State v. Peterson ( 2014 )

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STATE OF CONNECTICUT v. KYLE PETERSON
(AC 35263)
Bear, Keller and Schaller, Js.*
Argued May 2—officially released October 7, 2014
(Appeal from Superior Court, judicial district of New
Britain, Alander, J. [motion to suppress]; Strackbein,
J. [judgment].)
Jon L. Schoenhorn, with whom, on the brief, was
Irene J. Kim, for the appellant (defendant).
Timothy S. Sugrue, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Christian M. Watson, assistant state’s attor-
ney, for the appellee (state).
Opinion
SCHALLER, J. The defendant, Kyle Peterson, appeals
from the judgment of conviction, rendered following a
conditional plea of nolo contendere, of possession of
a controlled substance with intent to sell in violation of
General Statutes § 21a-277 (b). On appeal, the defendant
claims that the trial court improperly denied his motion
to suppress evidence seized from his vehicle by the
police. The defendant specifically contends, inter alia,
that the police detained him prior to his arrest without
a reasonable and articulable suspicion that he was
engaged in or about to engage in criminal activity, as
required by the fourth amendment of the constitution
of the United States and article first, §§ 7 and 9, of the
constitution of Connecticut. We agree with the defen-
dant and conclude that the totality of the circumstances
in this case did not provide the sufficient reasonable and
articulable suspicion that the defendant was engaged
in criminal activity to justify the police detaining him.
Accordingly, we reverse the judgment of the trial court.
The record and the trial court’s findings reveal the
following undisputed facts. On March 10, 2010, officers
of the New Britain Police Department were conducting
surveillance on the residence of Pedro Ayala, a sus-
pected marijuana trafficker. On the same date, the
police observed the defendant arrive at Ayala’s resi-
dence in a Jeep Cherokee, stay for approximately five
minutes, and then leave. Once the defendant left Ayala’s
residence in his vehicle, the police stopped him,
searched him, and discovered $4000 in cash on his per-
son. Thereafter, on March 23, 2010, the police executed
a search warrant on Ayala’s residence and discovered
more than two pounds of marijuana, a firearm, and what
the police described as ‘‘drug proceeds.’’ The police
arrested Ayala who, in turn, told the police that the
defendant was one of his several sources of marijuana
and, on March 10, 2010, he had paid the defendant $4000
in cash for marijuana.
Approximately six months later, on September 29,
2010, the police arrested Eric Cedeno for the sale of
marijuana. While in police custody, Cedeno told Officer
Joseph Lopa that he regularly purchased marijuana
from an individual named Kyle Peterson, whom Cedeno
described as an a twenty-five year old male who drove
two different Jeep Cherokees. Lopa, on the basis of
past investigations involving the defendant, corrobo-
rated that Cedeno was describing the defendant.
On the basis of the information received from Ayala
and Cedeno that the defendant was selling marijuana
in large quantities, the police began conducting surveil-
lance of the defendant’s New Britain residence in early
October, 2010. In the course of their surveillance, the
police observed the defendant make a single trip to 33
Thorniley Street in New Britain, park in the driveway,
enter the residence for approximately five minutes, and
then leave. In addition, on October 7, 2010, the police
arrested Leonardo Soares, a registered confidential
informant for the Federal Drug Enforcement Adminis-
tration, for the illegal possession of prescription drugs.
Soares told the police that he had purchased marijuana
from an unidentified male living on the third floor of
33 Thorniley Street. Soares also indicated that he had
been inside the third floor apartment in the past, where
he had seen several pounds of marijuana and a large
quantity of cash. On the basis of this information, as
well as information previously obtained from Ayala cor-
roborating that the defendant’s March 2010 visit to Aya-
la’s residence involved the sale of marijuana, the police
believed that the defendant’s October 2010 visit to 33
Thorniley Street, insofar as the defendant quickly
entered and exited the residence, was consistent with
drug activity.
