State v. Dalzell, No. 26255.

• Decision Date: 18 July 2006
• Docket Number: No. 26255.
• Citation: 96 Conn.App. 515,901 A.2d 706
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Edward R. DALZELL.

901 A.2d 706

96 Conn.App. 515

STATE of Connecticut v.Edward R. DALZELL.

No. 26255.

Appellate Court of Connecticut.

Argued February 22, 2006.

Decided July 18, 2006.

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Elizabeth M. Inkster, senior assistant public defender, for the appellant(defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Stephen J. Sedensky III, senior assistant state's attorney, for the appellant(state).

BISHOP, McLACHLAN and DUPONT, Js.

DUPONT, J.

The defendant, Edward Dalzell, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere to possession of narcotics with the intent to sell in violation of General Statutes § 21a-277(a), possession of narcotics in violation of General Statutes § 21a-279(a), possession of drug paraphernalia in violation of General Statutes § 21a-267(a), operating a motor vehicle while under the influence of drugs in violation of General Statutes § 14-227a(a) and failure to wear a seat belt in violation of General Statutes § 14-100a(c)(1).The plea followed a denial of the defendant's motions to suppress.¹The defendant received a total effective sentence of five years incarceration on the first four counts, and a $15 fine was remitted on the fifth count.On appeal, the defendant claims that the trial court improperly denied his motions to suppress because the stop of his motor vehicle for his failure to wear a seat belt was pretextual, and the subsequent search of his vehicle constituted an unreasonable search and seizure under article first, §§ 7and9, of the Connecticut constitution.²We reverse the judgment of the trial court in part and remand the case with direction to grant the defendant's motions to suppress.

The only witness to testify at the suppression hearing was Adam Marcus, a police officer with the Danbury police department.Marcus testified that, at approximately noon on February 27, 2004, he observed the defendant driving a 1991Ford Escort on Town Hill Avenue in Danbury.Marcus followed the defendant for approximately one mile after he observed that the defendant was not wearing a shoulder harness type of seat belt.³Marcus followed the defendant along Town Hill Avenue to the stop sign at Liberty Street.The defendant stopped and turned left at Old Oak Restaurant & Pizzeria.Marcus continued to follow the defendant along Liberty Street.The defendant, with Marcus following, traveled along Liberty Street and proceeded straight onto Patriot Drive at the intersection where Liberty Street turns left.Traveling along Patriot Drive, the defendant proceeded along Balmforth Avenue where it intersects Patriot Drive and White Street.Somewhere after the area on Balmforth Avenue where train tracks intersect, Marcus stopped the defendant's vehicle.During the time Marcus followed the defendant, he did not observe the defendant violate any traffic rules.Marcus testified that the defendant must have observed all posted signs, speed limits, traffic control signals and markings because otherwise he would have stopped the defendant before and made a note in his report.Marcus also testified that in the past, he had observed other drivers not wearing seat belts and had not stopped them.

Once stopped, Marcus checked the defendant's license plate with the police dispatcher, which provided him with information that the vehicle was validly registered.According to Marcus, he received no other information about the defendant prior to approaching the vehicle,⁴ and, as he approached the defendant's vehicle, he was not in fear of his safety.Marcus exited his vehicle, approached the defendant's vehicle, notified the defendant that he was being stopped for failure to wear a seat belt and requested the defendant's license, registration and proof of insurance.The defendant, attempting to satisfy Marcus' request, removed an envelope from his glove compartment that had several different papers in it.As the defendant surveyed the papers, Marcus examined the defendant.Marcus observed that it was a clear, sunny day in February and that the defendant was not wearing sunglasses.According to Marcus, the defendant's eyes were contracted and his nose was red around the nostrils and running.⁵Marcus testified that the defendant"appeared, like, slow and lethargic" because he passed over his registration several times while looking for all of the documentation requested by the officer and because it was taking the defendant"a few seconds" but less than one full minute to retrieve the documentation.At the same time, Marcus observed a rolled up dollar bill in the square area of the center console between the two seats.⁶After the defendant retrieved the requested information, Marcus asked the defendant whether he had used narcotics.The defendant replied, "No, and I'm not getting out of the vehicle, so start writing me a ticket."Marcus informed the defendant that he suspected that the defendant was under the influence of narcotics and requested again that the defendant exit the vehicle.The defendant refused to exit.Marcus opened the door to the vehicle, grabbed the defendant by the arm, escorted him out of the vehicle and placed him under arrest for operating a motor vehicle while under the influence of drugs.⁷

