State v. Mierez

• Decision Date: 12 June 1991
• Docket Number: No. 9178,9178
• Citation: 590 A.2d 469,24 Conn.App. 543
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Renwrick MIEREZ.

Page 469

590 A.2d 469

24 Conn.App. 543

STATE of Connecticut v. Renwrick MIEREZ.

No. 9178.

Appellate Court of Connecticut.

Argued Feb. 6, 1991.

Decided May 7, 1991.

Certification Denied June 12, 1991.

Dennis F. O'Toole, Asst. Public Defender, for appellant (defendant).

Margaret Gaffney Radionovas, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Jennifer Sanders, Deputy Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and FOTI and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of one count of sale of a narcotic substance in violation of General Statutes § 21a-277(a), ¹ and one count of possession of a narcotic substance, in violation of General Statutes § 21a-279(a). ² In each instance, the narcotic substance involved was cocaine.

The defendant claims that the trial court (1) improperly denied his motion to suppress evidence and (2) improperly charged the jury on the crime of sale of a narcotic substance when the evidence produced by the state was insufficient to prove that crime beyond a reasonable doubt. We disagree with the defendant's claim that the denial of his motion to suppress was improper, but agree that the evidence was insufficient to support a verdict of guilty on the charge of sale of a narcotic substance. We therefore affirm the defendant's conviction of the crime of possession of a narcotic substance, and reverse his conviction of the charge of sale of a narcotic substance.

The jury reasonably could have found the following facts. On August 1, 1989, Detectives Christopher Lyons and Richard Perrotta of the Hartford police department set up surveillance in the area of 11 Sargeant Street, Hartford, in response to an anonymous tip that a black man in a red shirt was selling drugs at the curb in front of that address. The officers were in an unmarked police vehicle. Lyons and Perrotta observed the defendant, a black male wearing a red shirt, standing on the sidewalk near the curb in front of 11 Sargeant Street. The officers watched the defendant for a period of about fifteen minutes. Two or three times during that period, they saw him stop pedestrians and wave over the driver of a car, have a short conversation with the person he had stopped, and exchange small items with each of these people. The officers were unable to see the items that were being exchanged.

At one point, a white truck occupied by two persons pulled over to the side of the road where the defendant was standing. The driver got out of the truck and approached the defendant. The officers observed the defendant and the man from the truck exchange unidentifiable small items. Once the exchange was completed, the defendant remained in the surveillance area. At this time, Lyons and Perrotta exited their vehicle. Lyons pursued the defendant, while Perrotta approached the driver of the white truck. Lyons was dressed in civilian clothing, but his police badge was clearly visible on a chain around his neck. His service revolver was also visible. As Lyons approached, the defendant began to run down the driveway of 11 Sargeant Street. When Lyons yelled at the defendant to stop, he did. As he stopped, the defendant turned away from Lyons slightly and put his hands in the front waistband of his trousers. Lyons grabbed the defendant, reached into the same area of the defendant's waistband, where the officer found a plastic bag that was tied at the top and contained a white powder. A further search of the defendant revealed that he had a newspaper fold containing a white powder in the small of his back at his beltline, and $80 in his pocket. The defendant was then placed under arrest.

Meanwhile, Perrotta approached the driver of the white truck, stopping him before he was able to reenter the truck. Perrotta searched the driver, but found no narcotics in his possession. Lyons then called to Perrotta for assistance. When Perrotta responded to his partner's call, the driver and his passenger left the scene in the white truck before Perrotta could obtain the name of the driver or any information about the truck or its owner. Neither the driver of the white truck nor the passenger were ever apprehended by the police. A field test and a full laboratory test were performed on the white powder that had been taken from the defendant. Both of these tests were positive for the narcotic substance, cocaine.

I

The defendant first claims that the court improperly denied his motion to suppress the evidence that was seized from his person at the time of his arrest. The defendant posits that the court improperly concluded, as a matter of law, at the close of the suppression hearing, that the search of his person was justified as a search incident to a lawful arrest. He argues that the police lacked probable cause to believe that he had committed a felony.

