State v. Kinch

• Decision Date: 06 September 2016
• Docket Number: Nos. 37433,37434.,s. 37433
• Citation: 144 A.3d 509,168 Conn.App. 62
• Parties: STATE of Connecticut v. Phil KINCH.
• Court: Connecticut Court of Appeals

168 Conn.App. 62

144 A.3d 509

STATE of Connecticut

v.Phil KINCH.

Nos. 37433

37434.

Appellate Court of Connecticut.

Argued April 12, 2016.

Decided Sept. 6, 2016.

Gwendolyn S. Bishop, assigned counsel, Windsor Locks, for the appellant (defendant).

Matthew R. Kalthoff, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Richard L. Palombo, Jr., senior assistant state's attorney, and Marc R. Durso, assistant state's attorney, for the appellee (state).

BEACH, ALVORD and GRUENDEL, Js.

GRUENDEL, J.

This case involves an investigatory stop of a motor vehicle. The defendant, Phil Kinch, appeals from the judgments of conviction, rendered after jury trials, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b) and failure to appear in the first degree in violation of General Statutes § 53a–172 (a)(1). On appeal, the defendant claims that the trial court improperly denied his motion to suppress certain evidence. He further maintains that, should he prevail on that claim, his conviction for failure to appear also must be set aside. We affirm the judgments of the trial court.

The relevant facts are largely undisputed. On the evening of July 12, 2011, members of the Bridgeport Police Department were conducting surveillance in the vicinity of 740 Ellsworth Street (property), which was considered a “hot zone” due to the prevalence of violent crime in that area. A multistory apartment complex with a small parking lot was located on the property.

From an unmarked police vehicle, Sergeants Bradford Seely and Ronald Mercado were on the lookout for an individual with a “weird walk ... a weird gait” who allegedly “had been robbing people in this neighborhood numerous times within the past few weeks....” At approximately 11 p.m., they observed an individual with a distinctive gait wearing a red shirt and black pants, who met with a “black male, a white male and a white female” as he approached the property. At that time, Seely placed a request over police radio for the assistance of a marked police vehicle to “help identify the individual wearing the red shirt and the black pants.”¹

Officers Manual Santos and Bobby Jones, who were on patrol in a marked police vehicle, responded to Seely's request. When they arrived at the property, they observed three individuals walking toward a black Toyota Scion XD (vehicle) in the parking lot. Those individuals then entered that vehicle. At that time, the officers were “acting on orders to stop parties in that [parking] lot.” Santos observed a white male in the driver's seat, a white female in the front passenger seat, and a black male in the rear passenger seat of the vehicle. At the suppression hearing, Santos identified the defendant as the individual in the rear passenger seat.

As they parked their patrol car behind the vehicle, the officers observed “a lot of movement going on” in the vehicle. Santos testified that “both the driver and the front right passenger, the female, they just kept looking towards the rear of the vehicle, the rear compartment to the passenger that was in the rear, [their] hands were moving, their heads were moving, they kept looking at us and ... looking at this rear seated passenger.” Santos, who was dressed in full uniform, exited his patrol car and approached the driver's side of the vehicle with a flashlight in hand. As Santos “was looking at the rear passenger [from outside the vehicle, he] observed on the floor next to his feet ... a small digital scale, a clear plastic Ziploc type sandwich bag which had a white or off-white type substance inside it. [He] observed ... a blood cigarette, which ... is a cigarette wrapper with contraband in it that someone would smoke. [He] also observed a brown paper bag that had cigar tubes kind of protruding from it.” All three individuals then exited the vehicle and were placed under arrest. At that time, the police seized various items from the vehicle.

The defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a–278 (b). He thereafter filed a motion to suppress the evidence seized from the vehicle.² In that motion, the defendant alleged that the “seizure and search of the vehicle occupied by the defendant were conducted by members of the Bridgeport Police Department without a valid warrant, without probable cause, without reasonable and articulable suspicion, and not incident to a lawful arrest.” (Emphasis added.)

