State v. Brito , 170 Conn. App. 269 ( 2017 )

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STATE OF CONNECTICUT v. EDWIN BRITO
(AC 36541)
(AC 36543)
Lavine, Keller and Mihalakos, Js.
Argued October 13, 2016—officially released January 17, 2017
(Appeal from Superior Court, judicial district of New
Britain, geographical area number fifteen, D’Addabbo,
J. [motion to suppress]; A. Hadden, J. [judgments].)
Emily Wagner, assistant public defender, for the
appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Helen J. McLellan, senior assistant state’s
attorney, for the appellee (state).
Opinion
KELLER, J. In this consolidated appeal, the defen-
dant, Edwin Brito, appeals from the judgments of con-
viction rendered by the trial court following his
conditional pleas of nolo contendere made pursuant to
General Statutes § 54-94a. In one case, the defendant
pleaded guilty to one count of possession of a hallucino-
genic substance in violation of General Statutes § 21a-
279 (b) and, in the other case, the defendant pleaded
guilty to one count of possession of a narcotic substance
with intent to sell in violation of General Statutes § 21a-
277 (a). The defendant entered the pleas after the court
denied his two motions to suppress certain evidence
that the police discovered following two warrantless
searches. These searches were incident to two unre-
lated traffic stops involving the defendant. As he did
before the trial court, the defendant challenges the con-
stitutionality of these searches. We affirm the judg-
ments of the trial court.
The following facts and procedural histories underlie
the present appeals. On April 23, 2012, the police
stopped the defendant while he was operating his auto-
mobile, conducted a patdown search of the defendant
and, later, conducted a warrantless search of his auto-
mobile. The police seized marijuana, PCP, and heroin
from the automobile. In connection with this incident,
the defendant was charged in docket number H15N-
CR12-0263322-S with several drug related offenses,
including possession of a narcotic substance with intent
to sell. On June 22, 2012, the defendant was a passenger
in an automobile that was stopped by the police. During
a warrantless search of the automobile, the police
seized a substance believed to be saturated with PCP
from the area of the front passenger seat. In connection
with this incident, the defendant was charged in docket
number H15N-CR12-0264151-S with possession of a hal-
lucinogenic substance.
In each of these criminal cases, the defendant chal-
lenged the lawfulness of the police conduct and filed
motions to suppress the evidence seized by the police
as the fruits of police illegality. With respect to both
the April and June incidents, the defendant argued that
the police lacked probable cause to stop the automo-
bile, to conduct a patdown search of his person, and
to search the automobile. The state objected to both
motions. On September 12 and 25, 2013, the court held
a consolidated evidentiary hearing related to both
motions to suppress. The parties submitted posthearing
briefs to the court, and, on November 15, 2013, the
court heard oral argument related to the motions.
In its memorandum of decision of January 3, 2014,
the court, D’Addabbo, J., separately addressed each
motion to suppress evidence. It denied both motions.
Later, the defendant pleaded nolo contendere, in docket
H15N-CR12-0264151-S, to possession of a hallucino-
genic substance and, in docket number H15N-CR12-
0263322-S, to possession of a narcotic substance with
intent to sell. Both pleas, which were accepted by the
court, Hadden, J., were conditioned on the defendant’s
right to take an appeal from the court’s denial of his
motions to suppress. In each case, the trial court deter-
mined that the court’s ruling on the motion to suppress
was dispositive of the case. In docket number H15N-
CR12-0264151-S, the court sentenced the defendant to
two and one-half years incarceration, followed by a
term of special parole of two and one-half years, to
run concurrently with the sentence imposed in docket
number H15N-CR12-0263322-S. In docket number
H15N-CR12-0263322-S, the court sentenced the defen-
dant to two and one-half years incarceration, followed
by a term of special parole of four years, to run concur-
rently with the sentence imposed in docket number
H15N-CR12-0264151-S.
In AC 36541, the defendant appeals from the judg-
ment of conviction rendered in docket number H15N-
CR12-0264151-S. In AC 36543, the defendant appeals
from the judgment of conviction rendered in docket
number H15N-CR12-0263322-S. This court has consoli-
dated the two appeals. Additional facts will be set forth
as necessary.
In both appeals, the defendant challenges the judg-
ments of conviction on the ground that the court
improperly denied his motions to suppress evidence.
Accordingly, before turning to the merits of each appeal,
we set forth general principles of review that apply to
the defendant’s claims. ‘‘[T]he standard of review for a
motion to suppress is well settled. 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]hen a question of fact is essential to the out-
come of a particular legal determination that implicates
a defendant’s constitutional rights, [however] and the
credibility of witnesses is not the primary issue, our
customary deference to the trial court’s factual findings
is tempered by a scrupulous examination of the record
to ascertain that the trial court’s factual findings are
supported by substantial evidence. . . . [W]here 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 memorandum
of decision . . . .’’ (Internal quotation marks omitted.)
State v. Kendrick, 314 Conn. 212, 222, 100 A.3d 821(2014).
I
AC 36541
In its memorandum of decision with respect to the
motion to suppress filed in docket number H15N-CR12-
0264151-S, the court set forth the following findings of
fact: ‘‘On June 22, 2012, Wethersfield Police Officer
Tyler Weerden was assigned to the midnight shift with
a primary assignment of patrolling the Berlin Turnpike
and being proactive in motor vehicle violation enforce-
ment. At or about 1:30 a.m., Officer Weerden was parked
on the shoulder of the Berlin Turnpike near Nott Street
in Wethersfield in his fully marked police vehicle. Offi-
cer Weerden testified that at approximately 1:34 a.m.,
he observed a white Acura motor vehicle proceeding
northbound with a nonilluminated rear [registration
plate] light. Officer Weerden testified that after this
observation he proceeded to follow the vehicle and also
was searching for a location to make a motor vehicle
stop. Officer Weerden testified that while he was follow-
ing the vehicle, he was able to observe that there was
more than one occupant in it. Officer Weerden indicated
that he proceeded to activate the emergency lights and
directed the Acura to the side of the road near Jordan
Lane [in] Wethersfield. After notifying Wethersfield
police dispatch of the stop, he approached the passen-
ger side of the vehicle and began engaging the occu-
pants in conversation. While approaching the vehicle,
Officer Weerden testified that he observed the front
passenger do a ‘shoulder dip.’ This heightened his con-
cern of the existence of illegal narcotics or a weapon.
He observed two individuals in the front section and
one individual in the rear seat. Officer Weerden testified
that his observation of the front seated passenger (later
identified as the defendant . . .) was that this passen-
ger ‘seemed out of it,’ ‘lethargic,’ ‘sweating,’ appeared
to be ‘under the influence of something,’ and that he had
‘trouble keeping his head up.’ Officer Weerden indicated
that the passenger’s conduct was not consistent with
the conduct of the other passengers in the vehicle.
‘‘Officer Weerden testified that the operator of the
vehicle, Pedro Alvarado, Jr., and no other occupant had
a motor vehicle operator’s license.
‘‘Officer Weerden testified that he asked the driver
of the vehicle if there was anything illegal in the vehicle.
Officer Weerden observed the operator look at the
defendant. After Officer Weerden told the operator not
to look at the passenger, but to answer the question,
[Alvarado] responded to Officer Weerden that there
wasn’t anything illegal, but the defendant had consumed
alcohol. Officer Weerden testified that he did not smell
any odor of alcohol and that based on his training and
experience, he believed that the passenger, [the defen-
dant], was under the influence of drugs. Further, Officer
Weerden testified that since he believed the defendant
was under the influence of drugs, he developed a con-
cern about additional drugs and guns in the vehicle.
He asked [the defendant], ‘what are you on?’ Officer
Weerden also testified that he observed ‘loose tobacco’
on the front passenger floor which, based upon his
training and experience, was consistent with illegal nar-
cotics ingestion. Officer Weerden testified that he asked
the defendant to exit the vehicle. Officer Weerden then
did a ‘quick’ patdown of the defendant looking for weap-
ons. After the patdown, [the defendant] was placed
back in the vehicle.
‘‘Officer Weerden testified that he searched the defen-
dant’s name through the computer system to determine
if there were any outstanding warrants for him.
‘‘Wethersfield Police Officer Kevin Foster arrived at
the location. In preparation for a search of the vehicle,
all three occupants were asked to exit the vehicle. Offi-
cer Brian Shea arrived with Officer Foster and informed
Officer Weerden that the defendant was recently
arrested for narcotic offenses.
‘‘Officer Weerden and Officer Foster conducted a
search of the interior compartment of the vehicle.
‘‘Officer Weerden indicated that as a result of Officer
Foster’s search of the front seat passenger area, he
observed a substance soaked in what he believed to be
‘PCP’ and a cell phone. Officer Foster seized this item,
indicating to Officer Weerden what he had located. Offi-
cer Weerden took control of the item and conducted a
field test to determine if it was contraband. The field
test was positive.1
‘‘Officer Weerden made a determination to arrest [the
defendant] based upon his observations and [the defen-
dant’s] proximity to the contraband. Based upon his
knowledge and experience of ‘PCP’ users, Officer Weer-
den testified about his concerns of actions of individuals
on ‘PCP’ and the dangerous potential if weapons
were available.
‘‘Officer Weerden did not arrest the operator of the
vehicle, as he appeared not to be under the influence
of drugs or alcohol. He did not issue a motor vehicle
citation for failure to have the rear marker illuminated,
but did cite him for operating without a license.
‘‘The event was captured on a DVD recording which
is State’s Exhibit 2.
‘‘The court finds Officer Weerden’s testimony credi-
ble.’’ (Footnotes altered.)
