State v. Torres

• Decision Date: 26 July 1994
• Docket Number: No. 14838,14838
• Citation: 645 A.2d 529,230 Conn. 372
• Parties: STATE of Connecticut v. Justiniano TORRES.
• Court: Connecticut Supreme Court

Page 529

645 A.2d 529

230 Conn. 372

STATE of Connecticut v. Justiniano TORRES.

No. 14838.

Supreme Court of Connecticut.

Argued May 10, 1994.

Decided July 26, 1994.

Charles L. Howard, with whom were Sheila Huddleston and, on the brief, Gregory T. D'Auria, Hartford, for appellant defendant.

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were John T. Redway, State's Atty., and Bernadette Conway, Asst. State's Atty. for appellee State.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

BORDEN, Justice.

In this certified appeal, the defendant, Justiniano Torres, appeals from the judgment of the Appellate Court affirming his conviction of possession of marijuana with the intent to sell in violation of General Statutes § 21a-277(b), ¹ and possession with the intent to use drug paraphernalia in violation of General Statutes § 21a-267(a). ² Following the trial court's denial of his motion to suppress, the defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, to the two offenses. The trial court rendered a judgment of conviction, which the Appellate Court affirmed. State v. Torres, 31 Conn.App. 443, 625 A.2d 239 (1993).

We granted the defendant's petition for certification to appeal limited to the following questions: (1) "Did the Appellate Court correctly conclude that an inadequate record barred review of the defendant's unpreserved claim that a sniff by a police dog of the exterior of the defendant's stopped car was a search that was in violation of the state and federal constitutions because it was not supported by reasonable and articulable suspicion?"; and (2) "If the answer to question (1) is no, was the dog sniff a search under either the federal or state constitution that was not supported by reasonable and articulable suspicion?" State v. Torres, 227 Conn. 906, 632 A.2d 698 (1993). We affirm the judgment of the Appellate Court.

The Appellate Court's opinion states the facts found by the trial court on the defendant's motion to suppress: "On August 13, 1990, at approximately 8 p.m., State Trooper David Mitch was informed by his dispatcher that the state police had received an anonymous tip that 'Junior Torres' had gone to New York to pick up marijuana and would be returning to 93 Atwood Street in Hartford within the next one to two hours. According to the informant, Torres would be operating a black 1977 Ford Thunderbird with Massachusetts license plates.

"Acting on the tip, Mitch proceeded with Yukon Jack, a German shepherd police dog trained to sniff out narcotics, to the Middletown rest area of Interstate 91 to monitor the northbound traffic lanes. At approximately 9:35 p.m., Mitch observed a black Thunderbird with Massachusetts license plates traveling north at seventy miles per hour. Mitch followed the automobile and radioed a request for a registration check. Upon receiving a reply that the license number was not listed on the computer, Mitch directed the operator of the automobile to pull over and asked for his license and registration. The defendant was the operator of the automobile. He did not have a license but identified himself as Justiniano Torres and said that he was [coming] from New York en route to 93 Atwood Street in Hartford.

"Acting on the corroboration of the details supplied by the informant, Mitch utilized Yukon Jack to conduct an exterior search of the automobile while the defendant and his passenger remained seated in the automobile. Yukon Jack began to circle the automobile and exhibited a positive alert for narcotics at the trunk of the vehicle. Mitch, now accompanied by another trooper and a detective, searched the trunk but found no narcotics. Reasoning that the odor of narcotics had been carried by wind currents to the trunk area from the front of the automobile, they searched the engine compartment, where they discovered a large cellophane envelope containing marijuana hidden under the automobile's battery. Mitch then placed the defendant under arrest.

"At trial, the defendant moved to suppress the marijuana on the ground that the warrantless search of the automobile was not supported by probable cause. The court, O'Keefe, J., denied the motion and the defendant pleaded nolo contendere." State v. Torres, supra, 31 Conn.App. at 444-45, 625 A.2d 239.

In his appeal to the Appellate Court, the defendant claimed for the first time that the canine sniff constituted a search under both the United States and Connecticut constitutions, and that there was no reasonable and articulable suspicion to justify such a search. ³ The Appellate Court declined to review this unpreserved claim on the ground that the record was inadequate to review it as required by the first prong of the test set forth in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The Appellate Court interpreted our holding in State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992), to preclude review of the defendant's canine sniff claim because the trial court had not made a determination of whether the sniff was a search under the state or federal constitution, or, if it was a search, whether this search was supported by reasonable and articulable suspicion. The Appellate Court reasoned that the record was inadequate, because "there was no reason for the trial court to make factual findings on these issues." State v. Torres, supra, 31 Conn.App. at 449, 625 A.2d 239. This appeal followed.

I

The defendant first claims that the Appellate Court improperly concluded that the trial court record was inadequate to review the defendant's canine sniff claim under State v. Golding, supra, 213 Conn. 233, 567 A.2d 823. We agree.

In Golding, we set forth the conditions under which a defendant can prevail on a constitutional claim that had not adequately been preserved at trial. We held that the defendant can prevail only if all of the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823.

An appellate court "remain[s] free to dispose of the claim by focusing on whichever condition is most rele vant in the particular circumstances." State v. Stanley, supra, 223 Conn. 674, 613 A.2d 788; State v. Nelson, 221 Conn. 635, 639, 605 A.2d 1381 (1992); State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992); State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990); State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823. In State v. Stanley, supra, the defendant on appeal claimed for the first time that, under the state constitution, the state was required to prove beyond a reasonable doubt that the defendant's waiver of his Miranda ⁴ rights had been knowing, intelligent and voluntary. We declined to review the defendant's claim, however, because the defendant had not raised the issue of the proper standard at trial, and the trial court had made its determination using a preponderance of the evidence standard. "We [did] not know, therefore, whether the trial court would have found that the state had sustained that higher burden of proof [beyond a reasonable doubt].... Since such a determination is a question of fact, even if we were to agree with the defendant, we would have to remand the case to the trial court for that factual determination, rather than to grant the defendant a new trial. Since, under the test in Golding, we must determine whether the defendant can prevail on his claim, a remand to the trial court would be inappropriate. The first prong of Golding was designed to avoid remands for the purpose of supplementing the record." (Emphasis in original.) State v. Stanley, supra, 223 Conn. at 689-90, 613 A.2d 788.

The Appellate Court read Stanley too broadly in applying its holding in the circumstances of this case. In Stanley, we held that Golding review was unavailable not merely because the record lacked a trial court determination on the issue appealed, but because in that case the record lacked a trial court finding of fact forming the basis for the defendant's claim. A record is not inadequate for Golding purposes because the trial court has not reached a conclusion of law if the record contains the factual predicates for making such a determination.

In contrast to Stanley, in this case the Appellate Court was not asked to make a determination of fact that the trial court had not been asked to make. In this case, the Appellate Court was asked to reach a legal conclusion that the trial court had not been asked to address, based on an undisputed factual record.

Under the Golding doctrine, a conclusion of law can properly be made by an appellate court, even if the trial court was never asked to make, and never made, such a determination, so long as the factual record is adequate to provide the basis for such a conclusion. Indeed, the court in Golding recognized that this would frequently be the case in the review of unpreserved claims. "An adequate factual record is especially crucial when dealing with a claim that was not preserved at trial, since consideration is being sought for review of a claim for which we lack a trial court ruling." State v. Golding, supra, 213 Conn. at 240 n. 10, 567 A.2d 823.

Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101...