Connecticut v. Smith

State of Connecticut v. Ernest Smith

No. SO1SCR150186356S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford, Geographical Area 1

July 21, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ON THE CO-DEFENDANTS' MOTIONS TO SUPPRESS CERTAIN EVIDENCE

John F. Blawie, J.

Introduction

Ernest Smith, Victor Strong, Anwar Carter and Jisceton Cobb have each been arrested and charged with conspiracy to commit larceny in the first degree, in violation of Connecticut General Statutes § § 53a-48 and 53a-122, and possession of burglar tools, in violation of § 53a-106. The state alleges that these four men had formed a criminal conspiracy, and were in the process of an after-hours attempt to steal some luxury sport utility vehicles off the lot of a new car dealer, Land Rover Darien. That business location had become the focus of some additional patrols by the Darien police, because in the months preceding the arrest of the defendants, that same dealership had also been the target of several other late night break-ins and intrusions. These were commercial burglaries in which the chain link fence and gate locks had been cut by unknown persons in order to gain access to a fleet of new Land Rovers and Range Rovers.

The state claims that the defendants' planned larceny was interrupted when a Darien police officer on routine patrol in that part of town happened to come upon the scene around 1:15 a.m. The four men were first seen either in or around a black Mercedes Benz with Pennsylvania plates backed into a space behind a closed restaurant, and right next to the chain link fence enclosing the Darien Land Rover property. Further police investigation that night revealed that in an area behind the Mercedes holding the defendants, a portion of the Darien Land Rover fence had been cut. During a warrantless search by the Darien police, a pair of bolt cutters and other items allegedly constituting burglar's tools were found inside the car occupied by the defendants.

Three of the four co-defendants, Smith, Strong and Carter, filed separate motions to suppress the tools and other evidence found inside the car. While there are some differences in the wording of each of these motions, all three are claiming that the warrantless search of the Mercedes by the Darien police was unreasonable and unlawful, and that any search and seizure was conducted in derogation of their constitutional rights under both the United States and Connecticut Constitutions.^[1] Counsel for Strong and Carter also submitted briefs in support of their respective positions. The state objects to each of the three motions to suppress and maintains that Smith, Strong and Carter all lack the standing to object to any warrantless search of the Mercedes as none of the co-defendants are the registered owners of the car. Alternatively, the state argues that even if any one of the defendants can meet his burden to prove that he has standing to contest, this search of the vehicle by police was entirely proper. The state maintains that this was a lawful " Terry stop"; that is, a permissible warrantless search of an automobile pursuant to Terry v Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny. The state points to the totality of the facts and circumstances known to the Darien police at the time as fully justifying the decision to search the car.

The court held an evidentiary hearing on the motions to suppress, during which it heard from the investigating police officers, who were subject to both direct examination by the state, as well as cross examination by separate counsel for co-defendants Smith, Strong and Carter. This memorandum of decision is the result. The court makes the following findings of fact and conclusions of law, with additional facts and circumstances discussed as they are germane to the legal issues raised by the parties.

Facts

On June 4, 2015, police officer John Murphy was working a midnight shift, and was patrolling the town of Darien in his marked Ford Explorer. Around 1:15 am, officer Murphy was in the vicinity of Land Rover Darien, a new car dealer then located at 90 Post Road (it has since moved to another location in town). Land Rover Darien consisted of a building housing its showroom, service and parts departments, as well as a large outdoor parking lot for its inventory. Land Rover Darien was completely enclosed by a chain link perimeter fence approximately 6-7 high, and the only entrance/exit point for vehicles consisted of a gate in one section of the fence that could be locked when the business was closed. The car dealership was bordered by I-95, and it also shared a long common border fence with an adjoining business known as Bertucci's Restaurant, located at 54 Post Road, Darien. Due to some prior late night burglaries and criminal mischief reported at Land Rover Darien earlier in 2015, including at least one case which was investigated by Officer Murphy himself, police had made this business the focus of additional patrols. The state introduced evidence of those prior incidents at this location as highly relevant to the decision by law enforcement to conduct a warrantless search of this car when it was found at this same location at 1:15 a.m.