In his motion to suppress, the defendant sought the
exclusion of ‘‘any and all evidence, whether tangible
or intangible, including statements and identifications
which was seized from his person and the motor vehicle
[in which] he was a passenger . . . on June 22, 2012.’’
In its analysis of the defendant’s motion, the court accu-
rately observed that, in light of the evidence presented
at the hearing, the evidence sought to be suppressed
related only to the contraband discovered and seized
by the police incident to their search of the vehicle,
and, thus, the material issues before the court addressed
the legality of the stop and subsequent search of the
automobile by the police.2 Essentially, the defendant
argued that neither police action was supported by
probable cause and that the fruit of this illegality,
namely, the PCP seized from under the passenger seat
of the vehicle, should be suppressed.
In denying the motion to suppress, the court carefully
analyzed the stop of the motor vehicle under relevant
fourth amendment jurisprudence, including Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
In relevant part, the court stated: ‘‘Based upon the facts
set forth, the Court finds that there was a reasonable
and articulable suspicion to conduct the motor vehicle
stop, based upon the lack of an illuminated registration
plate. This is an objectively lawful basis for a motor
vehicle stop . . . . Hence, Officer Weerden had a rea-
sonable and articulable suspicion, which was objec-
tively based on the operator’s violation of a motor
vehicle statute. Despite the defendant’s argument that
the stop was pretextual, there was an objectively lawful
basis for the motor vehicle stop. The motor vehicle stop
of the vehicle in which the defendant was a passenger
therefore was justified under the fourth amendment to
the United States constitution.’’ The court went on to
conclude that, on the basis of information learned by
Weerden during the stop, the detention and search of
the vehicle in which the defendant was a passenger
was lawful. The court stated that probable cause to
search the entire vehicle, including any containers, for
drugs or narcotics existed because of Weerden’s ‘‘obser-
vations of the defendant, the conduct of the operator,
and the observation of tobacco particles on the passen-
ger floor mat.’’
Before this court, the defendant challenges the trial
court’s decision by arguing that the evidence, which
included both a police video recording of the stop as
well as Weerden’s testimony that he had been directed
by his supervisor to engage in pretexual stops as a basis
to conduct more thorough investigations, undermined
the court’s finding that the registration plate on the
vehicle in which he was a passenger was not illumi-
nated. This factual error, the defendant argues, under-
mines the court’s determination that the lack of an
illuminated registration plate provided a sufficient basis
to stop the vehicle. Also, the defendant argues that the
totality of the circumstances did not support the court’s
finding that the police justifiably suspected that crimi-
nal activity was afoot. Thus, the defendant argues that
the court erred in its determination that, following the
stop, the circumstances afforded the police probable
cause to search the vehicle extensively for drugs.
Before we reach the merits of the defendant’s claim,
we address a separate argument raised by the state
that, it argues, is dispositive of the present appeal. After
the state filed its brief in the present appeal, but prior
to the time of oral argument, by letter submitted to this
court pursuant to Practice Book § 67-10, the state drew
our attention to a recent decision of this court, State
v. Kinch, 168 Conn. App. 62, 67–76, 144 A.3d 509, cert.
denied, 323 Conn. 930, A.3d (2016). In this
supplemental authority letter, the state, for the first
time, raised the issue of whether the defendant had
‘‘standing’’ to challenge the legality of the search of the
vehicle in which he was merely a passenger. The state
asserted that Kinch ‘‘may be relevant to’’ the present
issue in that it ‘‘defined a defendant’s burden to estab-
lish standing to challenge the search of a motor vehicle
in which the defendant is only a passenger, and it con-
solidated principles related to determining whether a
defendant had a reasonable expectation of privacy in
such a vehicle in order to establish standing.’’ Immedi-
ately thereafter, by letter submitted to this court pursu-
ant to Practice Book § 67-10, the defendant responded
to the state’s letter by drawing our attention to Steagald
v. United States, 451 U.S. 204, 209, 101 S. Ct. 1642,
68 L. Ed. 2d 38 (1981), for the proposition that ‘‘[t]he
government . . . may lose its right to raise factual
issues of this sort [standing] before this Court when it
has made contrary assertions in the courts below, when
it has acquiesced in contrary findings by those courts,
or when it has failed to raise such questions in a timely
fashion during the litigation.’’ (Internal quotation
marks omitted.)
At the time of oral argument before this court, the
parties addressed the standing issue raised by the state’s
supplemental authority letter. The state argued that,
although it had not expressly argued before the trial
court that the defendant lacked standing to challenge
the search, it had not taken any contrary position before
the trial court that might be interpreted as a concession
that the defendant had standing or that might be
grounds for an argument that the state otherwise should
be estopped from raising the issue of standing on
appeal. The state argued that because the issue of stand-
ing implicates ‘‘subject matter jurisdiction,’’ it may be
raised at any time. Moreover, the state argued that,
although the record does not reflect that the trial court
made any findings with respect to the issue of standing,
there is no evidence that would support a finding that
the defendant had sustained his burden of demonstra-
ting that he had a reasonable expectation of privacy in
the vehicle searched by the police. Instead, the state
argues, the uncontroverted evidence demonstrated that
the defendant did not have any legal relationship to the
vehicle, but was merely a passenger in it at the time of
the stop.
At the time of oral argument before this court, the
defendant observed that the issue of standing had not
been addressed expressly by the trial court. The defen-
dant did not argue that the state had made any prior
representations with respect to standing or that it had
acquiesced in any findings made by the trial court in
this regard. Instead, the defendant questioned the pro-
priety of the state’s attempt to raise the issue of standing
for the first time in its letter of supplemental authority.
Although the defendant acknowledged that the defense
bore the burden of demonstrating that he had standing
to challenge the legality of the search, he argued that
because the state had not put the defendant on notice
that standing was in dispute, the defense was ‘‘not able’’
to present relevant evidence with respect to the issue
of the defendant’s interest in the vehicle searched.3 Con-
sequently, the defendant argued, the record is inade-
quate to review the issue of standing for the first time
on appeal. The defendant argued that if the issue of
standing is properly before this court, in light of its fact
specific nature, the case should be remanded to the
trial court for further proceedings related to the issue.
Preliminarily, we address the state’s argument that,
because it is subject matter jurisdictional in nature, the
issue of standing may be raised for the first time at the
present juncture. It is well settled in our case law that
‘‘[a] person may not object to the introduction of evi-
dence resulting from an illegal search unless he first
proves that he was the victim of that search. . . . One
is a victim of a search when it violates his reasonable
expectation of privacy in the area searched. . . .
Therefore, the first question that must be answered in
any suppression case is whether the individual who
seeks suppression had a reasonable expectation of pri-
vacy in the area searched. . . . An individual has a
reasonable expectation of privacy if he subjectively
believes that the area will remain private, and that belief
is one that society is willing to recognize as reason-
able. . . .
‘‘A passenger in a motor vehicle, who fails to demon-
strate a possessory interest in the car itself or in any
of the seized evidence, has no reasonable expectation
of privacy in the area of the vehicle searched, and thus,
he is precluded from contesting the validity of the
search.’’ (Citations omitted; internal quotation marks
omitted.) State v. Burns, 23 Conn. App. 602, 611–12,
583 A.2d 1296 (1990). The ‘‘reasonable expectation of
privacy test’’ is a necessary component of an analysis
under the fourth amendment to the federal constitution
and analysis under article first, § 7, of the state constitu-
tion. State v. Davis, 283 Conn. 280, 323, 929 A.2d 278(2007) (holding that search and seizure provision of
Connecticut constitution does not embody automatic
standing rule).
‘‘The burden of proving the existence of a reasonable
expectation of privacy rests on the defendant. . . .
Absent such an expectation, the subsequent police
action has no constitutional ramifications.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Kimble, 106 Conn. App. 572, 583, 942 A.2d 527, cert.
denied, 287 Conn. 912, 950 A.2d 1289 (2008); see also
State v. Kalphat, 285 Conn. 367, 375, 939 A.2d 1165(2008) (defendant must establish facts necessary to
demonstrate reasonable expectation of privacy); State
v. Kinch, supra, 168 Conn. App. 73 (burden of proving
existence of reasonable expectation of privacy rests
with defendant).
Our courts consistently have described the defen-
dant’s burden of proof in this regard in terms of stand-
ing. See, e.g., State v. Kinch, supra, 168 Conn. App. 76(‘‘[T]here is no basis on which the court could find
that the defendant satisfied his burden of proving the
existence of a reasonable expectation of privacy in the
area of the vehicle searched. He thus lacked standing
to challenge the legality of [the search of a vehicle in
which he was a passenger].’’); State v. Kimble, supra,106 Conn. App. 585 (‘‘court’s conclusion that the defen-
dant lacked standing to challenge the search of the
automobile was supported by the facts found and was
correct in law’’); State v. Thomas, 98 Conn. App. 542,
551, 909 A.2d 969 (2006) (concluding that defendant
who conceded that he was merely passenger in
searched vehicle and claimed neither ownership nor
possessory interest in vehicle or seized items ‘‘has no
standing to challenge the constitutionality of the
search’’ of vehicle), cert. denied, 281 Conn. 910, 916
A.2d 53 (2007); State v. Burns, supra, 23 Conn. App.
612 (‘‘because [defendant] has not been able to establish
an expectation of privacy in the area of the automobile
that was searched, he has no standing to challenge the
constitutionality of the search’’).
