State v. Parker, 84 Conn. App. 739 (CT 8/31/2004)

• Decision Date: 31 August 2004
• Docket Number: (AC 24195).
• Citation: 84 Conn. App. 739
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT, <I>v.</I> KANIYN J. PARKER.

Page 739

84 Conn. App. 739

STATE OF CONNECTICUT,v.

KANIYN J. PARKER.

(AC 24195).

Appellate Court of Connecticut.

Argued May 27, 2004.

Officially released August 31, 2004.

Syllabus

Convicted, on a plea of nolo contendere, of the crime of possession of a controlled substance with the intent to sell, the defendant appealed to this court, claiming, inter alia, that the trial court improperly denied his motion to suppress certain evidence seized from his person and from his vehicle by a state trooper, M, during a stop of the vehicle. The defendant's vehicle had been stopped by state troopers because they had observed that a front seat passenger was not wearing a seatbelt. M detected an order of marijuana coming from the defendant's vehicle and, after checking the defendant's license and registration, discovered that the defendant had a history of narcotic related offenses. M asked the defendant to step out of the vehicle and questioned him as to whether he had any illegal narcotics on his person or in his car. After the defendant responded affirmatively and removed three bags of a marijuana-like substance from his pocket, M arrested him, read him his Miranda rights and conducted a search of his vehicle, where he found several more bags of marijuana and a white powdery substance. Held:

1. The defendant's claims that the troopers used a minor seatbelt violation as a pretext for investigating a more serious drug offense in violation of his fourth amendment rights and that the seatbelt violation did not provide M with probable cause for the defendant's arrest and the subsequent search of his vehicle were unavailing: because the troopers had an objectively justifiable basis for stopping the vehicle when they noticed that the front seat passenger was not wearing a seatbelt, which is clearly prohibited by law, this court could not conclude that the stop was pretextual, and, under the totality of the circumstances, M had sufficient probable cause to place the defendant under arrest, the facts and circumstances within M's knowledge having been sufficient to warrant a person of reasonable caution to believe that a felony had been committed; furthermore, the defendant's arrest having been lawful, the subsequent warrantless search of his vehicle was a lawful search incident to his arrest.

2. The defendant's challenge to the factual finding of the trial court regarding the conflicting testimony of M and the defendant's passenger as to whether she was wearing a seat belt was unavailing, the trial court, as the trier of fact here, being the sole arbiter of the credibility of the witnesses and the weight to be given their testimony.

Procedural History

Substitute information charging the defendant with the crimes of possession of a controlled substance with the intent to sell, possession of narcotics and possession of less than four ounces of marijuana, brought to the Superior Court in the judicial district of Litchfield, geographical area number eighteen, where the court, Walsh, J., denied the defendant's motion to suppress certain evidence; thereafter, the defendant was presented to the court, DiPentima, J., on a conditional plea of nolo contendere to one count of possession of a controlled substance with the intent to sell; subsequently the remaining charges were nolled and the court, DiPentima, J., rendered judgment of guilty in accordance with the plea, from which the defendant appealed. Affirmed.

Matthew J. Costello, for the appellant (defendant).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Dawn M. Gallo, assistant state's attorney, for the appellee (state).

Foti, Dranginis and Flynn, Js.

Opinion

FOTI, J.

The defendant, Kaniyn J. Parker, appeals from the judgment of conviction, rendered following his conditional plea of nolo contendere. On appeal, the defendant claims that the court improperly (1) denied his motion to suppress certain seized evidence and (2) made a credibility determination concerning two testifying witnesses. We affirm the judgment of the trial court.

The court found the following facts. On May 26, 2001, Juan Maldonado, a Connecticut state trooper, was conducting equipment and seat belt inspections with another Connecticut state trooper on an entrance ramp to Route 8 in Thomaston. The defendant was traveling toward the troopers in a car with Brunilda Morales as the passenger. Maldonado motioned to him to slow down his vehicle because he was traveling unreasonably fast. As the defendant slowed to a stop, the other trooper noticed that Morales was not wearing a seatbelt and then told Maldonado, who noticed the seatbelt violation himself. The troopers ultimately stopped the defendant for the seatbelt violation.

As Maldonado approached the driver's side of the vehicle, he detected the odor of marijuana coming from the driver's open window.¹ After checking the motor vehicle operator's license of the defendant and his registration, Maldonado discovered that the defendant had a history of narcotic related offenses. Maldonado then returned to the defendant's vehicle, asked him to step out of the vehicle and questioned him as to whether he had any illegal narcotics or contraband on his person or in the car. The defendant answered affirmatively and then removed three "dime bags" of a marijuana-like substance from his pocket. As a result, Maldonado placed the defendant under arrest, handcuffed him and read him his Miranda rights. After placing the defendant in a police cruiser, Maldonado searched the defendant's vehicle and found more "dime bags" of marijuana, in addition to a "white powdery rock-like substance" under the driver's seat. When asked about those items, the defendant responded that they were his.

The defendant subsequently was charged with possession of a controlled substance with the intent to sell in violation of General Statutes § 21a-277 (b), possession of narcotics in violation of General Statutes § 21a-279 (a) possession of less than four ounces of marijuana in violation of General Statutes § 21a-279 (c). On October 16, 2001, the defendant filed a motion to suppress, claiming that the "search, seizure and arrest of [his] person and the search of his automobile was in contravention of [his] right to be secure against unreasonable searches and seizures as guaranteed by the United States Constitution . . . ." In its memorandum of decision, dated June 25, 2002, the court denied the defendant's motion, concluding that (1) there was probable cause to stop the vehicle because the front seat passenger was not wearing a seatbelt, (2) "Maldonado had probable cause to arrest the defendant because as he approached the driver's side of the car, he detected a strong odor of marijuana coming from the defendant driver's rolled down window and because the defendant admitted having illegal narcotics and took [them] out of his pocket and gave three dime bags of a marijuana-like substance to [Maldonado]" and (3) for these same reasons, Maldonado possessed sufficient objective facts to base a finding of probable cause to search the defendant's vehicle for contraband. On January 28, 2003, the defendant pleaded nolo contendere to possession of a controlled substance with the intent to sell, conditioned on his right to appeal pursuant to General Statutes § 54-94a and Practice Book § 61-6. The defendant subsequently was sentenced to an agreed upon term of incarceration of four years. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress. Specifically, the defendant argues that (1) the state troopers' stop of his vehicle was a pretextual stop and (2) there was no probable cause to arrest him and subsequently to search his vehicle.² We will address each of the defendant's arguments in turn.

"Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here 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 . . . . When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence." (Internal quotation marks omitted.) State v. Pierre, 83 Conn. App. 28, 32, 847 A.2d 1064 (2004).

A

The defendant first argues that the stop of his vehicle was a pretextual stop in violation of the Fourth Amendment to the United States Constitution.³ Specifically, the defendant claims that the troopers used the minor seatbelt violation as a pretext to investigating the unrelated and more serious drug offense for which they did not have the reasonable suspicion to support a stop. We do not agree.

"A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop. The classic example . . . occurs when an officer stops a driver for a minor traffic violation in order to investigate a hunch that the driver is engaged in illegal drug activity." United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir. 1988), overruled on other grounds, United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995) (en banc). Although a minority of jurisdictions have based the test for a pretextual stop on the subjective intent of the officer the United States Supreme Court has abandoned that approach where the officer has an objectively justifiable basis to make the stop. See Whren v. United States, 517 U.S. 806, 809-13, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) ("[s]ubjective intentions play no role...