State v. Nowell

• Decision Date: 18 March 2003
• Docket Number: (SC 16798)
• Citation: 262 Conn. 686,817 A.2d 76
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. HORACE NOWELL.

262 Conn. 686

817 A.2d 76

STATE OF CONNECTICUT v. HORACE NOWELL.

(SC 16798)

Supreme Court of Connecticut.

Argued January 8, 2003.

Officially released March 18, 2003.

Borden, Norcott, Katz, Palmer and Zarella, Js. David I. Channing, assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Amy Sedensky, assistant state's attorney, for the appellee (state).

Opinion

KATZ, J.

The defendant, Horace Nowell, was charged with one count of sale of narcotics in violation of General Statutes § 21a-278 (a)¹ and one count of possession of narcotics within 1500 feet of a school in violation of General Statutes (Rev. to 1999) § 21a-279 (d).² He thereafter filed a motion to suppress certain evidence and statements he had made to the police. Following the trial court's denial of that motion, the defendant, pursuant to General Statutes (Rev. to 1999) § 54-94a,³ entered a conditional plea of nolo contendere to one count of sale of narcotics⁴ in violation of § 21a-278 (a), reserving the right to appeal the trial court's denial of his motion to suppress. The court accepted the plea and entered a finding of guilty. Prior to sentencing, the defendant filed a motion requesting the trial court to apply Public Acts 2001, No. 01-99 (P.A. 01-99),⁵ which permits the court to depart from the mandatory minimum five year sentence prescribed under § 21a-278 (a), and to impose a suspended sentence. The trial court determined that P.A. 01-99 could not be applied to the defendant and accordingly sentenced him to five years incarceration. The defendant appealed⁶ from the trial court's judgment, claiming that the trial court improperly had: (1) denied his motion to suppress; and (2) concluded that it could not sentence the defendant in accordance with P.A. 01-99. We affirm the judgment of the trial court.

I

We first address the defendant's claim that the trial court improperly denied his motion to suppress evidence seized from the defendant's person, his automobile and his home, as well as statements made by the defendant to the police. In its memorandum of decision denying the defendant's motion to suppress, the trial court found the following facts, which are relevant to our resolution of this claim. On January 18, 2000, an anonymous telephone call was made to the Waterbury police department describing a man, identified by name as the defendant, selling narcotics in the area of Burton, Bishop and Elizabeth Streets. According to the detective who had received the telephone call, Nicholas DeMatteis, a veteran of the Waterbury police department with more than thirty years experience, the informant identified the type of car the defendant was driving and indicated that the narcotics for sale were in a napkin in the vehicle. DeMatteis went to the identified area, which was known to him for "street level drug activities," and spotted the defendant and a vehicle that matched the description he had been given by the informant. Using binoculars, he observed the defendant as he provided drugs to two unknown individuals, first a black female and thereafter a Hispanic male. DeMatteis then notified other officers who took over the investigation.

Robert Jones, a Waterbury police department narcotics officer, received DeMatteis' report and proceeded, along with another narcotics officer, Lawrence Smith,⁷ to the area in question where they located the defendant's vehicle. The officers approached the vehicle from opposite sides, and Jones observed a white napkin containing what he recognized to be packaged crack cocaine on the front passenger seat. He seized the drugs, while Smith opened the driver side door to arrest and search the defendant. The officers recovered thirty-five bags of crack cocaine and $2229 from the defendant's person.⁸ Thereafter, the defendant was transported to the Waterbury police station.

According to both Jones and DeMatteis, the defendant, who spoke English and was not under the influence of drugs or alcohol, was advised of his Miranda rights,⁹ which he waived. During the course of the ensuing interview, the defendant revealed that there was more contraband in his home. He then willingly signed a form providing the police with consent to search his residence. With a key in their possession that the defendant had provided, the police proceeded to the defendant's home where they found and seized four grams of narcotics, more than $3000 in cash and a shotgun.

The trial court noted as immaterial the testimony of three of the defendant's witnesses, specifically, two police officers who provided additional background information regarding the incident and an investigator for the public defender's office. The court expressly rejected as incredible the defendant's testimony and the testimony of a convicted felon, Todd Ferguson, refuting the state's evidence regarding the search, the two drug transactions, the defendant's waiver of his Miranda rights and the consent to search.

On the basis of the facts it had found, the trial court determined that the police "at the very least had reasonable articulable suspicion to conduct an investigation of [the defendant's] car. The state presented evidence beyond that standard and actually satisfied the probable cause test. . . . Once the original investigating officer corroborated the initial anonymous tip with two separate observations of what he knew to be street sales of narcotics, probable cause to either search or arrest the defendant was present. The additional plain view observations of Jones merely added to the more than sufficient justification for the actions of the officers.

"The items taken subsequent to the arrest of [the defendant] were legally seized. Police officers can lawfully search an individual after a lawful custodial arrest. . . .

"The testimony of the officers supports the court's finding that the defendant knowingly, intelligently and voluntarily waived his right to remain silent. The defendant was read his rights, he understood his rights, the defendant cooperated, he was not under the influence of drugs or alcohol, there were no threats or promises. The defendant's waiver of his rights was valid.

"The defendant's consent to search his home was his free choice. The court finds that the consent form was explained to the defendant, the defendant responded in an appropriate and cooperative fashion. Once again, the defendant was not confused; there were no threats or promises. The totality of the circumstances leads the court to conclude that the defendant freely consented to the search of his home." (Citations omitted; emphasis in original.) Accordingly, the trial court denied the defendant's motion to suppress.

A

The defendant raises both factual and legal challenges to the trial court's denial of his motion to suppress. The defendant first claims that the trial court improperly credited the testimony of the police witnesses called by the state, rather than the testimony of the defendant and his witness. Next, predicated on his first contention, the defendant claims that the trial court improperly denied his motion to suppress regarding: (1) the search of the defendant's person, because police lacked probable cause; (2) the search of the defendant's apartment, because his consent to search was not knowing and voluntary; and (3) the defendant's statements at the police station and the evidence seized from his home, because they were fruits of the prior unlawful arrest and search. We reject the defendant's claims.

As a threshold matter, we set forth the appropriate standard pursuant to which we review a challenge to a trial court's decision regarding a suppression motion. "This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court's judicial review of decisions of the trial court. Beyond that, we will not go. . . . In other words, to the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact." (Citations omitted; internal quotation marks omitted.) State v. Velasco, 248 Conn. 183, 188-89, 728 A.2d 493 (1999).

In the present case, the defendant claims that "it was clearly erroneous for the trial court to credit the testimony of the police." Specifically, he asserts that contradictions in the testimony of the three officers testifying for the state regarding their location during the incident leading to his arrest should have led the trial court to conclude that DeMatteis had not observed the defendant engaged in the drug transactions that had precipitated the search. Additionally, the defendant contends that the testimony that he and Ferguson provided was the more credible evidence and that, if the trial court properly had credited this evidence, it would have granted his motion to suppress.

Because a trial court's determination of the validity of a search implicates a defendant's constitutional rights, we generally engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence. See State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993); State v. Damon, 214 Conn. 146, 154, 570 A.2d 700, cert. denied, 498...