State v. Paoletto

• Decision Date: 10 June 1980
• Citation: 434 A.2d 954,181 Conn. 172
• Parties: STATE of Connecticut v. Phillip PAOLETTO. STATE of Connecticut v. Gonzalo GONZALEZ.
• Court: Connecticut Supreme Court

Page 954

434 A.2d 954

181 Conn. 172

STATE of Connecticut v.Phillip PAOLETTO.

STATE of Connecticut v.Gonzalo GONZALEZ.

Supreme Court of Connecticut.

Argued March 5, 1980.

Decided June 10, 1980.

Bruce A. Sturman, Asst. Public Defender, with whom, on the brief, was Joette K. Rubin, Asst. Public Defender, for appellants(defendant in each case).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Frank S. Maco, Asst. State's Atty., for appellee(state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

LOISELLE, Associate Justice.

The defendants were convicted by a jury of six of larceny in the first degree in violation of General Statutes §§ 53a-119and53a-122(a)(2) and burglary in the second degree in violation of General Statutes § 53a-102(a) in connection with a housebreak and theft of personal property in Stamford.The defendants have appealed from the judgment ¹ rendered thereon.

The facts of the case can be summarized as follows: On April 15, 1977 at approximately 10 p. m., Officer Patrick Murphy of the Stamford police department was assisting the investigation of a traffic accident in a "well-to-do" residential area of Stamford.While directing traffic, he observed a black Ford automobile approaching at a rate in excess of the posted speed limit.The driver accelerated upon spotting the police officer, which led Murphy to believe he was taking evasive action.Since Murphy always watched vehicles in that area of town at this time of night, his curiosity was aroused and he gave chase.He told his fellow officer, "I don't think you need me.I think I got something going with this vehicle in the area it is in.And due to the rate of speed, he appears to be taking off.I am going to pursue the vehicle."The other officer remarked that one of the occupants in the rear seat ducked down when the car passed.

When Murphy discerned the marker number of the car, his curiosity turned to suspicion.This number had been listed by the police department in the past as a suspicious motor vehicle in this area of Stamford.²Moreover, Murphy recognized the car as one which belonged to a Stamford resident.He knew the woman who owned the car and knew her son, Dominick Fabricatore, whom he had stopped once or twice for minor incidents while driving the Ford.When the driver turned north on West Hill Road, Murphy knew that the car and driver were headed away from home, "out of his element,' and thought that the driver was attempting to "give me the brush-off."He activated his red light and siren and the driver of the Ford promptly pulled over.Murphy radioed headquarters for assistance.

Fabricatore immediately alighted from his automobile, closed the door and approached Murphy to offer his operator's license.Murphy asked for his registration.When Fabricatore returned to the car and opened the door and the glove compartment to get it, Murphy shone his spotlight at the glove compartment where he saw a screwdriver.Murphy took Fabricatore to the police cruiser and placed him in the back seat.When he asked Fabricatore who the passengers were, Fabricatore answered Gonzalez, Paoletto and Johnson.Murphy returned to the Ford alone, looked through the window and observed a pry bar in plain view on the floor in front of the back seat.He reached in through the door left open by Fabricatore and seized the pry bar.Murphy returned to the cruiser and asked Fabricatore to open the trunk.He responded that the trunk was empty, that he had no key and that Murphy had no right to search the trunk.Murphy then arrested Fabricatore for possession of burglar's tools.

Shortly thereafter, a police sergeant and two other officers from the burglary division arrived on the scene.One of the officers properly identified the third passenger in the car as Wayne Green, ³ and not Johnson as Fabricatore had told Murphy.The sergeant advised Murphy that he believed there was probable cause to search the car.All three passengers were arrested for possession of burglar's tools and placed in separate vehicles.The sergeant and the officers then proceeded to search the Ford.The officers found a screwdriver and two pair of gloves under the driver's seat, a clothes basket in the back seat, and numerous items, later identified by the victims of a housebreak, in the trunk to which the officers gained access by removing the back seat and back rest.The officers summoned a tow truck which towed the Ford to the police station.

