Opinion
KNLCR160129605T
09-11-2017
State of Connecticut v. Kevin Malone
UNPUBLISHED OPINION
RULING ON MOTION TO SUPPRESS
Barbara Bailey Jongbloed, J.
The defendant, Kevin Malone, has been charged in a substitute information with possession of cocaine with intent to sell, possession of cocaine, possession of narcotics with intent to sell, possession of narcotics, possession of marijuana with intent to sell, and possession of more than four ounces of marijuana. Initially, the defendant was charged on December 2, 2015, following a motor vehicle stop in Norwich, Connecticut. The defendant filed a motion to suppress evidence obtained as a result of the motor vehicle stop, claiming that the search of the vehicle, following the traffic stop, was improperly based on the odor of marijuana, as a result of the decriminalization of the possession of marijuana. He claims that the contraband seized following a search was the result of an illegal, warrantless search and that all the items seized in the search of the defendant's motor vehicle should be suppressed. The court held an evidentiary hearing in this matter on July 7, 2017. Based on the facts and for the reasons set forth below, the motion to suppress is denied.
Although the motion was filed March 21, 2016, by agreement of the parties, the hearing was not scheduled until July 2017, following issuance of State v. Brito, 170 Conn.App. 269, 154 A.3d 535, cert. denied, 324 Conn. 925, 155 A.3d 755 (2017).
On July 7, 2017, the state filed a supplemental memorandum in support of its opposition to the defendant's motion to suppress and on August 7, 2017, the defendant filed a supplemental memorandum of law in support of the motion to suppress.
FINDINGS OF FACT
Norwich Police Officer Ryan Landry, Trequon Murphy, and the defendant, Kevin Malone, testified at the hearing held July 7, 2017. The court finds the following facts based upon the testimony and exhibits entered into evidence:
1. On December 2, 2015, Norwich Police Officer Ryan Landry was working the midnight shift and was assigned to motor vehicle traffic enforcement. Among other things, he was conducting speed enforcement with a properly calibrated functional laser device. At approximately 3:00 a.m., Officer Landry observed a black Lexus heading toward Backus Hospital on Washington Street traveling 36 mph in a 25 mph zone. Landry pulled behind the vehicle, followed it a short distance until finding an appropriate location, and conducted a motor vehicle stop on the Route 2 connector.
2. As Officer Landry approached the driver's side door, he smelled a strong odor of marijuana emanating from the vehicle consistent with his training in the detection and recognition of the odor of burned and unburned marijuana. The driver's side window was down. Landry informed the driver, the defendant Kevin Malone, that he was stopped for traveling 36 mph in a 25 mph zone and asked for license, registration and insurance information. Landry spoke to all three occupants of the vehicle, including the defendant driver, a front seat passenger and a passenger in the rear right passenger seat. Landry asked for identification and received a Massachusetts driver's license from the defendant driver, a name and date of birth from the front seat passenger and a school identification card with name and date of birth from the rear seat passenger. Landry went back to his cruiser, radioed for backup and attempted to check the identification provided. Landry was able to confirm the identifications of the defendant driver and the rear seat passenger, but not the front seat passenger. When he informed the passenger that he could not confirm the name and date of birth given, the passenger provided different information, giving multiple names and dates of birth.
3. Based on the overwhelming odor of both burned and unburned marijuana, which Landry described as " sensory overload, " he asked the defendant driver about the odor and the defendant driver stated that he had smoked marijuana recently, but that there was no unburned marijuana in the car. This was inconsistent with the level of odor of both burned and unburned marijuana that Landry detected emanating from the vehicle.
4. When backup arrived, Landry asked the defendant driver to exit the car. As the defendant got out, Landry observed a clear plastic baggie containing what he believed to be marijuana in the pocket compartment on the driver door. Despite the defendant's testimony that he placed the baggie under the items in the pocket compartment, the court credits Landry's testimony that he saw the marijuana in plain view. He escorted the defendant to the rear of the car where he was patted down. During this time the defendant did not make eye contact. Although somewhat cooperative, the defendant did not assist Landry in his attempts to identify the front seat passenger who was very nervous.
5. Based on the strong odor of marijuana, the defendant's statements and the false information provided by the passenger, along with the baggie of marijuana in the pocket on the driver's side door, the vehicle was searched. In the rear seat, officers discovered a Boston Red Sox drawstring bag which contained narcotics.
Approximately two ounces of marijuana, MDMA or " Molly" and other drug paraphernalia was located inside the Red Sox bag. A search warrant was later obtained for a safe, also located inside the vehicle, which was found to contain cocaine, methamphetamine, marijuana and $1, 400, among other things.
