Opinion
No. CR 03 0119883
May 19, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SUPPRESS
Pursuant to a December 2, 2003 motion, Kilvio Molina, the defendant, seeks to suppress any evidence that was seized from a Silver Toyota vehicle bearing Connecticut License Number 161 LSE. The defendant asserts that the evidence should be suppressed for the reasons stated below:
1. the defendant never consented to a search of the vehicle by the police;
2. the defendant never consented to the search of the vehicle by a police canine;
3. police agents illegally searched the vehicle prior to their discovery of drugs in a hidden compartment; and
4. the defendant was not advised by police that he did not have to consent to their search of the vehicle.
On April 7, 2004 the defendant filed a memorandum in support of its motion. The state responded with a memorandum in opposition dated April 15, 2004.
Having considered the full record, relevant cases, and the arguments of counsel in court and in the memoranda, the court denies the motion for the following reasons.
FACTS
On March 26, 2004, the court held an evidentiary hearing. The witnesses present at the hearing were Trooper Robert Bardelli, Special Agent Brian Martineau, Sergeant Ralph Chappell, Deidre Gonzalez and the defendant who testified with the assistance of a Spanish interpreter. The court found the state's witnesses to be credible and reliable. The court however did not find the testimony of the defendant and Deidre Gonzalez to be credible. Based upon the evidence produced at the hearing, the court finds the following facts.
Trooper Bardelli, Sargent Chappell and Special Agent Martineau are members of the Statewide Narcotics Task Force (SNTF). Trooper Bardelli has worked for ten years investigating narcotic crimes. Since the summer of 2003, he was assigned to conduct investigations in Willimantic, Connecticut. On July 11, 2003, SNTF officers met with two informants who told them that the defendant was selling cocaine at Jonathan's Cafe in Willimantic and would be transporting cocaine there in a car specially equipped with a secret compartment (or "trap"), not visible to a casual observer. On July 11, 2003, the informants obtained the car used by the defendant and brought the car to the detectives to show them the trap and how it worked. The trap compartment was opened by operating dashboard utilities, such as the fan, the heater and the radio in a certain order. After inspecting the trap, Trooper Bardelli and Agent Martineau then searched the car and the informants for illegal drugs. Finding none, they then kept the informants under surveillance as they returned the car to the defendant's dwelling. They maintained surveillance on the car. Some hours later the officer observed, through binoculars, the defendant come out of his house and get into the car. The defendant sat in the car for approximately five minutes and then drove away. There was no one else in the car. The detectives initially kept the car under surveillance, but terminated the surveillance when they decided that they risked being spotted.
After discontinuing their surveillance, the officers went to Jonathan's Cafe. Some time later Bardelli and Special Agent Martineau observed the defendant's car pull into the parking lot for Jonathan's Cafe. The car was operated by Rafael Guillen, with the defendant as the passenger. The officers approached the parked car and spoke with the defendant and Guillen. All parties to the conversation were speaking in English. Guillen told the detectives that the car belonged to defendant, but that he (Guillen) was driving because the defendant's right to operate was suspended. The detectives, speaking in English, asked the defendant and Guillen to get out of the car. The officers then asked the defendant and Guillen for consent to search the car. The defendant and Guillen each gave their consent. At all times during this conversation, the defendant responded appropriately and in a way that would lead one to conclude that he understood the English language. The defendant told the officers there were no drugs in the vehicle.
After the consent to conduct a search was given, the officer brought the trained drug sniffing police dog in to assist in the search. The officers decided to use the drug-sniffing dog so as to avoid compromising the identities of the confidential informants. When the defendant saw the dog, he declared the car was not his car and became visibly nervous. The dog soon alerted inside the car, indicating the presence of drugs in the vehicle. The detective was unable to get the trap to open but could see bags of the suspected drugs in the trap. A search of the trap turned up multiple bags of suspected narcotics. The substance in the bags field tested positive for narcotics.
The defendant testified through an interpreter as follows: that he did not speak or understand English, that he had not driven the car in question, that an individual named "Maria" had driven him in the car from his dwelling to the bus station on Main Street in Willimantic where she told the defendant that she was going to take a bus to Hartford and that she had given the car to the defendant and Guillen so that they could drive it to Jonathan's Cafe, a few blocks away. The defendant claimed that he understood nothing of what the detectives said to him except the word " ID" and that he would not have consented to the search of the car because it did not belong to him. The defendant also claimed that Detective Bardelli spoke to him in Spanish at the Willimantic police department and that Detective Bardelli told him that he would get a search warrant for the defendant's dwelling.
Gonzalez testified that she had been the defendant's girlfriend for two and one-half years. She stated that the defendant's native language was Spanish and that she had to translate for him.
CONCLUSIONS OF LAW
The defendant challenges the state's claim of a consensual search because of his inability to comprehend English. The defendant further asserts that the state did not ask for consent to conduct a canine search of the car. Additionally, the defendant challenges the search of the car conducted outside his presence earlier in the day and states that he was not advised of his right to object to the search of the car.