On October 13, 2010, Lopa contacted Adrian Arocho,
a registered confidential informant for the police who
had previously provided reliable information, and
requested that he make a controlled purchase of mari-
juana from the defendant. In addition to agreeing to
make the controlled purchase, Arocho indicated that
he was familiar with the defendant and knew that the
defendant sells marijuana. Lopa provided Arocho with
a telephone number that he received from Cedeno. With
Lopa seated next to him and the speakerphone acti-
vated, Arocho called the number from his cell phone.
When an individual answered his call, Arocho told the
individual that he wanted to purchase marijuana but his
usual supplier, Cedeno, did not have any. The individual
responded that he had recently ‘‘set up’’ Cedeno and
that he would call Arocho back. Lopa, who was familiar
with the defendant’s voice, confirmed that the individ-
ual to whom Arocho was speaking was the defendant.
Approximately two minutes after that call ended, the
defendant called Arocho back and told him never to
call again.
On October 20, 2010, at approximately 1 p.m., Officer
Michael Farrell was conducting surveillance of the
defendant’s residence when he observed the defendant
depart the residence in his vehicle with a white,
weighted plastic bag in his possession. Farrell con-
tacted Sergeant Jerry Chrostowski via radio to inform
him of his observations. Chrostowski, who was con-
ducting patrol in an unmarked police vehicle, followed
the defendant to Thorniley Street in New Britain. When
Chrostowski turned on to Thorniley Street, he observed
the defendant’s vehicle enter the driveway of 33 Thorni-
ley Street and come to a stop. At that point, Chrostowski
observed the defendant, from his vehicle’s driver’s seat,
begin speaking to an individual unknown to the police
through his passenger side window.
On the basis of the information obtained by the police
prior to October 20, 2010, as well as Farrell’s observa-
tion of the defendant carrying a white, ‘‘weighted’’ plas-
tic bag out of his residence, Chrostowski ‘‘believed that
[the defendant] was making a [marijuana] delivery to
. . . [33 Thorniley Street].’’ Chrostowski subsequently
drove his vehicle into the driveway of 33 Thorniley
Street, blocking in the defendant’s vehicle from the
rear. Chrostowski exited his vehicle, approached the
passenger side of the defendant’s vehicle, identified
himself as a police officer, and instructed the defendant
to turn off his engine. Lopa, who arrived at 33 Thorniley
Street shortly after Chrostowski exited his vehicle,
approached the driver’s side of the defendant’s vehicle,
ordered the defendant to exit the vehicle, and con-
ducted a patdown search of the defendant’s person.
After Lopa completed his patdown search, he hand-
cuffed the defendant and ordered him to the rear of
the vehicle. Chrostowski then searched the defendant’s
vehicle and found a white Walmart plastic bag con-
taining two ziplock bags with a substance that appeared
to be marijuana located on the floor behind the passen-
ger seat of the vehicle. Following a field test, the sub-
stance was confirmed to be marijuana and the police
placed the defendant under arrest.
The state charged the defendant with two counts of
possession of a controlled substance with intent to sell
in violation of § 21a-277 (b), one count of possession
of a controlled substance within 1500 feet of a school
in violation of General Statutes § 21a-278a (b), and one
count of possession of a controlled substance in viola-
tion of General Statutes § 21a-279 (c). Prior to trial, the
defendant moved to suppress evidence seized from his
vehicle, claiming, inter alia, that the police did not pos-
sess a reasonable and articulable suspicion that he was
engaged in or about to engage in criminal activity when
Chrostowski entered the driveway of 33 Thorniley
Street. Following a suppression hearing, in its memo-
randum of decision dated August 23, 2012, the trial
court denied the defendant’s motion to suppress. In its
decision, the court stated: ‘‘Armed with [the] informa-
tion [from Ayala, Cedeno, Arocho, and Soares] when
the police observed the defendant leave his residence
with a ‘weighted’ white bag and travel in his vehicle to
33 Thorniley Street on October 20, 2010, they had a
particularized and objective basis for suspecting the
defendant of criminal activity; specifically the delivery
of marijuana to 33 Thorniley Street. Accordingly, the
police had an appropriate basis to stop the defendant,
by blocking his vehicle, after he entered the driveway
of 33 Thorniley Street and investigate further.’’
