State v. Williams, No. 27941.

• Citation: 110 Conn.App. 329,954 A.2d 878
• Decision Date: 16 September 2008
• Docket Number: No. 27941.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Luis F. WILLIAMS.

954 A.2d 878

110 Conn.App. 329

STATE of Connecticut v. Luis F. WILLIAMS.

No. 27941.

Appellate Court of Connecticut.

Argued May 20, 2008.

Decided September 16, 2008.

Paul Bialobrzeski, Waterbury, for the appellant (defendant).

Elizabeth S. Tanaka, certified legal intern, with whom were Bruce R. Lockwood, assistant state's attorney, and, on the brief, Scott J. Murphy, state's attorney, and Paul N. Rotiroti, senior assistant state's attorney, for the appellee (state).

BISHOP, DiPENTIMA and MIHALAKOS, Js.

MIHALAKOS, J.

The defendant, Luis F. Williams, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b) and criminal possession of a firearm in violation of General Statutes § 53a-217. On appeal, the defendant claims that the trial court improperly failed to grant his motion to suppress. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant's appeal. On September 3, 2004, police officers from the New Britain and Waterbury police departments, aided by two United States marshals, executed an arrest warrant for the defendant at an efficiency apartment at 636 Riverside Avenue in Waterbury. The officers entered the apartment and found the defendant sitting on the couch in the living room, which was located directly in front of the door, and the defendant's brother, Josue Williams, lying on the floor next to the couch. The defendant was arrested and handcuffed.

Detective Mark Santopietro removed the cushions from the couch where the defendant had been sitting and discovered a pistol. Santopietro immediately notified the other officers of the presence of a firearm. Shortly after Santopietro's discovery, Sergeant Harold Setzer noticed a box of what he believed to be ammunition.¹ Concerned that there might be other individuals in the apartment, Setzer moved to do a protective sweep of the apartment.²

Setzer walked six to eight feet from where the defendant was located to a kitchen counter. At the counter, he saw Styrofoam cups filled with numerous bags of a substance he believed to be heroin. He next moved to the bedroom, where he opened a closet door and saw narcotics packaging and a narcotics sifter. Setzer did not seize any of the items he discovered but instead left them in place for the forensic staff. Setzer's entire sweep took less than one minute.

The defendant was charged with possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of § 21a-278(b), possession of a controlled substance with intent to sell within 1500 feet of a school³ in violation of § 21a-278a(b) and criminal possession of a firearm in violation of § 53a-217. On May 16, 2006, the defendant filed a motion to suppress all tangible evidence recovered from him and the apartment and any resulting statements he made. The court denied the motion in a memorandum of decision filed June 20, 2007.⁴ The defendant subsequently was found guilty, after a jury trial, of all charges. The defendant thereafter appealed, challenging the court's denial of his motion to suppress the drugs found on the kitchen counter.

We first set forth our standard of review. "[O]ur standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court's [ruling]. . . . Because a trial court's determination of the validity of a . . . search [or seizure] implicates a defendant's constitutional rights . . . we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Citation omitted; internal quotation marks omitted.) State v. Kimble, 106 Conn.App. 572, 579, 942 A.2d 527, cert. denied, 286 Conn. 912, 950 A.2d 1289 (2008).

In the present case, the court determined that the contraband seized from the defendant's kitchen was discovered during a search incident to a lawful arrest. Specifically, the court concluded that the area searched was within the defendant's immediate control incident to his lawful arrest. We agree.

"Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. . . . [A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . One recognized exception to the warrant requirement is where the search has been undertaken incident to a lawful custodial arrest.... Under article first, § 7, of the constitution of Connecticut, our Supreme Court has recognized that the police may make a search without a warrant incidental to a lawful custodial arrest." (Internal quotation marks omitted.) State v. Aylward, 88 Conn.App. 90, 98, 868 A.2d 106 (2005). Accordingly, once the defendant was placed under arrest pursuant to a valid warrant, Setzer properly conducted a search for any weapons or evidence within the immediate control of the defendant. See Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

The defendant argues that under the circumstances of this case, the kitchen counter was not within his immediate control because there was little or no probability that he could have launched an attack on the police from his position face down and handcuffed in the living room.⁵ This argument has been rejected under more dubious circumstances. See State v. Fletcher, 63 Conn.App. 476, 481-82, 777 A.2d 691 (valid search incident to arrest when police handcuffed defendant, then opened closet four feet next to where he was standing, moved pile of clothing to reveal floorboards, removed floorboards themselves and discovered hidden cavity containing contraband), cert. denied, 257 Conn. 902, 776 A.2d 1152 (2001). The defendant's argument seems to suggest that it was impossible for him to reach the kitchen counter from his location in the living room. The record and common sense suggest otherwise.

The defendant's apartment had an open area between the kitchen and the living room. The kitchen counter where Setzer searched was located six to eight feet from where the defendant was sitting. The short distance between the defendant and the kitchen counter, coupled with the contraband's location in a cup on top of the counter, does not allow us to conclude that it would have been impossible for the defendant to have reached items located in the area Setzer searched. Similarly, the fact that the defendant was handcuffed does not foreclose the possibility that he might have been able to reach a weapon located close by. See id., at 482, 777 A.2d 691. Accordingly, we conclude that the court properly denied the defendant's motion to suppress.

The judgment is affirmed.

In this opinion DiPENTIMA, J., concurred.

BISHOP, J., concurring.

Although I agree with the majority that the court properly denied the motion to suppress filed by the defendant, Luis F. Williams, I come to this conclusion following a road apart from my colleagues because I do not agree that the narcotics found in the kitchen were discovered pursuant to a valid search incident to the defendant's arrest. I believe, instead, that the narcotics were discovered pursuant to a valid cursory protective sweep for weapons and people in the apartment in which the defendant was arrested. Accordingly, I write separately.

"It is a basic principle of constitutional law that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.... The fourth amendment's requirement that a warrant issue from a neutral and detached judicial officer rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities.... [H]owever, the fourth amendment proscribes only unreasonable searches and seizures, and there will be occasions when, given probable cause to search, resort to the judicial process will not be required of law enforcement officers. Thus, where exigent circumstances exist that make the procurement of a search warrant unreasonable in light of the dangers involved ... a warrant will not be required.... State v. Januszewski, 182 Conn. 142, 151-52, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981); see Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (possible harm to police officer constitutes reasonable cause for warrantless search)." (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 400-401, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002).

One such circumstance involves a search incident to an arrest to protect police from the risk of harm due to any weapons within the defendant's reach and also to secure contraband or evidence from destruction by the defendant. To be valid, however, such a search must be confined to the area within the defendant's immediate control. In C...