State v. Graves
| Decision Date | 09 June 2009 |
| Docket Number | No. 29905.,29905. |
| Citation | 114 Conn.App. 852,971 A.2d 723 |
| Parties | STATE of Connecticut v. Kenneth A. GRAVES. |
| Court | Connecticut Court of Appeals |
and Peter A. McShane, supervisory assistant state's attorney, for the appellee (state).
FLYNN, C.J., and GRUENDEL and PETERS, Js.
The defendant, Kenneth A. Graves, appeals from the judgment of conviction, rendered following a jury trial, of reckless driving in violation of General Statutes § 14-222, failure to bring a motor vehicle to a full stop when signalled in violation of General Statutes § 14-223(b), reckless endangerment in the first degree in violation of General Statutes § 53a-63, interfering with an officer in violation of General Statutes § 53a-167a and possession of four ounces or more of a cannabis-type substance in violation of General Statutes § 21a-279(b). On appeal, the defendant claims that the trial court improperly denied his pretrial motion to suppress evidence of a brown paper bag containing marijuana because it improperly (1) determined that a police officer was in "hot pursuit" of the defendant and therefore did not need a warrant to conduct a search, (2) concluded that the officer, a municipal police officer from Rhode Island, was permitted to conduct police activities in Connecticut and (3) failed to hold that the officer's search of an open field, which revealed the bag, was illegal because of the officer's out-of-state status and because no exigent circumstances were present. We affirm the judgment of the trial court.
The record reveals the following facts, which are necessary for our resolution of the defendant's appeal. On November 20, 2005, Officer David Whewell, a Rhode Island police officer trained in narcotics detection and highway drug interdiction, was on patrol in Hopkinton, Rhode Island. At approximately 10:10 a.m., Whewell observed a red 1991 Acura Legend traveling at a speed of forty miles per hour in a twenty-five mile per hour zone. Whewell proceeded to follow the vehicle, which subsequently increased its speed and eventually went onto a dirt road in a wooded area of a park that was not visible from the roadway. The park was approximately seven-tenths of one mile from the Connecticut border. When the Acura stopped on the dirt road, Whewell parked and approached the driver's side of the vehicle.
Whewell asked the defendant, the driver and sole occupant of the vehicle, for his license, registration and proof of insurance. After the defendant had produced his license, which was issued by the state of Connecticut, Whewell inquired as to why the defendant had attempted to elude him. The defendant did not respond. The officer then asked the defendant why he had driven into the wooded area of the park. The defendant stated that he was attempting to turn his vehicle around. As the defendant reached into the vehicle's glove compartment to obtain his registration and insurance information, Whewell, for his own safety, moved to the passenger side of the vehicle.
From his vantage point on the passenger side of the vehicle, Whewell observed a large, brown paper bag on the front passenger seat. The officer noted that the bag was new, folded and creased and without stain or soil. When the defendant had located his paperwork, Whewell asked him to lower his passenger side window so that he could pass the documentation out. The defendant lowered the window only a little way, arousing the officer's suspicion. Whewell asked the defendant again to lower the window so that he could access the documentation. When the window was lowered more fully, the officer detected the odor of raw or bulk marijuana emanating from the vehicle. Whewell inquired as to the contents of the bag, and the defendant responded that it contained his lunch. The defendant eventually provided a Connecticut registration for the vehicle but offered no insurance card.
With the defendant's license and registration in hand, Whewell returned to his police cruiser to call in the vehicle stop and log it into the cruiser's computer. As Whewell radioed the police dispatcher, the defendant sped away in his vehicle, heading toward the Connecticut state line. Whewell pursued the defendant with his lights and sirens operating, notified the police dispatcher of his pursuit and asked that the Connecticut state police be notified. Although Whewell eventually caught up to the defendant in Rhode Island, the defendant did not stop but, instead, continued into Connecticut. The defendant's speed reached ninety miles per hour at times, as he ignored stop signs and passed a truck in a no passing zone.
The defendant proceeded into North Stonington. While traveling on Clarks Falls Road near Route 198, Whewell lost sight of the defendant's car at a bend in the road. Whewell regained sight of the defendant's vehicle only to lose it once more for the final time at a point between Boombridge Road and Route 49. Whewell was joined by two additional Rhode Island police officers, one of whom was familiar with the defendant and knew the location of his residence in North Stonington. The officers proceeded immediately to the defendant's residence, parked and awaited the arrival of Connecticut authorities. At approximately 10:25 a.m., Trooper William Bowyer of the Connecticut state police arrived on the scene. After briefing Bowyer on the situation, Whewell and the other two officers walked with Bowyer up the defendant's driveway. Behind the house, and not visible from the road, was the red Acura that had been driven by the defendant. The defendant was not present, and the brown paper bag was no longer on the front seat.
In an area located between the defendant's vehicle and the house, Whewell found a pager. The officers requested a Connecticut state police canine unit, which subsequently tracked the defendant's scent from the vehicle to the pager and then to the house. A female resident of the house refused Bowyer's request for consent to search the residence for the defendant. Whewell left the defendant's residence at approximately 11:02 a.m. and retraced the entire route on which he had pursued the defendant in an attempt to locate the brown paper bag. At approximately 11:12 a.m., in the area of 198 Clarks Falls Road, Whewell located the bag in an open field, near some trees and bushes. The location corresponded with the place where the officer had lost sight of the defendant's car during the chase. The bag was identical to the one Whewell had seen previously on the defendant's front seat and was plainly visible from the road.
An inspection of the paper bag revealed a plastic bag containing a green, leafy substance that emitted the odor of marijuana. Subsequent laboratory analysis confirmed that the substance was marijuana, in a volume of approximately twelve ounces. Whewell turned over the bag to Connecticut authorities. The only discernible fingerprint found on the paper bag belonged to the Connecticut state trooper who had secured the evidence.
The defendant was arrested and, by substitute information, charged with reckless driving, failure to bring a motor vehicle to a full stop when signalled, reckless endangerment in the first degree, interfering with an officer, possession of more than four ounces of a cannabis-type substance and possession of marijuana with intent to sell. Prior to trial, the defendant filed a motion to suppress evidence of the brown paper bag and its contents. A hearing on the motion to suppress was held on February 26, 2008. The court issued a memorandum of decision following the hearing in which it denied the motion. The court held that Whewell had a reasonable and articulable suspicion to stop the defendant's vehicle based on his observance of the defendant's driving in excess of the speed limit, increasing his rate of speed after Whewell began to pursue him and driving off the road into a location that was not visible from the road.
The court determined that Whewell's extrajurisdictional entrance into Connecticut was justified because he was in "hot pursuit" of the defendant at the time. Whewell's search of the defendant's property after losing sight of the defendant was justified also by the officer's hot pursuit, as the court found that the amount of time between the officer's losing the defendant and the beginning of the search of the property could not have exceeded five minutes. Finally, the court held that although Whewell's search of the area that resulted in his finding the brown paper bag was not covered by the hot pursuit exception to the warrant requirement of the fourth amendment to the federal constitution, it was constitutionally permissible nonetheless, as the area was an open field in which the defendant had no reasonable expectation of privacy.
Following a jury trial, the defendant was found guilty on all counts of the information except the charge of possession of marijuana with intent to sell. The court sentenced the defendant to a total effective term of two years imprisonment, execution suspended after six months, to be followed by two years probation. This appeal followed.
Before proceeding to the defendant's claims on appeal, we note the standard of review guiding our analysis of all of them. (Internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955...
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