Following the court’s denial of his motion to sup-
press, the defendant entered a conditional plea of nolo
contendere, pursuant to General Statutes § 54-94a,1 to
one count of possession of a controlled substance with
intent to sell in violation of § 21a-277 (b). The court
accepted the defendant’s plea and sentenced him to a
total effective sentence of three years imprisonment
followed by three years of probation. This appeal
followed.
On appeal, the defendant claims that the court
improperly denied his motion to suppress on the
grounds that (1) the police did not possess a reasonable
and articulable suspicion that he was engaged in or
about to engage in criminal activity when Chrostowski
pulled into the driveway of 33 Thorniley Street and
detained the defendant, in contravention of Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
(2) even if the seizure was appropriate, the police
exceeded the bounds of a reasonable Terry stop when
Lopa ordered him to exit the vehicle and searched his
person; and (3) even if the seizure, the removal of the
defendant from his vehicle, and subsequent search of
his person were appropriate, the scope of his detention
was tantamount to a de facto arrest without probable
cause in violation of our state and federal constitutions.
In addition, the defendant invites this court to ‘‘[issue]
a plain statement’’ that our state constitution requires
the police to have an ‘‘individualized, reasonable, and
articulable suspicion’’ that a motor vehicle occupant is
armed or dangerous as a prerequisite to removing an
individual from their vehicle and subjecting them to
physical seizure.
For the reasons that follow, we agree with the defen-
dant that the court improperly denied his motion to
suppress because the police did not possess a reason-
able and articulable suspicion that he was engaged in or
about to engage in criminal activity when Chrostowski
entered the driveway of 33 Thorniley Street and
detained the defendant.2 We decline, however, the
defendant’s invitation to enunciate, as a matter of state
constitutional law, the circumstances under which the
police may properly order an individual from his vehicle
and subject him to a physical search.3
The defendant claims that the court improperly
denied his motion to suppress on the basis that the
police did not possess a reasonable and articulable sus-
picion that the defendant was engaged in or about to
engage in criminal activity when Chrostowski detained
him in the driveway of 33 Thorniley Street. In support
of his claim, the defendant directs our attention to the
absence of any contemporaneous facts indicating that
he was engaged in or about to engage in criminal activity
on October 20, 2010. Specifically, the defendant con-
tends that the police did not have a specific and individ-
ualized basis to suspect that either (1) the white plastic
bag he carried out of his residence contained marijuana
or (2) he traveled to 33 Thorniley Street for the purpose
of delivering marijuana. We agree with the defendant
because the information available to the police on Octo-
ber 20, 2010, when coupled with their observations of
the defendant on the same date, did not provide any
specific and individualized basis from which the police
reasonably could have concluded that the defendant
was engaged in or about to engage in any criminal
activity at the time they detained him.
We begin by setting forth the applicable standard of
review. ‘‘Our standard of review of a trial court’s find-
ings 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 . . . .
[W]here the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision . . . .
We undertake a more probing factual review when a
constitutional question hangs in the balance.’’4 (Citation
omitted; internal quotation marks omitted.) State v.
Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).
The law governing investigatory detentions is well
settled. ‘‘Under the fourth amendment to the United
States constitution and article first, [§§ 7 and 9] . . .
of our state constitution, a police officer is permitted
in appropriate circumstances and in an appropriate
manner to detain an individual for investigative pur-
poses if the officer believes, based on a reasonable and
articulable suspicion, that the individual is engaged in
criminal activity, even if there is no probable cause to
make an arrest.’’ (Internal quotation marks omitted.)
State v. Marti, 89 Conn. App. 241, 247–48, 872 A.2d 928,
cert. denied, 274 Conn. 913, 879 A.2d 893, cert. denied,
547 U.S. 1184, 126 S. Ct. 1364, 164 L. Ed. 2d 73 (2005).
‘‘When considering the validity of [an investigatory
detention] . . . our threshold inquiry is twofold. . . .
First, we must determine at what point, if any . . .
the encounter between [the police officers] and the
defendant constitute[d] an investigatory [detention].
