State v. Torres

• Decision Date: 26 November 1985
• Docket Number: No. 12321,12321
• Citation: 500 A.2d 1299,197 Conn. 620
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Confessor TORRES.

Page 1299

500 A.2d 1299

197 Conn. 620

STATE of Connecticut v. Confessor TORRES.

No. 12321.

Supreme Court of Connecticut.

Argued Oct. 3, 1985.

Decided Nov. 26, 1985.

Jeffrey R. Van Kirk, Hartford, with whom, on the brief, was Susan M. Wright, legal intern, for the appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., Kevin McMahon, Asst. State's Atty., and William Domnarski, Deputy Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

The defendant, Confessor Torres, after his motions to suppress tangible evidence and to suppress his statements to the West Hartford police had been denied by the trial court, pleaded nolo contendere to one count of illegal possession of narcotics in violation of General Statutes § 21a-279(a). ¹ His plea was entered under General Statutes § 54-94a. ² He was found guilty and was sentenced to the custody of the commissioner of correction for a term of three years. Execution of the sentence was suspended and he was placed on probation for a period of three years. The defendant appeals claiming that the trial court erred in denying his motions to suppress. We find no error.

At the hearing on the defendant's motions to suppress, the trial court found the following relevant facts: On April 4, 1983, officers of the West Hartford police department executed a valid search warrant for apartment D-4 at 90 Kane Street in West Hartford and the person of Victor Rivera, a resident of that apartment. There was nobody at home when the police arrived, and they were admitted by a manager with a passkey. During the search the police found approximately two ounces of cocaine. ³ About one hour after the officers commenced searching, Rivera entered the apartment accompanied by the defendant, Torres, and a third man. Immediately upon the three men entering the apartment, the police inquired as to the identity of Victor Rivera. When Rivera identified himself he was placed under arrest. He was then searched, and cocaine was found on his person. While Rivera was being searched the defendant was told to sit at a table in the apartment.

One of the police officers, Detective Joseph J. Glowacki, then advised Rivera of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Before commencing the recitation of rights, he told the defendant and the third man to listen as the advisement of rights also applied to them. After the three had been advised, Glowacki asked the defendant if he understood his rights and the defendant indicated that he did.

Another of the officers, Detective John J. Looby, Jr., after he had completed the search of Rivera, turned his attention to the defendant and asked him for identification. The defendant said that he was a Hartford fireman and produced a city of Hartford firefighter's photo identification card. Looby then asked the defendant if he had any narcotics. The defendant responded that he had a little for his personal use and produced from his wallet a foil packet which he turned over to Looby. The packet was subsequently determined to contain cocaine. That the defendant was detained only briefly before he produced the cocaine is implicit in the sequence of events recited in the court's memorandum of decision.

The defendant was arrested and taken to the West Hartford police station. There he again received Miranda warnings and signed a form indicating that he had been advised of his rights, fully understood them and voluntarily waived them. He gave a written statement which said, in summary, that just before entering the apartment Rivera had given him the foil packet, but that he did not know what it was. He assumed, however, that it was cocaine and he felt that he was going to be in trouble so he gave the packet to the police officer when the officer inquired "so he would not find any on me if he searched me."

The defendant contends that his initial detention was illegal and violative of his rights under the fourth and fourteenth amendments to the United States constitution. ⁴ He argues therefore that the tangible evidence seized and both his statements given on April 4, 1983, should be suppressed as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Alternatively, he maintains that, even if legally seized under the fourth amendment, he did not voluntarily waive his Miranda rights at Rivera's apartment and that therefore both his statement at the apartment and his statement at the police station should have been suppressed. It is the defendant's argument that his written statement at the police station was the result of his prior illegally obtained oral statement at the apartment. He claims that he had let "the cat out of the bag" by the illegally extracted admission and that he was ever thereafter subjected to the psychological and practical disadvantages incurred by his admission. United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947). The defendant also claims that when he handed the foil packet to Looby he was subjected to a search without probable cause or valid consent, and that the packet should therefore be suppressed.

The trial court found that the defendant had not been illegally detained, that he had validly consented to a search when he handed the packet of cocaine to Looby and that he had voluntarily waived his Miranda rights at Rivera's apartment. The trial court therefore denied the defendant's motion to suppress the cocaine and also denied the defendant's motion to suppress his statements.

"On appeal it is the function of this court to determine whether the decision of the trial court is clearly erroneous." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 435 A.2d 24 (1980); see Practice Book § 3060D. The trial court's conclusions must stand unless they are legally and logically inconsistent with the facts. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983).

The trial court cited Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), as the basis for its conclusion that the defendant was not illegally detained. Summers held that the police may detain an "occupant" of premises while a search warrant is being executed. In this case, the defendant was a visitor to Rivera's apartment and not an "occupant" as it appears that term may have been used in Summers. Even if Summers did not justify the defendant's detention, however, the police were nonetheless justified in relying upon the doctrine of Terry v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), if they had a reasonable and articulable suspicion that the defendant might be involved in criminal activity. 2 La Fave, Search and Seizure (1985) § 4.9.

Here the police had found approximately two ounces of cocaine in their search of Rivera's apartment and then found cocaine on Rivera, the defendant's companion, when he was searched. In addition, the affidavit supporting the search warrant, which was obtained by Looby and Glowacki on April 4, recited that on April 3 the previous day, an informant had purchased cocaine at Rivera's apartment and had seen Rivera and an unknown Spanish male cutting and packaging cocaine from a large chunk on the kitchen table.

Under these circumstances the police had at least a reasonable and articulable suspicion based on objective facts that the defendant might be engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). Therefore, they were justified in detaining him briefly while they sought proof of his identity and asked questions which would either confirm or dispel their suspicions. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983); United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975); United States v. Meritt, 736 F.2d 223, 230 (5th Cir.1984); United States v. Bautista, 684 F.2d 1286, 1290 (9th Cir.1982); United States v. Oates, 560 F.2d 45, 63 (2d Cir.1977); State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985); State v. Januszewski, 182 Conn. 142, 149-50, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981). The length of the defendant's detention was certainly not unreasonable. See United States v. Sharpe, --- U.S. ----, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). The trial court's conclusion that the defendant was legally detained was not erroneous. See State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, --- U.S. ----, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984).

The trial court also concluded that there was a valid consent to search when the defendant turned over the cocaine to Looby. A person may waive his fourth amendment protection by consenting to a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). In order to introduce the evidence obtained in a consensual search, the state must establish that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968); State v. Reddick, 189 Conn. 461, 468, 456 A.2d 1191 (1983). Whether consent was freely and voluntarily given is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. at 2047. No one factor is controlling. State v. Reddick, supra, 189 Conn. at 469, 456 A.2d 1191.

In this case, the trial court found that there had been no threats or promises to the defendant, that no firearms had been displayed and that the defendant would not have been searched after he had been identified were it not for his responsive surrender of the cocaine. The trial...