Generally, standing is inherently intertwined with a
court’s subject matter jurisdiction. This court has
observed that ‘‘[s]tanding is the legal right to set judicial
machinery in motion. One cannot rightfully invoke the
jurisdiction of the court unless he [or she] has, in an
individual or representative capacity, some real interest
in the cause of action, or a legal or equitable right, title
or interest in the subject matter of the controversy.
. . . [When] a party is found to lack standing, the court
is consequently without subject matter jurisdiction to
determine the cause. . . . We have long held that
because [a] determination regarding a trial court’s sub-
ject matter jurisdiction is a question of law, our review
is plenary. . . . In addition, because standing impli-
cates the court’s subject matter jurisdiction, the issue
of standing is not subject to waiver and may be raised
at any time.’’ (Internal quotation marks omitted.) Wells
Fargo Bank, N.A. v. Strong, 149 Conn. App. 384, 397–98,
89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202(2014); see also Megin v. New Milford, 125 Conn. App.
35, 37, 6 A.3d 1176 (2010).
Relevant precedent, however, reflects that in the pre-
sent, fourth amendment context, references to ‘‘stand-
ing’’ are not jurisdictional in nature, but are accurately
understood to be intertwined with an evaluation of the
merits of a fourth amendment claim. After recognizing
that a defendant’s fourth amendment rights are personal
and ‘‘may be enforced by exclusion of evidence only
at the instance of one whose own protection was
infringed by the search and seizure,’’ the United States
Supreme Court went on to clarify how the concept of
‘‘standing’’ should be understood in fourth amendment
jurisprudence: ‘‘[T]he question necessarily arises
whether it serves any useful analytical purpose to con-
sider this principle as a matter of standing, distinct from
a defendant’s Fourth Amendment claim. . . . [The
standing requirement in Fourth Amendment jurispru-
dence] is more properly subsumed under substantive
Fourth Amendment doctrine. Rigorous application of
the principle that the rights secured by this Amendment
are personal, in place of a notion of ‘standing,’ will
produce no additional situations in which evidence
must be excluded. . . . [T]he better analysis forth-
rightly focuses on the extent of a particular defendant’s
rights under the Fourth Amendment, rather than on
any theoretically separate, but invariably intertwined
concept of standing.’’ (Footnote omitted.) Rakas v. Illi-
nois, 439 U.S. 128, 138–39, 99 S. Ct. 421, 58 L. Ed. 2d
387 (1978). The court, explicitly ‘‘dispensing with the
rubric of standing’’ that it had used in prior case law,
stated that the relevant determination asks ‘‘whether
the disputed search and seizure has infringed an interest
of the defendant which the Fourth Amendment was
designed to protect.’’ Id., 140; see also Rawlings v. Ken-
tucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 65 L. Ed. 2d
633 (1980) (proper fourth amendment analysis focuses
on defendant’s legitimate expectation of privacy in
area searched).
Consistent with this precedent, our Supreme Court
observed that, in Rakas, ‘‘prior concepts of standing to
contest an illegal search were abandoned in favor of
an inquiry that focused directly on the substance of the
defendant’s claim that he or she possessed a legitimate
expectation of privacy in the area searched.’’ (Internal
quotation marks omitted.) State v. Morrill, 197 Conn.
507, 540–41, 498 A.2d 76 (1985).
Having brought into greater focus the legal import
of the state’s standing argument, it suffices to observe
that, because the argument does not implicate subject
matter jurisdiction, we need not treat it as a threshold
inquiry that must be resolved. If the defendant is unable
to demonstrate that the police acted in an unconstitu-
tional manner by stopping and searching the vehicle,
he is unable to demonstrate that the court erroneously
denied his motion to suppress, and, thus, it is of no
consequence whether he had a privacy interest in the
vehicle that is protected by the fourth amendment.4
Assuming without deciding that the defendant had
standing to challenge the search,5 we may uphold the
trial court’s decision if we reject the claim that he prop-
erly has presented to this court, namely, that the trial
court erred in its factual findings and its determination
that, in terms of his constitutional protection against
unreasonable search and seizure, the police justifiably
stopped and later searched the vehicle in which he was
a passenger.
A
With respect to the stop of the vehicle, the defendant
argues that ‘‘[t]he court’s decision to credit Weerden’s
testimony that the rear marker light was malfunctioning
was clearly erroneous in light of the facts of the stop
and the video recording of the entire stop and search.’’
In this regard, the defendant argues that the video
recording of the stop contradicted Weerden’s testimony
because ‘‘a close examination of the video of the [vehi-
cle] taken before Weerden initiated the stop seems to
show that the light is working.’’ Moreover, the defendant
argues that the court should have found Weerden’s cred-
ibility to be suspect in light of his other testimony that,
in the course of his performance review prior to the
events at issue, his supervisor ‘‘recommended that
Weerden continue to use pretextual stops as a basis
for more in-depth investigations.’’ The defendant argues
that, because the stop was not supported by ‘‘even a
pretextual investigation of a traffic violation,’’ it was
unlawful and, accordingly, any evidence seized follow-
ing the stop should have been suppressed.
‘‘Pursuant to Terry v. Ohio, [supra, 392 U.S. 1], a
police officer has the authority, under the fourth amend-
ment to the United States constitution, to stop the oper-
ator of a car if the officer has a reasonable and
articulable suspicion that the operator has engaged in
illegal conduct. In furtherance of this constitutional
principle, our Supreme Court has held that a police
officer has the right to conduct a Terry stop even if the
reason for the stop is only that the officer observed an
infraction under our traffic laws. . . .
‘‘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. . . .
What constitutes a reasonable and articulable suspicion
depends on the totality of the circumstances. . . . The
determination of whether a specific set of circum-
stances provides a police officer with a reasonable and
articulable suspicion of criminal activity is a question of
fact for the trial court and is subject to limited appellate
review. . . .
‘‘An appeal challenging the factual basis of a court’s
decision that a reasonable and articulable suspicion
exists requires that we determine, in light of the record
taken as a whole, (1) whether the underlying factual
findings of the trial court are clearly erroneous; and (2)
whether the [court’s] conclusion that those facts gave
rise to such a suspicion is legally correct.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Jones, 113 Conn. App. 250, 259–60, 966 A.2d 277, cert.
denied, 292 Conn. 901, 971 A.2d 40 (2009).
We conclude that the court’s factual determination
with respect to Weerden’s observations was supported
by substantial evidence. Weerden testified that prior to
the stop of the vehicle at issue, the vehicle passed his
location and that ‘‘as it passed me I saw that the rear
marker light was not lit up, which would be a violation.
At that point I pulled out behind the vehicle to follow
it, to initiate a traffic stop.’’ The defendant argues that
the police video of this stop undermines Weerden’s
credibility because it ‘‘seems to show’’ that the registra-
tion plate light was illuminated. Referring to a still image
that he purports to have taken from the video and which
he included in the memorandum of law related to his
motion to suppress, the defendant asserts that, at one
point in the video, ‘‘at the end of the stop,’’ it ‘‘appears
that the marker light was in fact illuminated.’’ As set
forth previously in this opinion, the court stated that it
had reviewed this evidence and found that it was ‘‘not
entirely clear.’’ The court, however, credited Weerden’s
testimony concerning his observations.
We scrupulously have examined the video recording
at issue. We agree with the court that it is not clear
that this evidence contradicted Weerden’s testimony
that the registration plate light was not illuminated
when he first observed the vehicle. The image quality
of the video is somewhat poor. It was recorded at night,
and it appears to show lights that are merely reflected
by the back of the vehicle in which the defendant was
a passenger, including lights that emanated from Weer-
den’s police cruiser. Even if we were to accept as true
the defendant’s argument that, at one point in the
recording, ‘‘at the end of the stop,’’ it appears that the
registration plate light was illuminated, such evidence
would in no way tend to undermine Weerden’s testi-
mony that he had observed that the registration plate
light was not illuminated just prior to the time at which
he stopped the vehicle.
Also, the defendant argues that Weerden’s credibility
was undermined by his testimony that, in a performance
evaluation that occurred in September, 2011, his super-
visor recommended that he engage in ‘‘pretextual stops
as a [basis to conduct] more in depth investigations.’’
Although the defendant appears to highlight this testi-
mony in artificial isolation and to interpret it to mean
that Weerden believed that he had been instructed to
fabricate motor vehicle violations, it is reasonable to
evaluate this testimony in light of Weerden’s testimony
as a whole. Weerden testified as to his belief that his
supervisors at the Wethersfield Police Department
expected him to investigate narcotics activity if such
activity came to his attention during a lawful vehicle
stop. He testified that his supervisor had never advised
him to conduct an unlawful stop of a vehicle. He testi-
fied that he believed that he could stop a vehicle only
if he first observed a motor vehicle violation related
thereto, and that he had never ‘‘made up a motor vehicle
violation so that [he] could justify a criminal charge.’’
He stated that, in the absence of a valid reason to stop,
‘‘[t]hat’s it, then they’re on their way.’’ He stated that,
in the present case, he stopped the vehicle for a lack
of an illuminated registration plate, and, after he
stopped the vehicle for this reason, his primary concern
became his investigation into the criminal charges that
resulted from the stop.6 Insofar as Weerden’s testimony
did not suggest that he had ever fabricated a motor
vehicle violation or that he believed that it was proper
to do so, we are not persuaded that his testimony, in
whole or in part, undermined the court’s factual finding
that Weerden had testified credibly with respect to his
observations of the vehicle.7
Weerden’s testimony amply supported the court’s
finding that the stop of the vehicle in which the defen-
dant was a passenger was preceded by Weerden’s obser-
vation that the vehicle’s registration plate was not
illuminated, as required by General Statutes § 14-96c
(c). The defendant does not argue that, if Weerden had
observed such a motor vehicle infraction, it would not
have been a lawful basis for the stop. For the foregoing
reasons, we reject the defendant’s claim that the stop
of the vehicle violated his rights under the fourth
amendment.
