State v. Jenkins

• Decision Date: 20 November 2007
• Docket Number: No. 26833.,26833.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Christopher JENKINS.

934 A.2d 281

104 Conn.App. 417

STATE of Connecticut v. Christopher JENKINS.

No. 26833.

Appellate Court of Connecticut.

Argued May 21, 2007.

Decided November 20, 2007.

Megan Weiss, certified legal intern, with whom were Timothy H. Everett, special public defender, Michael Hitchery, certified legal intern, and, on the brief, Matthew Weiner, certified legal intern, for the appellant (defendant).

James M. Ralls, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul N. Rotiroti, assistant state's attorney, for the appellee (state).

SCHALLER, McLACHLAN and GRUENDEL, Js.

McLACHLAN, J.

The defendant, Christopher Jenkins, appeals from the judgment of conviction, rendered following his conditional plea of nolo contendere, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b). On appeal, the defendant claims that the trial court improperly denied his motion to suppress evidence. We agree and reverse the judgment of the trial court.

Our review of the record discloses the following facts relative to the defendant's appeal.¹ On May 7, 2004, Michael Morgan, a Newington police detective was assigned to traffic detail for the purpose of accident reduction and safety on the Berlin Turnpike. At approximately 11:20 p.m., Morgan observed the driver of a Nissan Altima, subsequently identified as the defendant, make two abrupt lane changes in heavy traffic without using a turn signal. On the basis of this observation,² Morgan stopped the vehicle.³ Following his usual procedure, Morgan reported the license plate number of the Altima to a police dispatcher, alerted the dispatcher that he had commenced a traffic stop and provided his location.⁴

Morgan proceeded to the driver's window and asked the defendant to produce his driver's license, vehicle registration and insurance card. After the defendant complied with this request, Morgan returned to his unmarked police vehicle. Morgan characterized the defendant as appearing "unusually nervous compared to someone who's stopped for such a routine traffic violation." The defendant produced a New Jersey driver's license and a vehicle rental agreement in lieu of a registration. The vehicle was registered in Pennsylvania. Morgan called in the defendant's information to the dispatcher in order to determine if the license was valid and if there were "any wants, warrants or cautions" associated with the defendant. After learning that the license was valid and that there were no outstanding warrants, Morgan nevertheless requested the defendant's consent to search the vehicle and called another officer for backup assistance.

Morgan proceeded to fill out an infraction ticket for the traffic violation that he had observed. By the time he finished filling out the ticket, Derrick Sutton, a Newington police sergeant, had arrived at the scene. At this point, Morgan returned to the defendant and asked him to get out of the vehicle.⁵ Morgan inquired whether the defendant "had anything illegal on him." The defendant responded in the negative. Morgan testified that he did not believe that the defendant was armed. Nevertheless, Morgan searched him but did not find anything illegal on the defendant's person.

After he explained the ticket, Morgan asked the defendant if he had anything illegal in the vehicle. Morgan stated that the basis for this question was the defendant's nervousness, combined with the facts that the rented Altima had a Pennsylvania registration and license plate and that the defendant had a New Jersey driver's license and claimed that he was coming from New York where he had visited his daughter.

The defendant responded to Morgan's inquiry by stating: "[N]ope, just some beer on the passenger seat floor go ahead and check. You can check if you want." Morgan instructed the defendant to move away from the vehicle and to stand with Sutton, behind the Altima. He then began to search the interior of the Altima. He opened the center console and found a package wrapped in white paper. Morgan unwrapped the paper and found a plastic ziplock bag containing a white powder substance that he believed to be cocaine. After Morgan completed his search of the front area of the Altima, the defendant was placed under arrest for possession of cocaine and handcuffed. Following the defendant's arrest, the back area of the Altima and the trunk were searched. A large quantity of heroin and an additional amount of cocaine were found in the trunk.⁶

On July 13, 2004, the defendant filed a motion to suppress all of the evidence seized in the search. The court held an evidentiary hearing on the defendant's motion on December 16, 2004, at which Morgan was the sole witness. On January 14, 2005, the court heard legal arguments from the state and defense counsel. On February 17, 2005, the court issued a memorandum of decision denying the motion to suppress. The court found that "there was no untoward conduct on either the part of . . . Morgan or . . . Sutton [and] that there was no threatening, coercive or overpowering behavior exhibited at any time during this incident." The court further found that "the defendant voluntarily and knowingly gave permission to have his vehicle searched [and that] the defendant never withdrew this consent. "The court did not accept or credit the defendant's claim that his statement to the police that evening was meant only to have the officer look at the beer in his car."

On March 18, 2005, the defendant entered a conditional plea of nolo contendere pursuant to General Statutes § 54-94a⁷ to the charge of possession of narcotics with intent to sell by a person who is not drug-dependent. The court sentenced the defendant to twenty years incarceration, execution suspended after eight years, and five years probation. This appeal followed.⁸

The standard of review in connection with the court's denial of a motion to suppress is well settled. As stated by our Supreme Court: "This involves a two part function: where 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; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court's judicial review of decisions of the trial court. Beyond that, we will not go. . . . In other words, to the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact." (Internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 694, 817 A.2d 76 (2003); see also State v. Foote, 85 Conn. App. 356, 360, 857 A.2d 406 (2004), cert. denied, 273 Conn. 937, 875 A.2d 43, 44 (2005); State v. Carcare, 75 Conn.App. 756, 764, 818 A.2d 53 (2003).

We begin by reviewing the legal principles pertaining to the claims raised on appeal by the defendant. "The Fourth Amendment to the United States constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures. Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. [A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." (Emphasis in original; internal quotation marks omitted.) State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986).

"A warrantless search . . . is not unreasonable, however, under the fourth amendment to the United States constitution . . . when a person with authority to do so has freely consented. . . . It is . . . well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search [or seizure] that is conducted pursuant to consent. . . . Whether a defendant has voluntarily consented to a search is a question of fact to be determined from the totality of the circumstances. The trial court makes this determination on the basis of the evidence that it deems credible along with the reasonable inferences that can be drawn therefrom." (Citations omitted; internal quotations omitted.) State v. Wragg, 61 Conn.App. 394, 401, 764 A.2d 216 (2001); see also State v. Azukas, 278 Conn. 267, 275, 897 A.2d 554 (2006).

The defendant claims that the court improperly denied his motion to suppress evidence. Specifically, he argues that (1) even if his consent to search the vehicle had been voluntary, it was tainted by a prior, unconstitutional search of his person, (2) the state failed to establish that he actually consented to the search of the vehicle, (3) any consent to search was not given voluntarily and (4) any consent to search was obtained by a violation of the Connecticut constitution by the police improperly converting a traffic stop into a criminal investigation. We conclude that the defendant was unlawfully detained, that his consent to search the vehicle was tainted by that illegal detention and that the state failed to purge the taint of the illegal detention. For those reasons, the evidence procured through the defendant's consent should have been suppressed.

The defendant argues that even if he had voluntarily consented to the search of his vehicle, any evidence found was tainted as a...