State v. Foote

• Decision Date: 05 October 2004
• Docket Number: (AC 23712).
• Citation: 85 Conn. App. 356,857 A.2d 406
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. STANLEY FOOTE.

85 Conn. App. 356

857 A.2d 406

STATE OF CONNECTICUT v. STANLEY FOOTE.

(AC 23712).

Appellate Court of Connecticut.

Argued June 8, 2004.

Officially released October 5, 2004.

Flynn, Bishop and DiPentima, Js.

David B. Bachman, for the appellant (defendant).

Christine Collyer, special deputy assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Francis J. McQuade, supervisory assistant state's attorney, for the appellee (state).

Opinion

DIPENTIMA, J.

The defendant, Stanley Foote, entered a conditional plea of nolo contendere to the charge of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). He appeals from the judgment of conviction on that charge pursuant to General Statutes § 54-94a, claiming that the trial court improperly denied his motion to suppress because it incorrectly (1) concluded that he was not seized illegally by the police and (2) determined that he consented to the search of the vehicle he was driving. We disagree and affirm the judgment of the trial court.

In its ruling on the defendant's motion to suppress, the court found the following facts. At around midnight on November 18, 2000, while conducting his routine patrol southbound on Route 8, Trooper Matt Comeau of the state police noticed a disabled vehicle on the northbound shoulder of the highway near exit nineteen. Comeau continued his patrol, turning around at exit eleven in Trumbull. As he returned northbound on Route 8, he observed the same disabled vehicle on the shoulder of the highway with its hazard lights on and people standing outside of it. Comeau activated his overhead lights for safety reasons and pulled onto the shoulder in order to see whether assistance was needed. As he approached, he observed the driver and two passengers get into the vehicle. The defendant then started the vehicle and attempted to drive away; however, the vehicle bucked and came to a halt.

Comeau pulled in behind the vehicle and, to provide safety and to light up the scene, he activated his police cruiser's spotlight. The defendant, who was the driver, exited the vehicle and walked toward the back of the car. Comeau told him to return to his vehicle because it was unsafe for him to be walking on the shoulder so close to the travel lane. As the defendant returned to his vehicle, he threw his keys onto the roof of the vehicle. Comeau observed the passenger seated in the front seat of the vehicle rocking forward and from side to side. Comeau radioed his troop and requested a license plate check on the vehicle. The check indicated that the license plate matched the vehicle. The defendant again exited his vehicle and walked toward the rear of the car. Comeau yelled to the defendant to get back into his vehicle. The defendant gestured with his hands and then advanced toward Comeau. Comeau observed that the defendant, who was taller and bigger than Comeau, was sweating and appeared to be nervous or confused. The defendant returned to his vehicle.

Comeau radioed for backup and, shortly thereafter, two Seymour police officers and a state trooper arrived on the scene. Once the backup arrived, Comeau approached the defendant's vehicle, asked the defendant what was wrong with the car and requested the defendant's license and registration. The defendant said that he had left his license at home. He could not produce the registration. Comeau learned that the defendant and his passengers were coming from Bridgeport and going to Waterbury and that they had run out of gasoline. The defendant told Comeau that they had just filled up their tank with gasoline obtained from across the highway. Comeau noticed a gasoline container in the back seat of the vehicle.

Comeau asked the defendant to exit the car and walk to the rear of the vehicle. Comeau patted the defendant down but found nothing. He then asked the defendant if there was anything in the car and whether he could search it. According to Comeau and Trooper Steven Ruspis, who observed and heard the conversation between the defendant and Comeau, the defendant non-chalantly responded that Comeau could search the car. During the encounter, the troopers and police officers did not raise their voices, threaten anyone or have their service weapons drawn. Although there was a police dog present at the scene, it was not used to menace or frighten anyone.

Comeau searched the interior of the vehicle and discovered two brown packages. He noticed that the packages smelled like mustard. The contents of the packages tested positive for the presence of cocaine.

On November 13, 2002, the defendant entered a conditional plea of nolo contendere as to the count charging him with possession of cocaine with intent to sell by a person who is not drug-dependant, reserving his right to appeal to challenge the denial of his motion to suppress. The state nolled the remaining charges against him. The court sentenced the defendant to eight years incarceration and five years special parole. This appeal followed.

Our standard of review in connection with the court's denial of a motion to suppress is well settled. "Upon review of a trial court's denial of a motion to suppress, [t]he court's conclusions will not be disturbed unless they are legally and logically inconsistent with the facts.. . . [W]e will reverse the trial court's ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court's ruling." (Citation omitted; internal quotation marks omitted.) State v. Salmon, 66 Conn. App. 131, 135, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002).

I

The defendant first claims that he was unlawfully seized by the police. Specifically, he argues that when he was seized, the police did not have a reasonable and articulable suspicion of criminal activity. We are not persuaded.

A

We must first determine the point at which the encounter between the police and the defendant constituted a seizure. The court, the state and the defendant all disagree as to the timing of the seizure. The defendant asserts that the seizure occurred at the moment that Comeau turned on his spotlight after pulling his cruiser behind the defendant's vehicle. The state asserts that the seizure occurred at the time of the patdown of the defendant. The court concluded that the seizure occurred when the additional officers arrived on the scene. We agree with the court.

The Connecticut constitution offers more protection from unreasonable search and seizure than does its federal counterpart. See State v. Wilkins, 240 Conn. 489, 505, 692 A.2d 1233 (1997). Our review of a court's determination of when a seizure occurred is well settled. "Under our state constitution, a person is seized only if in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." (Internal quotation marks omitted.) State v. James, 237 Conn. 390, 404, 678 A.2d 1338 (1996).

The court held that Comeau initially engaged the defendant in his community caretaking capacity. We agree. In Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), the United States Supreme Court stated that "[l]ocal police officers, unlike federal officers, frequently . . . engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." See also State v. Bernier, 46 Conn. App. 350, 368, 700 A.2d 680 (1997), rev'd on other grounds, 246 Conn. 63, 717 A.2d 652 (1998). Assisting motorists is one such function that police officers commonly perform. Because Comeau's initial encounter with the defendant was to assist him, we reject the defendant's argument that Comeau's conduct constituted an illegal seizure. The court properly concluded that from the time Comeau first approached the vehicle until the backup officers arrived. Comeau was not engaged in an investigatory stop of criminal activity, but rather was acting in accordance with his community caretaking function.

The court further concluded that the encounter became a seizure when the backup officers arrived at the scene. We agree. "What starts out as a consensual encounter becomes a seizure if, on the basis of a show of...