Opinion
No. CR05-0345205
June 28, 2007
MEMORANDUM OF DECISION RE MOTION TO SUPRESS I. Nature of the Proceedings
On October 17, 2005, the defendant was arrested on site and without a warrant by members of the Waterbury police department's vice and intelligence division and charged with several drug offenses. Specifically, the information charges the defendant with one count of operation of a drug factory, in violation of General Statutes, Section 21a-277(c); one count of sale of illegal drugs, in violation of 21a-278(a); and one count of sale of illegal drugs, in violation of 21a-278(b). As a result of his arrest and subsequent search of his person, his automobile and his residence, certain items were seized by the police officers, including marijuana, cocaine (206.6 grams), plastic bags, a scale, bank statements, and nearly $3000 in cash. See Defendant's Exhibit #1 for a complete list of the fourteen items seized.
Section 21a-277(c) provides: No person shall knowingly possess drug paraphernalia in a drug factory situation as defined by subdivision (20) of section 21a-240 for the unlawful mixing, compounding or otherwise preparing any controlled substance for purposes of violation of this chapter.
Section 21a-278(a) provides: Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin or methadone or an aggregate weight of one-half ounce or more of cocaine or one-half ounce or more of cocaine in a free-base form, or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years, or (2) such person's mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.
Section 21a-278(b) provides: Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years, or (2) such person's mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.
On January 26, 2007, the defendant, pursuant to Practice Book Section 41-12, filed a Motion To Suppress Evidence, which was supported by an amended memorandum of law, dated and filed February 7, 2007. In his motion, the defendant asks the court to, "suppress from evidence the fruits of searches and/or seizures of the defendant's person, home, papers and effects." The items sought to be suppressed include all physical evidence seized; any tests or experiments performed relative thereto; observations by the police officers; any evidence gathered as a result of these searches and/or seizures, and any testimony relating thereto.
Practice Book, Section 41-12 provides: Upon motion, the judicial authority shall suppress potential testimony or other evidence if it finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.
In his initial memorandum of law, dated January 25, 2007, the defendant argued that the seizure of the listed items violated the fourth amendment to the United States constitution and article first, section 7 of the Connecticut constitution. The defendant also sought to have his confession suppressed, alleging that it was the fruit of the illegal search and seizure.
In his initial brief, the defendant also argued that the police conducted an illegal custodial interrogation in violation of the fifth amendment to the United States constitution and article first, section 8 of the state constitution, alleging that the defendant did not knowingly and intelligently waive his Miranda rights. This claim, however, was withdrawn at the commencement of the suppression hearing.
On February 7, 2007, the court conducted a hearing on the motion, during which the court heard from two witnesses, each called by the state, namely, Detective Brian Boutote of the Wolcott police department and Sgt. Robert Cizauskas of the vice and intelligence division of the Waterbury police department. The defendant chose not to testify and did not call any witnesses. The court received one exhibit into evidence, the police report, entitled "Incident and Offense Report," dated October 17, 2005. Defendant's Exhibit #1.
Upon the completion of the evidence, a briefing schedule was ordered, however, after reviewing the briefs submitted by the parties, each of which was timely and simultaneously filed, the court, on the record, met with the parties and offered the defendant the option of filing a supplemental brief in order to address an issue raised by the state, but not addressed by the defendant. Thus, a further briefing schedule was ordered, as a result of which the defendant filed a supplemental brief on April 19, 2007. The state opted not to file a responsive brief.
The court, after reviewing the sole exhibit; considering the testimony of both witnesses; assessing the credibility of each; considering the written arguments of counsel; and reading all relevant precedent, including all of the cases cited by counsel, makes the following findings:
II. Facts
Brian Boutote has been a member of the Wolcott police department for twenty-two years and has worked eleven of those years as a detective with said department, as a result of which he has been involved in hundreds of narcotics investigations and subsequent arrests of both buyers and sellers. During his tenure as a Wolcott police officer, he has used confidential informants on numerous occasions and currently has ten active informants. On October 17, 2005, at approximately 3:00 p.m. he received a call on his cell phone from one of his confidential informants, with whom he had worked in the past on ten occasions over a period of five years or better. As a result of information gathered in the past from the caller, Boutote effected five arrests; he had obtained information from this informant on another case, only three weeks prior to the call. The confidential informant told Boutote that one Luis Ocasio was " currently packaging" cocaine for sale at Greco Pizza on East Main Street in Waterbury, Connecticut. The informant further stated that Ocasio would be leaving shortly and described Ocasio as a heavyset Hispanic male, in his thirties. The informant told Boutote that Ocasio was driving a black Toyota Avalon, which, at the time of the call, was parked at the corner of Englewood and East Main streets in Waterbury.
Having received the above information, Boutote, immediately and without taking or saving any notes from his conversation with the informant, relayed, by telephone, the information given to him by the informant to Robert Cizauskas, a Sergeant with the Waterbury police department's vice squad. Boutote testified that he made no attempt to corroborate the information he received, which Boutote characterized as a "tip," which he might have done if it was his case, however since it was a Waterbury case, he just passed along the information, which was received from an informant that he knew as reliable, based on past productive information that the informant had provided to the Wolcott detective relative to cocaine and marijuana sales. Boutote explained that it was common for area police departments to share information; he has shared information with members of the Waterbury police department in the past.
Boutote confirmed that no information that the informant had provided to him in the past was, "bad, unreliable or untruthful." Boutote conceded that he did not ask the informant how he had obtained the information and did not ask if the informant actually saw Ocasio packaging the cocaine. Detective Boutote simply gave Sgt. Cizauskas the exact information which he received from his confidential informant. Boutote testified that the confidential informant did not tell him that Ocasio would be leaving Greco Pizza with the illegal drugs.
