Opinion
No. H14H-CR040584348
May 24, 2005
MEMORANDUM OF DECISION
The defendant, Tommy Josey, was arrested on September 11, 2004 for possession of narcotics with intent to sell in violation of General Statutes § 21a-277(b), possession of narcotics in violation of General Statutes § 21a-279(a), use of a motor vehicle without permission in violation of General Statutes § 53a-199b(a), and failure to stop at a stop sign, an infraction. He has moved to suppress approximately 99 grams of crack cocaine, $4,045.00 in United States currency, and a Budget Rental Car agreement that were seized as evidence at the time of his arrest. The crack cocaine was seized from inside a rented motor vehicle he was operating, and the money was seized from the defendant's front left pants pocket. The car rental agreement was provided to a Hartford police officer by the defendant.
On May 19, May 20, May 2, and May 23, the court conducted an evidentiary hearing at which three of the officers involved in the arrest incident testified: Officer Christopher Sullivan, Officer Eric Leonard and Officer Kevin Nesta. The court also heard testimony from the defendant, Donald Gates, a private investigator for the defendant, and Sergeant Andrew Jaffee of the Hartford police. The court also has reviewed the exhibits submitted into evidence by the defendant.
The defendant claims the motor vehicle stop here was pretextual; that the Hartford police officers involved, having been alerted to allegedly suspicious activity of the motor vehicle the defendant was operating by a citizen earlier that evening, fabricated their allegations that the defendant failed to stop at a stop sign to justify detaining him. The defendant argues that if the motor vehicle stop was illegal, all the evidence subsequently seized should be suppressed.
The state claims that the officers conducted a legitimate motor vehicle stop, which escalated into a felony arrest after one of the police officers sighted, in plain view inside the rented vehicle, a plastic bag containing what he perceived, based on his training and experience, to be crack cocaine. Based on the plain view sighting of contraband, the state claims that the subsequent search of the defendant's person and the seizure of the currency and the lease agreement were legitimate. The state also claims that the defendant has no standing to challenge the seizure of any items located in the rental vehicle, as he was not authorized to drive it.
As a preliminary comment, the court notes that in determining what facts the state has proven by a preponderance of the evidence, the court has found the testimony of the three police officers to be credible. I am aware and have considered the inconsistencies in their testimony, as compared to some of the documentary evidence, but they have not given me cause to consider these officers purposely dishonest. The defendant, while having no burden of proof except on the issue of standing to object to the search of the vehicle, testified, and in many respects, his testimony conflicted with that of the police officers. Having observed and heard the defendant's testimony, and evaluating his testimony no differently from that of the police officers, the court did not find the defendant as credible.
1. Factual Findings
Having reviewed the testimony and the exhibits and heard the oral arguments, the court finds the following facts proven by a fair preponderance of the credible evidence.
On September 11, 2004, Officer Christopher Sullivan of the Hartford Police Department was assigned to work a patrol unit during an evening shift. At approximately 7:30 P.M., he had just finished assisting a fellow officer, Mark Rivera, on a call in a service zone to which Sullivan was not assigned. Sullivan and Rivera were finishing up another service call on Huntington Street in the north end of Hartford, when they were approached by a Mr. Hurst, the owner of a building at 41 Huntington Street. Hurst complained to them of a suspicious vehicle, a white Monte Carlo with New York registration, which had been driving in and out of the driveway to his property, which is posted with a no loitering sign. Hurst showed the officers a picture of the vehicle on his cell phone camera, which provided them with a partial registration number. According to Leonard, Hurst described the operator of the vehicle as a young black male in his twenties whom he recognized but did not know by name. Sullivan relayed the information provided by Hurst by cell phone to Officer Eric Leonard, who was also on patrol that evening. Sullivan and Leonard, both wearing uniforms and driving marked police cruisers, met up at the intersection of Huntington Street and Asylum Avenue just prior to 9:00 P.M. They parked in a school parking lot and were awaiting other dispatches when they observed a white Monte Carlo vehicle driving eastbound on Asylum Avenue turn sharply left onto Huntington Street at a high rate of speed. Sullivan and Leonard decided to follow and observe the vehicle, which matched the description of the vehicle that was the subject of Hurst's earlier complaint. They followed the vehicle, Leonard's car in the lead, as it headed north down Huntington Street, which is a one-way street. As they followed the Monte Carlo, both Sullivan and Leonard observed the operator of the vehicle fail to stop at three different intersections: Huntington and Collins Streets, Huntington and Ashley Streets, and Huntington and Sargeant Streets. Leonard noted there was no indication of brake lights at the rear of the Monte Carlo as it drove through these intersections. During the course of this observation, there was another vehicle in between Leonard's cruiser and the Monte Carlo until after the Huntington and Ashley intersection. As the Monte Carlo entered the intersection at Huntington and Collins, vehicles heading westbound on Collins had to stop half way through the intersection to avoid colliding with the Monte Carlo. After the operator of the Monte Carlo failed to stop at the stop sign at Ashley and Huntington, Leonard passed the car that had been traveling in front of him, in between his cruiser and the Monte Carlo, and activated his emergency lights and siren. Sullivan did so immediately afterwards. After the defendant turned the Monte Carlo left onto Sargeant Street, he heard sirens and saw flashing lights in his rear view minor, which caused him to slow down and pull over in front of a premises at 116 Sargeant Street, on the street's north side.
