State v. Holloman

• Decision Date: 23 January 1990
• Docket Number: No. 7164,7164
• Citation: 568 A.2d 1052,20 Conn.App. 521
• Parties: STATE of Connecticut v. Larry HOLLOMAN.
• Court: Connecticut Court of Appeals

Page 1052

568 A.2d 1052

20 Conn.App. 521

STATE of Connecticut v. Larry HOLLOMAN.

No. 7164.

Appellate Court of Connecticut.

Argued Oct. 11, 1989.

Decided Jan. 23, 1990.

Mark Rademacher, New Haven, for appellant (defendant).

Vincent J. Dooley, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Roland Fasano, Asst. State's Atty., for appellee (state).

Before EDWARD Y. O'CONNELL, NORCOTT and FOTI, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 and assault of a victim sixty or older in the first degree in violation of General Statutes § 53a-59a. The defendant was found not guilty of stealing a firearm in violation of General Statutes § 53a-212. ¹ The defendant claims that the court erred in denying his motion to suppress evidence and in excluding evidence that a third party may have committed the crime. We find no error.

At the hearing on the suppression motion, the court found the following facts. On February 14, 1987, a black male, approximately 6 feet 2 inches tall, medium build, wearing a three-quarter length green army jacket and a navy blue knit cap, entered a liquor store in New Haven and asked for a bottle of Wild Irish Rose wine. As the elderly store clerk turned to the cooler, the robber brandished a hunting knife and demanded money. The robber stabbed the clerk in the abdomen, causing serious injury. The robber then dragged the clerk to the back of the store, forced him into a restroom and took his wallet. He then pushed the restroom door closed with his foot, leaving a bloody sneaker print behind. The robber left, taking with him $300, a Colt .38 caliber revolver and a bottle of rum. Upon leaving the store, he got into the passenger seat of an old dirty brown automobile variously described as a Datsun, Toyota or Austin-Marina.

The owner of an appliance store less than a mile from the liquor store heard news accounts of the robbery, including the descriptions of the robber and the get-away car. He remembered that on two occasions prior to the robbery, two men trying to sell him a used air conditioner came to his store in an automobile that he thought matched the description of the one involved in the robbery. In addition, he recalled that one of the men was tall, black, and wore a long green army jacket. On February 16, 1987, the same two men returned to the appliance store in a white Chevrolet Blazer. The store owner took the air conditioner from them, and while he was helping them bring the appliance into the store, he noted the Blazer's Vermont license plate number. Later, he telephoned one of the men, who was eventually charged in connection with the liquor store robbery, to complain that the air conditioner did not work and to arrange for the men to take the appliance back. The store owner then called the police, and four officers were assigned to stake out the appliance store to await the men's return. In the meantime, the police checked the Vermont registration number and learned that it was not issued for the Blazer.

The two men arrived at the appliance store in the Blazer and retrieved the air conditioner. As they started to drive away, police officers pulled them over to the side of the road. The men were ordered out of the car, at which point the officers observed that the ignition had been "popped," leading them to believe that the car was stolen. The alleged accomplice, who was driving the vehicle, admitted to the officers that his driver's license was under suspension. While retrieving the title and registration of the car from the glove compartment, one officer noticed a green army jacket with blood stains in the right cuff area and empty bottles of Wild Irish Rose wine in the rear of the vehicle. The officer also noticed that the defendant, who was a passenger, fit the general description of the liquor store robber.

The two men were then transported to the West Haven police department where the alleged accomplice gave a statement. He said that he owned an Austin-Marina automobile in which he had driven the defendant to the scene of the robbery, and that it was the defendant who entered the liquor store and committed the actual robbery and assault. Thereafter, the defendant was formally placed under arrest for the liquor store robbery and the assault. During the booking process, officers seized the defendant's pants and sneakers, which appeared to be bloodstained.

I

The first claim of error concerns the denial of the defendant's motion to suppress his pants and sneakers, which were seized without a warrant. ² Relying on Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963), the defendant claims that this evidence is the tainted fruit of an illegal arrest. He argues that the arresting officers stopped the car without probable cause to arrest him for the liquor store robbery, that they illegally arrested him before discovering evidence linking him to the robbery and, therefore, that any evidence seized was the result of an unlawful arrest. We disagree.

