State v. Lizotte, 4568

• Decision Date: 19 May 1987
• Docket Number: No. 4568,4568
• Citation: 11 Conn.App. 11,525 A.2d 971
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert LIZOTTE.

Page 971

525 A.2d 971

11 Conn.App. 11

STATE of Connecticut v. Robert LIZOTTE.

No. 4568.

Appellate Court of Connecticut.

Argued Dec. 11, 1986.

Decided May 19, 1987.

Kimball Haines Hunt, Hartford, with whom was John Serrano, Law Student Intern, for appellant (defendant).

Alex Andrew Knopp, Special Asst. State's Atty., with whom, on the brief, were James G. Clark and Herbert Appleton, Asst. State's Attys., for appellee (State).

Before DUPONT, C.J., and HULL and BIELUCH, JJ.

BIELUCH, Judge.

The defendant appeals from a judgment of conviction rendered pursuant to a plea of nolo contendere on the charge of possession of narcotics, a violation of General Statutes § 21a-279(a). His plea of nolo contendere was conditional upon his right to appeal the trial court's denial of the defendant's motion to suppress certain evidence seized from his van without a warrant. See General Statutes § 54-94a. ¹ He claims that the trial court erred (1) in finding that the police officers had probable cause to stop the defendant's motor vehicle, (2) in finding that the police officers' warrantless arrest of the defendant and subsequent warrantless search of the van were lawful, (3) in finding that the police officers' actions were justified as an investigative stop under Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968), and State v. Acklin, 171 Conn. 105, 112, 368 A.2d 212 (1976), and (4) in denying the defendant's motion to dismiss the information. We find no error.

The following facts as found by the trial court in its memorandum of decision on the defendant's motion to suppress the evidence seized from his van and on his motion to dismiss are not in dispute. On the night of February 23, 1984, Officers Gaten Landry and Bruce Tischofer, of the Hartford police department, were en route to their patrol assignment traveling westbound on Interstate 84 in Hartford. As they approached the Sisson Avenue exit they noticed a green van in the center of the highway. This van then crossed two lanes of traffic, cut in front of their cruiser and entered the Sisson Avenue exit ramp without giving a right turn signal. The police officers decided to stop the driver of the van for the purpose of issuing a traffic summons charging an improper lane change in violation of General Statutes § 14-236. The police activated the flashing lights and siren of their cruiser and followed the van to a stop. At that time, the officers also noticed that one of the tail lights on the van was not operating, a violation of General Statutes § 14-96c.

Landry approached the driver side of the van to question the driver and Tischofer went to the passenger side. The defendant was the sole occupant of the van. Landry requested the defendant's license, registration and insurance card. At the same time, Tischofer scanned the inside of the passenger compartment with his flashlight as part of a routine search for weapons to ensure the police officers' safety. During this procedue, Tischofer saw a leather ammunition belt containing ammunition on the floor of the van just to the right rear of the operator's seat. The belt was partially covered by a towel. Tischofer immediately alerted his partner to the presence of the ammunition belt. The defendant was then ordered out of the van and was searched by a patdown for weapons. This search revealed no weapon. The defendant was then handcuffed and placed in the police cruiser. Although the defendant was not charged with a criminal offense at that point, the officers determined that such restraint was necessary to protect their safety, which they felt was jeopardized by the existence of the gun belt and their belief that there may have been a weapon in the van.

Tischofer returned to the van and removed the towel which partially covered the ammunition belt. The belt contained thirteen live rounds of .357 caliber ammunition. A holster was found attached to the belt and it contained a .357 caliber Ruger Black Hawk pistol fully loaded with six live rounds of ammunition. The belt, ammunition and pistol were seized and placed in the police cruiser.

The officers again returned to the van and conducted a search of the passenger compartment. On the right side, underneath the seat cover, three brown packets of white powder and one clear packet of white powder were discovered. On the basis of their training and experience, the officers concluded that the four packets contained either cocaine or heroin. These packets were also seized and later identified as containing cocaine.