. . . Next, [i]f we conclude that there was such a [deten-
tion], we must then determine whether [the police offi-
cers] possessed a reasonable and articulable suspicion
[that the individual was engaged in criminal activity]
at the time the [investigatory detention] occurred.’’
(Internal quotation marks omitted.) State v. Benton, 304
Conn. 838, 843, 43 A.3d 619 (2012).
The state concedes, and we agree, that when Chros-
towski pulled into the driveway of 33 Thorniley Street,
blocked in the defendant’s vehicle with his vehicle, and
approached the defendant’s vehicle with intent to
search it, an investigatory detention occurred. See State
v. Martin, 2 Conn. App. 605, 611–12, 482 A.2d 70 (1984)
(concluding investigatory detention occurred when
police boxed in defendant’s vehicle and approached it
with intent to search), cert. denied, 195 Conn. 802, 488
A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706,
86 L. Ed. 2d 721 (1985). Accordingly, the only issue is
whether the police possessed a reasonable and articula-
ble suspicion that the defendant was engaged in or
about to engage in criminal activity when Chrostowski
detained him in the driveway of 33 Thorniley Street on
October 20, 2010. See State v. Scully, 195 Conn. 668,
674, 490 A.2d 984 (1985) (investigatory detention must
be justified by objective manifestation that individual
is or is about to be engaged in criminal activity).
‘‘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.’’ (Internal
quotation marks omitted.) State v. Marti, supra, 89
Conn. 248. ‘‘In determining whether the detention was
justified in a given case, a court must consider if [b]ased
upon the whole picture the detaining officers [had] a
particularized and objective basis for suspecting the
particular person stopped of criminal activity . . . . A
court reviewing the legality of a stop must therefore
examine the specific information available to the police
officer at the time of the initial intrusion and any rational
inferences to be derived therefrom. . . . These stan-
dards, which mirror those set forth by the United States
Supreme Court in Terry v. Ohio, [supra, 392 U.S. 20–22]
with regard to fourth amendment analysis, govern the
legality of investigatory detentions under article first,
§§ 7 and 9 of our state constitution. . . .
‘‘Police have the right to stop for investigation short of
arrest where a police officer observes unusual conduct
which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot. . . .
[I]n 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.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Milotte, 95 Conn. App. 616, 621–22, 897 A.2d 683
(2006), appeal dismissed, 281 Conn. 612, 917 A.2d 25
(2007).
In the present case, the state contends that the police,
on October 20, 2010, had a reasonable and articulable
suspicion that the defendant was in possession of mari-
juana on the basis of the following five factual predi-
cates: (1) on the basis of their March, 2010, observations
and interactions with the defendant, as well as the infor-
mation they obtained from Ayala in March, 2010, the
police knew that the defendant utilized ‘‘a quick in-and-
out’’ tactic at a dealer’s house to exchange marijuana
for money; (2) in early October, 2010, the police learned
from Soares that an unidentified marijuana dealer may
have been operating out of the 33 Thorniley Street resi-
dence;5 (3) also in early October, 2010, the police
observed the defendant travel to 33 Thorniley Street,
where he made a ‘‘quick in-and-out visit’’ and then
departed; (4) during Arocho’s attempted controlled pur-
chase in October, 2010, the police learned the defendant
had recently resupplied Cedeno with marijuana; (5) on
October 20, 2010, the police observed the defendant
emerge from his home with a ‘‘visibly weighted’’ plastic
bag and subsequently travel to 33 Thorniley Street with
the bag in his vehicle.
At the outset, we recognize that the precise issue in
this case is whether the information available to police,
in conjunction with their observations of the defendant,
provided the police with a reasonable suspicion that
the defendant was committing an ongoing crime on
October 20, 2010. Navarette v. California, U.S. ,
134 S. Ct. 1683, 1690 n.2, 188 L. Ed. 2d 680 (2014).
After carefully analyzing the quantum of information
available to police, as well as their observations of the
defendant on October 20, 2010, we conclude that the
totality of the circumstances in this case reveal that
the police had no particular reason founded in fact to
suspect the defendant of ongoing criminal activity at
the time they detained him.
