State v. Kelly

Decision Date31 May 2011
Docket NumberNo. 30282.,30282.
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticutv.Jeremy KELLY.

OPINION TEXT STARTS HERE

Matthew Bristol, certified legal intern, with whom were Timothy H. Everett, special public defender, and Irene Kim, certified legal intern, and, on the brief, Jody Mullis and Timothy Nast, certified legal interns, for the appellant (defendant).Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robert Diaz, assistant state's attorney, for the appellee (state).BISHOP, LAVINE and BORDEN, Js.BISHOP, J.

The defendant, Jeremy Kelly, appeals from the judgment of conviction following his conditional plea of nolo contendere 1 to possession of cocaine with intent to sell in violation of General Statutes § 21a–277 (a). The defendant's plea followed the trial court's denial, after an evidentiary hearing, of his motion to suppress evidence as the fruit of an illegal seizure of his person. On appeal, the defendant claims that the court improperly (1) determined that the seizure was constitutionally permissible and (2) allocated the burden of proof to the defendant. We affirm the judgment of the trial court.

The court reasonably could have found the following facts from the evidence adduced at the hearing. On March 27, 2007, Detective William Rivera of the Hartford police department received information from a reliable confidential informant that a certain Pedro Gomez, residing in the area of Brown Street in Hartford, was in possession of a firearm.2 Having also discovered that Gomez was the subject of an outstanding arrest warrant for violation of probation, Rivera and Lieutenant Jose Angeles of the department of correction drove to the area in an unmarked car and dressed in plain clothes. They had a description of Gomez as a Hispanic male of medium complexion with short hair, twenty to twenty-two years of age, between 130 and 150 pounds and between five feet, five inches and five feet, seven inches tall. The informant also had alerted Rivera that sometimes Gomez disguised himself by wearing a dark wig.

At approximately 11 a.m., the officers observed two men, later identified as the defendant and Rafael Burgos, walking and talking together on the sidewalk. There was a gas station on the corner that was a known location for drug dealing, and Rivera suspected that the men had just left that location. As the officers approached, they determined that Burgos fit the description of Gomez. As Burgos and the defendant walked into the driveway at 13–15 Brown Street, they made eye contact with the officers and Burgos moved his foot as if he was going to run. Both men continued to walk slowly toward the rear of the building, looking backwards. Angeles noticed that the defendant was clutching his waistband. Stopping his vehicle in front of the driveway, Rivera displayed his badge and stated “I'm a police officer” and “come to the vehicle.” Angeles also displayed his badge. Burgos replied, “for what?” and the defendant stated, “I live here.” Burgos and the defendant continued walking up the driveway. Rivera then pulled the car into the driveway east of 13–15 Brown Street. The officers did not activate their vehicle's lights or siren and had not drawn their firearms.

As Angeles began to step out of the vehicle, he ordered the men to “stop, stop, come here.” At that point, they fled. The defendant ran behind the house. Rivera dove the car to the front of 13–15 Brown Street and observed the defendant run around the front of the house and up the street, still clutching his waistband, while Angeles chased him on foot. Rivera drove alongside them up the street and then turned into a driveway to block the defendant's path. The defendant changed course, and Rivera began chasing him on foot. Rivera saw the defendant drop a clear plastic bag containing a white substance. When the defendant tripped and fell, Rivera tackled him and handcuffed him after a thirty second struggle. Rivera seized the bag that the defendant had dropped and also seized another clear plastic bag containing a large amount of a white, rock like substance from the defendant's clenched hand.

Following his arrest, the defendant was charged with possession of narcotics with intent to sell in violation of General Statutes § 21a–278 (b), possession of narcotics within 1500 feet of an elementary school in violation of General Statutes § 21a–279 (d), possession of narcotics in violation of General Statutes § 21a–279 (a), interfering with an officer in violation of General Statutes § 53a–167a and criminal trespass in the third degree in violation of General Statutes § 53a–109. He filed a motion to suppress the evidence seized during the encounter, claiming that he had been illegally seized by the officers when they displayed their badges and told him to approach the vehicle. Following an evidentiary hearing on July 9, 2008, the court issued an oral decision denying the motion.3 The defendant subsequently entered a conditional plea of nolo contendere to the crime of possession of cocaine with intent to sell in violation of General Statutes § 21a–277 (a), and the court sentenced him to nine years incarceration, suspended after three and one-half years, and three years probation. This appeal followed.

