State v. Martin

• Citation: 2 Conn.App. 605,482 A.2d 70
• Decision Date: 18 September 1984
• Docket Number: No. 2676,2676
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Alan H. MARTIN.

Page 70

482 A.2d 70

2 Conn.App. 605

STATE of Connecticut v. Alan H. MARTIN.

No. 2676.

Appellate Court of Connecticut.

Argued May 3, 1984.

Decided Sept. 18, 1984.

Richard D. Arconti, Asst. State's Atty., for appellant (state).

Emanuel Margolis, Stamford, with whom were Judith Rosenberg, Westport, and, on brief, Tracy A. Saxe, Orange, for appellee (defendant).

Before DANNEHY, C.P.J., and DUPONT and BORDEN, JJ.

BORDEN, Judge.

This is an appeal ¹ by the state taken with the permission of the trial court, pursuant to General Statutes § 54-96 and Practice Book § 819, from the judgment of the court dismissing the information with prejudice, following the granting of the defendant's motion to suppress. We find no error. ²

The defendant was charged in an information with illegal possession of a narcotic substance in violation of then General Statutes (Rev. to 1981) § 19-481(a), now General Statutes § 21a-279(a), and with illegal possession of a controlled substance in violation of then General Statutes (Rev. to 1981) § 19-481(c), now General Statutes § 21a-279(c). He moved to suppress certain substances which the state claimed were cocaine and methaqualone and which had been seized from his car after a warrantless search.

In a comprehensive memorandum of decision, the trial court found the following facts. On August 26, 1981, at approximately 10:30 p.m., Lieutenant Dennis Cooney, the desk officer of the Danbury police department, answered a telephone call and was told by the caller that "there is a blue Corvette out-of-state plate that will be going to the Foundry in about twenty minutes to deal in a large amount of cocaine." The caller, whose voice was unknown to Cooney, did not identify himself. Cooney put out a radio call requesting Detective John Merullo to telephone him.

Merullo had been a member of the Danbury police department for thirteen and one-half years, had worked with the special investigative unit (SIU) of the department involved in narcotics investigations, and had been assigned for the past year to the statewide narcotics task force. Merullo telephoned Cooney from a telephone located at the rear of the headquarters. Cooney told him of the caller's message. Merullo, accompanied by Detective William Hull, used his personal vehicle to drive to the Foundry Cafe, which took about five minutes. Upon arriving, Merullo checked the parking lot for a blue Corvette and found none. He parked his vehicle so that he could observe the cafe and the entrance to the parking lot.

Approximately ten minutes later, he saw a blue Corvette with New Hampshire license plates enter the lot and park near two flood lights which were attached to the cafe building and which were about ten feet from a covered walkway. The walkway was the entrance to the cafe and to stores located on the second floor. The area in which the Corvette was parked was well lit. Merullo telephoned the department to check the ownership of the Corvette ³ and to determine if there were any outstanding warrants on it. He also asked Cooney to contact Sargeant James McNamara and Detective Harold Chapman of SIU.

Merullo saw two people leave the Corvette: the operator, a tall white male, later identified as the defendant, and the passenger, a tall white blonde female. They both entered the covered walkway. Merullo assumed they were going to the cafe. Fifteen minutes later the defendant left the walkway accompanied by another male, and they both entered the Corvette. Merullo recognized the other male as Dominic Cristello. At that point there was nothing suspicious about their behavior. The Corvette had tinted windows which prohibited seeing into its interior. A few minutes later, the Corvette was driven to another area where it parked. This was an unlighted area, and Merullo had to move his vehicle in order to keep the Corvette in view. Merullo did not know the operator of the Corvette but he knew, from conversations that he had had with fellow police officers discussing the cafe and drug traffic and from having reviewed Cristello's police file, that Cristello frequented the cafe and had been convicted of a drug charge eight years before.

McNamara and Chapman arrived. Merullo explained everything that had occurred up to the time of their arrival. He told McNamara that he believed that he had probable cause to search the Corvette, and that he intended to do so. It was agreed that McNamara would drive his vehicle to the area where the Corvette was parked. Merullo drove his vehicle and parked directly behind the Corvette; McNamara stopped his vehicle in front of the Corvette so that it was boxed in. Merullo immediately left his vehicle and went to the Corvette to search it. He approached the operator's side, badge in hand, and identified himself as a police officer. He requested that the window be rolled down and it was rolled down partially. He asked the operator, who was the defendant, for his license and registration. Because he could not see into the vehicle due to the tinted glass, for his own protection he opened the door of the Corvette. Upon his doing so, the interior light went on. Merullo stood by the door and saw the defendant trying to find his registration. He also saw the defendant putting a small amber bottle and a small spoon on the floor between his legs. Merullo knew that such a bottle and spoon were commonly used for carrying and snorting cocaine. Merullo told the defendant that he was under arrest. The officers searched the Corvette for five minutes, and found in the back an overnight bag containing a plastic bag of cocaine and a paper bag containing money.

The court specifically found that Merullo's approach to the Corvette was not for purposes of investigation but was for the purpose for searching the vehicle; that the defendant was seized, within the meaning of the fourth and fourteenth amendments to the United States constitution, when the police boxed in the Corvette and approached it with the intent to search it; and that the request for the defendant's license and registration was pretextual.

The memorandum of decision of the trial court, which was filed on June 1, 1983, analyzed the search and seizure here under the then familiar principles of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Those principles had been understood to require a reviewing court to gauge the reliability of information given by an informant according to a two-pronged test analyzing (1) the basis of the informant's knowledge--the means by which he acquired his information, and (2) the underlying facts establishing either his general veracity or his reliability in the particular case. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2327, 76 L.Ed.2d 527 (1983). Beginning with this analysis, which was the proper starting point at that time, the court concluded that the informant's tip was unreliable and "therefore [was] to be treated as if it never existed," and further concluded that the seizure was without probable cause. The court granted the motion to suppress the items seized from the Corvette, namely the amber bottle and its contents, the spoon, the overnight bag and its contents, and the paper bag and its contents.

On June 8, 1983, the United States Supreme Court decided Illinois v. Gates, supra, in which it abandoned the Aguilar-Spinelli test in favor of a determination of probable cause based on the totality of the circumstances. ⁴ Both parties to this appeal agree, as do we, that the test of Illinois v. Gates, supra, must be applied to the facts of this case.

We believe that the trial court went too far in saying that it must completely disregard the anonymous tip. The fact of the tip, the degree to which it contained details and the degree to which those details were corroborated were part of the totality of the circumstances test which a court must use in passing on a claim of probable cause. Id. "While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not." Id., 2332. Applying the totality of the circumstances test here, we conclude nonetheless that the trial court was correct in granting the motion to suppress.

The court found that the defendant was "seized," in constitutional parlance, when the officers boxed in the Corvette with their vehicles and approached it with the intent to search. A person is seized when, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." State v. Ostroski, 186 Conn. 287, 291-92, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982), quoting United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 64 L.Ed.2d 497, reh. denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980); Florida v. Royer, 460 U.S. 501-502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). "Whether there has been such a seizure in an individual case is a question of fact." State v. Ostroski supra, 292, 440 A.2d 984. "[S]topping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the fourth an fourteenth] Amendments, even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The court was correct in its factual determination of when the defendant was seized.

It is true that under some circumstances a seizure of an automobile and its occupants may permissibly take place on less than probable cause, such as when there is an investigative stop based on reasonable and articulable suspicion. See, e.g., Delaware v. Prouse, supra; State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981)....