B
Next, the defendant challenges the court’s conclusion
that the police had probable cause to search the vehicle.
We disagree.
Before turning to the merits of the claim, we set forth
some relevant principles of law. ‘‘The police ordinarily
may not conduct a search and make a seizure unless
a neutral and detached magistrate first issues a warrant
based on probable cause. . . . [A] warrantless search
and seizure is per se unreasonable, subject to a few
well defined exceptions. . . . These exceptions have
been jealously and carefully drawn . . . and the bur-
den is on the state to establish the exception. . . . Spe-
cifically, a warrantless search of an automobile may be
deemed reasonable if it was: (1) made incident to a
lawful arrest; (2) conducted when there was probable
cause to believe that the car contained contraband or
evidence pertaining to a crime; (3) based upon consent;
or (4) conducted pursuant to an inventory of the car’s
contents incident to impounding the car. . . .
‘‘The United States Supreme Court first recognized
the automobile exception to the fourth amendment war-
rant requirement in Carroll v. United States, 267 U.S.
132, 149, 45 S. Ct. 280, 69 L. Ed. 543 (1925), where the
court explained that if [a] search and seizure without
a warrant are made upon probable cause, that is, upon
a belief, reasonably arising out of circumstances known
to the seizing officer, that an automobile or other vehi-
cle contains that which by law is subject to seizure and
destruction, the search and seizure are valid. Likewise,
under our state constitution, our automobile exception
permits a warrantless search of an automobile when-
ever the police have probable cause to do so . . . as
where the searching officer[s] have probable cause to
believe that the vehicle contains contraband. . . . The
probable cause determination must be based on objec-
tive facts that could have justified the issuance of a
warrant by a neutral magistrate at the time the search
was made. . . .
‘‘The justification for . . . [this] automobile excep-
tion is twofold: (1) the inherent mobility of an automo-
bile creates exigent circumstances; and (2) the
expectation of privacy with respect to one’s automobile
is significantly less than that relating to one’s home or
office. . . . In recent years, the United States Supreme
Court has placed an increasing emphasis on the reduced
expectation of privacy justification . . . [such] that
[e]ven in cases where an automobile [is] not immedi-
ately mobile, the lesser expectation of privacy resulting
from its use as a readily mobile vehicle justifie[s] appli-
cation of the vehicular exception. Thus, under the
fourth amendment, a warrantless vehicle search does
not require a showing of exigent circumstances.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Winfrey, 302 Conn. 195, 201–203, 24 A.3d 1218 (2011).
In the present claim, the defendant primarily chal-
lenges the court’s legal determination that probable
cause existed to search the vehicle.8 We already have set
forth the court’s detailed findings of fact with respect to
what the police observed prior to the search of the
vehicle and the seizure of the contraband. On the basis
of these findings, the court concluded that ‘‘the war-
rantless search of the vehicle in which the defendant
was a passenger was supported by probable cause aris-
ing from [Weerden’s] observations of the defendant,
the conduct of the operator, and the observations of
tobacco particles on the passenger floor mat.’’ The court
concluded that these observations, as well as the infer-
ences that Weerden drew from them on the basis of
his law enforcement training and experience, supported
a finding that probable cause existed that criminal activ-
ity related to drug activity was occurring in the vehicle.
In challenging the court’s determination that proba-
ble cause to search the vehicle existed, the defendant
essentially argues that Weerden merely had observed
conduct that was noncriminal in nature and that it could
not reasonably be interpreted as evidence that criminal
activity was afoot.9 Contrary to the defendant’s assess-
ment of the facts, they supported a finding of probable
cause. Weerden observed the defendant’s ‘‘shoulder
dip’’ after he stopped the vehicle, which, in his training
and experience, heightened his concern about the pres-
ence of illegal drugs. When Weerden asked Alvarado if
anything illegal was in the vehicle, he did not immedi-
ately reply but looked in the defendant’s direction. This
furtive conduct suggested that the defendant may have
attempted to conceal something in the vehicle and that
the occupants of the vehicle were not being forthright
with respect to illegal activity. Alvarado’s conduct also
tended to draw attention to the defendant himself. ‘‘Fur-
tive movements may be considered as a factor in
determining whether officers have the requisite proba-
ble cause to conduct a search or arrest. See State v.
Williamson, 10 Conn. App. 532, 545, 524 A.2d 655, cert.
denied, 204 Conn. 801, 525 A.2d 965 (1987); see State
v. Days, 89 Conn. App. 789, 806, 875 A.2d 59, cert.
denied, 275 Conn. 909, 882 A.2d 677 (2005).’’ State v.
Thomas, supra, 98 Conn. App. 553.
These suspicions reasonably were heightened by the
defendant’s physical appearance. Weerden’s training
and experience led him to suspect that the defendant
was under the influence of drugs. Although Alvarado
stated that the defendant had consumed alcohol, Weer-
den did not smell alcohol. The defendant’s physical
appearance and Alvarado’s seemingly untruthful expla-
nation for it supported Weerden’s suspicion that the
defendant was under the influence of drugs. It can
hardly be disputed that Weerden’s observations, which
reasonably supported a finding that the defendant was
impaired, bolstered his suspicion that criminal activity
was afoot. Finally, Weerden observed tobacco on the
floor of the vehicle, which was in the immediate vicinity
of the defendant who appeared to be ‘‘out of it’’ and
under the influence of a drug. In Weerden’s training
and experience, the loose tobacco was consistent with
the use or possession of illegal narcotics.10 This observa-
tion, viewed in conjunction with Weerden’s other obser-
vations, strongly bolstered any suspicion of recent
illegal drug use and, accordingly, supported a finding
of probable cause to search the vehicle and its contents
that may have concealed evidence related to such ille-
gal activity.
The defendant suggests by his arguments that,
because Weerden did not directly observe illegal narcot-
ics or the use of illegal narcotics prior to the search,
the fact that he observed things that may have been
innocuous in terms of criminality did not support a
finding of probable cause. The defendant’s arguments
fail because probable cause does not require that the
police first determine with certainty that criminal activ-
ity is afoot. ‘‘Probable cause, broadly defined, [com-
prises] such facts as would reasonably persuade an
impartial and reasonable mind not merely to suspect
or conjecture, but to believe that criminal activity has
occurred. . . . [I]t is axiomatic that [a] significantly
lower quant[um] of proof is required to establish proba-
ble cause [rather] than guilt. . . . [P]robable cause
requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.
By hypothesis, therefore, innocent behavior frequently
will provide the basis for a showing of probable cause;
to require otherwise would be to sub silentio impose
a drastically more rigorous definition of probable cause
than the security of our [citizens] . . . demands. . . .
In making a determination of probable cause the rele-
vant inquiry is not whether particular conduct is inno-
cent or guilty, but the degree of suspicion that attaches
to particular types of noncriminal acts.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Batts,
281 Conn. 682, 701, 916 A.2d 788, cert. denied, 552 U.S.
1047, 128 S. Ct. 667, 169 L. Ed. 2d 524 (2007). For the
foregoing reasons, we conclude that the court properly
determined that the search was supported by probable
cause, and, therefore, it properly denied the defendant’s
motion to suppress evidence.
II
AC 36543
In its memorandum of decision with respect to the
motion to suppress filed in docket number H15N-CR12-
0264151-S, the court set forth the following findings of
fact. ‘‘On April 23, 2012, Wethersfield Police Officer
Brian Shea was assigned to the second shift which was
from 3:30 p.m. to 11:30 p.m. or midnight. His primary
responsibility on that shift was speed enforcement. He
was alone, in full uniform, and in a police vehicle that
was equipped with video recording capability. Officer
Shea testified that at or about 1738 hours (5:38 p.m.)
on April 23, 2012, he observed a Honda Accord that
had dark tinted windows—[which] he believed [were]
in excess of the allowable tint. These windows were
so tinted that he could not see the operator or anything
in the interior of the vehicle. Officer Shea proceeded
to do a license plate check through the motor vehicle
system. The results indicated that the registration was
suspended due to no insurance. Officer Shea activated
his emergency lights and effected a motor vehicle stop
of that vehicle at or near Folley Brook Road. He testified
that he notified Wethersfield Police Department dis-
patch of the motor vehicle stop. The video of the stop
is State’s Exhibit 7. Officer Shea testified that he
approached the operator. Officer Shea interacted with
the operator, identified by his Connecticut license as
[the defendant], explaining that the vehicle was stopped
because of the extremely tinted window and registra-
tion suspension. The defendant indicated that he was
aware that the registration was under suspension, but
he was just going to the store for pork chops. Officer
Shea testified that he inquired of the defendant if there
was anything illegal in the vehicle. [The defendant] indi-
cated that he had a ‘roach’11 on his person and directed
Officer Shea to it. Officer Shea indicated that he
detected an odor of marijuana emanating from the inte-
rior compartment of the vehicle. The defendant indi-
cated that he had been arrested for weapons and drugs
in the past. At this point, Officer Shea testified that
he directed [the defendant] to exit the vehicle and he
conducted a ‘patdown’ search. Officer Shea testified
that he requested additional police backup. During the
course of the patdown, a large sum of money was found
in the defendant’s right side pocket. Officer Shea con-
ducted a criminal history of the defendant. The defen-
dant had convictions for drugs and weapons violations.
