State v. Peterson ( 2014 )

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STATE OF CONNECTICUT v. KYLE PETERSON—DISSENT
BEAR, J., dissenting. I respectfully dissent from the
majority opinion because the trial court properly con-
cluded that on October 20, 2010, the police had a reason-
able and articulable suspicion1 that the defendant was
engaged in criminal activity, specifically the delivery
of marijuana to an apartment on the third floor of 33
Thorniley Street, New Britain, which provided the
police with the authority to conduct an investigatory
stop.2
On April 29, 2011, the defendant filed a motion to
suppress the marijuana evidence on the ground that it
was the fruit of an illegal search and seizure.3 The court
held a hearing on July 19, 2012, on the motion. On
August 23, 2012, it rendered its decision denying the
defendant’s motion to suppress the marijuana evidence.
After reviewing the evidence produced at the hearing,
the court found that the police possessed a reasonable
and articulable suspicion that the defendant was engag-
ing or about to engage in criminal activity when he
drove into the driveway at 33 Thorniley Street. The
reasonable basis for their suspicion was described by
the court as follows: the police had reliable information
from three sources that the defendant was engaged in
the ongoing sale of significant quantities of marijuana;
they had information that 33 Thorniley Street was an
address where large amounts of marijuana and cash
were stored, and they had observed the defendant, ear-
lier in October, 2010, drive to 33 Thorniley Street, park
in the driveway, and enter the building for five minutes.
When, on October 20, 2010, the police observed the
defendant leave his home with a weighted white bag
and travel to 33 Thorniley Street, the court found that
the police had a particularized and objective basis for
suspecting the defendant of criminal activity, specifi-
cally the delivery of marijuana. On the basis of the facts
that it found, the court determined that the police, on
October 20, 2010, had an appropriate basis to stop the
defendant, by blocking his vehicle, after he entered the
driveway at 33 Thorniley Street. The court also found
that the police lawfully seized the marijuana found in
the defendant’s vehicle when it came into plain view
before any search of the vehicle.4
The court rejected the defendant’s claim that the
actions of the police in blocking the defendant’s vehicle
and ordering him to step out of the vehicle constituted
an arrest instead of an investigatory stop, and that the
arrest was invalid because it lacked probable cause.
The court also rejected the defendant’s claim that the
information provided by the informants was unreliable,
and the court found that much of the informants’ infor-
mation was corroborated by the police. The court deter-
mined that based on the totality of the circumstances it
was reasonable for the police to rely on the information
from the informants.
‘‘[O]ur standard of review of a trial court’s findings
and conclusions in connection with a motion to sup-
press is well defined. A finding of fact will not be dis-
turbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record . . . .
[When] the legal conclusions of the court are chal-
lenged, [our review is plenary, and] we must determine
whether they are legally and logically correct and
whether they find support in the facts set out in the
court’s memorandum of decision . . . .
‘‘On appeal, [t]he determination of whether reason-
able and articulable suspicion exists rests on a two part
analysis: (1) whether the underlying factual findings of
the trial court are clearly erroneous; and (2) whether
the conclusion that those facts gave rise to such a suspi-
cion is legally correct. . . .
‘‘An investigating officer may briefly stop a motorist
if the officer has a reasonable and articulable suspicion
that criminal activity may be afoot. . . . Similarly,
[u]nder the fourth amendment to the United States con-
stitution . . . a police officer may briefly detain an
individual for investigative purposes if the officer has a
reasonable and articulable suspicion that the individual
has committed or is about to commit a crime. . . . [I]n
justifying [a] 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. . . . Because
a reasonable and articulable suspicion is an objective
standard, we focus 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. . . . A
recognized function of a constitutionally permissible
stop is to maintain the status quo for a brief period of
time to enable the police to investigate a suspected
crime.’’ (Citations omitted; internal quotation marks
omitted.) State v. Arokium, 143 Conn. App. 419, 427–28,
71 A.3d 569, cert. denied, 310 Conn. 904, 75 A.3d 31
(2013).
In Arokium, the defendant was stopped by the police
after he left a hotel room from which cocaine had been
sold. We described the facts supporting the officers’
reasonable and articulable suspicion for the investiga-
tory stop as follows: ‘‘As to the court’s determination
that a reasonable and articulable suspicion existed that
the defendant was then engaged in criminal activity,
the defendant claims that ‘the objective facts known to
Officer Broems at the moment of the stop were insuffi-
cient to establish reasonable and articulable suspicion’
in the absence of proper corroboration. We disagree.
