State v. Kelly

• Decision Date: 12 August 2014
• Docket Number: No. 18849.,18849.
• Citation: 95 A.3d 1081,313 Conn. 1
• Parties: STATE of Connecticut v. Jeremy KELLY.
• Court: Connecticut Supreme Court

313 Conn. 1

95 A.3d 1081

STATE of Connecticut

v.Jeremy KELLY.

No. 18849.

Supreme Court of Connecticut.

Argued April 16, 2013.

Decided Aug. 12, 2014.

Timothy H. Everett, assigned counsel, with whom, on the brief, were Blake Holler, Victoria Mueller, New London, and Nicole Vaswig, 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).

Richard Emanuel, New Haven, and Leonard M. Crone filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Michael A. Blanchard, New London, Sandra J. Staub and Amy Breglio, legal intern, filed a brief for the American Civil Liberties Union Foundation of Connecticut as amicus curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and VERTEFEUILLE, Js.^*

PALMER, J.

The defendant, Jeremy Kelly, was convicted, on a conditional plea of nolo contendere; see General Statutes § 54–94a; ¹ of possession of narcotics with intent to sell in violation of General Statutes § 21a–277 (a). The defendant entered his plea following the trial court's denial of his motion to suppress cocaine that the police had discovered after stopping him incident to the detention of another individual, who the police reasonably believed was armed and dangerous and who was the subject of an arrest warrant, while the two men were walking together on 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 Appellate Court properly held constitutional the warrantless seizure of the defendant on a public street because he was in the company of a person believed to be an individual wanted for [a] violation of probation and [2] [W]hether the Appellate Court, in doing so, properly relied on facts not [expressly] found by the trial court when it denied the defendant's motion to suppress....” State v. Kelly, 302 Conn. 920, 28 A.3d 338 (2011). We agree with the Appellate Court that the trial court properly determined that the police were authorized to stop and briefly detain the defendant, as a reasonable safety measure, in connection with the lawful detention of the individual he was accompanying, because the police reasonably believed that that other individual was armed and dangerous. With respect to the second certified question, that issue has been rendered moot by virtue of an articulation, which the trial court issued in response to this court's order following oral argument, explaining that it had credited certain suppression hearing testimony on which the Appellate Court relied in its recitation of the facts. Because we conclude that the protective stop of the defendant passes muster under both the federal and state constitutions, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts, which were based on testimony adduced at the evidentiary hearing on the defendant's motion to suppress. “On March 27, 2007, Detective William Rivera of the Hartford [P]olice [D]epartment received information from a reliable confidential informant that ... Pedro Gomez, [who resided] in the area of Brown Street in [the city of] Hartford, was in possession of a firearm. Having also discovered that Gomez was the subject of an outstanding arrest warrant for [a] violation of probation, Rivera and Lieutenant Jose Angeles of the [D]epartment of [C]orrection drove to the area in an unmarked car [while] 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 [Gomez] sometimes ... 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 [the] 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, [Burgos and the defendant] fled. The defendant ran behind the house. Rivera drove 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 [that subsequently was determined to be cocaine]. 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.” (Footnote omitted.) State v. Kelly, supra, 129 Conn.App. at 112–13, 19 A.3d 223. The white substance seized from the defendant's hand also was determined to be cocaine.

Thereafter, the defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes (Rev. to 2007) § 21a–278 (b), possession of narcotics within 1500 feet of a 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 (Rev. to 2007) § 53a–167a, and criminal trespass in the third degree in violation of General Statutes (Rev. to 2007) § 53a–109. The defendant moved to suppress the cocaine, claiming that he had been unlawfully seized because Rivera and Angeles had no reason to believe that the defendant had committed or was committing a criminal offense, and the discovery of the cocaine was the fruit of that illegal seizure.

Following an evidentiary hearing on the defendant's motion to suppress, the trial court denied the motion. In support of its decision, the trial court explained that, because Rivera and Angeles reasonably believed that Burgos was Gomez, they were justified in stopping Burgos in light of the outstanding arrest warrant for Gomez. The trial court further found that, because that warrant was for the offense of “felony ... possession of a firearm,” the officers were authorized to briefly detain the defendant, as a legitimate safety precaution, incident to the lawful stop of Burgos.² The trial court reasoned that, when the police lawfully stop a suspect who they reasonably believe may be armed and dangerous, and that suspect is accompanied by a companion, the police also must be permitted to temporarily restrict the companion's freedom of movement lest they place themselves at risk that the companion will “[step] back ... and open fire” on them. In reaching its conclusion, the trial court analogized the companions of a suspect on a public street to passengers in a vehicle driven by a suspect, who, under Brendlin v. California, 551 U.S. 249, 255–58, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), lawfully may be detained incident to the lawful stop of the driver. The trial court concluded that, because the officers had justifiably detained the defendant for safety reasons, the defendant could not prevail on his claim that the cocaine seized by the police following his detention was the fruit of unconstitutional police conduct.

The defendant subsequently entered a plea of nolo contendere to the crime of possession of narcotics with intent to sell in violation of § 21a–277 (a), conditioned on his right to appeal from the trial court's denial of his motion to suppress. See State v. Kelly, supra, 129 Conn.App. at 114, 19 A.3d 223. The trial court rendered judgment of conviction in accordance with the plea and sentenced the defendant to nine years imprisonment, suspended after three and one-half years, and three years probation. Id.

The defendant appealed to the Appellate Court from the judgment of the trial court, claiming, inter alia, that the police had detained him in violation of the fourth amendment to the United States constitution ³ and article first, §§ 7 ⁴ and 9,⁵ of the Connecticut constitution. Id. Specifically, the defendant argued that the officers had seized him in violation of Terry v. Ohio, 392 U.S. 1, 27, 30–31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Donahue, 251 Conn. 636, 643–45, 742 A.2d 775 (1999) ( Terry stop permitted under article first, §§ 7 and 9, of state constitution), cert. denied, 531 U.S. 924, 121 S.Ct. 299, 148 L.Ed.2d 240 (2000); be...