that the officers'

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observations of the defendant's furtive movement established probable cause to search the vehicle

At trial, the state introduced the testimony of Detective Michael J. Wuchek of the New Haven police department. Wuchek testified regarding his significant experience working with the Statewide Narcotics Task Force and as a detective in the narcotics division of the New Haven police department. Specifically, Wuchek noted that it is common for drug dealers to have multiple cell phones, especially "boost" or disposable cell phones; see footnote 5 of this opinion; carry significant amounts of cash and drive rental cars. He also testified that it would be uncommon for a drug user not in the business of selling narcotics to possess twenty grams of crack cocaine and that such a quantity was usually indicative of narcotics trafficking.

After the state had presented its case, the defendant moved for a judgment of acquittal as to both charges. The defendant first claimed that the state had failed to establish that he had either actual or constructive possession of the narcotics found in the console of the vehicle. The defendant also claimed that the state had failed to establish that he was not a student enrolled at the school for the purposes of the charge under § 21a-279(d). The trial court, Vitale, J., denied the motion as to the possession with intent to sell charge under § 21a-278(b), but granted it as to the possession charge under § 21a-279(d). At the close of trial, the defendant again moved for a judgment of acquittal on the charge under § 21a-278(b), and the trial court again denied the motion. This appeal followed.

I

The defendant first claims that the seizure of the narcotics from the console of the Impala violated his rights under the fourth amendment to the United States constitution⁸ as established in the United States Supreme Court's recent holding in Arizona v. Gant, supra, 129 S.Ct. 1710. Specifically, the defendant claims that, because this case presents "precisely the same" facts as those in Gant, we must deem the seizure of the narcotics unconstitutional. The state counters that Gant does not control this case because the officers engaged in a protective search rather than a search incident to an arrest. Rather, the state contends that Michigan v. Long, supra, 463 U.S. 1032, 103 S.Ct. 3469, which extended the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to automobile stops, survived Gant and is dispositive of the present case.

Despite the defendant's protestations, a fair reading of Gant indicates that it does not, in fact, apply to the facts at issue in the present case. In Gant, the United States Supreme Court began by noting that "the basic rule that `searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the fourth amendment—subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).... Among the exceptions to the warrant requirement is a search incident to lawful arrest. See Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations." Arizona v. Gant, supra, 129 S.Ct. at 1716. The court clarified that the search incident to

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arrest exception, as set forth previously in New York v. Belton, 453 U.S. 454, 457-58, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), "does not authorize a protective vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle."⁹ (Emphasis added.) Arizona v. Gant, supra, at 1714. Although the defendant claims that he was arrested for the motor vehicle offense, the record clearly reflects that he was not arrested until after the narcotics were discovered.¹⁰ Accordingly, the defendant's reliance on Gant for his assertion that the seizure of the narcotics was unconstitutional is misplaced.

What is instructive about Gant, however, is the Supreme Court's cautionary statement that it did not intend to disturb its precedents controlling other exceptions to the warrant requirement. Id., at 1721. As the court noted: "Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, Michigan v. Long, supra, 463 U.S. 1032, 103 S.Ct. 3469, permits an officer to search a...