The state argues that the police did have the requisite probable cause, and, as an alternative ground to uphold the search, it asserts that the search was a justifiable protective frisk that was conducted pursuant to a valid Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This court can sustain a judgment on a different theory than that adopted by the trial court. Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 101, 362 A.2d 1359 (1975). Thus, we conclude that the search can be upheld on the alternative ground that it was conducted pursuant to a valid Terry stop. See State v. Beckenbach, 1 Conn.App. 669, 673 n. 4, 476 A.2d 591 (1984), rev'd on other grounds, 198 Conn. 43, 501 A.2d 752 (1985).

"It is well established that police may momentarily detain an individual for investigative purposes if the police have 'a "reasonable and articulable" suspicion that [he has] engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); Terry v. Ohio, [supra].' State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983). What constitutes a reasonable and articulable suspicion depends on the 'totality of the circumstances.' United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). 'The test to be applied, however, is an objective one: "would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry v. Ohio, supra, [392 U.S. at] 22 . In justifying the particular intrusion "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, supra, at 21 ; see United States v. Brignoni-Ponce, [422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975) ]; State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973).'..." State v. Aversa, 197 Conn. 685, 690-91, 501 A.2d 370 (1985).

In addition, when an officer is investigating an individual at close range whose conduct or suspicious behavior justify a belief by the officer that the suspect is armed and dangerous, the officer may conduct a limited search for weapons. State v. Federici, 179 Conn. 46, 51, 425 A.2d 916 (1979). The search must be reasonably related in scope to the circumstances that justify it in the first place. State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987); State v. Moreland, 23 Conn.App. 495, 497-98, 582 A.2d 212 (1990).

Our examination of the facts in the present case leads us to conclude that Lyons had the right to stop the defendant because he had a reasonable and articulable suspicion as required by Terry v. Ohio, supra. Specifically, when the officers arrived at the surveillance site they observed that the defendant was wearing a red shirt, as the anonymous caller had said he would be, and they watched as he exchanged small items with passersby and the driver of the white truck. The officers were aware of the fact that the area was one in which drugs were sold because they had made numerous narcotics arrests in that vicinity in the past. On the basis of the totality of the facts available from the officers' observations, training, and experience, they had a reasonable and articulable suspicion that the defendant was engaged in illegal drug transactions. State v. Aversa, supra; State v. Wylie, 10 Conn.App. 683, 686, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987). The defendant concedes that at this point Lyons had a right to make an investigative stop, but claims that the reaching into the defendant's waistband by Lyons exceeded the scope of a limited protective search under Terry.

The defendant's furtive activity at the initiation of the stop further aroused the officer's suspicion, allowing him to prolong the stop and broaden its scope. When the defendant first ran and then stopped and reached into the waistband of his pants, the police were justified in conducting a pat down search for weapons. "It is by now common knowledge among police officers that sellers of narcotics are frequently armed." State v. Marino, 17 Conn.App. 677, 683, 555 A.2d 455, cert. denied, 211 Conn. 803, 559 A.2d 1138 (1989). " 'An officer should not be made to choose between his own safety and what could later be construed as an illegal search and seizure.' " State v. Santiago, 17 Conn.App. 273, 277, 552 A.2d 438 (1989); see also State v. Holder, 18 Conn.App. 184, 188, 557 A.2d 553 (1989). In the past, we have held, under similar circumstances, that a search such as the one involved here was justified. State v. Escobales, 16 Conn.App. 272, 275, 547 A.2d 553, cert. denied, 209 Conn. 827, 552 A.2d 434 (1988), cert. denied, 490 U.S. 1023, 109 S.Ct. 1753, 104 L.Ed.2d 189 (1989). We continue to adhere to the rule of that case and conclude that the officers were justified in frisking the defendant. Thus, the court properly admitted the cocaine that was found at both...