State v. Wylie, 4235

CourtAppellate Court of Connecticut
Writing for the CourtBefore DUPONT; DUPONT
Citation10 Conn.App. 683,525 A.2d 528
PartiesSTATE of Connecticut v. Sydney WYLIE.
Docket NumberNo. 4235,4235
Decision Date12 May 1987

Elizabeth M. Inkster, Spec. Public Defender, for appellant (defendant).

Susann E. Gill, Deputy Asst. State's Atty., with whom, on brief, were Robert O'Brien, Asst. State's Atty., and Glenn Kaas and Cheryl Petrucci, Law Student Interns, for appellee (State).


DUPONT, Chief Judge.

There are three issues involved in this appeal. The first is whether the trial court erred in denying the defendant's motions to suppress evidence, to suppress a statement of the defendant and to dismiss the information. The second is whether the trial court erred in its charge to the jury on circumstantial evidence. The third is whether the defendant has established a prima facie case demonstrating a violation of his constitutional right to an impartial jury.

The defendant was charged with carrying a pistol without a permit, in violation of General Statutes § 29-35. He was found guilty by a jury, and is appealing from the judgment rendered on the jury's verdict. The facts which follow are relevant to this appeal.

One cold Christmas midnight, in 1983, the defendant entered a twenty-four hour market in a New Haven neighborhood. While he was there, an employee of the store noticed the butt of a pistol protruding from the waistband of his pants. As the defendant was exiting the store, carrying a brown paper bag which contained a bag of potato chips, an officer of the local police department entered the store. The employee of the market informed the officer that the man he had just seen leaving was carrying a gun. The officer immediately left the market, and observed the defendant walking quickly across the street. When the defendant turned and saw the officer looking down the street after him, he began to run. The officer then gave chase in his cruiser.

When the officer drove his cruiser alongside the defendant, the officer drew his own weapon, and began exiting his cruiser while ordering the defendant to halt. In response, the defendant began emptying the contents of the paper bag, enabling the officer to catch sight of a gun. The officer then had to reenter the cruiser in order to bring the vehicle to a complete stop. The officer reemerged from his cruiser, and held the defendant at gunpoint until an additional officer arrived at the scene. The newly arrived officer then searched the defendant, and discovered seven live bullets in his pants' pocket. Shortly thereafter a pistol was found on the sidewalk some twenty feet from the defendant. At the time he was apprehended, the defendant exclaimed that he thought carrying a gun was "alright as long as it wasn't loaded."

The defendant's first claim is that the trial court erred in denying both his pretrial motions to suppress and his motion to dismiss. The motions to suppress were directed at the statement he made at the time he was detained, the bullets seized from his pants' pocket, and the gun found on the sidewalk. The defendant's claim of error relies upon his establishing that at the time the officer initially began his pursuit, he lacked an articulable suspicion to support the initial detention of the defendant. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Aversa, 197 Conn. 685, 690, 501 A.2d 370 (1985). The trial court, in denying the motions to suppress, concluded that the officer did have reasonable suspicion to stop the defendant and to determine if he was, in fact, carrying a weapon and, thereafter, to arrest the defendant and search his person and the street; and to admit the statement of the defendant as spontaeously made and not seized in violation of the defendant's Miranda rights. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966). We find that the initial detention of the defendant was justified, and that when the officer saw the defendant removing a gun from his bag as he fled, he was justified in expanding the scope of his detention of the defendant.

"It is well established that police may momentarily detain an individual for investigative purposes if the police have 'a "reasonable and articulable" suspicion that [he has] engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 443, 100 S.Ct. 2752, 2755, 65 L.Ed.2d 890 (1980); Terry v. Ohio, [supra].' State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983). What constitutes a reasonable and articulable suspicion depends on the 'totality of the circumstances.' United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). 'The test to be applied, however, is an objective one: "would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. at 1880. In justifying the particular intrusion "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, supra, 21, 88 S.Ct. at 1880; see United States v. Brignoni-Ponce, [422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ]; State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973).' " State v. Aversa, supra, 197 Conn. at 690-91, 501 A.2d 370; see State v. Cardinal, 194 Conn. 114, 117, 478 A.2d 610 (1984); State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct 3159, 69 L.Ed.2d 1005 (1981). "The results of the initial stop may arouse further suspicion or may dispel the questions in the officer's mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officers' suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances." State v. Watson, 165 Conn. 577, 585, 345 A.2d 352 (1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1977, 40 L.Ed.2d 311 (1974).

In this case, the police officer was told that the defendant was carrying a gun, either on his person or in the bag he was carrying. The officer then stepped out the front door of the store in order to observe the defendant. When the defendant caught sight of the officer, he stopped walking and broke into a run. "These circumstances certainly constitute 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.' Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880." State v. Cardinal, supra, 118; State v. Williamson, 10 Conn.App. 532, 543, 524 A.2d 655 (1987). While the mere fact that an officer has been informed that a person is carrying a weapon may not of itself constitute grounds to frisk that person, in light of the fact that it is not illegal to carry a weapon with a permit, the defendant's flight and subsequent movements concerning the weapon would make it reasonable for the officer to consider him "dangerous." See Adams v. Williams, 407 U.S. 143, 153, 92 S.Ct. 1921, 1926, 32 L.Ed.2d 612 (1972) (Marshall, J., dissenting.)

The fact that the officer had his own weapon drawn when he ordered the defendant to halt did not transform the investigatory stop into an arrest. "What might be unreasonable when an officer merely suspects that a minor offense has been committed is not unreasonable when, as here, officers have reason to fear that a suspected criminal is armed. The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the reaction of the suspect to the approach of police are all facts which bear on the issue of reasonableness." United States v. Harley, 682 F.2d 398, 402 (2d Cir.1982). A single officer investigating a report of an armed person late at night who has taken flight after becoming aware that he is under observation, is not acting unreasonably in drawing his own weapon. See United States v. Jones, 759 F.2d 633 (8th Cir.1985); United States v. Manbeck, 744 F.2d 360 (4th Cir.1984); United States v. Nargi, 732 F.2d 1102 (2d Cir.1984). The fact that the defendant at that moment was in flight and suspected only of carrying a weapon, and not of having committed a crime with that weapon other than the possibly felonious possession of it, does not preclude the officer from drawing his own weapon when making such an investigatory stop.

The frisk of the defendant, which yielded the bullets which the defendant seeks to have suppressed, was likewise not unreasonable or conducted incident to an illegal arrest. The second officer, who arrived on the scene virtually simultaneously with the stop, and who frisked the defendant, had reason to believe that the defendant was armed and potentially dangerous. He had heard and responded to the first officer's transmission over the police radio of the fact that he was in pursuit of an armed man. Indeed, at the point when he arrived he was informed by the first officer that he had seen the defendant drawing a gun out of his paper bag, and that the officer did not know where the gun was at that time. At the time the defendant was frisked, the officers had reason to believe he was armed, and, in light of his initial flight and the fact that he had attempted to, or did, draw the weapon when ordered to stop, was dangerous. Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. at 1880. This protective search was not unreasonable under the circumstances, and the motion to suppress the bullets was properly denied by the trial court. See, e.g., United States v. Stevens, 509 F.2d 683 (8th Cir.), cert. denied, 421 U.S. 989, 95 S.Ct. 1993, 44 L.Ed.2d 479 (1975); United States ex rel. Richardson, v. Rundle, 461 F.2d 860 (3d Cir.1972); People v. Myles, 50 Cal.App.3d 423, 123 Cal.Rptr....

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