State v. Hammond

• Decision Date: 10 October 2000
• Citation: 60 Conn. App. 321,759 A.2d 133
• Court: Connecticut Court of Appeals
• Parties: (Conn.App. 2000) STATE OF CONNECTICUT v. TOMMY HAMMOND AC 18702

759 A.2d 133 (Conn.App. 2000)

STATE OF CONNECTICUT v. TOMMY HAMMOND

AC 18702

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 24, 2000

October 10, 2000

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

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

Lavery, Zarella and Spallone, Js.¹

Zarella, J.

OPINION

The defendant, Tommy Hammond, appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine in violation of General Statutes §§ 21a-279 (a),² possession of heroin in violation of §§ 21a-279 (a), possession of heroin with intent to sell in violation of General Statutes §§ 21a-278 (b)³ and possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes §§ 21a-278a (b).⁴ On appeal, the defendant claims that (1) the trial court improperly denied his motion to suppress certain evidence seized as a result of a warrantless search and seizure that he claims was made without probable cause and (2) his conviction of two counts of possession of narcotics, both of which arose out of the same transaction, violates federal and state proscriptions against double jeopardy. We affirm the judgment of the trial court.

The court found the following facts from the evidence adduced at the suppression hearing. On February 12, 1997, at approximately noon, Sergeant Herman Badger of the New Haven police department received an anonymous telephone call from a citizen complaining about a drug transaction taking place on the steps of a church at 246 Dixwell Avenue. Badger was stationed at the police substation on Charles Street around the corner from the church when he received the call. The caller indicated that two black males, one taller than the other, were selling drugs. The caller also described the color of the jackets that the two individuals were wearing. The caller was excited and upset by the fact that drug dealing was occurring on the church steps. Badger was familiar with the area and testified that it was an area known for frequent drug transactions.

Badger contacted Officer Richard Zasciurinskas by radio and dispatched him in his patrol car to the area of the church to look for the suspects described in the anonymous tip. At the time that Zasciurinskas was dispatched, he was a very short distance from the area in a marked patrol car. Badger, accompanied by Officer Samuel Bagley, left the substation and walked approximately 100 to 200 feet to the intersection of Charles Street and Dixwell Avenue. All three officers were in full uniform. Just prior to reaching the intersection, Badger and Bagley observed two black males standing in front of the church. One male was taller than the other, and their jackets matched the description given by the caller. The officers did not observe any conduct indicating that a drug transaction was taking place. The two men, however, fled when they saw the officers approach.

The two men walked across Dixwell Avenue and proceeded north, away from the officers. Badger radioed Zasciurinskas and ordered him to stop the two individuals. Badger and Bagley then proceeded across Dixwell Avenue and followed the two men at a distance of approximately thirty to fifty feet. Zasciurinskas, who was traveling south on Dixwell Avenue, drove his car across the northbound lane of traffic in front of the suspects and partially blocked traffic. As Zasciurinskas exited his vehicle, the two suspects reacted by turning and proceeding south on Dixwell Avenue. Zasciurinskas yelled to them to stop. Zasciurinskas then observed one of them drop a bundle on the ground.

Zasciurinskas picked up the bundle, which consisted of nine glassine envelopes. On the basis of his almost twenty years of police experience, Zasciurinskas determined that the bags contained a possible narcotic substance. Badger and Bagley were about eight to ten feet from the two suspects, and Zasciurinskas was about ten to fifteen feet on the other side them.

The two men were detained by Badger and Bagley, and transported to the police substation. There, the contents of one of the nine envelopes tested positive for the presence of heroin. The defendant was placed under arrest. A search of the defendant incident to the arrest revealed a single plastic bag containing a white powder also believed to be a narcotic substance. At the substation, the defendant indicated that the single bag of cocaine was for his personal use.

The defendant pleaded not guilty to a four count substitute information charging him with possession of narcotics (cocaine) in violation of §§ 21a-279 (a) in count one, possession of narcotics (heroin) pursuant to §§21a-279 (a) in count two, possession of narcotics (heroin) with intent to sell by a person who is not drug-dependent pursuant to §§ 21a-278 (b) in count three and possession of narcotics (heroin) with intent to sell within 1500 feet of a school pursuant to §§ 21a-278a (b) in count four. The jury found the defendant guilty on counts one, two and four. The jury returned a verdict of not guilty on count three, but guilty to the lesser included offense of possession of narcotics (heroin) with intent to sell pursuant to §§ 21a-277 (a). The court sentenced the defendant to serve a term of four years incarceration on the first count. The court merged the second count with the third count and sentenced the defendant on the third count to a term of twelve years to be served concurrently with the term imposed on the first count. The court also sentenced the defendant to serve a term of three years on the fourth count to run consecutive to the sentences imposed on all other counts. Thus, the court imposed a total effective sentence of fifteen years.

I.

The defendant claims first that he was illegally seized on the basis of an anonymous tip received by the police because the tip lacked the requisite reliability to give rise to a reasonable and articulable suspicion. We disagree.

In justifying the seizure of a suspect, 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." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). "The police officer's decision... must be based on more than hunch or speculation." State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991).

To determine whether the police had a reasonable suspicion that warranted the seizure of the defendant, we look to the totality of the circumstances surrounding the police action. State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987). In the present case, the anonymous tip was telephoned to Badger, who was one of the arresting officers. Badger determined that the caller was excited by and upset that a drug transaction allegedly had taken place on the steps of the church. The informant gave the relative heights of the two individuals who had engaged in the alleged drug transaction, described the colors of the coats the two individuals were wearing, and gave their location and indicated their race. Every aspect of the tip, with the exception of the fact that the two men were on the sidewalk in front of the church instead of on its steps, was verified by Badger and Bagley when they left the substation immediately after the call and proceeded the short distance to the scene.

The defendant relies on Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990), and claims that the fact that the informant accurately described those facts is not sufficient corroboration to warrant a seizure. The defendant cites White for the proposition that an anonymous tip containing only facts and conditions that were in existence at the time of the tip is insufficient to support a reasonable and articulable suspicion, and that the tip must contain a prediction of future events to establish the reliability of the tipster. The defendant overstates the holding in White.

In White, the state received an anonymous tip that the suspect would be leaving a particular apartment at a specified time in a particular vehicle, that she would be going to a particular motel and that she would be in possession of cocaine. Id., 327. The United States Supreme Court found that the verification of those facts coupled with the verification of the destination of the defendant lent sufficient credibility to the anonymous tip to warrant a reasonable and articulable suspicion. Id., 332. The court stated: "What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information -- a special familiarity with respondent's affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey's Motel.... When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." (Citation omitted; emphasis in original.) Id.

The defendant argues that because the tip in this case did not predict future events, it lacked, under White, the credibility to warrant a reasonable and articulable suspicion on the part of the police. The details relayed to the police in the present case were not predictive in nature and were facts available to any member of the public observing the subjects. White, however, also stands for the proposition that "[r]easonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the...