State v. Diaz
| Decision Date | 24 September 2018 |
| Docket Number | CR170176287 |
| Court | Connecticut Superior Court |
| Parties | STATE of Connecticut v. Liz DIAZ |
UNPUBLISHED OPINION
The defendant, Liz Diaz, stands charged in an information with Carrying a Pistol without a Permit, in violation of Connecticut General Statutes § 29-35(a), Weapons in a Motor Vehicle, in violation of Connecticut General Statutes § 29-38, and two counts of Violation of the State Narcotics and Drug Act, in violation of Connecticut General Statutes § § 21a-279(a)(1) and 21a-278(b).
The charges arise out of events that are alleged to have occurred on May 23, 2017 in the area of Bassett Street in New Haven during a motor vehicle stop effectuated by members of the New Haven Police Department. On January 8, 2018, and on March 9 2018, the defendant filed a motion to "suppress evidence seized in connection with [said] motor vehicle stop" pursuant to the "Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article First § § 7 and 9 of the Connecticut Constitution and Connecticut Practice Book § 41-12."
On June 28, 2018, the court conducted a hearing on the Motion. The defendant presented the testimony of the defendant Liz Diaz and Officer Javier Montalvo of the New Haven Police Department. The defendant’s testimony was confined merely to the issue of standing. Officer Montalvo was the only witness as to the circumstances of the motor vehicle stop and search at issue.
Following the hearing, the court afforded counsel for the Defendant and the State the opportunity to submit briefs in support of their respective claims with respect to the defendant’s motion. The Defendant submitted a brief dated August 16, 2018 and the State filed a brief in response on August 27, 2018.
The court heard oral argument on the motion on September 6, 2018.
In reaching its conclusions, the court has fairly and impartially considered all of the evidence received at the hearing, evaluated the credibility of the witnesses; assessed the weight, if any, to be given specific evidence and measured the probative force of conflicting evidence; reviewed all exhibits, relevant statutes, and case law; and has drawn such inferences from the evidence, or facts established by the evidence, that it deems reasonable and logical.[1]
For the reasons set forth below, the Motion is hereby denied.[2]
Based on the evidence and the reasonable and logical inferences therefrom, the court finds the following facts:
On May 23, 2017, at approximately 5:32pm Officer Javier Montalvo and his partner Officer Taylor were on patrol in a marked police vehicle. It was "fairly light" outside. The officers were patrolling an area in New Haven that included Bassett Street, and one of their responsibilities that day was "crime suppression." Montalvo was "always" assertive with respect to his responsibilities as a police officer on patrol.
While traveling east on Bassett Street in his marked police vehicle, Montalvo’s attention was drawn to a Grey BMW that was traveling west bound on Bassett Street. The BMW contained an operator and a front seat passenger who was later identified as the defendant Liz Diaz. Montalvo observed that the operator, later identified as Derek Small, did not appear to have his seat belt fastened, and further observed that the vehicle did not possess a front "registration plate" as required by law. At the time of the events at issue, Small and Diaz were living together and shared a child in common. Montalvo thereafter made a "u-turn" and maneuvered his vehicle so that he was then traveling west behind the Grey BMW.
At that point, Montalvo was unaware of the identities of the occupants of the BMW, their destination, or connection, if any, to Bassett Street. However, Montalvo was aware that the BMW generally matched the description of a vehicle that had been involved in a shooting three weeks prior "in the same area."
Montalvo also observed that Mr. Small the operator, failed to obey a red traffic control signal at the intersection of Bassett and Newhall Streets. Montalvo thereupon activated his police vehicle’s overhead lights directing the BMW to pull over. Montalvo’s initial intention was to address the above described motor vehicle infractions. Small "pulled over" the BMW as directed and stopped.
Montalvo and Taylor exited their police vehicle and approached the BMW. Montalvo approached the driver’s side where Mr. Small was seated, and Taylor approached the front passenger side where the defendant was seated. After explaining to Small the reason for the stop, Montalvo requested Small’s license, registration and insurance cards. Small provided the requested documents to Montalvo. Montalvo thereupon delivered the documents to Officer Taylor, who then walked back to the patrol car. Taylor did so in order to conduct a "name check" on Small as well as verify his motor vehicle documents. Montalvo remained on the driver’s side of the BMW while Taylor conducted the "name check."
