State v. Williamson

Decision Date21 May 1987
Docket NumberNo. 4763,4763
Citation524 A.2d 655,10 Conn.App. 532
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Robert WILLIAMSON.

Steven M. Sellers, Deputy Asst. State's Atty., with whom, on the brief, was John Waddock, Asst. State's Atty. for appellant (State).

John J. Buckley, New Haven, for appellee (defendant).

Before DUPONT, C.J., and BORDEN and SPALLONE, JJ.

SPALLONE, Judge.

The state, with permission of the trial court pursuant to General Statutes § 54-96, is appealing from a judgment dismissing with prejudice an information charging the defendant with possession of narcotics in violation of General Statutes § 21a-279(a), possession of cocaine with intent to sell in violation of General Statutes § 21a-277(a), possession of marihuana in violation of General Statutes § 21a-279(c), possession of drug paraphernalia in violation of General Statutes § 21a-267(b), carrying a dangerous weapon in violation of General Statutes § 53-206, carrying a pistol without a permit in violation of General Statutes § 29-35, and interfering with a police officer in violation of General Statutes § 53a-167a. The state had moved for dismissal with prejudice after the trial court had granted the defendant's motion to suppress and motion to dismiss. The state claims that the trial court erred in concluding that the state had violated the defendant's fourth amendment rights when stopping and arresting the defendant.

The trial court, after an evidentiary hearing, made the following express findings of fact. On November 10, 1984, Officer Joseph Greene of the New Haven police department was a member of the department's plain clothes street crime unit. Before this date, the police department had received complaints from merchants and citizens that, in the area of Virginia's Chicken Shack on Dixwell Avenue, individuals were loitering and dealing in drugs. Greene was aware that drug arrests had previously occurred in the same area. Greene and his colleagues had been hampered when investigating prior complaints because, even though they were not in uniform, they were readily recognized whenever they approached the site. It was common practice that, upon the officers' approach, those congregating in the area would alert others of the officers' arrival by yelling words such as "police" or "five-O." After being alerted, unidentified persons in the area of the restaurant or the cluster of small shops near it would run through the business establishments thereby eluding the investigating officers.

In order to investigate the complaints, which were general in nature, Greene met with three of his fellow officers sometime before 8 p.m. on November 10, 1984, and devised a plan to counter the alerting and fleeing activities that were frustrating their attempts to conduct a meaningful investigation. The officers decided that Greene and another officer would approach the site in the front of the restaurant, Virginia's Chicken Shack, while the other two officers would go to the rear entrance of the restaurant.

At approximately 8 p.m., the defendant was standing in front of the restaurant with two other men. At that time, Greene, with his companion, drove his unmarked police car suddenly on to the pedestrian sidewalk directly in front of the restaurant. At the same time, the two other officers covered the back of the restaurant and proceeded to enter the rear door of the establishment. As he stopped his car, Greene observed the defendant and his two male companions standing in front of the restaurant. There was nothing to indicate at that time that the defendant and his companions were engaging in any illegal behavior. Greene, after he had exited his vehicle, heard someone in the immediate area yell "police" or some such word of alert. The defendant and his two companions ran into the restaurant with Greene in pursuit, calling upon the defendant to halt and indicating that he was a police officer.

While in pursuit, Greene observed the defendant trying to extract something from his pocket. The defendant attempted to run out the back door but was prevented from doing so by the entry of another officer through the back door, apparently with his gun drawn. The defendant then followed one of his companions into a bathroom. Greene was immediately behind the defendant and observed him trying to drop something from his person. The officer heard the sounds of two items being dropped, one making a soft sound and the other a hard sound. Greene then apprehended the defendant, removed him from the bathroom into the restaurant, and patted him down. Another officer retrieved a package of cocaine and a pistol from the bathroom floor in the area where the defendant was restrained. Greene then placed the defendant under arrest and, while searching him incidental to the arrest, found a quantity of marihuana on the defendant's person.