Detective Boutote testified that on five previous occasions the information provided by said confidential informant was not fruitful, as it either went stale or it wasn't enough to pursue further investigation.
Sgt. Cizauskas has been a Sergeant on the Waterbury police department for fourteen years. He has spent twelve years as a patrol Sergeant, and during the past two years has worked with the vice and intelligence division of the department. He has an Associates degree in criminal justice and has completed a training course conducted by the drug enforcement agency of the federal government. He has participated in thousands of narcotics investigations and is familiar with the packaging and sale of illegal drugs in the Waterbury area.
On October 17, 2005, he was the shift supervisor of the afternoon shift of the vice and intelligence division. He had just reported to work at 3:00 p.m. when shortly thereafter, he received the call from Boutote, who told Cizauskas that he had received the call from a known and reliable informant, as described above. He testified that Boutote told him that his informant told Boutote that a heavyset Hispanic male in his thirties was at Greco Pizza on East Main Street and was packaging cocaine for sale, that he would be driving a black Toyota and would be leaving shortly, " with the cocaine in the motor vehicle." Having received the information from the Wolcott detective, Cizauskas gathered three of his fellow officers (Detectives Acosta, McKenna and Mills) and left immediately, in two police vehicles, for the location described by Boutote. Arriving at said location within minutes of the call, they confirmed both the location and the color, make and model of the motor vehicle. They then confirmed that the vehicle, whose registration number was Connecticut 226MXU, was registered to Luis Ocasio, the name provided by Detective Boutote. Shortly after making that confirmation, Cizauskas observed a male matching the description received from Detective Boutote exit the pizza restaurant. It was approximately 3:20 P.M.
The officers then proceeded to follow Ocasio's motor vehicle and once it turned off a congested East Main St. onto a much less congested Southmayde Road, Cizauskas activated the lights and sirens on his vehicle, causing Ocasio to pull over and bring his motor vehicle to a stop, whereupon all four officers exited their two vehicles. Cizauskas and McKenna approached from the driver's side, while the other two detectives approached from the passenger side. As he approached the Ocasio vehicle, Cizauskas observed Ocasio moving around. When he reached the driver's side, Cizauskas asked Ocasio to roll down the window and then asked for his name, which the defendant gave. Cizauskas then observed a plastic bag containing a white substance on the driver's side floor that was in a packaging consistent with the way in which cocaine is packaged. A subsequent field test was positive for cocaine. Cizauskas then ordered Ocasio to exit the Toyota, whereupon, Ocasio was placed under arrest. A "pat down" search conducted incidental to the arrest yielded three plastic bags from Ocasio's pants front. Two of the bags contained fifteen smaller bags, and a piece of cardboard with writing typically used by drug dealers to describe the price and the contents of the bags. Additional contraband was found in a search of the trunk of the Toyota and a subsequent search, consented to by the defendant, of the defendant's bedroom, located in the building from which Greco Pizza did business. Sgt. Cizauskas testified that all of the information supplied by the Wolcott detective was accurate; none of the information was inaccurate.
The writing indicated, "9 balls, 6-16s, 1350." Sgt. Cizauskas explained that a "ball" referred to 1/8 of an ounce and "16" was 1/16 of an ounce; "1350" referred to the price of the substance in the plastic bags. The substance was cocaine.
Cizauskas conceded, however, that he had no personal knowledge as to the identity of the informant, the reliability of the informant or the basis of the informant's knowledge, although the police report, which was acknowledged by Cizauskas, implies that the Waterbury officers received the information directly from the confidential informant and does not mention Detective Boutote, either by name or generic reference. The Waterbury officer testified that, in his observation of the defendant from the time that he left the pizza restaurant until he was stopped by the officers, he saw no suspicious activity and no violation of any motor vehicle laws on the part of Ocasio. When the defendant exited the pizza restaurant to enter his vehicle, the officer saw nothing in his hands.
When questioned at length by defense counsel as to the reason why the Wolcott officer's involvement was not mentioned in the Waterbury police report, Cizauskas insisted that his fear that Boutote's informant would be compromised was the motivation for the omission.
Cizauskas insisted, consistent with the language included in the report, which was prepared on the same day as Boutote's call and the defendant's arrest, that Boutote stated to him that Ocasio would be leaving the pizza establishment shortly, " with the cocaine." The Waterbury officer was certain of this statement, despite extensive questioning by defense counsel on this issue. As previously noted herein, Boutote testified that, although the informant told Boutote that the defendant was packaging the cocaine and would be leaving shortly, the informant did not state to the Wolcott detective that the defendant would be leaving with the drugs.
When asked by defense counsel why Cizauskas made no attempt to independently corroborate the information received from Boutote's informant, Cizauskas insisted that all the information furnished to them by Boutote was corroborated by what he and his fellow officers observed at the scene, including the color, make and model of the vehicle; the location of the vehicle, their confirmation that the vehicle was registered to Ocasio; the defendant's physical description and the time at which the defendant left the pizza restaurant, i.e., within twenty minutes of Boutote's call.
The court notes from an examination of the police report ( Defendant's #1), that the information contained therein is consistent with Boutote's testimony in many respects, including the gender, name, physical description, age, build and ethnic background of the suspect, as well as a location, make, model and color of the motor vehicle that the suspect was operating. The report is also consistent with Cizauskas' account of the corroborative steps taken by him and his fellow officers, once they arrived at the location described by Boutote, in that it details their confirmation of the motor vehicle type and its location, and the fact that the registration was checked by the Waterbury officers and identified Ocasio as the owner, the name which was provided to the Waterbury officers by Boutote.
