State v. Arokium, 33437.

143 Conn.App. 419

71 A.3d 569

STATE of Connecticut

v.Charles AROKIUM.

No. 33437.

Appellate Court of Connecticut.

Argued Nov. 26, 2012.

Decided June 18, 2013.

Elizabeth M. Inkster, New Haven, assigned counsel, with whom was Jennifer B. Smith, assigned counsel, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and David R. Applegate, assistant state's attorney, for the appellee (state).

BEACH, SHELDON and FLYNN, Js.

SHELDON, J.

The defendant, Charles Arokium, appeals from the judgment of conviction rendered against him following a jury trial on charges of possession of narcotics with intent to sell in violation of General Statutes § 21a–277 (a) and possession of narcotics in violation of General Statutes § 21a–279 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress, which challenged the legality, under the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the constitution of Connecticut, of the stop of his person and a motor vehicle, which led to the seizure of narcotics upon which his conviction was based, and (2) convicted him of both a greater offense and a lesser included offense on the basis of the same underlying conduct, in violation of his fifth and fourteenth amendment right against double jeopardy. We affirm in part and reverse in part the judgment of the trial court.

The following facts are relevant to our resolution of the defendant's appeal. During January, 2009, Officer Christopher Broems of the Stamford police department conducted an investigation into suspected narcotics related activity at the Stamford Motor Lodge located at 1209 East Main Street in Stamford (hotel).¹ In the course of that investigation, the Stamford police department received a tip from a confidential informant ² that the occupant of room 273 was selling cocaine in that location. The confidential informant described the seller, whom he claimed to know only as Charlie, “as a dark skinned, black male, with a shaved head in his mid-thirties, approximately [six feet, two inches] tall and [a] chubby build.” On January 4, 2009, the confidential informant told Sergeant Christopher Baker of the Stamford police department that the informant had previously observed at least fifty grams of powder cocaine and a substantial amount of money in room 273. On January 5, 2009, Broems was informed by the front desk clerk of the hotel that Charles Arokium had been renting room 273 for the past fifteen weeks.

Thereafter, on January 6, 2009, the confidential informant, in cooperation with the Stamford police, successfully made a controlled purchase of suspected narcotics from the seller known as Charlie in room 273. On that date, Broems observed the informant enter room 273, where the informant remained for a short period of time before exiting and walking directly to a prearranged rendezvous location, where the informant gave Broems two clear plastic bags containing suspected cocaine. After the police confirmed that the substance in the bags tested positive for cocaine, Broems, in plainclothes, set up a surveillance of room 273 from an unmarked police vehicle in the parking lot of the hotel. Broems subsequently observed a dark colored Dodge Magnum pull into the hotel parking lot and park in the vicinity of room 273. Broems then saw a large, light skinned black male, approximately six feet, two inches tall, exit the vehicle and approach room 273, empty-handed. Broems saw this man, later identified as Ricky Samas, knock on the door of room 273, then enter the room when the door was answered, where he stayed for five minutes before exiting, carrying a plastic bag. Samas then entered the Dodge and sped away onto Interstate 95 northbound. Although other Stamford police officers, alerted to Samas' departure by Broems, gave chase, they were unable to find, or thus to stop, Samas' vehicle.

Shortly thereafter, Broems observed a silver Nissan Maxima parked in the hotel parking lot in the vicinity of room 273. He then saw a thin black male, approximately five feet, seven inches tall, exit the vehicle and approach room 273 with what appeared to be an empty bag folded underneath his arm. This man, later identified as Darnell Barber, knocked on the door of room 273 and was admitted by someone within. Barber remained in the room for approximately fifteen minutes before exiting, carrying the previously folded bag, which then appeared to contain a package. Barber promptly got back into the Nissan and departed with the female driver, who was later identified as Tanya Bruce, onto Interstate 95 southbound. Believing that a drug transaction had just occurred, Broems directed Officer Richard Byxbee of the Stamford police department to stop the Nissan. When Byxbee, a uniformed officer in a marked police cruiser, stopped the Nissan on Interstate 95, Broems drove his unmarked vehicle to the location of the stop in order to investigate Barber and Bruce. While performing a check of the occupants' licenses and the Nissan's registration, Broems and Byxbee observed a shoe box containing two bundles of money in plain view in the backseat of the Nissan.³ Thereafter, Broems and Byxbee turned Barber, Bruce and the Nissan over to three other Stamford police officers, who had joined them at the location of the stop, for further investigation, including a search of the Nissan by a state police canine. Broems and Byxbee returned ⁴ to the hotel to resume surveillance of room 273. In the meantime, the Stamford police began the process of applying for a warrant to search that room.