The name check lasted no more than two minutes, whereupon Taylor returned to the BMW and informed Montalvo that the documents were all in order. Taylor reported that there were "no active warrants" for Small. However, Taylor had learned and reported that Small was then on probation.[3] As a result, Montalvo decided to inquire further of Small without at that point taking any action with respect to the motor vehicle infractions. Small admitted to Montalvo that he was currently on probation. Montalvo then asked Small whether "there was anything else in the vehicle [he] should know about." Following that question Small did not make eye contact with Montalvo and Montalvo observed that Small’s hands were shaking. Small’s apparent nervousness prompted Montalvo to then order Small to exit the vehicle.
As noted previously with regard to the Grey BMW, Montalvo’s attention to the occupants was heightened due to a prior shooting near Bassett Street three weeks earlier involving a vehicle with a similar description. Small was told to walk to the rear of the vehicle where Taylor performed a weapons "pat down" on him. Montalvo’s attention was directed now to both Officer Taylor, as he conducted a "pat down" of Small, and the defendant, who remained in the front passenger seat. Montalvo had a clear and unobstructed view of Diaz from his vantage point near the driver’s side window. While Taylor conducted the pat down of Small, Montalvo observed the defendant’s right hand "reach" toward the vehicle’s center console. He observed her place her right hand between the passenger seat and the center console. Montalvo requested that Diaz remove her hand from that location and make her hands visible to him. Although Diaz complied, she then turned her body away from Montalvo "as if she was trying to conceal something." Her back was now toward Montalvo. The defendant’s conduct during the vehicle stop changed once Small was told to exit the vehicle. As a result of the defendant’s actions inside the vehicle, which occurred while Small was being "pat down" for weapons by Officer Taylor, Montalvo became concerned for his safety and that of Officer Taylor. He told Diaz to exit the vehicle. Montalvo was concerned Diaz could be in possession of a weapon on her person, and also wanted to ensure that no weapons were present in the vehicle that could jeopardize the officers’ safety.
Montalvo opened the passenger door to afford the defendant egress from the vehicle, initially intending to conduct a weapons "pat down" of her person. As he did so, Montalvo observed in plain view a small black purse. The observation was made without touching or manipulating the purse or anything in the vehicle. The purse was unzippered and Montalvo was able to view its contents in plain view. The purse was located on the passenger side "door handle," which would have been located inferentially near the defendant’s right leg as she was seated in the vehicle. Montalvo saw within the purse, in plain view, and without manipulating the purse, a plastic wrap tied in a knot containing a "white rock substance." Based on his training and experience, Montalvo immediately recognized the substance to be suspected crack cocaine.
Montalvo then directed the defendant to the rear of the BMW to conduct the weapons "pat down" of her person. Having located suspected contraband in an area within the dominion and control of the defendant, Montalvo conducted the "pat down" of the defendant using the back of his hand. Near the area of her "crotch," Montalvo felt a hard "foreign" object. Montalvo asked the defendant what the hard object was, and she said "nothing," and thereupon offered nothing else about it. Montalvo summoned a female police officer who later completed the "pat down" search, and subsequently discovered the "hard object" to be a loaded Titan .25 caliber pistol. The female officer was requested approximately 5:45 p.m. Approximately five minutes had elapsed from the time of the initial stop of the vehicle to Montalvo’s request that Diaz exit the vehicle. The firearm and suspected narcotics were seized, but the purse itself was not. The K-9 officer was either dispatched or arrived at 5:58 p.m., which was in either case after the suspected narcotics were observed in the vehicle, and after the defendant was already under arrest. The vehicle in which the defendant was a passenger, a Grey 2013 BMW, was registered in the name of Daryl Small. On May 23, 2017, the defendant and Small were not married but were residing together at a residence in East Haven. The defendant "utilized" the BMW, but acknowledged that Small "sometimes" drove it. The defendant primarily used the car. The evidence did not further describe the...
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