Marcus then performed an inventory search of the defendant's vehicle because he decided to impound the car.⁸Marcus secured the dollar bill that he had previously viewed from outside the vehicle.Once in possession of the dollar bill, Marcus observed that it had white residue on it.The residue was later field tested and tested positive for heroin.In the vehicle, Marcus also discovered a cigarette pack that contained four small glassine packets that were stamped "red devil" in red ink and contained white powder.A field test of that substance indicated that it was heroin.The defendant was subsequently charged with possession of narcotics, possession of drug paraphernalia, operating a motor vehicle while under the influence of drugs and failure to wear a seat belt.

On August 25, 2004, the defendant filed three motions to suppress.Following an evidentiary hearing, the court denied the defendant's motions to suppress.The court stated in its memorandum of decision that there was "a credible foundation for the stop . . . ."The court also commented on the arrest for operating a motor vehicle while under the influence of drugs: On the basis of "the conduct of the defendant, his speech, his behavior, his demeanor, the presentation of his eyes, the runny nose and the like," as well as the rolled up dollar bill in plain view, Marcus reasonably concluded that the defendant had operated a motor vehicle while under the influence of intoxicating substances.According to the court, "[e]verything that flows from that—search incident to the arrest, inventory of a vehicle which is part of the arrest process, all those things flow from what is considered to be, at least under our practice, to be reasonable conduct for a police officer in conducting a follow-up investigation."

On appeal, the defendant asserts that there was no reasonable and articulable suspicion that he was not wearing a seat belt to justify the initial stop.The defendant further argues that, even if there was a reasonable and articulable suspicion on which the officer could have effected a valid stop for a seat belt violation, the stop was pretextual because the real reason for the stop was to search for, and to obtain, evidence of an unrelated crime or crimes.The defendant also contends that even if the initial stop was justified and not pre-textual, Marcus never had probable cause to arrest the defendant for operating a motor vehicle while under the influence of drugs or to search the vehicle.

"As an initial matter, we note that [o]ur standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. . . .[When] the legal conclusions of the court are challenged, [our review is plenary, and]we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court's memorandum of decision. . . ."(Internal quotation marks omitted.)State v. Pierre,277 Conn. 42, 92, 890 A.2d 474(2006)."Because a trial court's determination of the validity of a. . . search [or seizure] implicates a defendant's constitutional rights, however, we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence."(Internal quotation marks omitted.)State v. Weaver,85 Conn.App. 329, 335, 857 A.2d 376, cert. denied, 271 Conn. 942, 861 A.2d 517(2004);see also5 W. LaFave, Search and Seizure(3d Ed.1996) § 11.7(c), pp. 399-400.

Our plenary review of the defendant's claim that the court's denial of his motions to suppress violates our state constitution includes the following tools of analysis: (1) the particular facts of the case; (2) the test of the relevant statutory or constitutional provision; (3) prior holdings and dicta of the Connecticut appellate courts; (4) federal precedent; (5) decisions of other state courts; and (6) historical and socioeconomic considerations.State v. Geisler,222 Conn. 672, 684-85, 610 A.2d 1225(1992).

"It is well settled that we are not bound by the decisions of the United States Supreme Court in interpreting the contours of article first, §§ 7and9. . . .It is well established that federal constitutional. . . law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . .In [state] constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due.Accordingly, decisions of the ...