Those incidents were as follows:

1. January 11, 2015--A door to the dealership was pried open after hours and the wire to the door alarm was cut. The locking mechanism for the gate in the fence was also dismantled/unscrewed by the perpetrators, and it was replaced by Land Rover Darien after this incident. Two new cars were stolen off the lot that evening, using keys taken from inside the building. These were two 2015 Range Rover Sport HSE's, each valued at approximately $70, 000. Those cars were never recovered, and no arrests were ever made.

2. March 6, 2015--The chain link perimeter fence surrounding Land Rover Darien was found to have been cut in the area behind an adjacent business, Bertucci's Restaurant. Security footage from the dealership property taken at 3:14 a.m. shows a male suspect in a hooded jacket make his way from that area of the fence to a Range Rover parked in the lot. From that vehicle, the suspect removed all four wheel rims and tires, valued at almost $6, 000, leaving the car resting on bricks. The suspect is believed to have exited the Land Rover Darien lot with the wheels through the same cut in the fence onto Bertucci's property. The rims and tires were never recovered, and no arrests were ever made.

3. March 13, 2015--Land Rover Darien acted quickly to repair the damage to their fence caused by the thief who had used the cut in the fence to steal the tires and rims the previous week. On this particular morning, police were called back to Land Rover Darien. The facilities manager for the dealership had now discovered a large, fresh cut in their chain link perimeter fence, a cut that was not present when the fence was thoroughly inspected just two days earlier. Management at the dealership discussed with Darien police the possibility of hiring private security during the overnight hours to thwart future burglaries. While no new property was reported stolen at this time, the cut fence was classified as an act of criminal mischief. No arrests were ever made.

In light of these recent unsolved crimes targeting the car dealership, Darien police Lt. William Duignan testified that as of the day of the search of the car occupied by the defendants, Land Rover Darien was considered a " hot spot of crime" in town. Because of this, the lieutenant stated that his department " promoted and pushed officers to do self-initiated security checks of the property." At the time, Lt. Duignan supervised officer Murphy, who was a 26-year veteran of the Darien Police Department. Officer Murphy was working midnights and because he was in the area of Land Rover Darien at the time, he decided to swing through the parking lot of Bertucci's Restaurant to do a security check on the dealership property like he had done in the past on his shift. This restaurant parking lot wraps around Bertucci's, and it is roughly in the shape of the letter " U, " with entrance/exits on both sides of the building itself which allow access to the Post Road. The property of Land Rover Darien was located all along the rear of the Bertucci's parking lot, with parking spaces for approximately 24 cars of Bertucci's patrons to park perpendicular to the chain link fence. In the area where the defendants were first spotted, a row of tall shrubs or bushes separated the Bertucci's parking lot from the perimeter fence of Land Rover Darien.

Officer Murphy pulled behind Bertucci's on Thursday morning, June 4, 2015 at approximately 1:15 a.m. At this hour, Bertucci's had been closed for the evening for over two hours, and officer Murphy explained that the town of Darien itself was pretty much shut down by that time as well. He saw a black Mercedes Benz with Pennsylvania plates that was backed into a space next to the fence enclosing Land Rover Darien. From where this car was parked, it was not visible from the Post Road, and it could only be seen once officer Murphy went around to the rear of the Bertucci's parking lot. Moreover, the Mercedes was found in the same area where the fence had recently been cut by someone to gain access to the dealership in order to steal tires and rims. Officer Murphy also saw a man later identified as defendant Anwar Carter emerging from the bushes behind the car as officer Murphy approached.

Darien police officers provided the state with a great deal of relevant, real time, on-scene video from June 4, 2015. The footage was received into evidence on DVDs and played at the hearing on the motions to suppress. The videos were captured by the dashboard camera mounted in...