State v. Clark

• Decision Date: 30 January 2001
• Docket Number: (SC 16258)
• Citation: 764 A.2d 1251,255 Conn. 268
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. MARK CLARK

255 Conn. 268

764 A.2d 1251

STATE OF CONNECTICUT v. MARK CLARK

(SC 16258)

Supreme Court of Connecticut.

Argued September 29, 2000.

Officially released January 30, 2001.

McDonald, C. J., and Borden, Palmer, Sullivan and Vertefeuille, JS.¹ Earl I. Williams, with whom was Jerald S. Barber, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom were Guy W. Wolf III, former senior assistant state's attorney, and, on the brief, Frank S. Maco, state's attorney, for the appellee (state).

Opinion

SULLIVAN, J.

The principal issue in this appeal is whether the trial court properly denied the defendant's motion to suppress cocaine seized pursuant to a warrantless patdown search for weapons. The defendant claims that the search and seizure violated his constitutional rights under the fourth amendment to the United States constitution,² and article first, §§ 7³ and 9,⁴ of the Connecticut constitution. We disagree.

The state charged the defendant, Mark Clark, with possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b),⁵ possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b),⁶ and failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (1).⁷ The defendant moved to suppress the seized cocaine on the ground that the police did not have a reasonable and articulable suspicion to detain him or probable cause to conduct a warrantless search of his person and seizure of the contraband found thereon. After an evidentiary hearing, the trial court, Wiese, J., denied the defendant's motion to suppress. Pursuant to General Statutes § 54-94a⁸ and Practice Book (1999) § 61-6,⁹ the defendant then entered a conditional plea of nolo contendere to the charges of possession of narcotics with intent to sell and failure to appear in the first degree.¹⁰ The trial court, DiPentima, J., accepted the defendant's conditional plea and rendered judgment thereon.¹¹ The defendant then appealed to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c)¹² and Practice Book § 65-1.¹³ We conclude that the defendant's motion to suppress properly was denied. Accordingly, we affirm the judgment of the trial court.

At the hearing on the defendant's motion to suppress, the trial court found the following relevant facts. On May 20, 1998, Officer Michael Morris and Sergeant Karl Pettersen of the Torrington police department narcotics enforcement unit¹⁴ obtained a search warrant for apartment 7 at 156 Oak Avenue in Torrington. The apartment was rented to and occupied by Heather Han. The warrant was issued pursuant to an ongoing investigation of the apartment, during which Officer John Murphy, another member of the narcotics enforcement unit, had been informed of numerous complaints from tenants in the building regarding the pedestrian traffic coming and going from the apartment. Morris and Murphy also had obtained additional information about Han from a reliable confidential informant. That informant stated that he or she had personal knowledge that Han was selling crack cocaine out of her apartment.¹⁵

The affidavit for the search warrant represented that the informant had told the police that Han's supplier was "a black male who drives a black colored Chevrolet Blazer." The affidavit also stated that Murphy and Morris had seen a vehicle fitting that description in the parking lot of 156 Oak Avenue during surveillance. The license plate number of the vehicle indicated that it was registered to the defendant. The affidavit also represented that, in the course of their investigation, Murphy and Morris had supervised the informant during at least two controlled purchases of crack cocaine from Han. Moreover, on the evening of May 21, 1998, at approximately 9:30 p.m., Morris arrested two persons who had just purchased crack cocaine from Han at 156 Oak Avenue. Shortly thereafter, on that same evening, the police executed the search warrant. Morris, Murphy and Pettersen were at the scene, along with Officer Mark Zbell, a youth officer responsible for two minor children who were in the apartment.¹⁶ At the time the warrant was executed, Han was in the apartment, along with another woman¹⁷ and the two children. Inside the apartment, the officers recovered cash, marijuana, an empty beer can altered for use in smoking crack cocaine and two empty plastic baggies and pieces torn therefrom containing residue of a white substance. In addition, the officers confiscated a letter from Han to a man named "Funk," whom Han described as her supplier. In that letter, Han asked for money and referred to "sling[ing]"¹⁸ for Funk "w/out [sic] Mark knowing."