While waiting for the issuance of a search warrant, Broems observed another black male exit room 273 whom he had not seen enter. This man, later identified as the defendant, was carrying a plastic shopping bag. Broems exited his vehicle and followed the defendant on foot to determine whether he matched the confidential informant's description of Charlie. At that moment, Broems notified Byxbee, who had parked his police cruiser on a nearby side street, that he was pursuing a suspect near the front of the hotel. Standing about two feet from the defendant, Broems determined that he matched the informant's description of Charlie.⁵ Broems then told Byxbee: “[T]his is Charlie. This is the person we [are] looking for.” Shortly thereafter, the defendant entered a taxicab (cab). As the cabdriver was beginning to drive away, Broems quickly alerted Byxbee and requested that he enter the hotel parking lot and cut off the cab to prevent the defendant from leaving. Attempting to stall the defendant's departure, Broems approached the cabdriver and stated that he was in need of a cab. Moments later, Byxbee entered the parking lot and parked his cruiser directly in front of the cab. Broems then pulled out and displayed his badge and ordered the defendant to get out of the cab. Five to thirty seconds then passed, during which the defendant neither moved nor spoke. Believing that the defendant might have been armed, Broems opened the rear passenger door of the cab and “ripped [the defendant] out of the car, and threw him on the ground, and handcuffed him....” ⁶ While securing the defendant, Broems saw that the bag that the defendant had been holding had fallen to the ground, partially exposing some of its contents to view. He noted, in particular, that several manila envelopes had spilled out of the defendant's bag, and that a clear plastic bag containing a white powder substance he suspected of being powder cocaine had fallen out of one of the manila envelopes. Also lying on the ground in plain view, Broems saw several small ziplock bags imprinted with apples, which he believed to be drug packaging material.⁷

The defendant was charged in connection with the previously described seizures with one count each of possession of narcotics with intent to sell in violation of § 21a–277 (a) and possession of narcotics in violation of § 21a–279 (a). The defendant filed a motion to suppress all physical evidence obtained by the police when they seized him from the cab, claiming that the police had neither a reasonable and articulable suspicion to stop him nor probable cause to arrest him. After a suppression hearing conducted midtrial, the trial court denied the defendant's motion. In its oral ruling denying the defendant's motion, the trial court concluded as follows: “[T]he police, in general, and Officer Broems, in particular, had probable cause to arrest the defendant. And even if [Broems] didn't have probable cause, at a minimum, he had reasonable suspicion to believe that criminal conduct was going on, and he had a right to maintain the status quo.”

The defendant was tried by a jury and found guilty of possession of narcotics with intent to sell and possession of narcotics. Thereafter, the trial court merged the defendant's conviction of possession of narcotics, on count two, with his conviction of possession of narcotics with intent to sell, on count one, and sentenced the defendant on the first count to a total effective sentence of ten years imprisonment with five years of special parole.⁸ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly denied his motion to suppress evidence obtained from the police stop of the cab, arguing that the officers conducting the stop lacked sufficient information to establish a reasonable and articulable suspicion of criminal activity and that probable cause to arrest him did not arise during the course of the stop.⁹ Specifically, the defendant contends that “[t]he stop of the defendant was based on nothing more than a police officer's suspicions” because, at the time of the stop, the description provided by the confidential informant was too vague, there was no corroboration of the information provided by the...