At the outset of the June 27, 2013 suppression hearing, the state claimed that the defendant lacked standing to contest the validity of the search of the vehicle, arguing that “[i]t was not his car and prior court cases have indicated that a person who's a backseat passenger in a car that he does not own does not have standing to object to the search of that vehicle.” In response, the defendant argued that he was entitled to proceed pursuant to Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Perhaps mindful that a reasonable expectation of privacy analysis entails a fact specific inquiry; see State v. Boyd, 295 Conn. 707, 718, 992 A.2d 1071 (2010), cert. denied, 562 U.S. 1224, 131 S.Ct. 1474, 179 L.Ed.2d 314 (2011) ; the court did not act on the state's motion at that time, stating, “All right. I'll allow the matter to go forward.”³

The only two witnesses at that hearing were Seely and Santos. At the conclusion of their testimony, the state renewed its claim that the defendant lacked standing to contest the seizure of the evidence in question. The state argued that the present case was “very similar” to State v. Thomas, 98 Conn.App. 542, 550–51, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007), in which this court recognized that “[a] passenger in a motor vehicle, who fails to demonstrate a possessory interest in the car itself or in any of the seized evidence, has no reasonable expectation of privacy in the area of the vehicle searched, and ... is precluded from contesting the validity of the search.” (Internal quotation marks omitted.) In response, the defendant again directed the court's attention to Brendlin v. California, supra, 551 U.S. at 249, 127 S.Ct. 2400. In rendering its oral decision, the court stated, “I'm ... denying the state's motion on the standing, and I'm going to deny the motion to suppress.” The court then detailed the basis of its determination that the officers possessed a reasonable and articulable suspicion of criminal activity at the time of their encounter with the defendant.

A jury trial followed, at the conclusion of which the defendant was found guilty of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a–278 (b). The defendant was scheduled to be sentenced on September 11, 2013, but did not appear at that proceeding. Approximately two months later, the court sentenced the defendant to a term of twelve years incarceration, execution suspended after eight years, with four years of special parole.

As a result of his failure to appear for sentencing on September 11, 2013, the defendant was arrested and charged with one count of failure to appear in the first degree. The defendant pleaded not guilty to that charge. After a trial, the jury found the defendant guilty. The court rendered judgment accordingly and sentenced the defendant to a term of two years incarceration, to be served consecutive to his sentence on his conviction for possession of narcotics with intent to sell. This consolidated appeal of the judgments of conviction for possession of narcotics with intent to sell and failure to appear followed.

I

The defendant first claims that the court improperly denied his motion to suppress the evidence seized from the vehicle because the investigatory stop by police was not supported by a reasonable and articulable suspicion of criminal activity. The state concedes that “the seizure of the vehicle's occupants was not supported by a reasonable and articulable suspicion that criminal activity was afoot.” The state nonetheless maintains that, because the defendant did not establish a reasonable expectation of privacy in the vehicle, the court's ruling on the motion to suppress must be affirmed on the alternate ground that the defendant lacked standing to contest the search of the vehicle.⁴ We agree with the state.⁵

“[S]tanding is a fundamental requirement of jurisdiction.” (Internal quotation marks omitted.) State v. Johnson, 301 Conn. 630, 642, 26 A.3d 59 (2011). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue....” (Internal quotation marks omitted.) State v. Long, 268 Conn. 508, 531, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004). The question of standing presents an issue of law over which our review is plenary. Weiss v. Smulders, 313 Conn. 227, 239, 96 A.3d 1175 (2014) ; see also State v. Kalphat, 285 Conn. 367, 374, 939 A.2d 1165 (2008) (issues raising questions of law in context of motion to suppress subject to plenary review).

In conducting that plenary review, the factual findings underlying a court's decision on a motion to suppress “will not be disturbed unless [they are] clearly erroneous in view of the evidence and pleadings in the whole record.... [H]owever, when a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, and the credibility of witnesses is...