State v. Peterson, 35263.

• Decision Date: 07 October 2014
• Docket Number: No. 35263.,35263.
• Citation: 101 A.3d 337,153 Conn.App. 358
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kyle PETERSON.

153 Conn.App. 358

101 A.3d 337

STATE of Connecticut

v.Kyle PETERSON.

No. 35263.

Appellate Court of Connecticut.

Argued May 2, 2014.

Decided Oct. 7, 2014.

Jon L. Schoenhorn, Hartford, with whom, on the brief, was Irene J. Kim, for the appellant (defendant).

Timothy S. Sugrue, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Christian M. Watson, assistant state's attorney, for the appellee (state).

BEAR, KELLER and SCHALLER, Js.^*

Opinion

SCHALLER, J.

The defendant, Kyle Peterson, appeals from the judgment of conviction, rendered following a conditional plea of nolo contendere, of possession of a controlled substance with intent to sell in violation of General Statutes § 21a–277 (b). On appeal, the defendant claims that the trial court improperly denied his motion to suppress evidence seized from his vehicle by the police. The defendant specifically contends, inter alia, that the police detained him prior to his arrest without a reasonable and articulable suspicion that he was engaged in or about to engage in criminal activity, as required by the fourth amendment of the constitution of the United States and article first, §§ 7 and 9, of the constitution of Connecticut. We agree with the defendant and conclude that the totality of the circumstances in this case did not provide the sufficient reasonable and articulable suspicion that the defendant was engaged in criminal activity to justify the police detaining him. Accordingly, we reverse the judgment of the trial court.

The record and the trial court's findings reveal the following undisputed facts. On March 10, 2010, officers of the New Britain Police Department were conducting surveillance on the residence of Pedro Ayala, a suspected marijuana trafficker. On the same date, the police observed the defendant arrive at Ayala's residence in a Jeep Cherokee, stay for approximately five minutes, and then leave. Once the defendant left Ayala's residence in his vehicle, the police stopped him, searched him, and discovered $4000 in cash on his person. Thereafter, on March 23, 2010, the police executed a search warrant on Ayala's residence and discovered more than two pounds of marijuana, a firearm, and what the police described as “drug proceeds.” The police arrested Ayala who, in turn, told the police that the defendant was one of his several sources of marijuana and, on March 10, 2010, he had paid the defendant $4000 in cash for marijuana.

Approximately six months later, on September 29, 2010, the police arrested Eric Cedeno for the sale of marijuana. While in police custody, Cedeno told Officer Joseph Lopa that he regularly purchased marijuana from an individual named Kyle Peterson, whom Cedeno described as an a twenty-five year old male who drove two different Jeep Cherokees. Lopa, on the basis of past investigations involving the defendant, corroborated that Cedeno was describing the defendant.

On the basis of the information received from Ayala and Cedeno that the defendant was selling marijuana in large quantities, the police began conducting surveillance of the defendant's New Britain residence in early October, 2010. In the course of their surveillance, the police observed the defendant make a single trip to 33 Thorniley Street in New Britain, park in the driveway, enter the residence for approximately five minutes, and then leave. In addition, on October 7, 2010, the police arrested Leonardo Soares, a registered confidential informant for the Federal Drug Enforcement Administration, for the illegal possession of prescription drugs. Soares told the police that he had purchased marijuana from an unidentified male living on the third floor of 33 Thorniley Street. Soares also indicated that he had been inside the third floor apartment in the past, where he had seen several pounds of marijuana and a large quantity of cash. On the basis of this information, as well as information previously obtained from Ayala corroborating that the defendant's March 2010 visit to Ayala's residence involved the sale of marijuana, the police believed that the defendant's October 2010 visit to 33 Thorniley Street, insofar as the defendant quickly entered and exited the residence, was consistent with drug activity.

On October 13, 2010, Lopa contacted Adrian Arocho, a registered confidential informant for the police who had previously provided reliable information, and requested that he make a controlled purchase of marijuana from the defendant. In addition to agreeing to make the controlled purchase, Arocho indicated that he was familiar with the defendant and knew that the defendant sells marijuana. Lopa provided Arocho with a telephone number that he received from Cedeno. With Lopa seated next to him and the speakerphone activated, Arocho called the number from his cell phone. When an individual answered his call, Arocho told the individual that he wanted to purchase marijuana but his usual supplier, Cedeno, did not have any. The individual responded that he had recently “set up” Cedeno and that he would call Arocho back. Lopa, who was familiar with the defendant's voice, confirmed that the individual to whom Arocho was speaking was the defendant. Approximately two minutes after that call ended, the defendant called Arocho back and told him never to call again.