He admitted to previously dealing heroin and to being
on probation. Officer Shea conducted a search of the
vehicle, which he indicated was based upon the roach,
the odor of marijuana, the large amount of money, and
a concern about the existence of weapons. The interior
search included the center console and glove compart-
ment. Wethersfield Police Officers Jeffrey Poulin and
Dave Gove arrived at the location. Subsequent to the
stop, Sergeant Keyes (now Sergeant Rivera) arrived
with the K-9 search dog. The K-9 assisted with the
search. Marijuana and PCP were located in the center
console. A container of urine and a container of white
powdery mix were found in the glove compartment and
a bundle ([thirteen] packets) of heroin and PCP were
located in the rear seat areas.12 Additionally, two cell
phones were located in the vehicle.
‘‘At the location, Police Officer Jeffrey Poulin advised
the defendant pursuant to Miranda v. Arizona.13
‘‘The incident was recorded and presented in evi-
dence as State’s Exhibit 7.
‘‘After review and consideration of the evidence, the
Court finds the testimony of Officer Brian Shea credi-
ble.’’ (Footnotes in original.)
In his motion to suppress, the defendant asked the
court to exclude ‘‘any and all evidence, whether tangible
or intangible, and including statements, and identifica-
tions which was seized from his person and motor vehi-
cle on April 23, 2012.’’14 In his motion, the defendant
expressly asserted that the police lacked ‘‘probable
cause’’ to stop his vehicle, to search his person, and to
search his vehicle. In his memorandum of law in support
of the motion to suppress, the defendant argued that
no exception applied to justify the warrantless search
of his vehicle; he argued that the stop of the vehicle
was unlawful and that the state failed to demonstrate
that the warrantless search of the vehicle ‘‘was justified
as incident to an arrest for a crime, as a protective
sweep, or that the search was supported by probable
cause.’’ Moreover, the defendant argued that he was not
arrested until after the narcotics had been discovered in
the vehicle and that, prior to the sweep, he had been
subjected to a custodial arrest.
The state argued that Shea had probable cause to
stop the vehicle on the basis of his observations and
information at the time of the stop. Moreover, the state
argued that the warrantless search of the vehicle was
proper either because it was a valid protective sweep
or because the police had probable cause to search the
vehicle. In this regard, the state argued that, in the
course of the lawful stop, Shea developed additional
evidence upon which to conclude that the defendant
was engaged in illegal activity.
The court analyzed the defendant’s claim in relevant
part as follows: ‘‘Based upon the facts presented at the
hearing, the Court finds that there was a reasonable
and articulable suspicion to conduct the motor vehicle
stop based upon the extremely tinted windows and the
suspended registration. This is an objectively lawful
basis for a motor vehicle stop . . . .
‘‘The Court now addresses the patdown search of
[the defendant]. Reading the testimony of Officer Shea,
when asked if there was anything illegal in the vehicle,
[the defendant] indicated that he had a ‘roach’ on his
person. Officer Shea also observed an odor of marijuana
in the vehicle. The defendant indicated to Officer Shea
that he was charged with weapons violations in the
past. Officer Shea testified that upon that information
he advised the defendant that he was going to pat down
the defendant to determine if any weapon was present.’’
The court observed that an officer may conduct a
patdown search if he ‘‘reasonably concludes that the
driver may be armed and presently dangerous,’’ and
that the court ‘‘must use an objective standard in
determining whether a police officer had a particular-
ized basis for suspecting whether an individual should
be patted down for weapons.’’ (Internal quotation
marks omitted.) The court stated: ‘‘After thorough con-
sideration of the testimony presented and found credi-
ble and the law applicable, the Court finds that the state
has sustained its burden of establishing the ‘patdown’
search of the defendant [was] lawful. The patdown
search was conducted and over one thousand dollars
was located on the defendant.
‘‘The Court next considers the search of the interior
of the vehicle. The fourth amendment requires that all
searches be reasonable in their execution. Where a
defendant ‘moves to suppress evidence obtained from
a warrantless search, the burden is on the state to prove
the existence of an exception to the warrant require-
ment.’ . . .
‘‘Thus, in the present case, the state has the burden
of showing that Officer Shea had probable cause to
search the defendant’s vehicle and lawfully seize the
evidence. . . .
‘‘The defendant argues that the initial stop of the
defendant’s motor vehicle was for a motor vehicle viola-
tion, tinted windows, and therefore any inquiry of the
defendant beyond that motor vehicle violation is
improper.’’
The court observed that, during a Terry stop, an
officer may inquire into matters unrelated to the justifi-
cation for the traffic stop, provided that such inquiries
‘‘do not measurably extend the stop beyond the time
necessary to complete the investigation of the traffic
violation and issue a citation or warning.’’ (Internal
quotation marks omitted.) The court, however,
rejecting the defendant’s argument that he had been
illegally detained following the stop, observed that if
specific and articulable facts, and reasonable inferences
related thereto, warrant a further inquiry into criminal
conduct, a continued investigation may occur.
The court continued: ‘‘Based upon the facts presented
and found credible, the patdown search and inquiry of
the defendant was justified for officer safety purposes.
Additionally, the Court finds that the inquiry, the ‘roach,’
the ‘patdown,’ and resulting finding of one thousand
dollars in cash, the odor of marijuana emanating from
the interior of the vehicle, and the defendant’s prior
criminal history of narcotics possession and sales and
weapons violations is sufficient to establish the officer’s
purpose of continued investigation.’’
After setting forth legal principles with respect to the
automobile exception to the warrant requirement in
situations in which the police, on the basis of objective
facts, have probable cause to believe that a vehicle
contains contraband, the court stated: ‘‘In the present
case, this Court finds that the warrantless search of the
defendant’s vehicle was supported by probable cause
arising from the odor of marijuana emanating from the
interior of the vehicle, the presence of a roach, one
thousand dollars in cash and the defendant’s criminal
history of weapons violations and narcotics sales.
‘‘Moreover, this Court also finds that the aforemen-
tioned circumstances provided probable cause to
search the entire vehicle, including any containers, for
drugs or narcotics. . . .
‘‘The evidence seized from the defendant’s vehicle
was not the fruit of an unlawful traffic stop. The search
was not a continuation of the motor vehicle violation
investigation, but rather, was based upon additional
observations and information obtained by the officer
after the initial stop. The patdown of the defendant was
justified and the warrantless search of the defendant’s
vehicle and the containers therein was supported by
probable cause.’’ For the foregoing reasons, the court
denied the motion to suppress.
The defendant challenges the court’s decision by
claiming that: (1) contrary to the court’s analysis, the
patdown search was illegal under Terry because Shea
did not reasonably suspect that the defendant posed a
harm to the police or others; (2) the court should have
suppressed the evidence seized by the police as being
the fruit of an illegal arrest; and (3) contrary to the
court’s analysis, the warrantless search of the vehicle
was illegal because it did not fall under the automobile
exception.15 Having already set forth our standard of
review of a trial court’s ruling on a motion to suppress
evidence, we will address these arguments in turn.
A
First, we address the defendant’s claim that the pat-
down search was unlawful. ‘‘A police officer has the
right to stop a motor vehicle operating on a Connecticut
highway even if the reason for the stop is only an infrac-
tion under our traffic laws. Upon doing so, he prudently
may prefer to ask that an occupant exit the vehicle;
any intrusion upon an occupant’s personal liberty in
directing that action is de minimis because, on balance,
it serves to protect the officer. . . . Even a reasonable
direction to do so may be appropriate because [c]er-
tainly it would be unreasonable to require that police
officers take unnecessary risks in the performance of
their duties.’’ (Citation omitted; internal quotation
marks omitted.) State v. Dukes, 209 Conn. 98, 122, 547
A.2d 10 (1988). When a patdown search for weapons
is warranted under a totality of the circumstances, our
law recognizes the constitutionality of it. ‘‘When con-
ducting a patdown search of a suspect, the officer is
limited to an investigatory search for weapons in order
to ensure his or her own safety and the safety of others
nearby. . . . The United States Supreme Court has
held that police need only establish a reasonable suspi-
cion that a suspect is armed and dangerous to justify
a patdown of the suspect on a public street. . . .
Accordingly, the [Supreme Court of the United States
has] authorized a limited patdown search for weapons
under circumstances in which a reasonably prudent
officer is warranted in believing, on the basis of specific
and articulable facts, that the person with whom he is
dealing is armed and dangerous. . . . 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. . . . In ascertaining
whether reasonable suspicion existed for the patdown
search, the totality of the circumstances—the whole
picture—must be taken into account.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Starks,
94 Conn. App. 325, 330–31, 892 A.2d 959, cert. denied,
278 Conn. 918, 901 A.2d 44 (2006); see also State v.
Willoughby, 153 Conn. App. 611, 623–24, 102 A.3d
1118 (2014).
Primarily, the defendant challenges the court’s analy-
sis of the patdown search by challenging the court’s
factual finding that Shea had advised the defendant that
he was going to conduct a patdown search after he had
learned from the defendant that he had been charged
with a weapons violation in the past. The defendant
argues that the evidence demonstrated that Shea made
the decision to conduct the patdown search before he
asked the defendant about his criminal history involving
weapons. The defendant argues that Shea decided to
conduct a patdown search solely on the basis of (1) his
traffic violations, (2) his possession of a roach, and (3)
his admitted history of drug use and sales. Thus, the
defendant argues, the court could not reasonably have
concluded that the patdown search was motivated by
anything other than Shea’s desire to search the defen-
dant for evidence of illegal drugs.
