State v. Glenn

• Decision Date: 06 April 1993
• Docket Number: No. 11031,11031
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Clarence GLENN.

Page 1024

622 A.2d 1024

30 Conn.App. 783

STATE of Connecticut v. Clarence GLENN.

No. 11031.

Appellate Court of Connecticut.

Argued Jan. 19, 1993.

Decided April 6, 1993.

Sheila M. Berger, Asst. Public Defender, for appellant (defendant).

John A. East III, Deputy Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Eva B. Lenczewski, Asst. State's Atty., for appellee (state).

Before DALY, FOTI and LAVERY, JJ.

DALY, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). ¹ The defendant claims on appeal that the trial court improperly (1) denied his motion to suppress and (2) denied his motion for judgment of acquittal.

On August 8, 1990, the defendant was arrested for selling narcotics. ² Prior to trial, the defendant moved to suppress evidence of the cocaine retrieved from his tractor trailer. The trial court denied his motion to suppress and the trial proceeded. At the close of the state's case-in-chief, the defense moved for judgment of acquittal. After the trial court denied the defendant's motion, the defense presented its case. Following his conviction for possessing narcotics with intent to sell, the defendant was sentenced to a term of ten years, execution suspended after five years, with five years probation. Further facts are set forth below as necessary.

I

The defendant claims that his motion to suppress the narcotics should have been granted because the warrantless search of the tractor trailer did not fall within any of the exceptions to the warrant requirement and, as such, his rights under the fourth and fourteenth amendments to the United States constitution were violated. ³ We disagree.

"The Fourth Amendment to the United States constitution protects the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.' Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. '[A] search conducted without a warrant issued upon probable cause is "per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." ' Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971)...." (Citations omitted.) State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986).

The trial court denied the defendant's motion to suppress after determining that the state satisfied its burden of proving that the search was valid under two exceptions to the warrant requirement. ⁴ The trial court determined that the search was legal pursuant to the motor vehicle exception to the warrant requirement, which allows evidence found in a vehicle to come into evidence "where there is probable cause to believe that a motor vehicle contained contraband or evidence pertaining to a crime; United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979)...." (Citations omitted.) State v. Badgett, supra, 200 Conn. at 424, 512 A.2d 160. ⁵ We find that the motor vehicle exception applies to this case and is dispositive of this issue.

The following facts are relevant to the motion to suppress. On August 8, 1990, at approximately 3 p.m., the Waterbury police department's tactical narcotics team set up a surveillance operation in the vicinity of North Square Park, a notorious drug trafficking area in Waterbury. The team utilized 452 1/2 North Main Street, a public parking lot, for the surveillance because it provided an unobstructed view of the surrounding area. Detective Nicholas DeMatteis had been conducting the surveillance for approximately thirty minutes from an unmarked white van designed for surveillance when he observed what appeared to be a drug transaction between the defendant and a male subsequently identified as Willie Shears.

The defendant had been selling watermelons from the rear of his tractor trailer, which was parked close to the curb along North Main Street. The tractor trailer was owned by the defendant and his name was printed on it. At the time of the surveillance, the trailer's right rear door was open and the left door was closed. DeMatteis saw Shears pass money to the defendant who then entered the trailer by climbing a step ladder he had placed against the trailer. When the defendant emerged from the inside of the trailer, he handed something small to Shears. As he left the defendant, Shears walked past the surveillance van and DeMatteis observed small clear plastic bags in Shears' hand. From his observations and experience, DeMatteis believed that these bags contained crack cocaine.

After receiving a radio communication from DeMatteis explaining what he had observed, Sergeant Nicholas Guerriero and other members of the Waterbury police department ⁶ arrested Shears after a brief chase. Their search of Shears yielded three small, clear plastic bags containing crack cocaine valued at $20 per bag.

The officers then proceeded to the parking lot where the defendant was under surveillance. The defendant was arrested for selling narcotics. At the time of his arrest, the defendant was standing at the rear of the tractor trailer near the ladder leading into the trailer portion of the vehicle. The defendant carried $401 in currency and $100 worth of food stamps on his person when he was arrested.

After the defendant was arrested, Guerriero mounted the step ladder leading into the open right hand door at the rear of the trailer and peered into the trailer. There were watermelons, magazines and straw in the trailer. Guerriero also observed a black pouch approximately one foot behind the closed, left door of the trailer. The black pouch is consistent with the type of containers in which dealers store their narcotics. A search of the black pouch produced thirty-two plastic bags containing a rock like substance that was subsequently determined to be crack cocaine, plus six plastic bags containing a white powder that was determined to be salt form cocaine. No other individuals were observed at the scene during the surveillance. The trial court considered the tractor trailer to be capable of being operated.

The trial court determined that the warrantless search was justified under the automobile exception. "The justification for this ... exception is twofold: (1) the inherent mobility of an automobile creates exigent circumstances; and (2) the expectation of privacy with respect to one's [vehicle] is significantly less than relating to one's home or office. California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985)...." (Citations omitted; internal quotation marks omitted.) State v. Badgett, supra, 200 Conn. at 428, 512 A.2d 160.

As to the first criterion, the trial court found that the tractor trailer was a vehicle and was capable of being moved readily. At the time of the search, the tractor trailer was fully operable and inherently mobile since the dolly wheels were easily retractable. The trailer was parked in an unfenced, open parking lot less than ten feet from the street. Testimony before the court established that when the tractor trailer was taken into custody and towed to the area where it was secured, the tractor trailer had to be operated to park it in the secure lot. Thus, the trial court properly concluded that the inherent mobility of the tractor trailer created exigent circumstances to justify the search. State v. Quinones, 21 Conn.App. 506, 510, 574 A.2d 1308, cert. denied, 215 Conn. 816, 576 A.2d 546 (1990).

"The absence of probable cause, despite the exigency created by the ready mobility of automobiles and the lesser expectation of privacy in them, will render any warrantless search unreasonable." State v. Badgett, supra, 200 Conn. at 429, 512 A.2d 160. "This exception to the warrant requirement demands that the officers have probable cause to believe that the vehicle contains contraband. Carroll v. United States, [267 U.S. 132, 153-54, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ]. The probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made. United States v. Ross, supra, [456 U.S. at] 808, ." State v. Badgett, supra.

The trial court found that probable cause existed for the officers to believe that the tractor trailer and the black pouch contained contraband. We agree. The police had probable cause to search the trailer and the pouch because they had reason to believe that narcotics were present in the trailer given the transaction between the defendant and Shears during which the defendant entered the trailer to retrieve the small items he handed to Shears. Those small items were determined to be three small plastic bags containing crack cocaine when they were found on Shears' person directly following the exchange. Moreover, no narcotics were found on the defendant when he was arrested. On the basis of the officers' observations, training and experience, there was probable cause to believe that the trailer contained the packets of narcotics. Immediately after he peered inside the trailer, Guerriero noticed the black pouch, which he recognized as the type of container in which dealers store their narcotics. Thus, the warrantless search of the trailer and the black pouch was justified. State v. Quinones, supra. Because the applicability of this exception is dispositive, we will not reach the trial court's other...