On October 20, 2010, at approximately 1 p.m., Officer Michael Farrell was conducting surveillance of the defendant's residence when he observed the defendant depart the residence in his vehicle with a white, weighted plastic bag in his possession. Farrell contacted Sergeant Jerry Chrostowski via radio to inform him of his observations. Chrostowski, who was conducting patrol in an unmarked police vehicle, followed the defendant to Thorniley Street in New Britain. When Chrostowski turned on to Thorniley Street, he observed the defendant's vehicle enter the driveway of 33 Thorniley Street and come to a stop. At that point, Chrostowski observed the defendant, from his vehicle's driver's seat, begin speaking to an individual unknown to the police through his passenger side window.

On the basis of the information obtained by the police prior to October 20, 2010, as well as Farrell's observation of the defendant carrying a white, “weighted” plastic bag out of his residence, Chrostowski “believed that [the defendant] was making a [marijuana] delivery to ... [33 Thorniley Street].” Chrostowski subsequently drove his vehicle into the driveway of 33 Thorniley Street, blocking in the defendant's vehicle from the rear. Chrostowski exited his vehicle, approached the passenger side of the defendant's vehicle, identified himself as a police officer, and instructed the defendant to turn off his engine. Lopa, who arrived at 33 Thorniley Street shortly after Chrostowski exited his vehicle, approached the driver's side of the defendant's vehicle, ordered the defendant to exit the vehicle, and conducted a patdown search of the defendant's person. After Lopa completed his patdown search, he handcuffed the defendant and ordered him to the rear of the vehicle. Chrostowski then searched the defendant's vehicle and found a white Walmart plastic bag containing two ziplock bags with a substance that appeared to be marijuana located on the floor behind the passenger seat of the vehicle. Following a field test, the substance was confirmed to be marijuana and the police placed the defendant under arrest.

The state charged the defendant with two counts of possession of a controlled substance with intent to sell in violation of § 21a–277 (b), one count of possession of a controlled substance within 1500 feet of a school in violation of General Statutes § 21a–278a (b), and one count of possession of a controlled substance in violation of General Statutes § 21a–279 (c). Prior to trial, the defendant moved to suppress evidence seized from his vehicle, claiming, inter alia, that the police did not possess a reasonable and articulable suspicion that he was engaged in or about to engage in criminal activity when Chrostowski entered the driveway of 33 Thorniley Street. Following a suppression hearing, in its memorandum of decision dated August 23, 2012, the trial court denied the defendant's motion to suppress. In its decision, the court stated: “Armed with [the] information [from Ayala, Cedeno, Arocho, and Soares] when the police observed the defendant leave his residence with a ‘weighted’ white bag and travel in his vehicle to 33 Thorniley Street on October 20, 2010, they had a particularized and objective basis for suspecting the defendant of criminal activity; specifically the delivery of marijuana to 33 Thorniley Street. Accordingly, the police had an appropriate basis to stop the defendant, by blocking his vehicle, after he entered the driveway of 33 Thorniley Street and investigate further.”

Following the court's denial of his motion to suppress, the defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54–94a,¹ to one count of possession of a controlled substance with intent to sell in violation of § 21a–277 (b). The court accepted the defendant's plea and sentenced him to a total effective sentence of three years imprisonment followed by three years of probation. This appeal followed.

On appeal, the defendant claims that the court improperly denied his motion to suppress on the grounds that (1) the police did not possess a reasonable and articulable suspicion that he was engaged in or about to engage in criminal activity when Chrostowski pulled into the driveway of 33 Thorniley Street and detained the defendant, in contravention of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; (2) even if the seizure was appropriate, the police exceeded the bounds of a reasonable Terry stop when Lopa ordered him to exit the vehicle and searched his person; and (3) even if the seizure, the removal of the defendant from his vehicle, and subsequent search of his person were appropriate, the...