We carefully have reviewed the video recording of
the events at issue. That recording reflects that on two
occasions, Shea advised the defendant that he was
going to conduct a patdown search. Shea did so once
before he had learned of the defendant’s prior weapons
charge and once after he had learned of the defendant’s
prior weapons charge. The recording reflects, however,
that it was only after he had asked the defendant about
prior weapons charges and after he had learned that
the defendant had such a charge that Shea stated that
he would conduct a patdown search for weapons,
instructed the defendant to exit his vehicle, and con-
ducted the patdown search at issue. At that time, Shea
stated that he was going to conduct the patdown search
to ‘‘make sure’’ that the defendant was not ‘‘carrying.’’
On the basis of this evidence, we conclude that the
court’s factual finding with respect to the patdown
search conducted by Shea was not inconsistent with
the evidence.
The defendant proceeds to argue that, in the absence
of the evidence of the defendant’s admission that he
had a prior weapons charge, the court’s legal analysis
was flawed because the totality of the circumstances
known to Shea did not give rise to a reasonable and
articulable suspicion that the defendant was armed and,
thus, posed a risk to anyone. Because we have con-
cluded, however, that the evidence supported the
court’s finding that Shea’s patdown search of the defen-
dant was based in part on the defendant’s prior criminal
history with respect to weapons,16 we reject this aspect
of the claim.17
B
Next, we address the defendant’s claim that the court
should have suppressed the evidence seized by the
police as the fruit of an illegal arrest. We disagree.
Before this court, the defendant also argues that even
if Shea was justified in conducting a patdown search
under Terry, the trial court should have suppressed
‘‘evidence taken at the time of his unlawful arrest’’
because it was the fruit of an investigative detention
that exceeded its lawful duration. In this regard, the
defendant argues that ‘‘the police exceeded the permis-
sible scope and duration of the initial investigative
detention prior to the time when the facts known to
them would support the inference of probable cause
necessary for a lawful arrest.’’ He argues that the evi-
dence reflects that he was seized when Shea ordered
him to exit his vehicle, and that he was thereafter hand-
cuffed and detained in the back of a police cruiser for
more than one hour based solely on his admission of
past drug and weapons charges, and his commission
of ‘‘minor civil violations’’ related to his tinted windows,
his suspended registration, and his possession of less
than one-half ounce of marijuana in the form of the
marijuana roach.18 He argues that he clearly had been
seized prior to the discovery of the contraband in his
vehicle and, thus, prior to the time at which the police
had probable cause to arrest him without a warrant.
The state argues that ‘‘[t]he exact nature of the defen-
dant’s claim is unclear,’’ and, on the basis of our review
of the defendant’s motion to suppress, his memoran-
dum of law in support of the motion, and the transcript
of the argument related to the motion, it does not appear
that, before the trial court, the defendant raised the
present claim with the degree of precision reflected in
his arguments before this court. Nonetheless, it appears
from our review of the trial court’s memorandum of
decision that the court considered and explicitly
rejected the defendant’s arguments to the extent that
they suggested that the police had illegally extended
the investigative detention of the defendant beyond that
warranted by Terry.
‘‘Courts considering the constitutionality under the
fourth amendment of a police officer’s interaction with
a motorist during a routine traffic stop apply the princi-
ples developed under the line of case law implementing
the central holding of Terry v. Ohio, supra, 392 U.S. 1.
. . . Under Terry, where a police officer observes
unusual conduct which leads him reasonably to con-
clude in light of his experience that criminal activity
may be afoot . . . the officer may briefly stop the sus-
picious person and make reasonable inquiries aimed at
confirming or dispelling his suspicions. . . .
‘‘Although a police officer cannot detain a motorist
indefinitely, the Supreme Court has rejected attempts
to impose a hard-and-fast time limit on Terry stops, in
favor of a reasonableness inquiry where, [i]n assessing
whether a detention is too long in duration to be justi-
fied as an investigative stop, we consider it appropriate
to examine whether the police diligently pursued a
means of investigation that was likely to confirm or
dispel their suspicions quickly, during which time it
was necessary to detain the defendant. . . . A court
making this assessment should take care to consider
whether the police are acting in a swiftly developing
situation, and in such cases the court should not indulge
in unrealistic second-guessing. . . . Therefore, judicial
review of routine traffic stops goes beyond a strict
stopwatch test; reasonableness is not measured solely
by the temporal duration of the stop alone but, rather,
requires scrupulous consideration of the reasonable-
ness of the officers’ actions during the time of the
stop. . . .
‘‘Moreover, [a] lawful roadside stop begins when a
vehicle is pulled over for investigation of a traffic viola-
tion. The temporary seizure of driver and passengers
ordinarily continues, and remains reasonable, for the
duration of the stop. Normally, the stop ends when the
police have no further need to control the scene, and
inform the driver and passengers they are free to leave.
. . . An officer’s inquiries into matters unrelated to the
justification for the traffic stop, [the United States
Supreme Court] has made plain, do not convert the
encounter into something other than a lawful seizure,
so long as those inquiries do not measurably extend
the duration of the stop.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) State v.
Sward, 124 Conn. App. 546, 552–54, 5 A.3d 965 (2010).
‘‘[I]n evaluating the duration of a traffic stop, the
reviewing court . . . must consider the stop through
the lens of the time reasonably necessary to effectuate
the initial purpose of the traffic stop, and expansions
of the stop beyond that time are constitutionally imper-
missible in the absence of an independent basis of
objectively reasonable, articulable suspicion.’’
(Emphasis added.) State v. Jenkins, 298 Conn. 209, 242,
3 A.3d 806 (2010).
In the present appeal, the defendant does not chal-
lenge the legality of the stop that preceded his deten-
tion. The defendant contends that his detention was
the legal equivalent of a custodial arrest. In contrast,
the state argues that the police properly extended the
Terry stop that originated with the tinted windows due
to police suspicion that criminal activity was afoot. In
view of the totality of the circumstances, the police
had an objectively reasonable, articulable suspicion to
justify the expansion of the investigatory detention of
the defendant beyond the initial purpose of the stop,
which was related to his tinted windows. Following the
stop but during the time in which he was investigating
the initial stop, Shea reasonably suspected that the
defendant was engaged in additional criminal activity
in that he learned that the defendant’s registration was
suspended, he had an arrest history related to illegal
drugs and weapons, he was in possession of a substan-
tial amount of cash, he was in possession of a marijuana
roach, and the smell of marijuana was emanating from
his vehicle. A subsequent search of the vehicle19
revealed the presence of illegal drugs.
As the United States Supreme Court has observed,
‘‘[a]n officer . . . may conduct certain unrelated
checks during an otherwise lawful traffic stop. But . . .
he may not do so in a way that prolongs the stop, absent
the reasonable suspicion ordinarily demanded to justify
detaining an individual.’’ Rodriguez v. United States,
U.S. , 135 S. Ct. 1609, 1615, 191 L. Ed. 2d 492(2015). On the basis of the articulable facts in the pre-
sent case, viewed in their totality, the court properly
concluded that the police did not unreasonably detain
the defendant. The defendant has not demonstrated
that his detention beyond the initial purpose of the stop
was not the result of reasonable police suspicion of
criminal activity, the investigation of which ultimately
led to the defendant’s arrest. Accordingly, the defen-
dant’s claim that suppression of the subject evidence
was warranted is without merit.
C
Finally, the defendant challenges the court’s conclu-
sion that police had probable cause to search the vehi-
cle. We disagree.
As discussed previously in this opinion, the court
concluded that the search of the defendant’s vehicle
was lawful because it was supported by probable cause.
The court relied on specific facts known to the police,
namely, that the defendant was in possession of a mari-
juana roach, that the smell of marijuana was emanating
from the vehicle, that the defendant was in possession
of a substantial amount of cash, that the defendant had
an arrest history related to illegal drugs, and that the
defendant had an arrest history related to weapons.
The defendant argues that the court’s analysis of
probable cause was flawed because (1) in its assess-
ment of probable cause, the court improperly consid-
ered the marijuana roach in light of the fact that, after
the passage of No. 11-71 of the 2011 Public Acts, the
defendant’s possession of less than one-half ounce of
marijuana was not criminal in nature; and (2) the
remaining facts considered by the court did not support
a finding that probable cause to search the vehicle
existed.20
In part I B of this opinion, we set forth relevant legal
principles concerning warrantless automobile
searches, and we rely on those principles in the present
claim. We observed that the police may conduct a war-
rantless search ‘‘when there was probable cause to
believe that the car contained contraband or evidence
pertaining to a crime.’’ State v. Winfrey, supra, 302
Conn. 201. Additionally, ‘‘[p]robable cause to search
exists if: (1) there is probable cause to believe that the
particular items sought to be seized are connected with
criminal activity or will assist in a particular apprehen-
sion or conviction . . . and (2) there is probable cause
to believe that the items sought to be seized will be
found in the place to be searched. . . . The determina-
tion of whether probable cause exists under the fourth
amendment to the federal constitution, and under arti-
cle first, § 7, of our state constitution, is made pursuant
to a totality of circumstances test. . . . [A] court must
examine all of the evidence relating to the issue of
probable cause and, on the basis of that evidence, make
a commonsense, practical determination of whether
probable cause existed. . . . [Our Supreme Court has]
said that the question is whether there was a fair proba-
bility that the contraband was within the place to be
searched.’’ (Footnote omitted; internal quotation marks
omitted.) State v. Crespo, 145 Conn. App. 547, 555–56, 76
A.3d 664 (2013), aff’d, 317 Conn. 1, 115 A.3d 447 (2015).