During execution of the search warrant, the officers did not find any cocaine. It appeared to the officers that Han had exhausted her supply of drugs at that time. At the request of one of the officers, Han placed a telephone call to Funk. She was unable, however, to reach Funk at that time. While the police continued to collect evidence in the apartment, Morris returned to the parking lot to undertake surveillance for the safety of the searching officers. While conducting the surveillance, he observed a black Chevrolet Blazer enter the parking lot. A black male exited the vehicle and proceeded to Han's apartment. Morris alerted the other officers by radio that a black male was ascending the stairs toward Han's apartment. Morris then verified the license plate of the vehicle and determined that it was the Chevrolet Blazer owned by the defendant.

Murphy was in the kitchen, and Zbell was nearby, when the defendant entered the kitchen area of Han's apartment without knocking.¹⁹ The defendant was asked to identify himself and he indicated that his name was Mark Clark.²⁰ Murphy identified himself as a police officer and explained to the defendant that the officers were executing a search warrant. Upon receipt of this information, the defendant became "very nervous, visibly shaking [and] uncomfortable."²¹ Because of his demeanor and his unannounced entry into the apartment, Murphy determined that it was necessary to conduct a patdown of the defendant for weapons in order to ensure the safety of himself and the other officers.²²

Murphy proceeded to pat down the defendant, starting from his upper body and moving downward toward his feet. During the patdown, Murphy observed a large bulge in one of the defendant's socks.²³ Zbell, who was standing in close proximity to Murphy during the patdown, also noticed the large bulge in the defendant's sock. The defendant was not handcuffed during the patdown of his exterior clothing. When Murphy touched the bulge in the defendant's sock, he felt a "plasticky packaging material and then [a] rock- or chunk-like substance." Upon feeling the object, Murphy immediately recognized it as a large chunk of crack cocaine.²⁴ Once Murphy removed the object and confirmed that it was crack cocaine, the defendant was arrested and taken into custody.

The defendant filed a motion to suppress the evidence seized, claiming that the search conducted by the police violated the fourth amendment to the United States constitution and article first, §§ 7 and 9, of the Connecticut constitution. The defendant argued in his motion that: (1) the cocaine was seized "without a warrant or other lawful authority"; (2) "[t]he search and seizure was unreasonable and illegal because there was no probable cause" to believe that he was carrying a weapon or illegal contraband; and (3) his initial detention and patdown "was not based upon a reasonable and articulable suspicion that he had committed or was about to commit a crime."

The trial court conducted an evidentiary hearing on the defendant's motion to suppress. Thereafter, the trial court denied the defendant's motion in an oral decision, upholding the validity of the patdown search on the ground that the officer had a reasonable and articulable suspicion that the defendant might be armed and dangerous²⁵ The trial court concluded that the observations of both Murphy and Zbell of the large bulge in the defendant's sock justified their suspicion that the defendant could be carrying a weapon. The trial court further concluded that, when Murphy conducted the patdown and felt what he believed to be a rock of crack cocaine, he had probable cause to believe that the defendant was in possession of illegal contraband and, therefore, had probable cause to arrest the defendant and seize the narcotics from his sock.

We are not persuaded by the defendant's argument that the patdown search leading to the discovery of drugs was unconstitutional. To the contrary, we agree with the state that the defendant lawfully was detained based on a reasonable and articulable suspicion that he was associated with the drug operation under investigation, and that he might have been armed. The defendant was described in the search warrant, and the name "Mark" was mentioned in the letter referencing drug sales that was recovered from Han's apartment while officers were executing the search warrant. Thus, the police had reason to believe that the defendant was involved in drug trafficking. Once the officers observed the bulge in the defendant's sock, they had additional justification to search for what might have been a weapon. These facts gave the officers reasonable grounds to believe that the defendant had committed, or was in the process of committing, a felony. See General Statutes § 54-1f (b).²⁶ Once it was apparent to Murphy that the bulge in the defendant's sock was crack cocaine, he had probable cause to arrest the defendant and seize the contraband.

Moreover, even before discovery of the cocaine, the police had probable cause to arrest the defendant based on informant tips, the description of him in the warrant affidavit, the timing of his entry into Han's apartment and...