State v. Escobales
| Decision Date | 20 September 1988 |
| Docket Number | No. 6183,6183 |
| Citation | 16 Conn.App. 272,547 A.2d 553 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Norberto ESCOBALES. |
Richard Emanuel, Bridgeport, for appellant (defendant).
Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., Gerard Eisenman, Asst. State's Atty., and Nancy A. Freedman, Law Student Intern, for appellee (State).
Before DALY, EDWARD Y. O'CONNELL and STOUGHTON, JJ.
The defendant appeals from the judgment of conviction rendered after he had entered a conditional plea of nolo contendere to a charge of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277(a). He claims that the trial court erred (1) in denying his motion to suppress certain evidence allegedly obtained beyond the permissible scope of a frisk following a noncustodial traffic stop, and (2) in refusing to order the production of the cocaine and the paper bag container seized from under his shirt. We find no error.
The factual situation is not in dispute. On July 22, 1986, at approximately 11 p.m Bridgeport police officers Jesus Ortiz and Philomena Lula were patrolling the north end of the city when they observed a motorcycle go through a stop sign on Noble Avenue. As they proceeded to follow the motorcycle, which was being operated erratically, the officers noticed that a tail light was out. After it proceeded through another stop sign, the officers decided to stop the motorcycle on the basis of the motor vehicle violations they had observed. The stop was made on River Street, eight to ten blocks from where the officers' original observations were made. The defendant began to speed away when the strobe lights of the patrol car were turned on. Upon approaching a busy intersection, however, the driver changed his mind and stopped.
As the operator got off the motorcycle, the officers observed him stuff something into his pants under his shirt. Ortiz, an officer with nine months experience in patrolling this particular area of the city, which is a high crime area known for drug activity, believed that the defendant had just stuffed a gun in his pants. He proceeded cautiously toward the defendant with his hand on his holstered gun. Lula, also under the belief that the defendant had hidden a weapon, approached the defendant from behind with her hand on her holstered gun. Ortiz questioned the defendant as to what he had stuffed under his shirt and the defendant made no reply. At this point, Lula reached into the defendant's shirt and pulled out a crumpled brown bag. As Lula seized the bag, the defendant blurted out,
The paper bag was crumpled and approximately five to six inches long. Lula opened the bag, looked inside and discovered two rocks, approximately two to four inches in size, apparently of cocaine. The rocks were not round or heavy. The defendant was thereafter patted down and arrested for possession of a narcotics substance with intent to sell; two counts of stop sign violations in violation of General Statutes § 14-301(c); operating with a defective tail light in violation of General Statutes § 14-96a; and misuse of plates in violation of General Statutes § 14-147.
Although a state toxicologist confirmed that the substance in the paper bag was cocaine, the bag and the cocaine were not introduced at the hearing.
In his first claim of error, the defendant argues that the police exceeded the right to frisk since they should have conducted a pat down before seizing the bag and its contents. Moreover, the defendant argues that even if the officer lawfully seized the bag and its contents, she should have felt it before opening it to ascertain whether it held a weapon. The defendant, in his argument, does not contest the police stop. He focuses on the intrusion by the officer. We find the defendant's argument unpersuasive.
Since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), courts have held that a police officer is justified in stopping a person for a reasonable time and in patting down the person as long as the officer has reason to believe that the person is armed and dangerous. In Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), the United States Supreme Court held that it recognized In Williams, the officer had received a tip from an informer that the defendant, who was seated in a nearby car, was carrying narcotics and had a gun at his waist. The officer had approached the car and asked the defendant to open the door. When the defendant rolled down his window, the officer reached into the car and removed a gun from the defendant's waistband. The court ruled that "[u]nder these circumstances the policeman's action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable." Id., 148. " " United States v. Wilkerson, 598 F.2d 621, 625 (D.C.Cir.1978).
This case is similar to Williams in that the officer reached right for the bulky object believed to be a gun. Lula, however, was proceeding on her own knowledge and skill as a police officer coupled with the actions of the defendant which she directly observed rather than relying on an informant's tip. The purpose of a limited search is to allow the police to pursue their investigation without fear of violence. Here, Lula made a limited protective...
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