The report also confirms that Ocasio left "shortly" and that the physical description of Ocasio was consistent with that provided by Boutote, i.e., a heavyset Hispanic male in his 30s, who did, in fact, exit the pizza restaurant and enter his car, as predicted by Boutote's informant. The report is also consistent with Cizauskas' narrative of the manner in which the traffic stop was conducted, the subsequent arrest of the defendant and seizure of the illegal drugs.
The report, however, is inconsistent with Boutote's testimony in one respect, in that Boutote, who made no notes of the conversation with the confidential informant, did not recall any statement by the informant that Ocasio was leaving the pizza restaurant shortly with the cocaine. This testimony is at odds with the specific recollection by Cizauskas, to a certainty, that Boutote told him, according to the confidential informant, Ocasio, who was packaging the cocaine, was about to leave " with the cocaine." This court finds that Cizauskas' testimony on this issue is more reliable, as it is consistent with the information contained in the report, which was prepared on the same day that the events occurred, as opposed to Boutote's recollection of an event that occurred nearly a year and a half ago. Whether it is material to the court's ultimate decision on the defendant's motion will be hereinafter addressed.
As noted herein, the report is somewhat inconsistent with the testimony of both witnesses as to the source of the confidential informant's tip, as the report attributes the source of the information provided to the Waterbury police department directly from the confidential informant to the Waterbury officers, leaving the reader with the impression that the informant was known to the Waterbury police department, whose reliability was demonstrated by his/her past performance with that department. There is no mention in the report that the information was actually provided by an informant known to Detective Boutote, who was vouching for the informant's reliability, based on past productive information provided to Boutote, a member of a department in another municipality, which abuts the city of Waterbury.
This later discrepancy between the testimony and the exhibit is, as hereinafter explained, in this court's view, immaterial to the court's decision in light of the well recognized legal concept of the collective knowledge of law enforcement.
III. THE ISSUES AS PRESENTED BY THE PARTIES A. Probable Cause to Arrest
The defendant acknowledges that Connecticut statutory law permits a police officer to make a warrantless arrest, if he/she has reasonable grounds to believe that the subject of the arrest has committed a felony. The defendant argues, however, that at the time that Cizauskas and his fellow officers approached his vehicle, they did not have reasonable grounds, the equivalent of probable cause, to arrest the defendant. The defendant asserts, therefore, that without probable cause any such arrest violated the fourth amendment to the United States Constitution and article first, section 7 of the Connecticut constitution.
General Statutes Section 54-1f(b) provides: Members of the Division of State Police within the Department of Public Safety or of any local police department or any chief inspector or inspector in the Division of Criminal Justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.
The fourth amendment of the U.S. constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article first, section 7 of the Connecticut constitution provides: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.
In support of his argument, the defendant cites the "totality of the circumstances" test, first adopted by the United States Supreme Court and Illinois v. Gates, 462 U.S. 213 (1983) and approved by our Supreme Court in State v. Barton, 219 Conn. 529 (1991). This is the test to be applied by Connecticut courts to determine whether probable cause exists to effect a warrantless arrest under the fourth amendment to the United States constitution and article first section 7 of the Connecticut constitution. The court is required to practically examine all of the circumstances known to the arresting officers, including the veracity and the basis of knowledge of an informant, who provides information to said officers. The court must find, based on those factors, and any corroboration by the officers, whether there was a, "fair probability that the defendant had committed or was committing a felony." State v. Velasco, 248 Conn. 183, 189-90 (1999). The defendant argues that clear deficiencies in both the confidential informant's reliability, and the basis of the informant's knowledge prevent the court from making the necessary findings to support probable cause for the arrest of the defendant as the officers approached his vehicle. The defendant further argues that the deficiencies in each of the factors are "so profound that one cannot make up for the other." The defendant claims that Boutote failed to corroborate any information that he received from his informant and did not ask his informant how he/she acquired the information, pointing out that the informant did not tell the Wolcott detective that he actually observed the defendant packaging the drugs.
The defendant, citing the facts in Gates, supra (an anonymous letter from an informant, claiming that a husband and wife were transporting drugs); and Velasco, supra (an informant telling the police of heroin sales taking place in a soup kitchen); in addition to State v. Smith, 257 Conn. 216 (2001) (an informant, telling the police of cocaine contained in a described vehicle operated by a described defendant and parked in a certain area), argues that this court cannot find probable cause for the defendant's arrest solely upon the "baseless" tip from Boutote's informant, who did not have a good track record of reliability.
The defendant argues that the confidential informant's tip did not contain substantial predictive information, as in Gates, supra; nor did the police receive multiple tips, including self incriminating information, as in Velasco, supra, nor did Ocasio do anything suspicious to draw the attention of the Waterbury officers, as they observed his movements, such as the defendant's flight in Smith, supra. The defendant asserts, that in a probable cause determination, the court cannot ignore the reliability of the confidential informant and the basis of his/her knowledge, in particular, when, as alleged by the defendant in this case, no other corroborative or supporting factors exist, such as those present in the three cited cases. The defendant points out that, in this case, the informant was not known to the Waterbury officers and that his/her reliability was "spotty" at best, given the fact that only five arrests resulted from the ten previous occasions on which the informant provided information to Boutote. The defendant argues that the Waterbury officers lacked any " substantive predictive information" that would justify a finding of probable cause to arrest him as they approached his vehicle.