In its decision, the trial court, in its own words, found
the police to have ‘‘reliable information,’’ as a result of
their interactions from Ayala, Cedeno, and Arocho, that
the defendant was actively engaged in the sale of large
quantities of marijuana. In contrast to the ‘‘reliable
information’’ obtained from Ayala, Cedeno, and Arocho,
the court found the police to have, in its own words,
‘‘information’’ from Soares that he had purchased mari-
juana from an unidentified male living in the third floor
apartment of the 33 Thorniley Street residence and that
he had previously witnessed significant quantities of
marijuana and cash in that apartment.6 Moreover, in
early October, 2010, the police observed the defendant
quickly enter and exit the residence at 33 Thorniley
Street—just as he did in March, 2010, when the police
observed him quickly visit Ayala’s residence for what
was later confirmed to be a marijuana sale. From this,
the police were not only entitled to lend some degree
of credence to the information obtained from Soares,
which was neither predictive nor specific, but they rea-
sonably could have inferred that the defendant may
have sold marijuana to someone living at 33 Thorniley
Street when he visited the residence in early October,
2010. This is so precisely because the police observed
the defendant engage in conduct that, while outwardly
innocuous, was previously corroborated by the police
as conduct consistent with drug activity, namely, his
quickly entering and exiting a residence at an address
that the police, by virtue of Soares’ generalized informa-
tion, believed was the home of a marijuana dealer.
On October 20, 2010, however, the police did not
observe the defendant engage in any drug activity or
substantially similar conduct at 33 Thorniley Street. It
is well settled, however, that reasonable suspicion can
arise from noncriminal or otherwise innocuous con-
duct. State v. Hammond, 257 Conn. 610, 625, 778 A.2d
108 (2001). ‘‘The issue is not whether the particular
conduct is innocent or guilty, but the degree of suspi-
cion that attaches to particular types of noncriminal
acts.’’ (Internal quotation marks omitted.) Id. Here, the
police observed the defendant leave his home in the
middle of the day with a ‘‘weighted’’ plastic bag in his
possession, travel to 33 Thorniley Street in his vehicle,
and enter the driveway of that address.7 Chrostowski
then observed the defendant seated in the driver’s seat
of his vehicle, which was stationary in the driveway,
conversing with an unknown individual through the
vehicle’s passenger side window. Although Chrostow-
ski knew that the defendant had a ‘‘weighted’’ plastic
bag in his vehicle, he neither knew to whom the defen-
dant was speaking, heard any of the conversation
between the defendant and the unknown individual,
witnessed any purported exchange, nor observed the
defendant make any attempt to exit his vehicle. Indeed,
the defendant’s activity on October 20, 2010, was not
only inconsistent with the particularized drug activity
that led the police to suspect the defendant of delivering
marijuana to 33 Thorniley Street on one previous occa-
sion, but inconsistent with drug activity as a general
matter. The record does not reveal any particularized
basis upon which Chrostowski could have associated
the defendant’s apparently innocuous conduct in the
driveway of 33 Thorniley Street on that day with drug
activity. Moreover, the record does not reveal any par-
ticularized basis upon which the police could have
inferred that the defendant employed plastic bags or
similar items to transport marijuana. Thus, we fail to
perceive what specific and individualized factors, if any,
led Chrostowski to conclude that the plastic bag in
the defendant’s vehicle contained marijuana. Indeed,
absent any observations of conduct consistent with
drug activity, or specific and individualized information
suggesting that the defendant’s mere presence at 33
Thorniley Street with a plastic bag in his possession
gave rise to a reasonable suspicion that he was there
to effectuate a drug transaction, Chrostowski not only
did not, but could not have known what, if anything,
the defendant was doing there on October 20, 2010,
aside from talking to someone.
With respect to the defendant’s presence as a factor
to be considered, it is well settled that an individual’s
mere presence at a location known for criminal activity
is not in and of itself sufficient to support a reasonable
suspicion that the individual is engaged in or about to
engage in criminal activity. Brown v. Texas, 443 U.S.
47, 52, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979). Rather, an
individual’s presence in such a location is an articulable
fact that may be considered in conjunction with more
particularized facts in the reasonable suspicion calcu-
lus. State v. Moreland, 23 Conn. App. 495, 497, 582 A.2d
212 (1990). For example, in State v. Turner, 62 Conn.