Leonard turned on his cruiser spotlight to observe the Monte Carlo more clearly, as it was dark. Then, Leonard and Sullivan exited their cruisers and approached the Monte Carlo with flashlights. Sullivan checked the vehicle for occupants, and concluded there was only a driver. Leonard approached the driver's side, focusing his flashlight on the driver, and asked the driver, later identified as the defendant, Tommy Josey, to provide him with his license, registration and insurance. At this point, Leonard noticed the defendant making furtive movements. The defendant was looking around the vehicle, and put his hands underneath his legs. Leonard told him to show his hands. Josey began to reach toward the right side of the driver's seat, and Leonard began to fear for his safety, signaling to Sullivan an expression of his concern. Josey eventually complied and put his hands in his lap, but still appeared fidgety. Leonard asked Josey to exit the vehicle and opened the driver's side door.
As Josey exited the vehicle, the area adjacent to the driver's seat, to the left of the console became clearly visible, and Sullivan observed, in plain view, a large plastic sandwich bag sticking out from underneath the console area in the center portion of the vehicle, toward the driver's side, wedged between the driver's seat and the console area.
The large plastic bag was a zip lock sealed bag which contained small, plastic knotted bags which contained a hard, white, rock-like substance. Based on his training and experience, Sullivan recognized this substance, packaged in a manner consistent with drug sales, as crack cocaine. Sullivan quickly alerted Leonard to the presence of narcotics by stating a code number, "77." Leonard had Josey in front of him. Josey was leaning up against the front of the Monte Carlo with his hands on the roof and Leonard had begun to conduct a pat-down search. Leonard felt a large bulge in the front left pocket of the defendant's pants, but didn't feel any weapons. Leonard, upon hearing the code word for narcotics, handcuffed Josey. By that time, Sullivan had walked over toward the other side of the Monte Carlo to assist Leonard in securing Josey in order to continue conducting a pat down search. Rivera also assisted with the pat down search. One of the officers retrieved the item making a large bulge in the defendant's pocket, which turned out to be a large wad of cash, $4,045.00 in various denominations, including 152 twenty-dollar bills.
Josey was then secured and placed in a cruiser. Sullivan, Rivera and several other officers and narcotics detectives who had responded to the scene then returned to the Monte Carlo to search it further and to seize and secure the suspected cocaine Sullivan noticed near the console. The suspected substance was subsequently field tested and showed a positive reaction for the presence of cocaine. The police found no other contraband in the vehicle. The money found on Josey and the rental car agreement were also seized and secured, and Josey was placed under arrest.
Officer Leonard reviewed the rental agreement, a contract with Budget Rental Car provided by Josey. Josey was not named as the lessor or an authorized driver on this agreement. According to the police report, Exhibit W, this was later confirmed by a representative of Budget Rental Car.
2. Discussion
As noted above, the defendant moves to suppress the narcotics found in the vehicle he was operating, the cash found on his person and the car rental agreement. He argues that the stop of the vehicle and the subsequent search of the car and his person were illegal under the Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and under Article First, §§ 7 and 8 of the Connecticut Constitution. If police obtain physical evidence as the result of the seizure of a person without probable cause, the "fruit of the poisonous tree" doctrine requires that the evidence be suppressed as the produce of the unlawful seizure.