Moreover, as the defendant correctly points out, the Waterbury detectives themselves admitted that, at the time they approached Ocasio's vehicle, they lacked the probable cause to make an arrest, as it is recited in the police report of the incident, that the purpose of the traffic stop was not to effect an immediate arrest, but, rather, for "further investigation." See Defendant's Exhibit #1. The report is totally consistent with Sgt. Cizauskas' testimony that Ocasio was not placed under arrest at the point when, at Cizauskas' request, he rolled down the window and gave his name. Transcript, page 37, Lines #13 and 14. The Sergeant further testified that Ocasio was not placed under arrest until after the cocaine was observed by Cizauskas and McKenna in plain view and Ocasio was asked to step to the rear of his vehicle. Transcript, Page 39, Line #2.
The state asserts that, based upon the principles applied by the United States Supreme Court in Gates, supra, and by our Supreme Court in Velasco, supra, and in State v. Trine, 236 Conn. 363 (1996), at the time that the Waterbury officers approached the defendant's vehicle, they had probable cause to make the felony arrest. The State argues that if this court conducts the "practical and non-technical" analysis called for in Velasco, supra, 248 Conn. 189-90, and assesses the veracity (reliability) of the confidential informant and the basis of the informant's knowledge, this court should find that the Waterbury officers were armed with "reasonable trustworthy information" that was in and of itself sufficient to enable a person of reasonable caution to believe that Ocasio had committed or was committing a felony. Trine, supra, 236 Conn. 236-37.
Citing Gates, supra, 462 U.S. 245, the state points out that "a deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip by a strong showing as to the other indicia of reliability." As to the reliability factor, the fact that in the past, information supplied by the confidential informant in this case led to five arrests and, presumably, seizures of illegal drugs, is sufficient to establish the informant's reliability. The state asserts that the corroboration of the informant's tip by the Waterbury officers as to the location and description of the motor vehicle and a physical description and identity of the defendant confirms that reliability. As to the basis of knowledge factor, which the defendant asserts is completely lacking, the State argues that to demand that the informant have "firsthand visual knowledge" of the presence of the illegal drugs would exceed the bounds of the "totality of circumstances" test established by the U.S. Supreme Court in Gates. State v. Smith, supra, 257 Conn. 225. Referring to Velasco, the State argues that the factual scenario in that case is similar to the present case, in that the information supplied by Boutote's informant (physical description, location, time of departure from the pizza restaurant) was sufficient to establish the "fair probability" that Ocasio was selling illegal drugs. Therefore, the State argues that the Waterbury officers were not obligated to establish that the defendant was engaged in a drug transaction via an independent investigation prior to making an arrest. State v. Velasco, supra, 248 Conn. 194-95. The State points out, however, that in this case, the officers did corroborate much of the information that was provided by an informant, whose past information resulted in five arrests, and presumably, convictions, including the name, physical description (gender, race, build, approximate age, and ethnicity) of the defendant and that he was "leaving shortly." The State argues that based on the past performance of the confidential informant, and the corroboration of much of the information provided by the informant, the Waterbury officers, as they approached Ocasio's vehicle, had probable cause to make the arrest, pursuant to C.G.S. Section 54-1f(b) and consistent with the requirements of the U.S. and Connecticut constitutions.
B. Reasonable and Articulable Suspicion to Seize.
In addition to the lack of probable cause argument, the defendant argues, contrary to the state's claim, that the Waterbury officers did not have a reasonable and articulable suspicion that the defendant was engaged in criminal activity and, therefore, had no authority, via the traffic stop, to effect a seizure.
The defendant cites State v. Santos, 267 Conn. 495, 503 (2004), for the two-pronged test that the court must conduct in order to determine whether stopping a suspect's vehicle is constitutionally permissible. The court must first determine the point at which the encounter with the police amounted to a seizure, and then determine whether, at the time of the seizure, the police had a reasonable and articulable suspicion that criminal activity was in progress. As for the first prong, there appears to be no dispute that when Cizauskas turned on the lights and siren in his vehicle that was following Ocasio, prompting the defendant to slow and stop his motor vehicle, a seizure was initiated, as, under those circumstances, a reasonable person would not feel that he/she was free to leave. State v. Hill, 237 Conn. 81, 87 (1996). The defendant argues that at the time of the seizure, the officers had "no reasonable suspicion" to believe that Ocasio was engaged in criminal activity, as the confidential informant was not credible or reliable, and did not disclose the basis of the information that he/she provided to Boutote. Furthermore, the "secondhand" information ultimately provided to the Waterbury officers was not corroborated. The defendant cites State v. Torres, 230 Conn. 371, 379 (1994), in which our Supreme Court instructed the trial courts to employ an "objective standard" in their determination as to whether the police officers effecting a seizure possessed a "reasonable and articulable suspicion" of criminal activity. The question is, "whether a reasonable person, having the information available to and known to the police, would have had that level of suspicion." The defendant cites State v. Leonard, 31 Conn.App. 178, 186-87 (1993), for the proposition that in order to justify an investigative stop, the officers must be able to point to, "specific and articulable facts and inferences to establish that the intrusion was reasonably warranted" and a "particularized and objective basis" for suspecting [the subject of the seizure] of criminal activity." In this regard, the veracity and reliability of the confidential informant and the source of the informant's knowledge are "highly relevant." As in the probable cause analysis, a deficiency in one of the factors may be compensated by a strong showing in the other or by corroboration of the information. The defendant argues that the requisite criteria are lacking in this case due to the confidential informant's track record, the fact that the Waterbury officers had no basis for assessing the informant's reliability and the fact that neither the Waterbury or Wolcott officers had any information as to the manner in which the confidential informant acquired his knowledge of Ocasio's doings.