The police may momentarily detain a person for investigative purposes if they have a reasonable and articulable suspicion that he has engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Marino, 17 Conn.App. 677, 682, 555 A.2d 455, cert. denied, 211 Conn. 803, 559 A.2d 1138 (1989). In light of the officers' knowledge that the Vermont license plate did not belong on the Blazer, there was probable cause to believe that the driver was violating the motor vehicle statute prohibiting misuse of plates. ³ General Statutes § 14-147(c).

Moreover, the officers reasonably suspected that the two men were in possession of a stolen car, on the basis of their knowledge that the Vermont license plate on the vehicle was registered to a different vehicle. They were therefore justified in stopping the vehicle to investigate whether or not it was stolen. See State v. Millett, 8 Conn.App. 467, 513 A.2d 191, cert. denied, 201 Conn. 809, 516 A.2d 886 (1986).

Finally, on the basis of the tip they had received from the appliance store owner, the officers reasonably suspected that the two men in the car had committed the liquor store robbery. Reasonable cause for a stop can be based on information supplied by a third party even though the informant's unverified tip may not supply probable cause for the issuance of an arrest warrant. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Hence, the stop was a justifiable part of the police investigation of the liquor store robbery.

The officers did not immediately arrest the two men; rather, they subjected the men to a reasonable investigatory stop. See State v. Bowden, 15 Conn.App. 539, 542-46, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988). The defendant argues to the contrary, that the men were immediately arrested and that the officers' explanations of why they stopped the Blazer were merely pretextual. He contends that he was arrested when the police stopped the Blazer because the officers had their revolvers drawn when they ordered the occupants out of the car. The officers, however, were aware that an armed robbery in which a handgun was stolen had recently occurred in the neighborhood. "A police officer ' "need not defer ... protective measures to the point of peril." ' " State v. Escobales, 16 Conn.App. 272, 275, 547 A.2d 553, cert. denied, 209 Conn. 827, 552 A.2d 434 (1988), cert. denied, --- U.S. ----, 109 S.Ct. 1753, 104 L.Ed.2d 189 (1989), citing United States v. Coates, 495 F.2d 160, 165 (D.C.Cir.1974). Furthermore, the mere fact that the stopping officers had their guns drawn did not automatically convert the Terry stop into an arrest. United States v. Nargi, 732 F.2d 1102, 1106 (2d Cir.1984); State v. Wylie, 10 Conn.App. 683, 687-88, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987).

The defendant concedes that, as a passenger without an ownership interest in the Blazer, he did not have an expectation of privacy in the interior of the vehicle, and accordingly lacks standing to challenge the legality of the manner in which the officers obtained incriminating evidence from the vehicle immediately after the stop. State v. Marino, supra, 17 Conn.App. at 684, 555 A.2d 455. Thus, the court did not err in not suppressing the three-quarter length army jacket with blood stains on one sleeve and the empty bottles of Wild Irish Rose wine that were in the rear of the Blazer.

After discovering the incriminating items, the officers took the defendant and the accomplice into custody without informing them that they were under arrest, and brought them to the West Haven police station. Because the officers discovered evidence that further aroused their suspicions, they were justified in prolonging the stop and expanding their investigation at the scene. State v. Aversa, 197 Conn. 685, 692, 501 A.2d 370 (1985). A person temporarily detained by police for investigation at a Terry stop, however, cannot be transported to police headquarters for further investigation unless at the time he is taken from the scene of the stop there is probable cause to believe that he has committed a crime. Dunaway v. New York, 442 U.S. 200, 211-16, 99 S.Ct. 2248, 2255-59, 60 L.Ed.2d 824 (1979). In the present case, therefore, the defendant was arrested when he was taken from the scene of the stop to police headquarters. Thus, the question is whether there was probable cause for arrest at that time.

The officers had probable cause to arrest the defendant once they discovered the...