The gravamen of the defendant’s claim is that because
No. 11-71 of the 2011 Public Acts, codified as General
Statutes § 21a-279a,21 decriminalized the possession of
less than one-half ounce of marijuana for purposes of
General Statutes § 54-142d; see State v. Menditto, 315
Conn. 861, 874–75, 110 A.3d 410 (2015); the ‘‘infractious
quantity of marijuana’’ he possessed at the time of the
stop could ‘‘not provide probable cause to search [his]
vehicle.’’ The defendant argues: ‘‘This court should con-
clude that given this shift in the status of possession
of less than one-half ounce of marijuana, evidence of
such a ‘minor civil violation’ would not satisfy the stan-
dard used to determine the validity of a warrantless
search . . . .’’ Essentially, the defendant evaluates the
issue of probable cause as involving only ‘‘a traffic viola-
tion’’ (arising from his tinted windows and suspended
registration) and ‘‘the admission of an infractious
amount of marijuana’’ (arising from his admitted pos-
session of the marijuana roach). Stated otherwise,
according to the defendant, it was error for the court
to have based its finding of probable cause on evidence
that merely tended to demonstrate that he had commit-
ted a minor civil offense, rather than on evidence that
he had engaged in criminal activity. Although the defen-
dant argued that probable cause to search the vehicle
did not exist, he did not make this argument related to
the decriminalization of the possession of less than one-
half ounce of marijuana before the trial court. The trial
court did not address this argument it in its memoran-
dum of decision denying the motion to suppress.
As set forth previously in this opinion, the court con-
sidered the totality of the circumstances apparent to
the police prior to the search, including the marijuana
roach, the odor of marijuana emanating from the vehicle
that was being occupied solely by the defendant, the
defendant’s admitted history of drug dealing and related
arrests, the defendant’s history of a weapons charge,
and the $1000 found on the defendant incident to the
patdown search. The court determined that the totality
of the circumstances afforded the police ‘‘probable
cause to search the entire vehicle, including any con-
tainers, for drugs or narcotics.’’
Contrary to the defendant’s analysis of the issue of
probable cause, the court did not analyze the issue
based solely on the defendant’s motor vehicle violations
and his possession of the marijuana roach. Instead, the
court properly looked to all of the facts known to the
police. The defendant seemingly argues that because
his possession of the marijuana roach, when considered
in isolation, was insufficient to convict him of a crime,
the court should not have considered it. Yet our deci-
sional law reflects that probable cause need not be
based on evidence that, in and of itself, is criminal in
nature or is sufficient for conviction. See, e.g., Skakel
v. State, 295 Conn. 447, 479 n.22, 991 A.2d 414 (2010)
(‘‘The existence of probable cause does not . . . turn
on whether the defendant could have been convicted
on the same available evidence. . . . [P]roof of proba-
ble cause requires less than proof by a preponderance
of the evidence.’’ [Internal quotation marks omitted.]);
State v. Grant, 286 Conn. 499, 516 n.10, 517–18, 944
A.2d 947 (probable cause may exist despite plausible
innocent explanation for evidence connecting defen-
dant with crime), cert. denied, 555 U.S. 916, 129 S. Ct.
271, 172 L. Ed. 2d 200 (2008).
Here, the court did not conclude that probable cause
to search existed solely because of the defendant’s
tinted windows, his expired registration, or the fact that
he possessed the marijuana roach. The circumstances,
viewed in their entirety, supported a finding of probable
cause that the defendant was engaged in criminal con-
duct in that Shea not only learned that the defendant
was in possession of the roach, but also detected the
smell of marijuana emanating from the defendant’s vehi-
cle.22 Shea detected this smell immediately after he
stopped the vehicle, which was being driven by the
defendant and in which the defendant was the sole
occupant. It is noteworthy that, during his testimony
at the suppression hearing, Shea repeatedly referred to
the smell of marijuana emanating from the vehicle. He
was asked what he was looking for during his search
of the vehicle. He replied: ‘‘Well, based on the burnt
marijuana that he had on his person, and the smell
coming from the car, I was originally just looking for
additional evidence of marijuana use in the car.’’
(Emphasis added.)23 The video recording of the stop
reflects that, when a fellow officer responded to the
scene, Shea related to him his impressions of the stop
and, in so doing, stated that he smelled marijuana and
‘‘obviously [the defendant] was smoking.’’
Thus, contrary to the defendant’s argument, this case
did not merely present facts related to the mere posses-
sion of less than one-half ounce of marijuana. Instead,
the facts gave rise to a suspicion of criminal activity,
specifically, that the defendant was driving while under
the influence of marijuana. Such conduct is prohibited
by General Statutes § 14-227a. It follows that, immedi-
ately following Shea’s observations, the police had
probable cause to search the vehicle for evidence of a
crime, namely, his recent use of marijuana inside of the
vehicle.24 Although the defendant emphasizes that the
defendant was not charged with violating § 14-227a,
that fact is of no consequence to our analysis, which
focuses on whether the police had probable cause to
believe that the defendant’s vehicle contained evidence
of criminal activity.
Separate from the issue of whether the police had
probable cause to believe that the vehicle contained
evidence of criminal activity, the present case, as the
court determined, involves probable cause to believe
that the vehicle contained contraband. Although the
defendant’s possession of the marijuana roach consti-
tuted a minor civil violation, and not a crime, his posses-
sion of the roach nonetheless was evidence that he was
in possession of contraband at the time of the stop.
Section 21a-279a (b) provides: ‘‘The law enforcement
officer issuing a complaint for a violation of subsection
(a) of this section shall seize the cannabis-type sub-
stance and cause such substance to be destroyed as
contraband in accordance with law.’’ The evidence of
the marijuana roach and the smell of marijuana emanat-
ing from the vehicle, when viewed in light of the other
facts known to Shea, including the defendant’s criminal
history involving the sale of illegal drugs and his posses-
sion of $1000 at the time of the stop,25 gave rise to more
than a mere suspicion that there could be additional
contraband inside of the vehicle beyond the marijuana
roach possessed by the defendant. The facts, in their
totality, gave rise to probable cause that there was con-
traband, which the police were authorized to seize and
destroy, inside of the vehicle.
In light of the foregoing, we conclude that the court
properly denied the defendant’s motion to suppress the
evidence seized following the stop of the defendant’s
vehicle.
The judgments are affirmed.
In this opinion the other judges concurred.
1
‘‘State laboratory examination resulted in a finding of PCP.’’
2
The defendant also challenged the admissibility of any identifications
or statements made by him, as well as any evidence seized from his person
incident to the patdown search that transpired following the stop of the
automobile. The court observed that no evidence was presented with respect
to any statements or identifications that the defendant sought to suppress
or any evidence seized incident to a patdown search. The defendant does
not challenge that observation.
3
To the extent that the defendant baldly asserts before this court that
the state’s failure to raise the issue of standing before the trial court somehow
left the defense unable to present evidence to satisfy the defendant’s burden
of proof with respect to this essential element of his motion to suppress,
the argument totally lacks merit.
4
The state raised the standing issue as an appellee in the present appeal. It
appears that, before the trial court, the state did not challenge the defendant’s
standing to raise his fourth amendment claim. Moreover, it appears that,
before the trial court, the defendant, who bore the burden of demonstrating
that he had a protectable interest in the area searched or the contraband
seized, did not present any evidence with respect to the issue of standing.
In these circumstances, in which the court did not make relevant factual
determinations with respect to standing, if we were to find it necessary to
reach the issue of standing, it would be appropriate, as the defendant sug-
gests, for this court to remand the case to the trial court for both an eviden-
tiary hearing and a decision related to the issue. See Combs v. United States,
408 U.S. 224, 227–28, 92 S. Ct. 2284, 33 L. Ed. 2d 308 (1972).
5
Viewed in light of the principles set forth previously in this opinion, the
evidence presented at the suppression hearing did not support a determina-
tion that the defendant (who did not claim a possessory interest in the
contraband seized from the vehicle) had a privacy interest in the vehicle
and, thus, had standing to challenge the stop or search of the vehicle. The
defendant did not testify at the suppression hearing. There was evidence
that, when the stop occurred, the defendant was in the passenger seat of
the vehicle and Pedro Alvarado, Jr., was in the operator’s seat. There was
evidence that none of the occupants of the vehicle had an operator’s license.
After checking the vehicle’s registration plate against state records, Weerden
determined that the registered owner was a Steven Alvarado, whom Weerden
believed to be the brother of Pedro Alvarado, Jr. Moreover, Weerden testified
that the defendant never asserted that he owned the vehicle.
6
Weerden testified that, although he issued a citation to Pedro Alvarado
for failing to possess an operator’s license, he did not issue a citation for
the lack of an illuminated registration plate light.
7
The evidence reflected that, in his performance evaluation, Weerden’s
supervisor recommended that he engage in ‘‘pretexual stops as a [basis to
conduct] more in depth investigations.’’ As we have discussed, Weerden
clearly did not interpret this recommendation as a directive that he should
fabricate reasons to conduct stops or that he otherwise should violate the
law. Insofar as this specific recommendation, and particularly its use of the
word ‘‘pretexual,’’ could be interpreted as a directive to fabricate reasons
to conduct stops, it is a recommendation that concerns us because it could
invite illegality on the part of Wethersfield police officers.
8
At one point in its decision, the court stated: ‘‘Officer Weerden observed
what he believed to be, based upon his training and experience, criminal
activity, to wit, narcotics possession and use, in the vehicle.’’ The defendant
argues that this finding of fact is clearly erroneous because there was no
evidence that, prior to the search, Weerden had observed narcotics posses-
sion and use in the vehicle. The defendant’s challenge to the court’s factual
findings in this regard is not persuasive. On the basis of Weerden’s testimony,
the court accurately stated that Weerden’s observations, and the inferences
he drew from them, led him to believe that criminal activity was afoot.