The defendant details the facts in three cases dealing with police corroboration of informant's tips, to wit, State v. Cofield, 220 Conn. 38 (1991); State v. Marti, 89 Conn.App. 241 (2005); and U.S. v. Vargas, 369 F.3rd 98 (2nd Cir, 2004). In Cofield, the corroboration was a controlled buy, in which the confidential informant purchased cocaine from the suspect. In Marti, the corroboration of the information supplied by the informant was via a cooperative effort of the federal drug enforcement agency (DEA) and local police, who already had the suspect under surveillance. In Vargas, the level of suspicion was heightened when the suspect ran as the police approached in a high crime area. The defendant argues that, unlike the corroborative efforts undertaken by the police in the cited cases, all that the Waterbury officers did was to match the name provided by the informant with the motor vehicle registration records; according to the defendant this minimal effort by the Waterbury officers cannot rise to the level of the kinds of corroborative efforts undertaken in the cited cases. According to the defendant, the paucity of corroboration present in this case, coupled with the fact that the Waterbury officers could not see inside the pizza restaurant (where Ocasio was allegedly packaging the cocaine), observed no suspicious activity by defendant as he exited the restaurant and entered his vehicle, and observed no unusual driving, cannot support the seizure of the defendant via the traffic stop.
As a corollary to his argument, the defendant urges this court to treat the tip provided by the confidential informant in this case as akin to an anonymous tip, as none of the Waterbury officers either knew or spoke to the informant. If the court were to treat the tip in this manner, the defendant cites Alabama v. White, 496 U.S. 266 (2000), and Florida v. J.L., 529 U.S. 266 (2000), for the requirement that in order for a seizure in the form of a traffic stop to pass constitutional muster, the police must have "predictive information" to follow up on the information provided by the anonymous informant. The defendant asserts that the only predictive information that the police in the present case were given is that Ocasio was "leaving shortly."
As noted earlier, this court also believes that the confidential informant added to "leaving shortly," the phrase, "with the cocaine."
Finally, the defendant argues that since the Waterbury officers did not have probable cause to arrest, as they approached his vehicle, and did not have any reasonable and articulable suspicion that he was engaged in criminal activity, and thus, no constitutional basis for conducting the traffic stop, all of the defendant's statements to the police and all evidence obtained from the search of his person, his motor vehicle and his apartment, must be suppressed as the "fruit of the poisonous tree." Wong Sun v. U.S., 371 U.S. 471, 485 (1963).
The state argues that in the event that this court finds that, at the time that the Waterbury officers approached the defendant's vehicle, they lacked probable cause to arrest the defendant for the commission of a felony, said officers, nonetheless, possessed a reasonable and articulable suspicion of criminal activity so as to justify an investigative stop of Ocasio's vehicle. Citing the seminal United States Supreme Court case of Terry v. Ohio, 392 U.S. 1 (1968), and the Connecticut Supreme Court case of State v. Donahue, 251 Conn. 636, 643 (1999), the state correctly asserts that the federal and state constitutions permit an officer, "in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest." Emphasis added. To do so, however, the police must be able to point to "specific and articulable facts and inferences" that may be reasonably drawn from those facts that create in the officer's mind a reasonable suspicion that the person stopped is engaged in criminal activity. State v. Donahue, supra, 251 Conn. 645. The state also cites the Leonard and Cofield cases, supra, cited by the defendant for the "totality of the circumstances" test, asserting that the trial court must look at "the whole picture" in assessing the reasonableness and, therefore, the constitutionality of the intrusion. The purpose of an investigative stop is so that the officer might confirm or dispel his/her suspicion that the subject of the stop is engaged in criminal activity. Terry v. Ohio, supra, 392 U.S. 30-31. The state, as does the defendant, also cites State v. Marti, supra, for the proposition that reasonable suspicion is an objective standard, based on, "specific inferences the officer is entitled to draw from the facts, in light of his[/her] experience" Id., at page 248. In Marti, the appellate court upheld the constitutionality of the stop, even though the confidential informant did not tell the police that the drugs were in the car.
As did the defendant, the state cites, Leonard, supra, stressing the language quoted therein to the effect that a strong showing in the reliability factor can overcome deficiencies in the basis of knowledge factor or by some other indicia of reliability, such as corroboration by the police. "The police however are not required to corroborate all the information provided by the confidential informant." Id., at page 186-87. Emphasis added. The state, therefore, argues, that if the court, as it is required to do, looks at the totality of the circumstances known to the Waterbury officers, it should find that the traffic stop of Ocasio's vehicle was justified by very specific and timely information supplied to Boutote by a reliable informant, much of which was corroborated by the subsequent observations and investigation conducted by the Waterbury officers. The State argues that the information furnished, and the rational inferences that may be reasonably drawn therefrom, coupled with the corroboration, should serve to convince the court that the officers possessed a reasonable and articulable suspicion that Ocasio was dealing in cocaine, and, therefore, the traffic stop, for the purpose of further investigation, was constitutionally warranted. The state, therefore, urges the court to deny the defendant's motion to suppress.