A. The Seizure
In determining whether a warrantless search and seizure is lawful, the threshold inquiry is at what point was the defendant seized. There is no dispute that the effectuation of the motor vehicle stop by two marked police cruisers was a seizure for purposes of a suppression analysis. At the point where the defendant heard the activated sirens and observed the flashing strobe lights of the cruisers driven by Leonard and Sullivan, as he was turning left from Huntington Street onto Sargeant Street, the defendant was seized under the test articulated in State v. Oquendo, 223 Conn. 635, 649-50, 613 A.2d 1300 (1992). This is the point where the defendant first became aware of the police officers' command to halt. Under Article First, § 7, a person is seized if in view of all of the circumstances, a reasonable person would have believed that he was not free to leave. State v. Greenfield, 228 Conn 62, 68, 634 A.2d 879 (1993). State v. Oquendo, supra, 223 Conn. 635, 652. The court finds the defendant was seized at this point.
B. The Legality of the Stop
The court concludes that Officers Leonard and Sullivan initially made a valid motor vehicle stop intending to issue a traffic citation to the defendant for failure to stop at a stop sign or a traffic control signal. The credible evidence is that the defendant drove right through at least one stop sign, the one at Huntington and Ashley, before Leonard, quickly echoed by Sullivan, activated his emergency lights and sirens in order to stop the vehicle the defendant was operating. The defendant was ultimately issued a citation for failure to stop at a stop sign.
There was no pretextual stop. In fact, Sullivan and Leonard admitted they had no probable cause to make an investigative stop until they observed the traffic violations. The initial decision by Leonard and Sullivan to follow the Monte Carlo was based on the earlier reports by Hurst clearly describing a suspicious vehicle, including a partial license number from New York. The officers were on the alert for that suspicious car.
Under the circumstances, Leonard, assisted by Sullivan, was acting within his authority in stopping the vehicle operated by the defendant and in asking him to exit the same. It is clear that a policeman has the right to stop a motor vehicle, operating on a public highway even if the reason for the stop is only an infraction under our traffic laws. State v. Lamme, 216 Conn. 172, 176 (1990); State v. Miller, 227 Conn. 363, 378, 630 A.2d 1315 (1993); State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988); Pennsylvania v. Mims, 434 U.S. 106, 110-11, 98 S.Ct. 330, 54 L.Ed.2d 331 (1997). In addition, Leonard also had the authority to at least conduct a pat down search of the defendant for weapons in the interest of his own personal safety, especially in light of the nervous, furtive movements exhibited by the defendant as Leonard and Sullivan approached the vehicle. State v. Dukes, supra, 209 Conn. 122.
3. The Search of the Vehicle and Seizure of the Cocaine and the Car Rental Agreement A. Standing
The state claims that the defendant was not authorized to drive the Monte Carlo, a rental vehicle, on the evening of September 11, 2004, and therefore, he has no standing to object to a search of its interior. The defendant has offered no evidence to refute the state's claim. Although he mentioned the vehicle was rented by his aunt, he never provided her name or any basis for claiming he was authorized by anyone to drive it. He therefore has no right to challenge the search of the vehicle because he has failed to establish a reasonable expectation of privacy in it. To receive constitutional protections against unreasonable searches, a defendant must have a legitimate expectation of privacy in the invaded area. Absent such an expectation, the subsequent police action has no constitutional ramifications. State v. Rodriguez, 223 Conn. 127, 132, 613 A.2d 211 (1992). A defendant moving for suppression must sustain the burden of demonstrating a legitimate expectation of privacy in the area searched. State v. Delaraosa, 16 Conn.App. 18, 31-32, 547 A.2d 47 (1988). Whether a defendant possessed a reasonable expectation of privacy in the automobile requires a factual inquiry into all the relevant circumstances surrounding its search. State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989). Although individuals who do not legally own an automobile may be entitled to challenge its search, there should be at least some indication that the driver had the owner's permission to use the vehicle. State v. Darwin, 161 Conn. 413, 420, 288 A.2d 422 (1971), United States v. Garcia, 897 F.2d 1413, 1418 (7th Cir. 1990).