The court based its finding of a reasonable and articula-
ble suspicion on the reliability of the confidential infor-
mant and the observations of the police officers. The
informant notified the police that a man was selling
cocaine from room 273 at the hotel. The informant
was known by the police and had provided reliable
information in the past regarding criminal activity. See
State v. Clark, [297 Conn. 1, 14–15, 997 A.2d 461 (2010)]
(where informant is known from past practice to be
reliable, no corroboration will be required to support
reasonable suspicion). The officers conducted a con-
trolled purchase in which the informant obtained
cocaine from someone in room 273. The police officers
confirmed that a man named Charles had been renting
that room for an extended period of time. Armed with
this information, Broems observed two people visit
room 273, whose behavior reasonably suggested that
they were engaging in drug trafficking activity. Both
men were admitted into the room by someone else
inside and departed shortly thereafter, carrying plastic
bags. One such person was found in possession of
$29,000 in cash in a shoe box shortly after leaving the
room. The defendant, who matched the informant’s
description of Charlie, was subsequently seen leaving
that very room with a plastic bag. On the basis of the
officers’ observations and their prior relationship with
the informant, we conclude that it was reasonable for
the officers to infer that the informant’s tip was reliable
and that such tip provided them with a reasonable and
articulable suspicion to believe that the defendant was
then engaging in criminal activity. The trial court’s legal
conclusion that such a reasonable and articulable suspi-
cion existed at the time of the stop is legally and logi-
cally correct and supported by the facts.’’ (Emphasis
in original.) State v. Arokium, supra, 143 Conn. App.
429–30.
As in the present case, Arokium also involved reliable
informant information, police confirmation of some of
that information, the observations of police officers,
the police blocking a vehicle, the defendant’s use of
a plastic shopping bag to carry contraband, and the
discovery of that contraband in plain sight: ‘‘While wait-
ing for the issuance of a search warrant [for the hotel
room], Broems observed another black male exit room
273 whom he had not seen enter. This man, later identi-
fied as the defendant, was carrying a plastic shopping
bag. Broems exited his vehicle and followed the defen-
dant on foot to determine whether he matched the
confidential informant’s description of Charlie. At that
moment, Broems notified [Officer] Byxbee, who had
parked his police cruiser on a nearby side street, that
he was pursuing a suspect near the front of the hotel.
Standing about two feet from the defendant, Broems
determined that he matched the informant’s description
of Charlie. Broems then told Byxbee: ‘[T]his is Charlie.
This is the person we [are] looking for.’ Shortly there-
after, the defendant entered a taxicab (cab). As the
Cabdriver was beginning to drive away, Broems quickly
alerted Byxbee and requested that he enter the hotel
parking lot and cut off the cab to prevent the defendant
from leaving. Attempting to stall the defendant’s depar-
ture, Broems approached the cabdriver and stated that
he was in need of a cab. Moments later, Byxbee entered
the parking lot and parked his cruiser directly in front
of the cab. Broems then pulled out and displayed his
badge and ordered the defendant to get out of the cab.
Five to thirty seconds then passed, during which the
defendant neither moved nor spoke. Believing that the
defendant might have been armed, Broems opened the
rear passenger door of the cab and ‘ripped [the defen-
dant] out of the car, and threw him on the ground, and
handcuffed him . . . .’ While securing the defendant,
Broems saw that the bag that the defendant had been
holding had fallen to the ground, partially exposing
some of its contents to view. He noted, in particular,
that several manila envelopes had spilled out of the
defendant’s bag, and that a clear plastic bag containing a
white powder substance he suspected of being powder
cocaine had fallen out of one of the manila envelopes.
Also lying on the ground in plain view, Broems saw
several small ziplock bags imprinted with apples, which
he believed to be drug packaging material.’’ Id., 424–25.
Even if Arokium is distinguishable in some respects,
as the majority has set forth, and even if the evidence
there of sale and of criminal activity was stronger than
that in this case, it does not mean that there was not
a valid basis for the reasonable and articulable suspi-
cion by the police found by the court in this case. Fed-
eral constitutional law governs whether the police had a
reasonable and articulable suspicion when they stopped
the defendant. See Navarette v. California, U.S. ,
134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680 (2014);5 see also
United States v. Arvizu, 534 U.S. 266, 273–74, 122 S.
Ct. 744, 151 L. Ed. 2d 740 (2002); and footnote 1 of this
opinion. We are bound in this appeal by the court’s
unchallenged findings. Those findings reasonably sup-
port the court’s determination that the police, on Octo-
ber 20, 2010, had a reasonable and articulable suspicion
that the defendant was engaged in criminal activity at 33
Thorniley Street, specifically the delivery of marijuana,6
which provided the police with the authority to conduct
an investigatory stop, and to arrest the defendant after
lawfully seizing the marijuana found in the defendant’s
vehicle when it came into plain view before any search
of the vehicle had been conducted. After review of the
facts found by the trial court, I agree with the trial
court’s legal conclusion that such a reasonable and
articulable suspicion existed at the time of the stop.