IV. DISCUSSION A. Applicable Law CT Page 11792
There is little, if any, disagreement between the parties as to those federal and state decisions on arrest, search and seizure that are applicable to the issues in this case. This court, therefore, recognizing the legitimacy of the cases cited by both parties, will endeavor to employ, in its legal and factual analysis, the relevant legal principles, as they are set forth in several recent state and federal opinions. These cases, as well as those cited by counsel, will constitute the framework for this court's decision on each of the issues raised by the parties.1. Probable Cause
In instructing the courts in their determination as to whether police have probable cause to support the issuance of a search warrant, based upon information supplied by a confidential informant, the U.S. Supreme Court, in Illinois v. Gates, supra, abandoned the two-pronged test that court established in Aguilar v. Texas, 378 U.S. 108 (1964); and Spinelli v. U.S., 393 U.S. 410 (1969). In lieu thereof the high court substituted a more expansive "totality of the circumstances" test. In his concurring opinion in Gates, Justice White offered a summation of the Agular-Spinelli rules as follows:
First, an affidavit based on an informant's tip, standing alone, cannot provide probable cause for issuance of a warrant unless the tip includes information that apprises the magistrate of the informant's basis for concluding that the contraband is where he claims it is (the "basis of knowledge" prong), and the affiant informs the magistrate of his basis for believing that the informant is credible (the "veracity" prong). Aguilar, supra, at 114; Spinelli, supra, at 412-13, 416.[fn 20] Second, if a tip fails under either or both of the two prongs, probable cause may yet be established by independent police investigatory work that corroborates the tip to such an extent that it supports "both the inference that the informer was generally trustworthy and that he made his charge. . . on the basis of information obtained in a reliable way." Spinelli, supra, at 417. In instances where the officers rely on corroboration, the ultimate question is whether the corroborated tip "is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration." 393 U.S., at 415.
462 U.S., at 267-68.
Writing for the court, Justice Rehnquist, in adopting the less formalistic totality of the circumstances test, opined:
We agree with the Illinois Supreme Court that an informant's "veracity," "reliability," and "basis of knowledge" are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case,[fn 5] which the opinion of the Supreme Court of Illinois would imply. Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place.
This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause[fn 6] than is any rigid demand that specific "tests" be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176 (1949). "In dealing with probable cause,. . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id., at 175. Our observation in United States v. Cortez, 449 U.S. 411, 418 (1981), regarding "particularized suspicion," is also applicable to the probable-cause standard:
CT Page 11794
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
As these comments illustrate, probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147 (1972): "Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situation."
462 U.S. at 230-32.
Ever since our Supreme Court decided State v. Barton, 219 Conn. 529 (1991), Connecticut courts have applied the Gates "totality of the circumstances" approach in deciding whether police have probable cause to obtain a search warrant or, as in this case, make a warrantless arrest. Thus, our courts now apply the nontechnical commonsense approach when deciding probable cause issues involving information supplied by confidential informants. State v. Smith, 257 Conn. 216, 223 (2001). As the Supreme Court did in Gates, our courts no longer view the reliability and basis of knowledge prongs as independent of each other, but acknowledge the important impact that both factors have on the court's assessment of the totality of the circumstances. Id. at page 224. As to reliability, our Supreme Court has consistently held that a confidential informant's past performance of providing accurate information that has resulted in arrests and seizures of illegal drugs is, in and of itself, sufficient to establish the informant's reliability. State v. Respass, 256 Conn. 164, 175 (2001). The reliability of an informant may also be established by corroboration by the police of the information provided, State v. Ruscoe, 212 Conn. 223, 230-31 (1989); cert denied, 493 U.S. 1084 (1990), and by declarations by the informant against penal interest. State v. Velasco, supra, 248 Conn. 193. As to the "basis of knowledge" factor, a police investigation that corroborates the information provided by the informant, such as verification of the location of a motor vehicle and the physical description of the subject as well as other factual indicia of reliability, may establish that the informant came by the information in a reliable way. State v. Smith, supra, 257 Conn. 226-27.
As noted, General Statutes Sec. 54-1f(b), consistent with state and federal constitutional mandates, permits an officer to arrest a suspect without a warrant, so long as he/she has "reasonable grounds to believe [the suspect] has committed or is committing a felony." "Reasonable grounds" is the equivalent of probable cause for the purposes of said statute. State v. Velasco, supra, 248 Conn. 189.
2. Reasonable and Articulable Suspicion — The Traffic Stop
In Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court established the rule that permits a police officer to briefly detain a person for questioning, so long as the officer had a reasonable suspicion that some criminal activity was afoot. This constitutionally permitted practice has become known as "the Terry stop" and "represents an intermediate response, allowing police to pursue a limited investigation when they lack the precise level of information necessary for probable cause to arrest." U.S. v. Elmore, 482 F.3d 172 (2007); Adams v. Williams, 407 U.S. 143, 145-46 (1972). Thus, the likelihood of the suspected criminal activity does not have to reach a probable cause level, in order to justify an officer conducting a Terry stop. U.S. v. Arvizu, 534 U.S. 266, 273-74 (2002). Police, however, must be able to point to "specific articulable facts which, taken together with rational inferences from those facts," reasonably warrant [the] intrusion on a citizen's liberty interest. Terry v. Ohio, supra, 392 U.S. 21.
Our appellate courts have adopted the principles of Terry and its progeny in determining the constitutionality of investigatory traffic stops. Thus, consistent with the dictates of article first, section 7 of the Connecticut constitution, an officer may briefly detain a suspect for investigative purposes if the officer has a reasonable and articulable suspicion that the subject of the stop has engaged in or is engaging in criminal activity, the purpose of the detention being to confirm or to dispel the officer's suspicion. This, the officer may do, even though he/she does not possess probable cause to make an arrest. Tarro v. Commissioner of Motor Vehicles, 279 Conn. 290 (2006). The court's function, in determining whether such a stop is constitutionally valid, is to assess whether, given the "whole picture," the police officer had a "particularized and objective basis," for suspecting the subject of the stop of some criminal activity. In performing its assessment, the court must consider "the specific information available to the officer at the time of the initial intrusion and any rational inferences to be derived therefrom." State v. Batts, 281 Conn. 682, 691-92 (2002).
