State v. Johnson, No. 17939.

• Decision Date: 15 April 2008
• Docket Number: No. 17939.
• Citation: 944 A.2d 297,286 Conn. 427
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Terry T. JOHNSON.

944 A.2d 297

286 Conn. 427

STATE of Connecticut v. Terry T. JOHNSON.

No. 17939.

Supreme Court of Connecticut.

Argued November 26, 2007.

Decided April 15, 2008.

Jon L. Schoenhorn, Hartford, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Brett Salafia, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and KATZ, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

VERTEFEUILLE, J.

The defendant, Terry T. Johnson, appeals from the judgment of conviction, rendered after a jury trial, of one count each of the crimes of attempted sale of narcotics in violation of General Statutes §§ 21a-278 (b) and 53a-49, possession of narcotics with intent to sell in violation of § 21a-278 (a), and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that the trial court improperly: (1) violated the federal and state constitutions by denying the defendant's motion to suppress evidence obtained as a result of a search incident to a warrantless arrest that had been made without probable cause; and (2) restricted the defendant's constitutional rights by erroneously instructing the jury to disregard proper closing arguments. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 27, 2004, the New Britain police department arrested a man named Curtis Thornton for various narcotics offenses. Following his arrest, Thornton spoke with Officer Frank Bellizzi, an eight year veteran of the New Britain police department. During the course of their conversation, Thornton offered to provide Bellizzi with the name of the individual from whom Thornton previously had purchased narcotics in exchange for leniency in the form of future court or bond consideration. Once an informant offers to provide such information, it is the practice of the New Britain police department to assess his credibility and the reliability of his information. In an effort to make this assessment, Bellizzi questioned Thornton about topics such as "weights and measurements and costs" of drugs.¹ After this discussion, Bellizzi concluded that Thornton "knew what he was talking about...."

Thornton then provided Bellizzi with a physical description of the defendant as his narcotics supplier. Thornton described this individual, from whom he had often purchased crack cocaine in front of the apartment building at 188 Allen Street in New Britain, as a tall, thin African-American male in his mid-twenties who usually wore a New York Yankees baseball cap. Thornton also noted that the defendant, whom he knew as "Bird," drove a gray or silver Saab.

At approximately 6:20 p.m. on October 27, 2004, at Bellizzi's direction, Thornton called the defendant from the police station on his cellular telephone in order to arrange a meeting for purposes of purchasing drugs. Bellizzi observed that the telephone number that Thornton had called matched the number Thornton previously had told Bellizzi belonged to the defendant. Bellizzi also observed Thornton during the course of Thornton's conversation with the defendant. Bellizzi testified that he heard Thornton ask for two and one-quarter ounces of cocaine, discuss the dollar amount related to a sale for that quantity, and mention the amount of money Thornton owed the defendant for prior drug purchases. After placing the telephone call, Thornton informed Bellizzi that the defendant had agreed to deliver two and one-quarter ounces of cocaine shortly thereafter in the parking lot in front of 188 Allen Street, one of three multifamily apartment buildings in a complex where Thornton and the defendant previously had met to conduct drug transactions. Bellizzi relayed this information, along with Thornton's physical description of the defendant, to police officers who had arrived in unmarked police cars in the parking lot in front of the apartment buildings at 188, 190 and 192 Allen Street. In Bellizzi's presence, Thornton telephoned the defendant a second time at approximately 6:40 p.m., and the defendant confirmed that he was en route to the Allen Street meeting place, and that he would arrive shortly. Bellizzi then relayed this information to the officers who were present at the Allen Street location.

At approximately 7:10 p.m., a gray Saab occupied by two men² drove into the parking lot at 188 Allen Street, "looped around" the lot, and parked in front of that address. The driver of the automobile, a black male who was wearing a New York Yankees cap, matched the description that Bellizzi previously had relayed to the officers at the scene. The officers drove their police vehicles up to the Saab and encircled it so that it could not leave the scene. The officers then removed the defendant, who was driving the automobile, handcuffed him, and placed him under arrest.³ After his arrest, police searched the defendant and found $363 and two and one-quarter ounces of crack cocaine in his pockets. During the booking procedure at police headquarters, the police found an additional 0.6 grams of crack cocaine in the defendant's coat pocket. Additionally, a search of the Saab's interior revealed a cellular telephone in the front seat that, it was determined, had received calls from Thornton's cellular telephone earlier that day.

The following procedural history also is necessary for our resolution of this appeal. The defendant was charged, in an information dated October 27, 2004, with one count each of possession of a narcotic substance in violation of § 21a-279 (a), criminal attempt to sell narcotics in violation of §§ 53a-49 and 21a-278 (b), and possession of more than one-half gram of crack cocaine with intent to sell in violation of § 21a-278 (a). On May 10, 2005, the trial court, Cronan, J., conducted a hearing on the defendant's motion to suppress evidence, and later denied the motion. A subsequent jury trial resulted in a guilty verdict on all counts, and the trial court, Vitale, J., thereafter rendered judgment in accordance with the jury verdict, sentencing the defendant to an effective sentence of twenty years imprisonment, suspended after twelve years, and three years probation. The defendant appealed from the judgment of conviction to the Appellate Court, and we transferred the case from the Appellate Court to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.

I

The defendant first claims that the trial court improperly denied his motion to suppress the evidence seized in violation of his rights under the federal and state constitutions. We will begin with the defendant's claim under the federal constitution.

We first set forth the applicable standard of review. "Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law.... The trial court's determination on the issue, therefore, is subject to plenary review on appeal." (Citation omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001).

A

We first consider the defendant's claim that the trial court improperly denied his motion to suppress in violation of the fourth⁴ and fourteenth amendments to the federal constitution. The defendant contends that the police lacked probable cause to arrest him without a warrant moments after he drove into the parking lot at 188 Allen Street, and that the search of his person and vehicle, and the discovery of narcotics and other items of evidentiary interest, incident to this arrest, violated his federal constitutional rights. The state claims that under the "totality of the circumstances," the state had probable cause to effectuate a warrantless arrest of the defendant and, therefore, that police complied with federal constitutional strictures in arresting the defendant. We agree with the state.

"The [f]ourth [a]mendment 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.... These exceptions have been jealously and carefully drawn ... and the burden is on the state to establish the exception." (Citations omitted; internal quotation marks omitted.) State v. Badgett, 200 Conn. 412, 423-24, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). One such exception is the seizure of evidence incident to a lawful arrest. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

"In order for a warrantless felony arrest to be valid, it must be supported by probable cause.... 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.... Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.... The probable cause determination is, simply, an analysis of probabilities.... The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act.... Probable cause is not readily, or even...