Upon these facts, the trial court concluded that Greene had insufficient information to satisfy the "reasonable and articulable suspicion" standard of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny when the officer pursued the defendant. The court characterized the police operation as a "sting" that was "designed something like a writ of assistance to stop anyone in the area of the Chicken Shack whom the officer surmised would aid in the investigation of the complaints the department received." The court found that the plan, as applied to the defendant, was illegal under the fourth amendment, and that the defendant's flight "was impelled by the officer's own illegal conduct of the sting." The court did not find that the defendant's flight betrayed a consciousness of guilt, observing that "many citizens would want to flee or avoid the impact of a police sting, such as the one executed here in these circumstances." The court further found that the illegal police pursuit was a substantial factor in causing the drop of the cocaine and the revolver, that the state had failed to prove that the defendant had voluntarily abandoned these items, and that the dropped items could not, therefore, be grounds for the defendant's arrest. Moreover, the court found that because the arrest was illegal, the search following the arrest was also illegal. The court, therefore, granted the defendant's motion to suppress and motion to dismiss.

In analyzing the state's claim of error, we divide our analysis into four parts: (1) whether the police operation, characterized by the trial court as a "sting," violated the defendant's fourth amendment rights; (2) whether the stop of the defendant occurred when the officer first pursued the defendant or at some point later in the pursuit; (3) whether, at the point of the stop, the officer had "reasonable and articulable suspicion" so as to justify the detention under proper fourth amendment standards; and (4) whether, if the "stop" was constitutionally permissible, the evidence obtained therefrom established probable cause for the defendant's arrest.

In addressing these issues, our function is to determine whether the factual findings of the trial court are clearly erroneous or whether the decision is otherwise erroneous in law. Practice Book § 4061 (formerly § 3060D). The trial court's legal conclusions must stand unless they are legally and logically inconsistent with the facts; State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985); or unless they are otherwise legally incorrect. Practice Book § 4061.

I

The trial court based its decision in part on the assumption that the police operation of approaching the site and covering the rear entrance of the Chicken Shack was illegal and at least tainted the subsequent stop and arrest. The court characterized the operation as a "sting" and emphasized the fact that the defendant was not an identified suspect before the operation was put into effect. 1

The court's factual and legal conclusions are erroneous. The trial court's conclusion that "the sting was designed something like a writ of assistance to stop anyone in the area of the Chicken Shack whom the officer surmised would aid in the investigation of the complaints" (emphasis added) is unwarranted by the court's own underlying factual findings. The officers' intent, as exhibited by their actual conduct, was to stop only those who fled through the Chicken Shack when alerted that the police approached. While "dragnet" operations involving the detention or arrest of all persons associated with or suspected of a crime violate the fourth amendment; see, e.g., Davis v. Mississippi, 394 U.S. 721, 728-29, 89 S.Ct. 1394, 1398-99, 22 L.Ed.2d 676 (1969) (Harlan, J., concurring) (describing as a "dragnet procedure" the detention and fingerprinting of twenty-four Negro youths without probable cause); Commonwealth v. Fogan, 449 Pa. 552, 556, 296 A.2d 755 (1972) (members of two rival street gangs rounded up after shooting incident); nothing similar occurred in this case. Furthermore, even if the officers had intended to question others in the area, such questioning, by itself, would implicate no fourth amendment interest. Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983).

In addition, the trial court's characterization of the police operation as a "sting" is an inaccurate description, and in any event does not aid in a fourth amendment analysis. The term "sting" has been used to describe operations by undercover police agents who appear to operate in concert with criminals in order to identify those engaging in criminal activity. See United States v. Murphy, 768 F.2d 1518, 1528-29 (7th Cir.1985) (judge accepting bribes from undercover agents); United States v. Joyce, 693 F.2d 838, 839 (8th Cir.1982) ("reverse sting operation"; undercover officers pose as drug sellers actively soliciting drug transactions with dealers); United States v. White, 649 F.2d 779, 781 (...

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