App. 376, 771 A.2d 206 (2001), this court concluded that
‘‘the defendant’s presence in a known drug area, in
combination with the apparent drug activity that pre-
ceded his arrival in the [known drug area] and his own
questionable behavior thereafter, was sufficient to sup-
port the court’s conclusion that the officers had a rea-
sonable and articulable suspicion for an investigatory
stop.’’ (Emphasis in original.) Id., 402. In the present
case, by contrast, apart from the defendant’s mere pres-
ence at a location where he was suspected to have
previously engaged in a drug transaction weeks prior,
the record does not reveal what more particularized
factors, if any, the police utilized to link the defendant’s
presence at that location on October 20, 2010, with
an objective manifestation of criminal activity. United
States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L.
Ed. 2d 621 (1981); see also State v. Scully, supra, 195
Conn. 675. The presence of a known drug dealer with
a plastic bag at a location where he is believed to have
previously delivered drugs once before, without more,
is insufficient to particularize the general suspicion the
police harbored with respect to the defendant on Octo-
ber 20, 2010. Indeed, our case law is legion in holding
that an individual’s presence at a known drug location,
when coupled with an objective manifestation of con-
duct consistent with drug activity and perhaps addi-
tional factors, is enough to support a reasonable
suspicion. See State v. Arokium, 143 Conn. App. 419,
430, 71 A.3d 569 (concluding police had reasonable
suspicion based on observations of defendant leaving
location known for drug activity and engaging in con-
duct consistent with drug activity), cert. denied, 310
Conn. 904, 75 A.3d 31 (2013); State v. Rodriguez, 121
Conn. App. 250, 257, 994 A.2d 691 (concluding reason-
able suspicion existed where police witnessed
exchange at location known for drug activity), cert.
denied, 297 Conn. 918, 996 A.2d 278 (2010); State v.
Madison, 116 Conn. App. 327, 336, 976 A.2d 15 (same),
cert. denied, 293 Conn. 929, 980 A.2d 916 (2009); State
v. Straub, 90 Conn. App. 147, 151, 877 A.2d 866 (conclud-
ing reasonable suspicion existed where conduct consis-
tent with drug activity), cert. denied, 275 Conn. 927,
883 A.2d 1252 (2005); State v. Days, 89 Conn. App.
789, 800, 875 A.2d 59 (concluding reasonable suspicion
existed where police witnessed exchange at location
known for drug activity), cert. denied, 275 Conn. 909,
882 A.2d 677 (2005). Such conduct, however, is lacking
in the present case.
Instead, it appears that the police harbored a general-
ized suspicion that the plastic bag in the defendant’s
vehicle contained marijuana on the basis of their well-
founded, albeit past and similarly generalized suspi-
cions that the defendant was a marijuana trafficker
and that he had previously delivered marijuana to 33
Thorniley Street. Without information or observations
that would have particularized their general suspicion
that the defendant was delivering marijuana to 33
Thorniley Street on October 20, 2010, however, any
suspicion of ongoing crime was necessarily founded
in conjecture or the police’s subjective notions of the
defendant’s propensity to engage in criminal behavior.
‘‘We have consistently stated that a police officer’s deci-
sion to detain an individual for investigatory purposes
must be predicated on more than a mere hunch.’’ (Inter-
nal quotation marks omitted.) State v. Oquendo, 223
Conn. 635, 656, 613 A.2d 1300 (1992). Whatever the
basis of Chrostowski’s conclusion that the defendant
was transporting marijuana to 33 Thorniley Street on
October 20, 2010, our review of the record has revealed
that it could not have been more than a hunch. For that
reason, we conclude that the court’s determination that
the police possessed a reasonable and articulable suspi-
cion that criminal activity was afoot when they detained
the defendant on October 20, 2010, was legally and
logically incorrect.8 The investigatory detention was not
justified and, accordingly, any evidence seized follow-
ing the unlawful detention must be suppressed pursuant
to the exclusionary rule. See State v. Milotte, supra, 95
Conn. App. 620 (‘‘[u]nder the exclusionary rule, evi-
dence must be suppressed if it is found to be the fruit
of prior police illegality’’ [internal quotation marks
omitted]).
