State v. Kimble, No. 26992.

• Decision Date: 25 March 2008
• Docket Number: No. 26992.
• Citation: 106 Conn.App. 572,942 A.2d 527
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Terrell K. KIMBLE.

942 A.2d 527

106 Conn.App. 572

STATE of Connecticut v. Terrell K. KIMBLE.

No. 26992.

Appellate Court of Connecticut.

Argued October 15, 2007.

Decided March 25, 2008.

James B. Streeto, assistant public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, former state's attorney, and Donna Mambrino, senior assistant state's attorney, for the appellee (state).

BISHOP, HARPER and PETERS, Js.

HARPER, J.

The defendant, Terrell K. Kimble, appeals from the judgment of conviction following his conditional plea of nolo contendere¹ to criminal possession of a firearm in violation of General Statutes § 53a-217 and interfering with an officer in violation of General Statutes § 53a-167a. The defendant also pleaded guilty under the Alford doctrine² to assault in the first degree in violation of General Statutes § 53a-59, robbery in the first degree in violation of General Statutes § 53a-134, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134.³ The plea of nolo contendere to the criminal possession of a firearm charge followed the trial court's denial of the defendant's motion to suppress evidence, specifically, the gun that was integral to that charge.⁴ The defendant challenges the court's denial of his motion to suppress on two grounds. First, the defendant claims that the court improperly concluded that he lacked standing to challenge, under the federal and state constitutions, the legality of an alleged warrantless search of an automobile in which he was a passenger. Second, the defendant claims that the court improperly rejected his claim that the gun, found by police in the automobile was the fruit of police illegality, namely, an illegal investigative detention. We affirm the judgment of the trial court.

The defendant filed a written motion to suppress on April 22, 2005. At the suppression hearing, the state presented testimony from Leonard Grissette, a Hartford police officer who was on duty during the evening hours of March 10, 2004. Grissette testified to the following facts. At approximately 10 p.m., he received a transmission from the police department dispatcher directing him to investigate a report that two black males, in an automobile with New York marker plates, were selling drugs at a parking lot located at 7 Harold Street. Grissette did not know anything about the person or persons who reported this information to the police. When he arrived at the location specified, he observed two black males sitting in a Chevrolet Impala, with New York marker plates, parked in the parking lot of a multifamily home. There were other cars parked in the area, and Grissette parked his marked police cruiser on the street in front of 7 Harold Street. Grissette did not observe the individuals doing anything in the vehicle. He did not observe anyone approach the vehicle or any conduct that was indicative of drug activity.

Grissette, dressed in a police uniform, approached the automobile "[j]ust to see what was going on." He asked the driver to open his window and asked the occupants: "Do either one of you live here?" Both men replied that they did not. Grissette then asked the driver if he had any identification. The driver replied that he did not have any identification on him. Grissette then asked the driver for his name and date of birth. After hesitating, the driver provided a name and date of birth. Grissette radioed this information to a police operator who informed Grissette that the information did not yield any records. Grissette asked the driver if he was sure about the information, to which the driver provided a different date of birth. After Grissette radioed this information to the police operator, he was informed a second time that it did not yield any records.

Grissette testified that he then turned his attention to the defendant, who was sitting in the passenger seat of the automobile. He asked the defendant to provide his name and date of birth. The defendant did so without hesitation. After a second police officer arrived on the scene shortly thereafter, the defendant exited the automobile and began running from it. After a brief foot pursuit, Grissette restrained the defendant and put him in handcuffs. Subsequently, Grissette placed the defendant under arrest for the crimes of "criminal trespass ... and interfering" and seated him in a police cruiser. Later, another officer at the scene likewise arrested the driver of the vehicle and seated him in a police cruiser. While both the defendant and the driver were seated in the cruisers at the scene, two police officers began to search their automobile. One of the officers, Michael Francis, drew Grissette's attention to the passenger side of the automobile where a small handgun was lying on the floorboard "between the seat and the seatbelt housing," near the automobile's passenger door, which had been left open. Although Grissette had not observed the gun until this time, it was plainly visible; nothing had to be moved for Grissette to observe it. Later, Grissette learned that the driver had not provided his real name to him at the scene and that the automobile at issue was owned by an automobile rental company.

The state also presented testimony from Francis, who testified to the following relevant facts. At shortly after 10 p.m., after learning that a fellow officer was in pursuit of a subject, he arrived on the scene. He knew no other information about either Grissette's activities or the defendant. Upon his arrival at the scene, he observed Grissette walking the defendant, in handcuffs, toward an automobile parked at the scene. Upon learning that both subjects had been arrested and detained, Francis assisted another officer at the scene, who had begun searching the driver's side of the automobile. Francis approached the passenger side of the automobile where he observed that the passenger door was open and immediately observed a firearm that was between "the passenger front seat and the door open area on the floor of the vehicle." His subsequent search of the vehicle did not yield any additional evidence.

For the purpose of establishing standing, the defendant testified at the suppression hearing that at the place and time in question, he was the owner of and in possession of the .25 caliber gun seized by the police. The defendant acknowledged that he did not have a permit for the gun. The defendant corroborated the testimony of the police officers as to the gun's location inside the automobile at the time the police detected it, testifying that he had the gun on the floor between the door and the passenger's seat, where he had been sitting.

The state argued that the seizure of the defendant was lawful because, on the basis of the facts presented, Grissette had a reasonable and articulable suspicion sufficient to justify an investigatory stop of the defendant and the driver. The state also asserted that the gun was discovered in plain view from a vantage point that the officers had a lawful right to occupy. The state challenged the defendant's standing to contest the legality of any search of the automobile, arguing that the defendant did not have an ownership interest or expectation of privacy in the automobile. The state likewise asserted that the defendant had abandoned the gun and, thus, did not have any expectation of privacy with regard to the gun, when he fled from the automobile. The defendant argued that the seizure of the gun stemmed from police illegality in that the police lacked a reasonable and articulable suspicion to have conducted an investigatory stop and that Grissette had conducted an investigatory stop when he approached the automobile to talk with the defendant and the driver.

In an oral ruling, the court denied the defendant's motion to suppress.⁵ The court reasoned that the defendant lacked standing to challenge the validity of the search of the rented automobile because he was merely a passenger in the automobile and lacked any possessory interest in it. The court went on to rule that, if standing existed, it would deny the motion on its merits. The court found that the anonymous tip was not corroborated by any evidence of drug activity. Nonetheless, the court was persuaded by its finding that the automobile was parked on private property, near a residence, and the defendant did not have a right to be at that place unless he had "some connection ... with the premises." The court deemed it relevant that the defendant had been charged at the scene with, inter alia, criminal trespass. The court concluded that, under these circumstances, Grissette lawfully had conducted "an identity check" of the driver and the defendant.

The court's findings reflect its reliance on the largely unchallenged testimony of Grissette and Francis. The court accepted as true Grissette's testimony that the defendant fled from the vehicle in the manner that Grissette described. The court also accepted as true Francis' testimony that the gun was found in the automobile in the manner described, via the automobile's open passenger door. On the basis of these findings, the court concluded that the police had detected the gun in "plain sight" upon approaching the automobile after the defendant was apprehended. Summarizing its ruling, the court stated: "[T]he motion is denied for no standing. The investigative stop was reasonable given the fact that the vehicle with New York plates was parked on private property and the weapon that was seized was in plain view so that a search was not in reality conducted."

"[O]ur 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.... [When] the legal conclusions of the court...