6. The defendant called Trequon Murphy as a witness. Murphy testified that he, the defendant and someone he knows as " Jay" met in Springfield, Massachusetts at approximately 9:00-9:30 p.m. in the evening on December 1, 2015 and drove to Foxwoods Casino in Connecticut. He stated that he had not met the defendant, Kevin Malone, before, but only met him for the first time that evening. Murphy testified that while in the vehicle, he had smoked a flavored cigar, a Black & Mild brand, which had a very strong odor. He stated that he lost money at the casino at table games and slot machines, and that the three eventually left the casino. He stated he smoked half of another cigar once he was back in the car, that the three got lost getting back on the highway, and were trying to get on the highway to return to Massachusetts when they were stopped in Norwich. He said he threw the cigar out the window after he finished smoking it and before the vehicle was stopped by the police. He stated that he was not charged with anything and that the police, who had arrested the defendant and the front seat passenger, took him back to the police station where he was picked up by his girlfriend.
7. The defendant, Malone, testified that he met a person named " Jay" and Trequon Murphy in Springfield at approximately 8:45 p.m. on December 1, 2015. He stated that he, " Jay" and Murphy left Springfield around 9:00 p.m. to go to Foxwoods Casino in Connecticut. He stated that he smoked marijuana earlier in the day and did not smoke marijuana in his car. He stated that Murphy smoked a " Black and Mild" flavored cigar in his car, and that the aroma is the type that can linger. He stated that he did not drink at the casino. He stated that he brought the baggie containing approximately two grams of marijuana with him " just in case" and placed it in the pocket on the driver's side door. He stated that it was not on top and visible, but rather, buried under some CDs, papers, eyeglass cases and other various items. Despite this claim that it was " buried, " the court credits Landry's testimony that he saw the marijuana in plain view. The defendant testified that he knew there was marijuana in the Red Sox bag, and other narcotics in the car but admitted that he was not truthful with Officer Landry because he did not want to be fined for the marijuana. He stated that he was in the process of moving and had a lot of clothes, video games, radio studio equipment and other items with him in the car, including a safe which was in the trunk.
DISCUSSION
The defendant claims that as a result of the possession of marijuana having been decriminalized in Connecticut, pursuant to P.A. 11-71 (July 1, 2011) now codified as General Statutes § 21a-279a, the alleged odor of marijuana does not alone constitute probable cause to conduct a search of a motor vehicle. He argues that therefore, the contraband discovered by the Norwich Police Department as a result of the search was the result of an illegal warrantless search and should therefore be suppressed.
Based on the facts set forth above, the court finds that there was a reasonable and articulable suspicion to conduct the motor vehicle stop based upon the speeding violation. There was an objectively lawful basis for the stop under Whren v. United States, 517 U.S. 806, 818, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). " Pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer has the authority, under the fourth amendment to the United States Constitution, to stop the operator of a car if the officer has a reasonable and articulable suspicion that the operator has engaged in illegal conduct." State v. Cyrus, 111 Conn.App. 482, 483, 959 A.2d 1054 (2008), aff'd, 297 Conn. 829, 1 A.3d 59 (2010). As our Supreme Court held in State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988), " [a] police officer has the right to stop a motor vehicle operating on a Connecticut highway even if the reason for the stop is only an infraction under our traffic laws." Id. Here, Officer Landry had a reasonable and articulable suspicion, which was objectively based on the operator's violation of a motor vehicle statute, that is, speeding.
In State v. Winfrey, 302 Conn. 195, 201-03, 24 A.3d 1218 (2011), the court discussed the automobile exception to the fourth amendment warrant requirement:
The United States Supreme Court first recognized the automobile exception to the fourth amendment warrant requirement in Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543, T.D. 3686 (1925), where the court explained that if [a] search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. Likewise, under our state constitution, our automobile exception permits a warrantless search of an automobile whenever the police have probable cause to do so . . . as where the searching officer[s] have probable cause to believe that the vehicle contains contraband . . . The probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made . . . The justification for . . . [this] automobile exception is twofold: (1) the inherent mobility of an automobile creates exigent circumstances; and (2) the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office . . . In recent years, the United States Supreme Court has placed an increasing emphasis on the reduced expectation of privacy justification . . . [such] that [e]ven in cases where an automobile [is] not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justifie[s] application of the vehicular exception. Thus, under the fourth amendment, a warrantless vehicle search does not require a showing of exigent circumstances.(Citations omitted; internal quotation marks omitted.) State v. Winfrey, 302 Conn. 195, 201-03, 24 A.3d 1218 (2011).
The court credits the testimony of Officer Landry that, as he approached the stopped vehicle on the Route 2 connector, he detected an overwhelming odor of marijuana emanating from the vehicle. The strong odor, described as " sensory overload, " was not consistent with the defendant's claim of smoking marijuana earlier in the day. This, together with the false identification information provided by the front seat passenger, permitted him to ask the driver to exit the vehicle. Upon doing so, he observed in plain view a baggie of marijuana in the pocket of the driver's side door after the defendant had stated there was no marijuana in the car. All of the circumstances, including the defendant's false statement, permitted the initial search of the interior of the vehicle. Contrary to the defendant's argument, this case does not present a situation in which the only factor leading to the search was the odor of marijuana.