The judgment is reversed and the case is remanded
with direction to vacate the plea of nolo contendere
and grant the defendant’s motion to suppress.
In this opinion KELLER, J. concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 54-94a provides in relevant part: ‘‘When a defendant,
prior to the commencement of trial, enters a plea of nolo contendere condi-
tional on the right to take an appeal from the court’s denial of the defendant’s
motion to suppress . . . the defendant after the imposition of sentence may
file an appeal within the time prescribed by law provided a trial court has
determined that a ruling on such motion to suppress . . . would be disposi-
tive of the case. The issue to be considered in such an appeal shall be
limited to whether it was proper for the court to have denied the motion
to suppress . . . . A plea of nolo contendere by a defendant under this
section shall not constitute a waiver by the defendant of nonjurisdictional
defects in the criminal prosecution.’’
2
Accordingly, we need not review the defendant’s remaining claims with
respect to the propriety of the court’s denial of his motion to suppress.
3
‘‘General Statutes § 54-94a expressly limits the issues to be considered
on appeal to those concerning the correctness of the trial court’s denial of
a motion to suppress or a motion to dismiss. State v. Jenkins, 82 Conn.
App. 802, 814 n.3, 847 A.2d 1044, cert. denied, 269 Conn. 915, 852 A.2d 745,
cert. denied, 543 U.S. 1025, 125 S. Ct. 667, 160 L. Ed. 2d 503 (2004).’’ (Internal
quotation marks omitted.) State v. Clausen, 102 Conn. App. 241, 242 n.1,
925 A.2d 372 (2007). We fail to perceive how the defendant’s request impli-
cates the propriety of the court’s denial of his motion to suppress. Moreover,
the defendant asserts no good cause for this court to engage in discretionary
review of his request. See State v. Revelo, 256 Conn. 494, 503, 775 A.2d 260
(‘‘in the absence of a showing of good cause, an appellate court should
decline to review an issue that has not been raised in accordance with the
provisions of § 54-94a [and] . . . such good cause is likely to be established
only infrequently’’), cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed.
2d 558 (2001).
4
Our Supreme Court recently explained that, ‘‘if, upon examination of
the testimonial record, [a] reviewing court discovers but one version of the
relevant events upon which both the state and the defendant agree, and
such agreement exists both at trial and on appeal, [a] reviewing court may
rely on that version of events in evaluating the propriety of the trial court’s
determinations and determining whether the trial court’s factual findings
are supported by substantial evidence. In a case where the trial court has
concluded that the police action at issue was justified and the undisputed
version of events reflected in the transcript was adduced by the state through
testimony of the police officers who were involved, a reviewing court’s
reliance on that version of events is particularly appropriate. If the officers’
own testimony as to what occurred is internally consistent and uncontested
by the defendant but, in fact, undercuts the trial court’s ruling in favor of
the state, a reviewing court would be remiss in failing to consider it.’’ State
v. DeMarco, 311 Conn. 510, 520, 88 A.3d 491 (2014).
5
In its brief to this court, the state contends that ‘‘the police learned from
Soares . . . [in early October, 2010] that a large scale marijuana dealer was
actively operating out of the premises at 33 Thorniley Street.’’ (Emphasis
added.) The court, however, did not make any finding of fact to that effect
with respect to the information the police obtained from Soares. Rather,
the court found that Soares ‘‘personally purchased’’ marijuana from an
individual living at 33 Thorniley Street and that, ‘‘several times in the past,’’
Soares had been inside the residence where he witnessed ‘‘several pounds
of marijuana and large amounts of cash.’’ Accordingly, we reject the state’s
characterization of the information that the police obtained from Soares
insofar as the state suggests that such information, standing alone, supported
an inference that a marijuana dealer was ‘‘actively operating’’ out of the
residence at 33 Thorniley Street.
