State v. Thomas
| Decision Date | 28 November 2006 |
| Docket Number | No. 26595.,26595. |
| Citation | 909 A.2d 969,98 Conn.App. 542 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Troy THOMAS. |
Robert J. McKay, for the appellant (defendant).
Kate J. Boucher, certified legal intern, with whom were Susann E. Gill, senior assistant state's attorney, and, on the brief, James E. Thomas, state's attorney, and Terri L. Sonnemann, assistant state's attorney, for the appellee (state).
BISHOP, HARPER and PELLEGRINO, Js.
The defendant, Troy Thomas, appeals from the judgment of the trial court convicting him of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). On appeal, the defendant claims that the police violated his constitutional protection against unreasonable search and seizure and that the police lacked probable cause to arrest him without a warrant. We conclude that the officers' actions were constitutionally permissible and affirm the judgment of the trial court.
The following facts and procedural history are relevant to our review of the defendant's appeal. On October 20, 2003, agent Peter Borysevicz of the federal Drug Enforcement Administration and Officer Brendan Plourde of the Hartford police department were working in the north end of Hartford on a special task force detail to address recent robberies in the area. At about 9 p.m., they received information from Officer Carlo Faienza of the Hartford police department that a black Nissan Maxima with the license plate number 492 RDT had been seen at the scene of a homicide that had occurred in the city six days earlier.
Approximately one hour later, Borysevicz and Plourde saw a Maxima matching Faienza's description traveling south on Barbour Street in Hartford and decided to follow it. While in pursuit, they twice witnessed the Maxima travel past two stop signs without coming to a complete stop. Plourde radioed Faienza for assistance in stopping the Maxima.
Faienza responded and began traveling north on Ridgefield Street, after which the Maxima passed by him traveling south. At this time, Faienza observed that the Maxima appeared to have illegally tinted windows. Faienza then activated his emergency lights, made a U-turn and drove behind the Maxima intending to cause it to stop.
Initially, the Maxima did not come to a complete stop. Instead the driver left his vehicle in gear in the middle of the road with his foot on the brake. Faienza exited his vehicle and approached the Maxima with his gun drawn and commanded that the driver put the Maxima in park, roll down the windows and show his hands. Borysevicz arrived and positioned his vehicle in front of the Maxima to ensure that the driver would not attempt to flee.
As Faienza approached, he noticed that there were two passengers in the Maxima. Faienza removed and secured the driver, Donyale Newman, from the Maxima. While removing Newman, the officer noticed the front seat passenger, Willie Poole, making furtive movements to the side of his left foot. After securing Newman, Faienza approached the front passenger door to remove and secure Poole. After removing Poole, Faienza leaned into the open front passenger doorway of the Maxima and, at this point, smelled what he believed to be marijuana and observed in plain view: (1) a small, slowly burning marijuana cigarette in the ashtray; (2) a small plastic bag on the passenger side, front floor area, containing a white, rock like substance, which Faienza, on the basis of his experience and training, suspected was cocaine; and (3) a white cellophane bag containing a gritty white powder that was sticking out of the misaligned gearshift column.
Next, Faienza removed the defendant from the back-seat. Once the defendant was out of the vehicle, Faienza conducted a further search of the Maxima. In the gearshift column and the vehicle's dome light, he found a semiautomatic pistol, two ammunition magazines, plastic bags containing a white, rock like substance, a cellophane bag with suspected marijuana and a small scale. After the search was completed, all three occupants were arrested. Subsequent to the defendant's arrest, Faienza searched the defendant and discovered clear plastic bags containing a white, rock like substance in a pocket on the left sleeve of his shirt.
The defendant was charged in count one with possession of cocaine with the intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b) and in count two1 with possession of cocaine in violation of General Statutes § 21a-279 (a). The defendant filed a motion to suppress the items seized as a result of the warrantless search of the automobile in which he was a passenger, as well as items seized from the search of his person incident to his arrest. The defendant also filed a motion to dismiss for lack of probable cause as to his arrest.
After a hearing, the court denied the defendant's motions to suppress and to dismiss. The court found that the stop of the Maxima was lawful because Faienza had probable cause to believe that motor vehicle violations had occurred and that he acted reasonably in stopping the Maxima and requesting the occupants to step outside the car. The court further found that as a mere passenger in the Maxima, the defendant had no reasonable expectation of privacy in it. The court also held that even if the defendant did have standing to challenge the search and seizure, the search and seizure was not unlawful because it was done under the plain view exception to the warrant requirement and that, because the items were in plain view, Faienza had probable cause to conduct a full search of the Maxima. Accordingly, the court concluded that the seizure of the items found within the gearshift column and in the dome light was lawful. The court ruled that on the basis of the contraband observed in plain view and the contraband discovered upon further search, Faienza had probable cause to arrest all of the occupants of the Maxima on drug related charges. Finally, the court held that the search of the defendant was incident to his lawful arrest and, therefore, the items found on his person were not illegally seized. Subsequent to the court's denial of both of his motions, the defendant, in accordance with General Statutes § 54-94a,2 entered a conditional nolo contendere plea as to count one. This appeal followed.
The defendant claims that the initial investigatory stop and detention of the Maxima was not constitutionally valid because the officers did not have a reasonable and articulable suspicion of criminal activity. He further claims that because the police did not have a legitimate basis for stopping the motor vehicle, the subsequent searches and arrests were constitutionally improper. We are not persuaded.
We first set forth our standard of review. (Internal quotation marks omitted.) State v. Hernandez, 87 Conn.App. 464, 469, 867 A.2d 30, cert. denied, 273 Conn. 920, 871 A.2d 1030 (2005).
We must first determine whether the court properly found that Faienza possessed the requisite reasonable and articulable suspicion to justify the stop of the Maxima, as required by Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If the initial stop is found to be in violation of the defendant's constitutional rights, the "fruits," or evidence seized as a result of the stop, must be suppressed.
When considering the validity of a Terry stop, our threshold inquiry is twofold. State v. Oquendo, 223 Conn. 635, 645-46, 613 A.2d 1300 (1992). First, we must determine "at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure."3 Id., at 645, 613 A.2d 1300. Next, "[i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred." Id., at 645-46, 613 A.2d 1300.
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