State v. Nash

Citation278 Conn. 620,899 A.2d 1
Decision Date20 June 2006
Docket NumberNo. 17570.,17570.
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. Dennis NASH.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Toni M. Smith-Rosario, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John P. Doyle, Jr., and Ann P. Lawlor assistant state's attorneys, for the appellee (state).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

KATZ, J.

The defendant, Dennis Nash, appeals from the judgment of conviction, following a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278 (b),1 and possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b).2 On appeal, the defendant claims that the trial court improperly: (1) determined that a warrantless search of his person did not violate his constitutional right to be free from unreasonable searches and seizures under the fourth amendment to the United States constitution;3 (2) admitted testimony of the state's expert witness on narcotics transactions; and (3) denied the defendant's motion for a mistrial after a police officer had testified that he recognized the defendant from a "previous related police intervention. . ."4 We reject these claims and, accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 14, 2002, New Haven police officers Douglas Harkins, Anthony Maio5 and David Runlett organized a narcotics surveillance operation in the Kensington Street section of New Haven. During the surveillance, Harkins had an unobstructed view of that area through a camera mounted on a building at the corner of Chapel and Kensington Streets. At approximately 5 o'clock in the evening, Harkins observed a male whom he described to be black and wearing a black winter hat and coat, a yellow T-shirt, blue jeans and work boots. The male, later identified as the defendant, had been walking south on the Kensington Street sidewalk when he stopped and waved to a woman who had been walking north on the opposite side of the street. The woman crossed the street, the two engaged in a short conversation, and the woman handed a small item to the defendant, which he placed in his left front pants pocket. He then reached down into the area of his left boot and pulled out a plastic bag. The defendant reached into the bag, retrieved a small item and handed it to the woman, who then walked back across the street. A few seconds later, Harkins observed a man approach the defendant, and he again saw the defendant take a small item from the other person and place it in his left front pants pocket before reaching into his work boot and retrieving a plastic bag. Harkins again observed the defendant take a small item from the plastic bag and give it to the other man before the two parted company.

Harkins then relayed his observations to Maio and Runlett, who in turn proceeded in a patrol car to the area where Harkins last had seen the defendant, walking north on Kensington Street toward Edgewood Avenue. Runlett and Maio drove down Edgewood Avenue until they saw the defendant, the only person in the area who matched the description given by Harkins.

The officers stopped the defendant and handcuffed him. The defendant offered verbal resistance, and a group of approximately fifteen to twenty people began to gather in the area. Runlett started to pat down6 the defendant, frisking only the upper half of his body, but then decided to remove the defendant from the area. Runlett and Maio placed the defendant, still handcuffed, in the patrol car and drove him one-half block away to a police substation; the trip took approximately thirty seconds. Upon arriving, they placed the defendant, still handcuffed, in a chair in the lobby of the substation, whereupon Runlett continued the pat-down. During this procedure, Runlett heard a crinkling sound and detected an item near the top of the defendant's left boot. He withdrew a plastic bag containing thirty-eight smaller pink-tinted, Ziploc style baggies holding a white rock-like substance that Runlett believed to be crack cocaine. Runlett then continued to search the defendant and found $319 in his left front coat pocket. Following a positive field test of the substance seized by the police indicating that it was in fact narcotics, Harkins and Runlett arrested the defendant.

The record reveals the following procedural history. The state charged the defendant with possession of a narcotic substance with intent to sell in violation of § 21a-278 (b) and possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of § 21a-278a (b). Before trial, the defendant filed a motion to suppress the evidence seized from him on the ground that it had been obtained illegally as the result of an unconstitutional search.7 The trial court conducted a full evidentiary hearing on the motion to suppress, during which Harkins and Runlett testified for the state.

The trial court then denied the defendant's motion to suppress. In so doing, the trial court concluded that a reasonable and articulable suspicion had existed sufficient to allow for a warrantless search of the defendant. The court credited the testimony of the officers that the hand-to-hand exchanges that they had observed were consistent with street-level narcotics transactions, that narcotics dealers often are armed and work with others who are in the immediate vicinity, and that the defendant was stopped in a high crime area. The trial court found that, as a crowd continued to gather, a serious risk to the safety of the officers, as well as the defendant, had developed.

The trial court also concluded that the officers had not exceeded the permissible limits of an investigative stop when they transported the defendant in the patrol car for approximately thirty seconds to the police substation. The court's conclusion was based on its findings that: the officers had responded immediately to detain the defendant after observing him engage in two hand-to-hand transactions that were consistent with narcotics sales; the officers had met with immediate verbal resistance from the defendant when attempting to stop him; a crowd had gathered around the two officers performing the investigative detention and thereby created a safety risk; the patdown was for the limited purpose of finding weapons; a complete patdown could not have been conducted at the location of the initial stop; and the movement of the defendant to the lobby of the police substation was slight. On the basis of the totality of the circumstances, the trial court reasoned that the seizure was neither excessive in duration nor open-ended in length.8

During the trial, the state presented testimony from Harkins, Runlett and Maio concerning their observation, search and arrest of the defendant. During the course of his testimony, Maio stated that he was familiar with the defendant "[f]rom previous police related intervention in the area in the past." The state also presented expert testimony from New Haven police detective Michael Wuchek regarding street level distribution and purchase of narcotics generally.

The jury returned a verdict of guilty on both counts. Thereafter, the trial court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective sentence of twenty years, with eight years being mandatory. This appeal followed.9

I CONSTITUTIONALITY OF THE SEARCH AND SEIZURE

We first address the defendant's claim that the trial court improperly determined that the warrantless search of his person did not violate the defendant's constitutional right to be free from unreasonable searches and seizures under the fourth amendment to the United States constitution. Specifically, the defendant contends that the trial court improperly denied his motions to suppress the seized cocaine as the fruit of an unlawful search because: (1) the police officers did not have a reasonable and articulable suspicion that the defendant was armed and dangerous to justify the patdown; (2) the officers exceeded the scope of a permissible investigatory stop, thereby making a de facto illegal arrest when they handcuffed the defendant and transported him to the police substation; and (3) the patdown at the police substation exceeded the scope of a reasonable search. We disagree.

Before turning to the merits of the defendant's search and seizure claims, we set forth the standard of review applied to a trial court's findings and conclusions in connection with a warrantless search. "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 are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court's memorandum of decision. . . ." (Internal quotation marks omitted.) State v. Mann, 271 Conn. 300, 323, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1711, 161 L.Ed.2d 527 (2005). The burden, however, is on the state to establish the facts that justify the application of an exception to the warrant requirement. See, e.g., State v. Aviles, 277 Conn. 281, 292, 891 A.2d 935 (2006); see also State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160 (1986) ("[t]hese exceptions `have been jealously and carefully drawn' ... and the burden is on the state to establish the exception" [citation omitted]), cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986); State v. Holmes, 51 Conn.App. 217, 220, 721 A.2d 1195 (1998) ("[b]ecause a warrantless search is...

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    ...established rule that this court deems abandoned state constitutional claims that lack independent briefing and analysis); State v. Nash, 278 Conn. 620, 623 n. 4, 899 A.2d 1 (2006) (declining to reach state constitutional issue because of defendant's failure to “provide an adequate independ......
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