The defendant relies on Commonwealth v. Cruz, 459 Mass. 459, 945 N.E.2d 899 (2011), to support his contention that the odor of marijuana does not give an officer probable cause to conduct a warrantless search of a motor vehicle. In Cruz, the Supreme Judicial Court of Massachusetts found that the police lacked probable cause to search a motor vehicle following decriminalization of one ounce or less of marijuana in that " no facts were articulated to support probable cause to believe that a criminal amount of contraband was present in the car." (Emphasis in original.) Id., at 476. The court discussed whether the officer had reasonable suspicion to believe that the defendant was engaged in criminal activity based on the odor of marijuana and other indicia of criminal activity. Id., 467. The court found that, " without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order." (Emphasis in original.) Id., 472.
The defendant's reliance on Cruz is misplaced. The facts of Cruz are distinct from the facts here. Id., 461-64. In Cruz, the court found only the odor of marijuana as the articulable fact in support of probable cause. Id., 467. In contrast, this court has found that additional facts supported the finding of probable cause. Specifically, in addition to the overwhelming odor of marijuana, the false identification information provided by the passenger, and the defendant's false statement as well as the officer's plain view observation of marijuana in the pocket of the driver's side door were facts which also supported the finding of probable cause for the search.
Moreover, our Appellate Court's decision in State v. Brito, 170 Conn.App. 269, 154 A.3d 535, cert. denied, 324 Conn. 925, 155 A.3d 755 (2017), provides guidance. In Brito, the court addressed a claim similar to the claim raised in Cruz that because the legislature had decriminalized the possession of less than one-half ounce of marijuana, the possession of a small amount of marijuana and the odor of marijuana could not support probable cause to search a motor vehicle. The facts of Brito were found to be distinguishable from Cruz in that the totality of the circumstances established that in addition to the odor of marijuana emanating from the vehicle and the defendant's possession of a roach, the defendant in Brito was also in possession of a substantial amount of cash and had a history of narcotics and weapons violations. Further, in Brito, the fact that possession of the marijuana roach, in and of itself, did not constitute a crime was not dispositive of whether the police had probable cause. " [O]ur decisional law reflects that probable cause need not be based on evidence that, in and of itself, is criminal in nature or is sufficient for a conviction. See, e.g., Skakel v. State, 295 Conn. 447, 479 n.22, 991 A.2d 414 (2010) (" The existence of probable cause does not . . . turn on whether the defendant could have been convicted on the same available evidence . . . [P]roof of probable cause requires less than proof by a preponderance of the evidence." [Internal quotation marks omitted.]); State v. Grant, 286 Conn. 499, 516 n.10, 517-18, 944 A.2d 947 (probable cause may exist despite plausible innocent explanation for evidence connecting defendant with crime), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008)." State v. Brito, supra at 313.
Finally, the Brito court further stated, " [a]dditionally, we distinguish our analysis from that set forth in Cruz because we adhere to well settled Connecticut precedent that permits the warrantless search of an automobile when there is probable cause to believe that evidence of criminal activity or contraband is located therein. See, e.g., State v. Winfrey, supra, 302 Conn. at 201, 24 A.3d 1218; see also People v. Waxler, 224 Cal.App.4th 712, 721, 168 Cal.Rptr.3d 822 (2014) (" a law enforcement officer may conduct a warrantless search of a vehicle pursuant to the automobile exception when the officer has probable cause to believe the vehicle contains marijuana, which is contraband"). Id. at 315, n.24. Pursuant to General Statutes Section 21a-279a(b), " the law enforcement officer issuing a complaint . . . shall seize the cannabis-type substance and cause such substance to be destroyed as contraband in accordance with law." As stated in Brito, " [t]he facts, in their totality, gave rise to probable cause that there was contraband, which the police were authorized to seize and destroy, inside of the vehicle." Id. at 316. In the present case, the officer had ample probable cause to believe the vehicle contained contraband, i.e., marijuana, which he was authorized to seize and destroy. Thus, particularly in view of State v. Brito, Cruz cannot be relied upon to support the defendant's claims in this case.
For the reasons set forth above, the court finds that there was a reasonable and articulable suspicion which justified the motor vehicle stop of the defendant. The subsequent search of the motor vehicle was based upon many factors including the overwhelming odor of marijuana, false identification information provided by the passenger, the defendant's false statement and the marijuana in plain view in the pocket compartment of the driver's side door. The search was therefore lawful and the motion to suppress is accordingly DENIED in all respects.
It is So Ordered.