Accordingly, I would conclude that the trial court prop-
erly denied the motion to suppress.
Therefore, I respectfully dissent.
1
‘‘The Fourth Amendment prohibits unreasonable searches and seizures
by the Government, and its protections extend to brief investigatory stops
of persons or vehicles that fall short of traditional arrest. Terry v. Ohio,
392 U.S. 1, 9 [88 S. Ct. 1868, 20 L. Ed. 2d 889] (1968); United States v. Cortez,
449 U.S. 411, 417 [101 S. Ct. 690, 66 L. Ed. 2d 621] (1981). Because the
balance between the public interest and the individual’s right to personal
security, United States v. Brignoni-Ponce, 422 U.S. 873, 878 [95 S. Ct. 2574,
45 L. Ed. 2d 607] (1975), tilts in favor of a standard less than probable cause
in such cases, the Fourth Amendment is satisfied if the officer’s action is
supported by reasonable suspicion to believe that criminal activity may be
afoot, United States v. Sokolow, 490 U.S. 1, 7 [109 S. Ct. 1581, 104 L. Ed.
2d 1] (1989) (quoting Terry [v. Ohio, supra, 30; see also United States v.]
Cortez, [supra] 417 ([a]n investigatory stop must be justified by some objec-
tive manifestation that the person stopped is, or is about to be, engaged in
criminal activity).
‘‘When discussing how reviewing courts should make reasonable-suspi-
cion determinations, we have said repeatedly that they must look at the
totality of the circumstances of each case to see whether the detaining officer
has a particularized and objective basis for suspecting legal wrongdoing. See,
e.g., [United States v. Cortez, supra, 449 U.S. 417–18]. This process allows
officers to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available
to them that might well elude an untrained person. Id., [418; see] also Ornelas
v. United States, 517 U.S. 690, 699 [116 S. Ct. 1657, 134 L. Ed. 2d 911]
(1996) (reviewing court must give due weight to factual inferences drawn
by resident judges and local law enforcement officers). Although an officer’s
reliance on a mere hunch is insufficient to justify a stop, Terry [v. Ohio,
supra, 392 U.S.] 27, the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of satisfying
a preponderance of the evidence standard, [United States v.] Sokolow, supra,
[490 U.S.] 7.’’ (Internal quotation marks omitted.) United States v. Arvizu,
534 U.S. 266, 273–74, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002).
Additionally, ‘‘[a] determination that reasonable suspicion exists, how-
ever, need not rule out the possibility of innocent conduct. See Illinois v.
Wardlow, 528 U.S. 119, 125 [120 S. Ct. 673, 145 L. Ed. 2d 570] (2000) (that
flight from police is not necessarily indicative of ongoing criminal activity
does not establish Fourth Amendment violation).’’ United States v. Arvizu,
supra, 534 U.S. 277.
2
The majority opinion generally sets forth the facts found by the trial
court, none of which the defendant challenges as clearly erroneous. I will
refer to those facts as necessary in this opinion.
3
The defendant’s specific allegations were: ‘‘1. That the suppression of
evidence in this matter is required by the Fourth Amendment of the United
States Constitution and Article First, sections seven and nine of the Connecti-
cut Constitution; 2. That the defendant has been aggrieved by an arbitrary
and illegal detention and intrusion by the authorities of the New Britain
Police Department (‘authorities’), pursuant to the Fourth Amendment of
the United States Constitution and Article First, section seven and nine of
the Connecticut Constitution. Such non-consensual, un-resisted detention
amounted to an illegal seizure of the defendant and his vehicle; 3. That the
authorities seized the defendant’s person and vehicle without probable cause
for arrest and without a reasonable and articulable suspicion of criminal
activity on the part of the defendant; 4. That the defendant has been aggrieved
by an illegal search of his person and of his vehicle during a time period
within which he was being unlawfully detained by authorities; 5. That the
evidence sought to be suppressed is causally related to the aforementioned
illegal intrusion, in that such evidence was obtained by the authorities during
said illegal seizure of the defendant’s person; 6. That the defendant has been
aggrieved by an illegal arrest, which arrest was instituted following the
acquisition of the aforementioned illegally obtained evidence by the authori-
ties; 7. That the acquired additional evidence incident to such arrest, which
evidence represents the fruit of an illegal seizure and search; 8. That there
exists no intervening acts which form a part of the facts of this matter which
are sufficient to purge the evidence sought to be suppressed of illegality.’’
4
The court’s statement of the issue before it and its findings were as
follows: ‘‘The contested issue is whether the police possessed a reasonable
and articulable suspicion that the defendant was engaging in or about to
engage in criminal activity when he pulled into the driveway at 33 Thorniley
Street. I find that they did.