When the Terry stop involves the seizure of the suspect via the stopping of a motor vehicle that he/she is operating, the twofold inquiry is first, to determine whether a seizure occurred and second, whether at the time of the seizure, the officer possessed the requisite suspicion that the operator was involved in some criminal activity. State v. Burroughs, 99 Conn.App. 413, 420 (2007). The operator of a motor vehicle is deemed a to have been "seized," when he/she reasonably believes that he/she was not free to leave. State v. Hill, supra, 237 Conn. 87. In determining the constitutional validity of an investigatory stop, both federal and state constitutional law requires the court to balance the nature of the police intrusion on the subject's liberty against the government's interest in making that intrusion. State v. Sulewski, 98 Conn.App. 762, 770 (2006).
On April 26, 2007, the Connecticut Supreme Court granted to the state certification of an appeal limited to the question, "Did the appellate court properly conclude that under the state constitution, the police conduct constituted a seizure when the police left their patrol cars and began to approach the defendant's vehicle?" 282 Conn. 909 (2007).
3. The Confidential Informant
When a Terry stop of a motor vehicle is initiated as a result of and in reliance upon information supplied by a confidential informant, the Gates "totality of the circumstances" test is applied to determine if police had a reasonable and articulable suspicion that the operator was engaged in criminal conduct. The tip must bear some "indicia of reliability" in order to meet the standard of reasonable suspicion, although a lesser showing is required than is necessary for a finding of probable cause. U.S. v. Elmore, supra, 482 F.3d 179. Thus, in assessing the information given by the informant, the reliability and basis of knowledge prongs of Aguilar-Spinelli are highly relevant; however, if one or the other is deficient, corroboration of the information through investigation by the police may be sufficient to pass constitutional muster, including actions performed by the suspect that were predicted by the informant, as such predictive information, if confirmed, could justify a reasonable inference by the police that "the informant had some sort of inside information as his basis of knowledge." The degree of corroboration is less than that required for a finding of probable cause. Id., at pages 179-80. Thus, statements made by a confidential informant are entitled to greater weight, if corroborated by evidence independently gathered by the police, such as confirmation, by observation, of the location and make of the vehicle. State v. Batts, supra, 281 Conn. 704-05. Unlike an anonymous tip, i.e., in which the identity of the person providing the information to the police is unknown to the police, a tip by a known informant is deemed to be more reliable, as that person will face a measure of accountability, if the information provided was not accurate, or was untrue. Id., at page 705. Therefore, a tip from a known informant requires less investigative corroboration and less predictive information than information provided by an anonymous tipster, as, "an anonymous tip alone seldom demonstrates, the informant's basis of knowledge or veracity." State v. Burroughs, supra, 99 Conn. 424.
It is noteworthy that the appellate court in Batts specifically referred to the "extensive narcotics enforcement experience" of the investigating officers and the "due weight" that should be accorded them in assessing the credibility and reliability of the informant's information. One of those officers was Robert Cizauskas, a Waterbury police detective.
Judge Sand recently and succinctly summarized this issue in U.S. v. Elmore, supra, 482 F.3d 181:
Under the totality of the circumstances approach to assessing probable cause and reasonable suspicion mandated by Gates and White [ Alabama v. White, 496 U.S. 325 (1990)], informants do not all fall into neat categories of known or anonymous. Instead, it is useful to think of known reliability and corroboration as a sliding scale. Where the informant is known from past practice to be reliable, as in Williams [ Adams v. Williams, 407 U.S. 143 (1972)], no corroboration will be required to support reasonable suspicion. Where the informant is completely anonymous, as in White a significant amount of corroboration will be required. However, when the informant is only partially known (i.e., her identity and reliability are not verified, but neither is she completely anonymous), a lesser degree of corroboration may be sufficient to establish reasonable suspicion. This approach is consistent with the totality of the circumstance inquiry mandated by Gates and White, as well as the Supreme Court's characterization of Terry as providing an "intermediate response" for investigating criminal activity. Williams, 407 U.S. at 145.
4. The Collective Knowledge of Law Enforcement
It has long been established in this state that the collective knowledge of an entire police organization may be imputed to an individual officer when he/she is requested to initiate a traffic stop of a motor vehicle. State v. Sulewski, supra; State v. Arline, 74 Conn.App. 693, 702 (2003); State v. Dennis, 189 Conn. 429, 432 (1983); State v. Schoenbneelt, 171 Conn. 119, 124 (1976); State v. Watson, 165 Conn. 577, 586 (1973). Thus, in assessing the amount of evidence to support probable cause, it is not the knowledge of the arresting officer, but the collective knowledge of the law-enforcement organization at the time of the arrest that is important. State v. Hedge, 59 Conn.App. 272, 279 (2000). As applied to an investigatory stop of a motor vehicle, it has been held that, "the collective knowledge of the officers was sufficient to raise a reasonable and articulable suspicion of criminal activity that justified the decision to pursue and stop the defendant's car." State v. Coardes, 51 Conn.App. 112, 116 (1998); cert den'd, 247 Conn. 957 (1999). In this court's view, this principle does not lose its efficacy simply because the information supplied by a reliable confidential informant is that provided to a police officer from one municipality, who then provides that information to a police officer of an abutting municipality, particularly when the two departments have an established working relationship, as evidenced by past shared information.
Boutote testified that he shared information with the Waterbury police department in the past and referred to that sharing of information between police officers of different jurisdictions as a common practice. See Transcript, page 12 to 13.