I

The defendant first claims that he was illegally seized by the officers in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. 4 He argues that he was seized when they displayed their badges and stated “come to the vehicle” and that this seizure was illegal because the officers lacked a reasonable and articulable suspicion that he had committed or was about to commit a crime independent of any suspicion they harbored toward Burgos. In particular, he argues that the trial court improperly determined that, under these facts, the public interest in police officer safety justified the seizure even in the absence of reasonable suspicion as to the defendant. We agree with the trial court.

We begin with our standard of review and the governing legal principles. “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.... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Citation omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

“Ordinarily, [w]hen considering the validity of a ... stop, our threshold inquiry is twofold.... First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure.... Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Internal quotation marks omitted.) State v. Clark, 297 Conn. 1, 7–8, 997 A.2d 461 (2010). [In a case] in which we are required to determine whether the defendant was seized by the police, we are presented with a mixed question of law and fact that requires our independent review.” State v. Burroughs, supra, 288 Conn. at 843–44, 955 A.2d 43.

We begin our analysis with a discussion of the legal test used to determine whether a person is seized. Our Supreme Court has clarified that article first, § 7, of the Connecticut constitution “afford [s] greater protection to the citizens of this state than does the federal constitution in the determination of what constitutes a seizure.” State v. Oquendo, 223 Conn. 635, 649–50, 613 A.2d 1300 (1992). Accordingly, we look to the decisional precedents of our state, rather than federal precedent, to guide our determination of this question. Our Supreme Court has articulated that “a person is seized when, by means of physical force or a show of authority, his freedom of movement is restrained.... The key consideration is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.... The inquiry is objective, focusing on a reasonable person's probable reaction to the officer's conduct.” (Citations omitted; internal quotation marks omitted.) State v. Burroughs, supra, 288 Conn. at 844–46, 955 A.2d 43.

In the present case, the officers stopped their car near the defendant and Burgos, displayed their badges and told the men to approach the vehicle. Because they applied no physical force at this juncture, we restrict our inquiry to whether they engaged in a coercive display of authority such that a reasonable person in the defendant's position would not have felt free to leave. Under similar facts in Oquendo, in which an armed police officer stood outside his marked vehicle and told the defendant to approach the vehicle and to bring his bag, the Supreme Court determined that the defendant had been seized. State v. Oquendo, supra, 223 Conn. at 652–53, 613 A.2d 1300. Although the officers in the present case were in an unmarked car and did not indicate whether they were armed, they did display the badges of their authority and commanded the defendant and Burgos to approach. On the basis of these facts, we are persuaded that a reasonable person in the defendant's position would not have believed that he was free to ignore the command and walk away.5 See id. We conclude, therefore, that the defendant was seized within the meaning of article first, § 7 of the Connecticut...

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  • State v. Kelly
    • United States
    • Connecticut Supreme Court
    • 12 Agosto 2014
    ...a public street. The defendant appealed to the Appellate Court, and that court affirmed the trial court's judgment. State v. Kelly, 129 Conn.App. 109, 126, 19 A.3d 223 (2011). We granted the defendant's petition for certification to appeal, limited to the following issues: “[1] Whether the ......
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    • 31 Mayo 2011
    ... ... will restrain him from giving inaccurate statements to a physician employed to advise or treat him. (Internal quotation marks omitted.) State v. Cruz, 260 Conn. 1, 7, 792 A.2d 823 (2002); see also C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) 8.20.2, p. 520 ([the] exception ... ...
  • State v. Kelly
    • United States
    • Connecticut Supreme Court
    • 12 Agosto 2014
    ...public street. The defendant appealed to the Appellate Court, and that court affirmed the trial court's judgment. State v. Kelly, 129 Conn. App. 109, 126, 19 A.3d 223 (2011). We granted the defendant's petition for certification to appeal, limited to the following issues: "[1] Whether the A......
  • State v. McCormack
    • United States
    • Connecticut Court of Appeals
    • 13 Diciembre 2011
    ...aimed at confirming or dispelling his suspicions.'' (Citations omitted; inter-nal quotation marks omitted.) State v. Kelly, 129 Conn. App. 109, 117-18, 19 A.3d 223, cert. granted, 302 Conn. 920, 28 A.3d 338 (2011). ''Reasonable and articulable suspicion is an objective standard that focuses......
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