6
Although common sense dictates that the court did not think Soares’
information deserving of the adjective ‘‘reliable,’’ we conclude as a matter
of law that the court, by omitting the word ‘‘reliable,’’ found at least some
of Soares’ information less reliable than that the police obtained from Ayala,
Cedeno, and Arocho. See Sosin v. Sosin, 300 Conn. 205, 217–18, 14 A.3d
307 (2011) (interpreting trial court judgment matter of law; effect to be
given to what is both expressed and clearly implied in judgment).
7
There was no evidence adduced at the suppression hearing indicating
that the defendant had previously delivered marijuana in a plastic bag or
that drugs dealers in general use such bags.
8
The dissent, relying exclusively on this court’s decision in State v. Aro-
kium, supra, 143 Conn. App. 419, concludes that the police possessed a
reasonable and articulable suspicion that criminal activity was afoot when
they detained the defendant on October 20, 2010. We respectfully disagree
with the dissent because Arokium is readily distinguishable from the pre-
sent case.
In Arokium, a reliable informant provided a very specific tip to the police
that a man named Charlie was then selling cocaine from a particular room
in a particular hotel. Id., 422. The police corroborated that an individual
named Charles Arokium had been renting the particular hotel room for
fifteen weeks. Id. In addition to providing the police with a physical descrip-
tion of Charlie, the informant successfully executed a controlled purchase
of cocaine from the hotel room. Id. On the same date of the controlled
purchase, the police began conducting surveillance of the hotel room. Id.
On that date, the police observed an individual enter the room empty-handed,
stay for approximately five minutes, and then leave the room carrying a
plastic bag. Id., 423. Shortly thereafter, the police observed another individual
enter the room carrying an empty folded bag underneath his arm. This
individual emerged from the room fifteen minutes later with the previously
empty bag now containing a package. Id. Once this individual left the hotel,
the police stopped this individual’s vehicle and observed a shoebox con-
taining two bundles of money in plain view in the back seat of the vehicle.
Id. The police subsequently began the process of applying for a warrant to
search the hotel room. Id., 423–24. With the issuance of the search warrant
pending, the police observed another individual leave the hotel room carrying
a plastic bag. Id., 424. The police had not seen this individual enter the hotel
room. Id. Upon closer observation by an officer on foot, the police confirmed
that this individual matched the informant’s description of Charlie. Id.
Shortly after the police identified Charlie, he entered a taxicab. Id. Believing
that Charlie was the individual who had been selling cocaine out of the
hotel room, the police stopped the taxicab and asked him to exit. Id., 427.
On the basis of the foregoing, this court concluded that the police possessed
a reasonable and articulable suspicion that Charlie was engaged in ongoing
criminal activity at the time the police stopped him in the taxicab. Id.
In the present case, by contrast, the police did not possess any reliable
information that an individual living at 33 Thorniley Street was actively
selling marijuana on October 20, 2010. Rather, they harbored a generalized
suspicion, based on past observations and information, that the defendant
was actively selling marijuana and that a marijuana sale involving the defen-
dant had taken place at 33 Thorniley Street on one occasion in the past.
Notwithstanding this generalized suspicion, the police did not execute a
controlled purchase from the defendant or any individual at 33 Thorniley
Street on October 20, 2010. Moreover, the police did not observe any conduct
consistent with drug activity at either 33 Thorniley Street or the defendant’s
residence on that date. No search warrant was pending for either 33 Thorni-
ley Street or the defendant’s residence as of that date. This case is distinguish-
able from Arokium by virtue of the absence of any explanation founded in
specific and individualized facts as to why the police believed that the
defendant was carrying marijuana in a white plastic shopping bag, notwith-
standing the fact that they had never observed him carry a shopping bag
before. The only explanation provided by the state is that the plastic bag
must have contained marijuana because the defendant, a known marijuana
dealer, had traveled with it to a location where the police suspected him
of delivering marijuana on one prior occasion, notwithstanding that their
prior suspicion was wholly grounded in the fact that he quickly entered and
exited the residence on the prior occasion. Because the police observed no
such conduct on October 20, 2010, the police had no reason based in fact
to suspect that the plastic shopping bag contained marijuana.