Weerden did not testify, nor did the court find, that, prior to the time
of the search, Weerden had observed narcotics or had observed anyone
using narcotics.
9
Additionally, before this court, the defendant disputes an argument that
the state advanced before the trial court, namely, that a protective search
of the vehicle was justified as a means of protecting the safety of the officers.
The trial court did not address this argument or base its decision on this
ground. For these reasons, and because we uphold the search as being
supported by probable cause, we need not address this aspect of the defen-
dant’s claim.
10
Weerden testified in relevant part: ‘‘[W]hen I was talking to the occu-
pants, I noticed there was loose tobacco on the floor, which is consistent
with PCP users, marijuana smokers, they’ll often times empty out the cigar
tobacco and fill it with the product and then smoke it that way.’’
11
‘‘A roach is the end of a smoked marijuana cigarette.’’
12
‘‘State lab results indicate PCP and heroin. State’s Exhibits 10 and 11.’’
13
‘‘Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).’’
14
The defendant specified that the evidence at issue included ‘‘Cash,’’
‘‘PCP,’’ ‘‘Marijuana,’’ ‘‘Protein powder described as ‘unknown,’ ’’ ‘‘Heroin,’’
and ‘‘Urine.’’ Before both the trial court and this court, the defendant has
not identified any statements or identifications that are encompassed by
his motion to suppress. As did the trial court, we will focus on the physical
evidence seized from the defendant’s person and his vehicle.
15
Additionally, the defendant argues that the search of the vehicle was
not made incident to a lawful arrest. The defendant acknowledges that the
court did not base its decision on this ground, but addresses it because the
state argued before the trial court that the search was justified on this
alternative ground. Because we conclude that the search was supported by
probable cause, we need not address this aspect of the defendant’s claim.
16
Shea testified that during the stop he learned that the defendant had
been arrested on a weapons charge in the past. He stated: ‘‘I was concerned
that the subject may have, in speaking with him, may have a weapon in his
possession or possible. That was another concern of mine.’’
17
The state argues, and we agree, that even in the absence of the defen-
dant’s admission with respect to his prior weapons history, the totality of
the circumstances known to Shea supported a reasonable and articulable
suspicion that he was armed and dangerous. Among the facts known to
Shea was that the defendant had a substantial history involving the sale
and possession of illegal drugs, his vehicle emanated the scent of marijuana,
and the defendant admitted to being in possession of a roach. Prior to
ordering the defendant out of his vehicle and conducting the patdown search,
the defendant stated to Shea that he had ‘‘a super long history’’ relating to
drugs and, in fact, stated that his involvement with heroin was ‘‘[b]y the
truckload.’’ He stated that he was on probation for ‘‘heroin’’ and that his
criminal history involved ‘‘dealing.’’ Our courts have recognized the connec-
tion between the illegal drug trade and forms of crime involving firearms.
Thus, our Supreme Court has observed that ‘‘[t]here is a well established
correlation between drug dealing and firearms. United States v. Simon, 767
F.2d 524, 527 (8th Cir. 1985); United States v. Milham, 590 F.2d 717, 721
(8th Cir. 1979).’’ State v. Cooper, 227 Conn. 417, 426 n.5, 630 A.2d 1043 (1993).
18
The evidence reflects that after the patdown search, Shea instructed
the defendant to sit, unrestrained, on the rear bumper of the defendant’s
vehicle. The defendant was not handcuffed until after Shea had conducted
a preliminary search of the vehicle and found bags of white powder, which
he believed to be either heroin or a cutting agent. The defendant was not
detained in a police cruiser until after the police found additional substances
that they believed to be illegal drugs in the vehicle. It was not until after
the police, assisted by the K-9 dog, discovered the thirteen packets containing
heroin in the back of the vehicle, that the defendant was placed under arrest.
19
The search of the vehicle is addressed in part II C of this opinion.
20
Additionally, the defendant argues that in light of the evidence that Shea
had ‘‘decided to search’’ the vehicle prior to the discovery of the $1000
found incident to the patdown search, it was improper for the court to
consider that evidence in determining whether probable cause to search
the vehicle existed. This argument is unpersuasive in light of the evidence,
specifically, the video recording of the stop. The video recording reflects
that Shea did not manifest his intention to search the vehicle, and did
not search the vehicle, until after he completed the patdown search of
the defendant.
21
General Statutes § 21a-279a provides: ‘‘(a) Any person who possesses
or has under his control less than one-half ounce of a cannabis-type sub-
stance, as defined in section 21a-240, except as authorized in this chapter,
shall (1) for a first offense, be fined one hundred fifty dollars, and (2) for
a subsequent offense, be fined not less than two hundred dollars or more
than five hundred dollars.
‘‘(b) The law enforcement officer issuing a complaint for a violation of
subsection (a) of this section shall seize the cannabis-type substance and
cause such substance to be destroyed as contraband in accordance with law.
‘‘(c) Any person who, at separate times, has twice entered a plea of nolo
contendere to, or been found guilty after trial of, a violation of subsection
(a) of this section shall, upon a subsequent plea of nolo contendere to, or
finding of guilty of, a violation of said subsection, be referred for participation
in a drug education program at such person’s own expense.’’
22
Essentially, the defendant argues that the fact that Shea smelled mari-
juana should not be a factor in our analysis because such a smell could
have been related to an amount of marijuana that was lawful for him to
possess, but not an amount of marijuana that was unlawful for him to
possess. Thus, he argues that ‘‘[t]here was no evidence offered at the suppres-
sion hearing in the present case that Officer Shea smelled a criminal—rather
than a civil—amount of marijuana emanating from the defendant’s car or
that he had any specialized training allowing him to do so.’’ As we have
discussed previously in this opinion, Shea properly searched the vehicle
because he had probable cause to believe that there was evidence therein
related to the criminal activity of driving under the influence of marijuana
or that there was contraband present in the vehicle. Evidence of these
grounds was not dependent upon the presence of a particular quantity of
marijuana in the vehicle, but could have been taken the form of less than
one-half ounce of marijuana. Accordingly, Shea’s perception of the smell of
any amount of marijuana was relevant to our analysis.
23
In his reply brief, the defendant argues that ‘‘[t]here is no evidence . . .
that Officer Shea premised his actions on the suspicion that the defendant
was driving under the influence of marijuana.’’ Additionally, the defendant
argues that the state should be precluded from asserting for the first time
on appeal that the search was justified under the theory that Shea was
searching for evidence that the defendant had driven while under the influ-
ence of marijuana.
In its objection to the motion to suppress, the state argued in broad terms
that there was probable cause to search for evidence of criminal activity
related to ‘‘drug violations.’’ During argument on the motion to suppress,
the state argued in similarly broad terms that the search was justified both
because Shea believed ‘‘that there [was] criminal activity afoot’’ and because
‘‘there was illegal contraband in the car.’’ We are not persuaded by the
defendant’s argument that the state’s appellate arguments are in any manner
inconsistent with those that he raised before the trial court or Shea’s testi-
mony, which demonstrated that, at the time of the search, he was concerned
not only with finding contraband, but with ‘‘marijuana use in the car.’’
24
For these reasons, the present case is distinguishable from Common-
wealth v. Cruz, 945 N.E.2d 899, 911–14 (Mass. 2011), on which the defendant
relies heavily. In Cruz, the Supreme Judicial Court of Massachusetts held
that, following the decriminalization of one ounce or less of marijuana, the
police lacked probable cause to search a vehicle in which the defendant
was a passenger on the basis of evidence that the driver of the vehicle had
smoked marijuana earlier that day. The court in Cruz concluded that ‘‘no
facts were articulated to support probable cause to believe that a criminal
amount of contraband was present in the car.’’ (Emphasis in original.) Id.,
913. In the present case, the facts supported a finding of probable cause to
search for evidence of a crime, specifically, that the defendant was driving
while under the influence of marijuana or that he was involved in the sale
of illegal drugs. Additionally, we distinguish our analysis from that set forth
in Cruz because we adhere to well settled Connecticut precedent that
permits the warrantless search of an automobile when there is probable
cause to believe that evidence of criminal activity or contraband is located
therein. See, e.g., State v. Winfrey, supra, 302 Conn. 201; see also People v.
Waxler, 224 Cal. App. 4th 712, 721, 168 Cal. Rptr. 3d 822 (2014) (‘‘a law
enforcement officer may conduct a warrantless search of a vehicle pursuant
to the automobile exception when the officer has probable cause to believe
the vehicle contains marijuana, which is contraband’’).
25
It appears that, in our evaluation of probable cause to search the vehicle,
the defendant urges us not to consider the $1000 found as a result of the
patdown search. This is because the state, in its analysis of the patdown
search, in addition to arguing that the patdown search was valid, also argued
that the fruit of the patdown search did not taint the subsequent search of
the vehicle. We already have concluded that the patdown search was valid
and, like the trial court, we deem it relevant and appropriate to consider
the $1000 in our evaluation of probable cause to search the vehicle. It
suffices to observe that, in the absence of a reasonable explanation for the
defendant’s possession of $1000, it tended to support an inference that he
was engaged in illegal activity related to drugs. Shea asked the defendant
if he was paid in cash by his employer. The defendant stated, ‘‘No.’’ Also,
Shea asked the defendant if he had cashed a check recently. The defendant
did not reply to this inquiry.