V. FACTUAL ANALYSIS
The court finds that at the time that the Waterbury officers approached Ocasio's vehicle they did not have probable cause to arrest as the basis of the confidential informant's knowledge, for probable cause purposes, was not known either to the Wolcott or the Waterbury officers and the Waterbury officers lacked substantive predictive information that would justify a finding of probable cause that, in turn, would support, at that moment in time, a felony arrest and the substantial disruption of Ocasio's liberty that an arrest would entail. As the defendant correctly pointed out, the Waterbury officers did not observe any of Ocasio's movements inside the pizza establishment, nor did they observe any suspicious activity or any motor vehicle violation after the defendant exited the building, got into his ear and left the area. Although the police were able to confirm the physical description of the defendant and the type and location of his vehicle and although they were able to match his name to the ownership of said vehicle, without some investigatory nexus connecting him directly to the cocaine, they lacked probable cause to make an arrest at the moment that Cizauskas approached Ocasio's vehicle. The complete lack of knowledge of the Wolcott and Waterbury officers as to the manner in which the informant acquired the information is fatal to the state's probable cause claim. In this court's view, whether or not the confidential informant told Boutote that Ocasio would be, "leaving with the cocaine" does not, from a probable cause point of view, provide the missing nexus.
Moreover, as the defendant correctly points out, the Waterbury detectives themselves admitted that, at the time they approached Ocasio's vehicle, they lacked the probable cause to make an arrest, as it is recited in the police report of the incident that the purpose of the traffic stop was not to effect an immediate arrest, but rather, for "further investigation." See Defendant's Exhibit #1. Thus, no arrest was actually made until Sgt. Cizauskas saw the cocaine at Ocasio's feet as the suspect rolled the window down; the probable cause, therefore, in the mind of the arresting officer, was not generated until then. The arrest was not, in fact, made until then.
This court, however does find that the officers had the requisite reasonable and articulable suspicion, a lesser standard than probable cause, that the defendant was committing or did commit a crime that justified the seizure, i.e., the stopping of the defendant's vehicle in order to confirm or dispel that suspicion, a significantly less intrusion on the defendant's liberty than an arrest. Once Cizauskas observed the packaged cocaine in plain view, probable cause then existed for the defendant's arrest and subsequent search of his vehicle and his person. State v. Brown, 279 Conn. 493, 521 (2006); State v. Clark, 255 Conn. 268, 286-87 (2001). Once the Waterbury officers possessed that requisite level of suspicion that Ocasio was engaged in drug activities, that constitutionally justified the Terry stop, the defendant's exposure (at his feet) of the packaged cocaine within the plain view of the officers, clearly permitted said officers to make the arrest and seize the contraband. State v. Brown, supra, at page 520; Coolidge v. New Hampshire, 403 U.S. 443, 464-73 (1971). Thus, all of the activities that followed, including the statement made by the defendant and the search of his apartment, were constitutionally permissible.
When one looks at the whole picture from a Terry stop point of view, given the concept of the collective knowledge of law enforcement, the Waterbury officers were entitled to utilize the reliability of Boutote's informant, as if that informant was their own, despite not knowing the informant's identity. This court, therefore, disagrees with the defendant's argument that the tip provided to Boutote by his informant was akin to an anonymous tip. The tipster was well known to one of a collection of officers responsible for the ultimate arrest of the defendant and the seizure of the narcotics. As noted, an informant's past history of providing information to law enforcement officers that had resulted in arrests and seizures of illegal drugs is sufficient to establish his/her reliability, whether there were only two previous arrests or several or, as in this case, five. State v. Respass, supra, 256 Conn. 175-76. Boutote testified that, not only did his confidential informant's past information result in five arrests, but that no information provided by that informant in the past was "bad. . ., unreliable. . ., or untruthful." Transcript, Page 24-25.
From a Terry stop point of view, the Waterbury officers were able to confirm all of the information provided by Boutote. Cizauskas testified that no information passed on to him by the Wolcott detective was inaccurate. Transcript, Page 42. Thus, the Waterbury officers were able to corroborate the color, make, model and location of Ocasio's vehicle; his physical description (gender, age build, ethnicity); his name, which matched the information obtained from the motor vehicle computer records; and the timing of his departure from the pizza establishment. A reasonable inference may be made from the informant's statement that the defendant was "packaging" (present tense) cocaine and would be leaving soon that he would have the cocaine with him, even if the informant never added, "leaving with the cocaine" to his statement.
Additionally, one may reasonably infer, given the confirmed accuracy of all the details provided by Boutote's informant and given the use of the present tense, that the informant was in a position to observe Ocasio's activities inside the pizza establishment. As the state correctly points out, a strong showing, via past performance and via corroboration of the information provided of the reliability of the informant, can overcome any deficiencies in the basis of knowledge factor. State v. Leonard, supra, 31 Conn.App. 186. Moreover, if the police, through their own investigation, including observation of the suspect are able to corroborate certain details provided by the informant, including predicting the suspect's future actions, a reasonable inference can be made that the informant possessed "some sort of inside information as the basis of [his/her] knowledge." U.S. v. Elmore, supra, 482 F.3d 179.
In light of the applicable and relevant case law governing traffic stops, this court finds that the Waterbury police were constitutionally justified in stopping Ocasio's vehicle for the purpose of continuing their investigation. In doing so their actions were not violative of either the fourth amendment to the United States constitution or article first, section 7 of the Connecticut constitution. Therefore, whatever evidence was gathered thereafter was not the fruit of the poisonous tree.
Accordingly, based upon the foregoing, the defendants Motion To Suppress is DENIED.