Although no Connecticut appellate decision has addressed the issue of whether a driver who establishes nothing more than simply being the driver has a legitimate expectation of privacy in the automobile, other jurisdictions and at least one Connecticut trial court have ruled that the driver of a vehicle rented by a third party has no such expectation unless he has been named on the rental agreement as the renter or other authorized driver. State v. Dieppa, 1994 Ct.Sup. 6218 (1994); United States v. Roper, 918 F.2d 111, 113-14, 117 (5th Cir. 1990); United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984); United States v. Boruff, 909 F.2d 111, 113-14, 117 (5th Cir. 1990). In Boruff, the defendant was found not to have a reasonable expectation of privacy in a rental vehicle because the rental agreement gave him no authorization to drive the car. Similarly, this court finds the defendant had no standing to object to a search of the rented Monte Carlo.
B. Plain View Exception
Even if the defendant arguably had standing to object to a search of the vehicle he was driving, items found in plain view may be seized without a warrant. This is one of the clearly recognized exceptions to the search warrant requirement. If a police officer in a public area peers into a vehicle through a door or window, his action does not constitute a search and is not violative of the driver's fourth amendment rights. A police officer can use his professional training and experience to conclude that an item in plain view is contraband even if it is not immediately apparent to the casual observer. State v. Leonard, 14 Conn.App. 134, 136-37, 539 A.2d 1030 (1988), aff'd, 210 Conn. 480, 556 A.2d 611 (1989); State v. Longo, 243 Conn. 732, 741, 798 A.2d 1354 (1998). In Leonard, the Appellate Court concluded that the police had probable cause to stop the defendant's car, and that the resulting search of the car was proper after the police officer observed white powder on the driver's jacket and mustache in plain view.
Similarly, in Longo, the Supreme Court concluded that traces of marijuana in plain view provided probable cause to search the entire vehicle for additional marijuana. When the two police officers approached Josey in the vehicle, Josey appeared to be making furtive movements, including moving his hands to the side of the front passenger seat, near the console area. As Leonard was having the defendant exit the vehicle, Sullivan immediately spotted the ziplock bag containing the suspicious substance in plain view. Based upon his plain view observation, Sullivan had probable cause to believe was connected with felonious criminal activity, the seizure of the items he observed in plain view was reasonable, prudent and justified under the plain view exception. Furthermore, the discovery of this item in plain view gave the police probable cause to search other parts of the vehicle for more contraband. None was located, but one of the officers did retrieve the car rental agreement from the vehicle.
4. The Search of the Defendant's Person
Once Sullivan observed the contraband in plain view inside the automobile, he had probable cause to arrest Josey as the sole occupant of the vehicle on drug-related charges . . . It was reasonable for Sullivan to assume that Josey was knowingly involved in the possession and or sale of illegal drugs, having located suspected crack cocaine in plain view inside of the Monte Carlo. The pat down search of the defendant's person was in progress when Sullivan alerted Leonard to the presence of narcotics. Leonard then handcuffed the defendant, clearly in anticipation of a custodial arrest. The discovery of the suspected, packaged cocaine in plain view elevated the motor vehicle stop effectuated by Leonard and Sullivan to a situation where the officers had probable cause to arrest the defendant on felony charges. The search of Josey's person and the seizure of the money found in the pocket of the pants Josey was wearing were incident to that lawful arrest and legally permissible. A warrant was not required. State v. Clark, 255 Conn. 268, 291 (2001); New York v. Belton, 453 U.S. 5454, 457, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Even if a search and seizure chronologically precede a formal arrest, the search and seizure may be constitutionally valid as long as the arrest and the search and seizure are substantially contemporaneous and are integral parts of the same incident. The arrest and search of the defendant's person here were substantially contemporaneous and integral parts of the same incident. State v. Trine, 236 Conn. 216, 236, 673 A.2d 1098 (1996); State v. Federici, 179 Conn. 46, 54-55, 425 A.2d 916 (1979).
Even if the discovery and removal of the wad of money from the defendant's person occurred before Leonard or Rivera were made aware of the presence of the suspected cocaine in the vehicle by Sullivan, under the inevitable discovery exception to the Exclusionary Rule, evidence illegally secured in violation of the defendant's constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. Once Sullivan discerned the presence of the suspected cocaine in the vehicle, a full body search and inventory of items in the possession of the defendant incident to arrest was appropriate, and the money would have been inevitably discovered. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986); State v. Vargas, 34 Conn.App. 492, 499, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994).
Conclusion
For the foregoing reasons, the defendant's motion to suppress is denied.
KELLER, J.