State v. Jenkins, 82 Conn. App. 111 (Conn. App. 3/23/2004)

• Decision Date: 23 March 2004
• Docket Number: (AC 23437).
• Citation: 82 Conn. App. 111
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT <I>v.</I> MICHAEL JENKINS.

Page 111

82 Conn. App. 111

STATE OF CONNECTICUT

v. MICHAEL JENKINS.

(AC 23437).

Appellate Court of Connecticut.

Argued October 29, 2003.

Officially released March 23, 2004.

Syllabus

Convicted, on a conditional plea of nolo contendere, of the crime of possession of narcotics with the intent to sell, the defendant appealed to this court challenging the trial court's denial of his motion to suppress certain evidence seized during a search of his person. The police conducted the search after they had arrested the defendant outside a restaurant for attempting to sell narcotics. During a patdown of the defendant, an officer felt a suspicious bulge in the defendant's buttocks and, out of public view, pulled the defendant's pants and underwear away from his body to retrieve glassine packets containing narcotics. Held:

1. Under the totality of the circumstances, there was probable cause for the police to arrest the defendant without a warrant pursuant to the statute (§ 54-1f[b]) authorizing warrantless arrests, certain of his actions

having been sufficient to constitute a substantial step toward the commission of the crime of attempt to sell narcotics; the defendant's arrest, therefore, having been lawful, the warrantless search conducted incident to it also was lawful and proper.

2. The defendant could not prevail on his claim that the search of his person constituted a strip search that violated his fourth amendment rights and the statute (§ 54-33l) that outlines procedures for strip searches of persons arrested for motor vehicle violations or misdemeanors; section 54-33l did not apply to the search here, which was conducted incident to a lawful felony arrest, the search was supported by reasonable suspicion because the officers involved reasonably could have believed that the defendant was concealing contraband on his person, and the manner in which the search was conducted struck the appropriate balance between the need for the search and the invasion of the defendant's personal rights.

Procedural History

Substitute information charging the defendant with the crime of possession of narcotics with intent to sell, brought to the Superior Court in the judicial district of New Britain, geographical area number fifteen, where the court, Owens, J., denied the defendant's motion to suppress certain evidence; thereafter, the defendant was presented to the court on a conditional plea of nolo contendere; judgment of guilty, from which the defendant appealed to this court. Affirmed.

Claudia A. Baio, with whom, on the brief, was Richard D. Tulisano, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom were Tracy Cass, certified legal intern, and, on the brief, Scott J. Murphy, state's attorney, and Mary Rose Palmese, supervisory assistant state's attorney, for the appellee (state).

Schaller, West and Hennessy, Js.

Opinion

MIHALAKOS, J.

The defendant, Michael Jenkins, appeals from the judgment of conviction rendered by the trial court subsequent to his plea of nolo contendere to the charge of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the court improperly denied his motion to suppress evidence pursuant to Practice Book § 41-12, General Statutes §§ 54-33f, 54-33k and 54-33l, article first, § 7, of the constitution of Connecticut, and the fourth and fourteenth amendments to the United States constitution in that the court improperly concluded that (1) there was probable cause to place him under arrest and that the ensuing search was, therefore, lawful as a search incident to an arrest, and (2) the purported strip search of him that was conducted by the police did not rise to the level of a fourth amendment violation. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. During the week of March 6, 2000, Detective Jerry Chrostowski of the New Britain police department received information from a confidential informant that the defendant was involved with drug trafficking. The informant provided Chrostowski with the defendant's pager number. On March 11, 2000, Chrostowski called the pager number on a police department telephone equipped with caller identification technology.

Chrostowski's page was returned within five minutes. Chrostowski then contacted the Southern New England Telephone Company, which traced the number to 41 Harvard Street in New Britain. Chrostowski was familiar with the defendant and had personal knowledge that he resided at that address. Chrostowski identified himself as "Chris," and the caller referred to himself as "Mike." Chrostowski ordered ten packets of heroin from the defendant for $80, and the men agreed to meet at East Side Pizza in New Britain to complete the sale. Chrostowski relayed that he would be wearing a baseball cap.

While Chrostowski waited outside of the restaurant, a New Britain police officer informed him that a black male was exiting his residence and going toward the restaurant. The defendant began to approach Chrostowski and came within seven feet of him when he suddenly stopped upon seeing the officer's face. The defendant was then placed under arrest by several New Britain police officers and charged with attempt to sell narcotics.

The defendant was handcuffed and taken to the side of the restaurant to be searched. Chrostowski seized the defendant's beeper, which contained the number from which Chrostowski had paged him. Officer Christopher Brody searched the defendant and felt an object in the defendant's buttocks inconsistent with the male anatomy. Brody pulled the defendant's pants and underwear away from his body and discovered glassine packets. The packets were seized and tested positive for heroin and crack cocaine.

The defendant later was charged in a substitute information with possession of narcotics with the intent to sell in violation of § 21a-277 (a). On September 12, 2000, the defendant filed a motion to suppress the evidence seized from him, which was denied. The defendant then entered a plea of nolo contendere under General Statutes § 54-94a. The defendant was sentenced to a three year term of imprisonment to run consecutively to a prior sentence. This appeal followed.

I

A

The defendant first claims that the court improperly found that there was probable cause for the police to have placed him under arrest.¹ He reasons that the subsequent search was, therefore, not lawful as a search incident to an arrest. Specifically, the defendant claims that probable cause to arrest could not have existed because a reasonable person, under the circumstances, would not have assumed that he was necessarily about to sell narcotics. We disagree.

The defendant claims that simply the fact that Chrostowski paged him to order drugs and that he told Chrostowski to meet him at the restaurant does not reasonably lead to the conclusion that he was actually going to sell any drugs. He argues that it is not unreasonable to assume that he went to the restaurant solely to find out the identity of the potential buyer. He maintains that the police did not give him the opportunity to commit any crime.

We first set forth the standard of review and legal principles that guide our analysis. "Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . ." State v. Bjorklund, 79 Conn. App. 535, 548, 830 A.2d 1141 (2003).

"It is well established . . . that a warrant is not required when a search is conducted incident to a lawful custodial arrest. . . . New York v. Belton, 453 U.S. 454 457, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)." State v. Clark, 255 Conn. 268, 291, 764 A.2d 1251 (2001). "When an arrest is made, it is reasonable for a police officer to search for, and seize, any weapons or evidence within the immediate control of the arrested person in order to ensure officer safety and prevent the destruction or concealment of evidence." State v. Clark, supra, 292.

"General Statutes § 54-1f (b) authorizes a police officer to conduct a warrantless arrest of `any person who the officer has reasonable grounds to believe has committed or is committing a felony.' The phrase `reasonable grounds to believe' is synonymous with probable cause." (Internal quotation marks omitted.) State v. Cooper, 65 Conn. App. 551, 564-65, 783 A.2d 100, cert. denied, 258 Conn. 940, 786 A.2d 427 (2001).²

"In order for a warrantless felony arrest to be valid, it must be supported by probable cause. . . . The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a totality of circumstances test.... Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. . . . The probable cause test then is an objective one. . . . We consistently have held that [t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. . . . [P]roof of probable cause requires less than proof by a preponderance of the evidence." (Citations omitted; internal...