State v. Perez

• Decision Date: 24 June 1980
• Citation: 435 A.2d 334,181 Conn. 299
• Parties: STATE of Connecticut v. Louis Anibal PEREZ.
• Court: Connecticut Supreme Court

Page 334

435 A.2d 334

181 Conn. 299

STATE of Connecticut v. Louis Anibal PEREZ.

Supreme Court of Connecticut.

Argued April 1, 1980.

Decided June 24, 1980.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Domenick Galluzzo, Asst. State's Atty., for appellee (state).

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

LOISELLE, Associate Justice.

The defendant was charged with larceny in the first degree by receiving stolen property in violation of General Statutes §§ 53a-119(8) and 53a-122(a)(2). He was found guilty by a jury of six of a lesser included crime, second degree larceny by receiving stolen property, in violation of General Statutes §§ 53a-119(8) and 53a-123(a)(2). The defendant has appealed from the judgment rendered on the verdict.

The trial court's finding on the defendant's motion to suppress evidence is as follows: Officer Marlin Livey was on patrol on route 8 in Trumbull on October 12, 1976, at about 1 p. m., when he observed a brown vehicle with no license plate at the front but one at the rear. ¹ Livey turned his police car around, turned on his overhead lights and pulled the vehicle over to the side of the road. He stopped the vehicle because the front license plate was missing.

When the vehicle had stopped, the driver, Ralph Berrios, immediately left the car and hurriedly walked back approximately half a car length to the police car, before Livey could get out. Livey exited the police car and instructed Berrios to return to his car and to produce his license and registration. While standing next to the Berrios vehicle, Livey observed a television set on the rear seat. Livey then asked Berrios to accompany him back to the police car. Livey asked Berrios if he owned the television set and Berrios replied that he did. Livey then asked Berrios to remain alongside the police vehicle while he walked over to the passenger.

The passenger was the defendant, Louis Anibal Perez. Livey tried to speak to him but the window was rolled shut and Livey could barely hear the conversation. When Livey asked him to roll down the window, Perez replied that it was broken. Livey asked the defendant to open the door. Livey and Perez opened the door together. Livey observed Perez using his feet and legs in an attempt to hide a silver pitcher and some jewelry, and saw earrings, necklaces and things of that nature scattered all over the carpet of the vehicle. Perez did not answer Livey's questions and became argumentative. Livey asked Perez to remain in the vehicle and closed the door, then returned to the police car and called for assistance. After Livey had completed his call he heard something strike the ground in the dry leaves to the right of Berrios' car. He saw a black object fly through the air and land on the ground. Perez was seated in the passenger side of the car and the sunroof was open.

When additional officers arrived, they obtained Berrios while Livey approached Berrios' car and asked Perez to step out. When Perez got out, Livey saw in full view all of the jewelry he had not seen before. On the floor of the driver's side he found a jewelry box. In the jewelry box was a piece of paper with the name and address of a Westport resident and half of a black leather case with identification. Outside the car, in the area where he had seen objects thrown, he found jewelry, necklaces, a few earrings, and the other half of the black leather case containing a numbered Fairfield police badge.

Livey contacted police headquarters and furnished them with the information found on the two pieces of identification. When they informed him of a burglary at the Westport residence in which items of jewelry had been taken, Livey arrested both Berrios and Perez. After the defendants were arrested, the trunk was opened and searched. Other items of silver were found in the trunk. The Berrios vehicle was towed to police headquarters and inventoried. Additional jewelry was found during the inventory search at headquarters.

The defendant ² has assigned error in one paragraph of the court's finding, claiming that this fact was found without evidence. An appendix to the state's brief contains evidence from the transcript which supports the court's finding. The attacked paragraph in the finding cannot be stricken. Smith v. Smith, 174 Conn. 434, 443, 389 A.2d 756 (1978). The defendant also assigns error in the court's failure to include other facts which the defendant claims are material and either admitted or undisputed. "To secure an addition to the finding, an appellant must point to some part of the appendix, the pleadings, or an exhibit properly before us which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed." Malarney v. Peterson, 159 Conn. 342, 344, 269 A.2d 274, 275 (1970). Facts which are not material and could not affect the result cannot be added to the finding. Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 304, 397 A.2d 1367 (1978). The facts which the defendant seeks to add to the finding are either contradicted by other facts found or implied in the findings made. No additions to the finding are warranted.

The defendant has raised three other issues on appeal. First he claims error in the court's denial of a pretrial motion to suppress and subsequent admission into evidence of items seized in the allegedly illegal search of the vehicle and surrounding area. The defendant claims that the evidence seized without a warrant from the automobile in which he was riding as a passenger was obtained in violation of his state and federal constitutional rights. U.S.Const., amends. IV, XIV; Conn.Const., art. I § 7. The defendant has standing to assert a violation of his rights under the fourth amendment to the United States constitution because although he was only a passenger in the Berrios vehicle and had no legitimate expectation of privacy in the areas of the car searched; 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); he was charged with an offense in which possession is an essential element and that same possession establishes standing under Jones v. United States, 362 U.S. 257, 263-64, 80 S.Ct. 725, 732, 4 L.Ed.2d 697 (1960), which in this respect has not been overruled. Rakas v. Illinois, supra, 439 U.S. 135 n.4, 99 S.Ct. 426 n.4; State v. Paoletto, 181 Conn. 172, 434 A.2d 954 (1980). Here the defendant was charged with receiving stolen property by retaining such property knowing that it had been stolen. Since retention of the property is an essential element of the crime charged and retention is tantamount to possession, the defendant had standing to challenge the search.

The defendant concedes the legality of Livey's initial stop of his vehicle for an apparent motor vehicle violation under General Statutes § 14-18. The stop was clearly permissible under Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979). The court found that Berrios then immediately exited the vehicle and hurriedly walked back to the police car. At this point Berrios was required under General Statutes § 14-217 to surrender his operator's license and registration to Livey upon Livey's request. ³ When Livey returned with Berrios to his car to obtain Berrios' license and registration, and saw the television set on the rear seat in plain view, Livey was standing in a position where he had a right to be.

Livey was performing a reasonable and legitimate investigative function when he asked Berrios who owned the television set. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). "Effective crime prevention and detection underlie the recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." State v. Watson, 165 Conn. 577, 584-85, 345 A.2d 532, 537 (1973). The finding states that "Officer Livey asked Mr. Berrios if he owned the television set, and Mr. Berrios responded that he did." As the defendant states in his brief, mere suspicion is insufficient justification for the warrantless search of an automobile. Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S.Ct. 1975, 1980-1981, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 155-56, 45 S.Ct. 280, 285-286, 69 L.Ed. 543 (1925); 1 LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 3.1(a), pp. 440-41. If, however, a police officer's suspicions upon a lawful stop are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances, provided the scope of the investigation remains within the limits created by the facts upon which the stop is predicated and the suspicion which they arouse. Terry v. Ohio, supra, 392 U.S. 21-22, 29, 88 S.Ct. 1879-1880, 1884; State v. Watson, supra, 165 Conn. 585, 345 A.2d 532. Berrios' manner could well have precipitated Livey's minimal intrusion into the constitutionally protected interests of Perez which occurred when Livey tried to ask Perez, from outside the car, who owned the television set. Terry v. Ohio, supra, 392 U.S. 20-22, 88 S.Ct. 1879-1880. After Livey asked Perez to roll the window down and Perez indicated that he couldn't because it was broken, Livey asked Perez to open the door. This was a reasonable request in view of the circumstances. Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977). It was also a request in which Perez acquiesced; Perez and Livey together opened the door. It was then that the jewelry and silver which Perez was trying to conceal with...