‘‘First, the police had reliable information from three different sources
that the defendant was engaged in the ongoing sale of significant quantities
of marijuana. On March 23, 2010, Pedro Ayala told the police that the
defendant supplied him with marijuana. Ayala also told the police that he
had purchased $4000 worth of marijuana from the defendant on March 10,
2010. This information was corroborated by the police as they had stopped
the defendant on March 10, 2010 and found $4000 in cash on him.
‘‘In addition, on September 29, 2010, Eric Cedeno told the New Britain
police that he regularly buys marijuana in quantities of one to two pounds
from the defendant. Cedeno provided identifying information regarding the
defendant, such as his age, race and the vehicles he drove, which was
corroborated by the police. Finally, on or about October 13, 2010, Adrian
Arocho, a confidential informant for the New Britain police department who
had previously provided reliable information to them that led to multiple
arrests and convictions, told the police that he was familiar with the defen-
dant and that the defendant sells marijuana. The police unsuccessfully
attempted to make a controlled purchase of marijuana from the defendant
using Arocho. But during a telephone conversation with Arocha, overheard
by Officer Lopa, the defendant admitted that he had recently supplied mari-
juana to Cedeno.
‘‘Second, the police had information that 33 Thorniley Street was an
address where large amounts of marijuana and cash were stored. On October
7, 2010, Leonardo Soares told the New Britain police that he had purchased
marijuana at 33 Thorniley Street in New Britain and that on several occasions
he had witnessed several pounds of marijuana and large amounts of cash
in the third floor apartment. The police had also observed the defendant,
in October 2010, drive to 33 Thorniley Street, park in the driveway, and
enter the building for five minutes; [these were] actions [that] the police
believed to be consistent with drug activity.
‘‘Armed with this information, 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.
‘‘The New Britain police lawfully seized the large quantity of marijuana
found in the defendant’s vehicle when it came into plain view before any
search of the vehicle. Officer Lopa observed the marijuana in a zip lock bag
in the rear of the defendant’s vehicle when he looked through the vehicle’s
open front door after the defendant exited. Police officers are entitled to
seize evidence revealed in ‘plain view’ during the course of a lawful ‘Terry
stop.’ United States v. Hensley, 469 U.S. 221, 235 [105 S. Ct. 675, 83 L. Ed.
2d 604] (1985).’’
With respect to the weighted white Walmart bag, and the defendant’s
claim that it was not suspicious, the state commented in its brief that ‘‘[b]ased
on the totality of the circumstances under which the October 20 stop was
effectuated, which included information that the defendant was an active
marijuana wholesaler who dealt in pound quantities of product, the police
had reason to suspect that the Walmart bag was visibly weighted with a
pound or more of marijuana . . . .’’ The police observed the defendant
leave his home with the weighted Walmart bag, and place it in his vehicle.
5
In Navarette v. California, supra, 134 S. Ct. 1687, the Supreme Court
explained: ‘‘The Fourth Amendment permits brief investigative stops—such
as the traffic stop in this case—when a law enforcement officer has ‘a
particularized and objective basis for suspecting the particular person
stopped of criminal activity.’ United States v. Cortez, 449 U.S. 411, 417–418
[101 S. Ct. 690, 66 L. Ed. 2d 621] (1981); see also Terry v. Ohio, [supra, 392
U.S. 21–22]. The ‘reasonable suspicion’ necessary to justify such a stop ‘is
dependent upon both the content of information possessed by police and
its degree of reliability.’ Alabama v. White, 496 U.S. 325, 330 [110 S. Ct.
2412, 110 L. Ed. 2d 301] (1990). The standard takes into account ‘the totality
of the circumstances—the whole picture.’ [United States v.] Cortez, supra,
417. Although a mere ‘hunch’ does not create reasonable suspicion, Terry
[v. Ohio] supra, 27, the level of suspicion the standard requires is ‘consider-
ably less than proof of wrongdoing by a preponderance of the evidence,’
and ‘obviously less’ than is necessary for probable cause, United States v.
Sokolow, [supra, 490 U.S. 7].’’
6
In support of the court’s determination of the existence of a reasonable
and articulable suspicion by the police, the state has argued in its appellate
brief, inter alia, that ‘‘the police possessed a reasonable suspicion that, as
of October 20, the defendant was an active seller of marijuana. His October
13 admission to resupplying Cedeno with marijuana, and the common knowl-
edge that selling illegal drugs is a regenerating activity; (internal quotation
marks omitted) State v. Johnson, 219 Conn. 557, 567 [594 A.2d 933] (1991)
(and the cases cited therein); alone supported the inference that the defen-
dant was actively engaged in selling marijuana one week later. The police,
in any event, had the additional information relating to March 10, which
supported the inference that the defendant had, in fact, been in the marijuana
selling business for at least an extended period of months.’’