As a result of the discovery of the weapon, ammunition and drugs described, the defendant was arrested and charged with the following crimes: carrying a weapon in a motor vehicle, a violation of General Statutes § 29-38; criminal possession of a pistol or revolver, a violation of General Statutes § 53a-217; possession of narcotics, a violation of General Statutes § 21a-279(a); and possession of narcotics with intent to sell, a violation of General Statutes § 21a-277(a).

Prior to trial, the defendant moved to suppress the items seized from his van without a warrant at the time of his stop. See Practice Book § 821. ² He also filed a motion to dismiss the charges against him. See Practice Book §§ 728 and 815. The court denied these motions. Thereafter, the defendant entered a conditional plea of nolo contendere only to the third count of possession of narcotics, a violation of General Statutes § 21a-279(a). The disposition of the other three charges in the original information is not before us in this appeal. ³

The defendant's first claim is that the police had no probable cause to stop the defendant's motor vehicle. The parties are in agreement that the basis for the police officers' stop of the defendant's vehicle was to issue a traffic summons for an unsafe lane change under General Statutes § 14-236. ⁴ General Statutes § 14-236 provides in relevant part that, "[w]hen any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety...."

The police officers testified that they first encountered the defendant's van traveling in the center of Interstate 84, when it subsequently crossed two lanes of the highway and cut in front of their cruiser and entered the Sisson Avenue exit ramp without giving a right turn signal. The officers characterized these movements as "rather hazardous." The defendant claims that such statements were inadequate to establish a violation of General Statutes § 14- 236, in light of Tischofer's testimony on cross-examination that the vehicle was approximately ten car lengths ahead of the police cruiser at the point the officers observed the defendant's van and that Tischofer could not recall if there were any cars between the police cruiser and the van.

Whether the police were justified in stopping the defendant's van for a motor vehicle infraction is, of course, an issue of fact. See, e.g., State v. Brindley, 25 Conn.Sup. 216, 220, 200 A.2d 247 (1963). From the record it is clear that the trial court was convinced, notwithstanding Tischofer's testimony on cross-examination, that there was a reasonable belief on the part of the police officers that the defendant's operation of the van constituted a violation of General Statutes § 14-236. In challenging this finding, the defendant bears the burden of proving that the court's conclusion is clearly erroneous, which is to say that it is unsupported by the facts. See Practice Book § 4061 (formerly § 3060D); State v. Stepney, 191 Conn. 233, 239, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984). The officers' testimony that the van crossed two lanes of traffic without signaling, that there were other cars on the road, that the van cut in front of the police cruiser, and the characterization of the maneuver as hazardous provided sufficient evidence to support the trial court's conclusion that the officers were justified in stopping the defendant's van to issue a summons for a moving violation.

The defendant's second claim of error asserts that if the police were justified in stopping the defendant's van for a traffic infraction, the ensuing warrantless arrest of the defendant was invalid and the subsequent warrantless search could not be upheld as lawfully incident to an arrest. We note at the outset that 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. State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160 (1986), cert. denied, --- U.S. ----, 107 S.Ct. 423, 93 L.Ed.2d 373 (1987). It is the state's burden at trial to establish the exception. Id., 424, 512 A.2d 160. A review of the memorandum of decision demonstrates that the trial court found that the warrantless search of the defendant's van was justified as incident to a lawful arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

If evidence obtained without a warrant was obtained as a result of a valid search and seizure incident to a lawful arrest, such evidence was not illegally obtained and is admissible. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); State v. Badgett, supra; State v. Cobuzzi, 161 Conn. 371, 377-79, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 677, 30 L.Ed.2d 664 (1972). "[A] lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediate surrounding area, whether or not there is probable cause to search.... [S]earches incident to arrests have long been considered valid because of the need 'to remove any weapons that [the arrestee] might seek to use in order to...