The occupants of the vehicle gave valid consent to its search. "A search . . . is not unreasonable under . . . the fourth amendment to the constitution of the United States . . . if a person with authority to do so has freely consented." (Internal quotation marks omitted.) State v. Zarick, 227 Conn. 207, 226, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 595 (1993). "When the entry is justified on the basis of consent, the state has the additional burden of showing that the consent was voluntarily given . . . To be voluntary, consent must be the free and unconstrained choice . . . of the one giving it, and it cannot be obtained by duress or coercion, express or implied." (Citations omitted; internal quotation marks omitted.) State v. Delgado, 13 Conn. App. 139, 147, 535 A.2d 371 (1987). "The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom." (Internal quotation marks omitted.) State v. Clark, 80 Conn. App. 224, 230, 834 A.2d 768 (2003).
The issue of whether the defendant consented to the search of the vehicle is one of credibility. The defendant does not challenge the search on the grounds of voluntariness, rather he asserts that he did not understand the police request to search the vehicle. Each of the police officers testified that the defendant understood them when they spoke to him in English, that he responded appropriately, that he gave consent to search and that after he spotted the drug-sniffing dog, he told them that the car belonged to his girlfriend. The defendant, on the other hand, testified that he never gave his consent, that he knows only a few English words and understood little of what was said to him. The defendant's conduct and words undercut the credibility of his claimed inability to speak or comprehend English.
In determining which version of the facts is the correct one, the court examines all of the witness testimony and evaluates whether it is consistent with the other evidence and makes logical sense. The defendant's testimony conflicts with the testimony of the officers in several aspects. For example, the defendant denied operating the car from his home in Mansfield to the location where when the police cut off surveillance. The police officers, however, observed him operating the car. It is also significant to the court that the first time the defendant denied owning the vehicle when the defendant first observed the police dog. The defendant's denial of operation of the car and his attempt to place possession of the car in a person named Maria — who the officers never observed during their surveillance — appears contrived to the court. The court agrees with the state that the defendant's testimony was not credible and was shaped to attempt to distance himself from the drugs that were found in the "trap" in the car. The court finds that the defendant consented to the search because he thought that the police were unaware of the "trap" and was confident the police would be unable to locate the drugs secreted in the car. His nervous reaction upon seeing the police dog is consistent with the defendant having given consent to search, since it shows that he originally believed that the police would not find the trap. When confronted with the canine, however, he realized that the animal might discover the trap. The defendant knew that the trap was full of narcotics, so he immediately disavowed ownership of the car.
The court was unable to find any support for the defendant's claim that a more specific and separate consent was necessary to conduct a canine search of the vehicle. The defendant cites the court to the case of State v. Reagan, 209 Conn. 1, 546 A.2d 839 (1988). The Reagan case is distinguishable from the present case on several grounds. In Reagan, the police did not identify themselves as police officers. They were invited to enter the home and without further conversation, they followed the defendant's wife through the home and pushed past her to a second-floor bedroom. It is clear the Reagan court had questions as to whether there was any "consent" for a search. In this case, the police officers identified themselves as police officers, requested permission to search the car and consent was given.
"A consent to enter or to search, once given, can be withdrawn or limited at any time prior to the completion of the search . . . by some verbal or physical act indicating that the consent has been withdrawn." (Citations omitted.) State v. Reagan, supra, 209 Conn. 14. There is no testimony that the defendant withdrew or limited the consent to search the car at the time he saw the drug sniffing police dog.
The defendant next claims that since the confidential informants were "acting as agents for the state" a search warrant or his express consent were required for the inspection of the car that took place on the morning of his arrest. The defendant argues that he could not relinquish his expectation of privacy because he did not know that the confidential informants were agents of the state. The defendant created a situation where the confidential informants had access to the car, had the keys to the car and had information about the secret trap in the car. Having chosen to give the informants access to and information about the car, he cannot complain that they were not worthy of his trust. The defendant's argument is further complicated by his earlier stated position that the car in question was not his car, but was "Maria's car." The court does not find support for the defendant's argument in the cases cited by him.
Finally, the defendant claims that he could not validly consent to the search of the car because he was not advised by the officers that he had a right to withhold his consent. There is no support in the case law for such a requirement and this court declines to adopt such a rule.
In addition to the reasons already stated, the court finds that the search of the defendant's car can be justified as a search incident to a valid arrest.
At the time the defendant drove into the parking lot, the police already had probable cause to believe that he was committing a crime, the felony of possession of narcotics with intent to sell. At that time, the police had been told by two informants that the defendant would drive the car with the trap full of narcotics to Jonathan's Cafe in order to sell the narcotics. The officers observed the defendant arrive at Jonathan's Cafe as the informants said he would. The officers further observed that he was in the car that had a secret trap capable of holding narcotics. The informants' information was corroborated by independent police investigation and had proved accurate in every respect. Therefore, at the time the police approached the defendant, they had the authority to arrest him and simply search the car incident to the arrest. State v. Velasco, 248 Conn. 183, 194-95, 728 A.2d 493 (1999). The fact that the search may have preceded the actual physical arrest of the defendant is of no significance. "A formal arrest need not always chronologically precede the search in order for the search to be valid. Where there is probable cause to arrest, a search before an arrest is reasonable under the fourth amendment as long as the rest and search and seizure are substantially contemporaneous, and are integral parts of the same incident." State v. Kaplan, 20 Conn. App. 183, 188, 565 A.2d 11. (1989). Accordingly, the defendant's motion to suppress is denied.
By the Court
Cosgrove, J.