All four suspects were taken to the police station.From there Fabricatore accompanied a police detective and a sergeant of the burglary and robbery squad to the residence of C. David Baer where the three entered through an open rear door.The police officers took pictures of the ransacked house which were later introduced into evidence.The sergeant then drove Fabricatore back to the police station where he made a written statement.Fabricatore testified for the state at trial.

The defendants raise three claims of error concerning violation of their rights upon search and seizure and arrest.They claim: (1) that the assertion of fourth amendment rights by them as passengers in Fabricatore's automobile has not been foreclosed by Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387(1978), reh. denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83(1979);(2) that Murphy's stopping of the automobile was pretextual and unreasonable under the fourth amendment to the United States constitution; and (3) that Murphy did not have probable cause to arrest Fabricatore for possession of burglar's tools.We address each of these claims in turn.

The trial court denied the defendants' motion to suppress evidence seized from the car after a hearing on the motion in October, 1977.The defendants excepted to the court's ruling to preserve their fourth amendment claims for appeal.On appeal the state claims that the defendants, as mere passengers in a vehicle belonging to another, have no standing to assert a fourth amendment violation concerning the search of that vehicle because under Rakas, supra, decided in 1978, the defendants had no legitimate expectation of privacy in the automobile, the glove compartment, the area under the front seat, or the trunk.Although the facts are similar, Rakas does not deny the defendants standing in this case.As the United States Supreme Court noted in Rakas, supra, 135 n.4, 99 S.Ct. 426, the rule of automatic standing to contest an allegedly illegal search where the same possession needed to establish standing is an essential element of the offense charged, which was established in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697(1960), has not been overruled.⁴Here the defendants were charged in separate informations which alleged first degree larceny and second degree burglary.Although the statutory definitions of these crimes do not specify "possession" as an essential element, ⁵the defendants' motion for a bill of particulars was denied and the prosecutor stated at the suppression hearing that the state was proceeding on a theory of larceny by possession.⁶It is true that at the time the suppression hearing was held, Rakas had not yet been decided.But even the prosecutor conceded that on the state's theory of the case the automatic-standing rule of Jones accorded, the defendants the right to challenge the legality of the search.Because the rule of standing established in Jones survives Rakas, ⁷we review the defendants' fourth amendment claims.

The defendants claim that the court erred in denying their motion to suppress evidence seized from the car because the stop of the car was pretextual and unreasonable under the fourth amendment to the United States constitution and under Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660(1979).⁸In Delaware v. Prouse, supra, 663, 99 S.Ct. 1401.The court held that "except in those situations in which there is at least articulable and reasonable suspicion ... that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment."In Delaware v. Prouse, supra, the patrolman testified that he had not observed any traffic or equipment violations or any suspicious activity before stopping the defendant's vehicle, and that the only reason he made the stop was to check the driver's license and registration.The patrolman explained, " 'I saw the car in the area and wasn't answering any complaints, so I decided to pull them off.' "Id., 650-51, 99 S.Ct. 1394.By comparison, the stop of the Fabricatore vehicle in this case was hardly the type of random spot-check of motor vehicles held unconstitutional in Delaware v. Prouse.⁹The conduct of the defendants and Fabricatore, the driver, as recited above, provided Murphy with an articulable and reasonable suspicion that the vehicle and its occupants were subject to seizure for violation of the law;Delaware v. Prouse, supra, 663, 99 S.Ct. 1401; and justified the stop for investigative purposes.Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612(1972);State v. Hoffler, 174 Conn. 452, 457-59, 389 A.2d 1257(1978);State v. Acklin, 171 Conn. 105, 110-11, 368 A.2d 212(1976);State v. Watson, 165 Conn. 577, 584-85, 345 A.2d 532(1973).

The defendants also claim that there was no probable cause to arrest them for possession of burglar's tools in violation of General Statutes § 53a-106.¹⁰Police officers may arrest without a warrant "any person for any offense in their jurisdiction, when such person is taken or apprehended in the act or on the speedy information of others ...."General Statutes § 54-1f(formerly § 6-49).The issue before the court is whether Murphy, when ...