State v. Hammond

• Citation: 257 Conn. 610,778 A.2d 108
• Parties: (Conn. 2001) STATE OF CONNECTICUT v. TOMMY HAMMOND SC 16424
• Decision Date: 21 August 2001
• Court: Supreme Court of Connecticut

778 A.2d 108 (Conn. 2001)

STATE OF CONNECTICUT v. TOMMY HAMMOND

SC 16424

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued May 30, 2001

August 21, 2001

Counsel: Elizabeth M. Inkster, senior assistant public defender, with whom was Michael S. Alevy, assistant public defender, for the appellant (defendant).

Robert M. Spector, deputy assistant state's attorney, with whom were Elizabeth Bodine, assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, for the appellee (state).

Sullivan, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.

Opinion

Katz, J.

The dispositive issue in this certified appeal is whether the investigatory stop of the defendant, Tommy Hammond, by police violated his rights under the fourth amendment to the United States constitution.¹ After reviewing in the aggregate the trial court's findings, which are not challenged, we conclude that the police did not have the requisite reasonable suspicion before stopping the defendant. Consequently, the evidence recovered as a direct consequence of that unlawful stop should have been suppressed.

The record discloses the following procedural history. The defendant was charged with one count each of possession of cocaine and possession of heroin in violation of General Statutes § 21a-279 (a), ² one count of possession of heroin with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), ³ and one count of possession of heroin with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). ⁴ Following his plea of not guilty, the defendant moved to suppress the narcotics that had been seized from his person and to dismiss the charges, claiming that they were the poisonous fruit of an illegal stop and that, without the illegally seized evidence, there was no basis upon which to continue the prosecution. See General Statutes § 5456. ⁵ Following an evidentiary hearing, the trial court, Schimelman J., denied the motions.

Thereafter, the defendant's case was tried to a jury, which convicted him of all the charges, with the exception of the one count charging him with § 21a-278 (b), on which the jury returned a verdict of guilty on the lesser included offense of possession of heroin with intent to sell in violation of General Statutes § 21a-277 (a). ⁶ The trial court imposed a total effective sentence of fifteen years consecutive to a previously imposed sentence the defendant was then serving. ⁷

The defendant thereafter appealed from the judgment of conviction to the Appellate Court, claiming that the trial court's denial of his motion to suppress was improper because the investigatory stop violated his fourth amendment rights. The defendant also claimed that the trial court had improperly failed to merge his two separate narcotics convictions for possession of heroin and cocaine under § 21-279 (a) despite the fact that the convictions arose out of the same incident. ⁸ The Appellate Court affirmed the defendant's convictions; State v. Hammond, 60 Conn. App. 321, 759 A.2d 133 (2000); and this court granted the defendant's petition for certification to appeal, limited to the following questions: ''(1) Did the Appellate Court properly conclude that the defendant was not illegally seized in violation of the fourth amendment to the United States constitution?''; and ''(2) Did the Appellate Court properly conclude that the defendant's two convictions for possession of narcotics in violation of General Statutes § 21a-279 (a) did not violate the federal and state prohibitions against double jeopardy?'' State v. Hammond, 255 Conn. 907, 762 A.2d 911 (2000). We agree with the defendant's first claim and, therefore, do not address the second certified question. ⁹

The record discloses the following facts as found by the trial court. On February 12, 1997, a telephone call was made to the New Haven police substation, located at 26 Charles Street, from an anonymous source complaining of drug sales on the steps of Varick Church, located at 246 Dixwell Avenue, at the intersection of Charles Street and Dixwell Avenue in New Haven, one block from the police station. Herman Badger, the police sergeant who received the telephone call, did not recognize the caller's voice and could not recall whether the caller was male or female. Badger believed that the caller was excited and upset. The caller indicated only that the two subjects in question were black males of differing heights and gave only a partial clothing description, namely, that one of the subjects wore a blue and white coat, and the other wore a blue and red coat. The church was in an area known for previous drug sales. Badger contacted Officer Richard Zasciurinskas, who was in his marked patrol car, and instructed him to proceed to the church. Badger and Officer Samuel Bagley, both in full uniform, then left the substation on foot and headed toward the church. At the corner of Charles Street and Dixwell Avenue, they observed two subjects who matched the description the caller had given, but neither officer noticed any conduct indicative of narcotics-related activity. As the officers reached the intersection, the subjects under observation, who were approximately twenty to thirty feet from the officers, turned and walked across Dixwell Avenue to the east side of the street and began to walk northbound. Badger radioed Zasciurinskas to stop the subjects. Zasciurinskas, in response, proceeded down Dixwell Avenue in a southerly direction and pulled his marked patrol car across the northbound lane of traffic, onto the sidewalk, in front of the subjects, who then turned around and began walking in a southerly direction on Dixwell Avenue, toward Bagley and Badger. Zasciurinskas then yelled to the men to stop. The three officers surrounded the subjects, and only then did Zasciurinskas observe one of the subjects, later identified as the defendant, drop a bundle to the ground. Pursuant to Badger's instructions, the subjects were placed in a police vehicle and transported to the police substation on Charles Street. There the contents of one of the nine envelopes contained in the seized bundle tested positive for narcotics and the defendant formally was placed under arrest. A search of the defendant's person incident to his arrest resulted in the seizure of one plastic bag containing cocaine and approximately $1100 in cash. The defendant told the police that the cocaine was for his own personal use.

On the basis of these facts, the trial court determined that the defendant had been ''seized for [the] purpose of investigative detention at some point before he discarded the contraband in question,'' and that the police officers had effected a valid stop under Terry v. Ohio, 392 U.S. 1, 21±n22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), because the officers' observations of the subjects on the sidewalk, in the vicinity of the church, sufficiently corroborated the details of the anonymous tip. Additionally, the trial court concluded that the defendant's act of turning and walking away from the officers, in a high crime area known for narcotics trafficking, provided additional support for the validity of the stop.

The defendant does not challenge the trial court's factual findings. Rather, he challenges the legal conclusion that the stop and detention effectuated in this case was supported by a reasonable and articulable suspicion, a determination that is subject to plenary review. See State v. Geisler, 222 Conn. 672, 694±n95 n.15, 610 A.2d 1225 (1992). The scope of that inquiry is well settled. ''Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . The police officer's decision . . . must be based on more than a hunch or speculation. . . . In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'' (Internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 224±n25, 673 A.2d 1098 (1996).

In the context of an anonymous tip, as in this case, a ''totality of the circumstances'' test is used, requiring independent police investigation to corroborate details because ''[u]nlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U.S. 143, [146±n47, 92 S. Ct. 1921, 32 L. Ed. 2d 612] (1972), 'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity,' Alabama v. White, [496 U.S. 325, 329, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)]. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.' Id., [327].'' Florida v. J. L., 529 U.S. 266, 270, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).

Therefore, the question we confront in the present case, as the Supreme Court did in Florida v. J. L., supra, 529 U.S. 270, is whether the tip implicating the defendant had sufficient indicia of reliability. Two cases dominate this analysis. The first is Alabama v. White, supra, 496 U.S. 325, in which the United States Supreme Court examined both the extent to which police were able to corroborate the details disclosed in the tip and the predictive nature of those details. In discussing the nature of the anonymous tip, the court was careful to point out all of the details that it contained, emphasizing, in particular, the critical importance of the tipster's ability to predict the suspect's future behavior. Id., 331±n 32. The court noted therein that, when the police...