State v. Brito

170 Conn.App. 269

154 A.3d 535

STATE of Connecticut

v.Edwin BRITO

AC 36541, (AC 36543)

Appellate Court of Connecticut.

Argued October 13, 2016

Officially released January 17, 2017

Emily Wagner, assistant public defender, for the appellant (defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Helen J. McLellan, senior assistant state's attorney, for the appellee (state).

Lavine, Keller and Mihalakos, Js.

KELLER, J.

In this consolidated appeal, the defendant, Edwin Brito, appeals from the judgments of conviction rendered by the trial court following his conditional pleas of nolo contendere made pursuant to General Statutes § 54–94a. In one case, the defendant pleaded guilty to one count of possession of a hallucinogenic substance in violation of General Statutes § 21a–279(b) and, in the other case, the defendant pleaded guilty to one count of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a–277(a). The defendant entered the pleas after the court denied his two motions to suppress certain evidence that the police discovered following two warrantless searches. These searches were incident to two unrelated traffic stops involving the defendant. As he did before the trial court, the defendant challenges the constitutionality of these searches. We affirm the judgments of the trial court.

The following facts and procedural histories underlie the present appeals. On April 23, 2012, the police stopped the defendant while he was operating his automobile, conducted a patdown search of the defendant and, later, conducted a warrantless search of his automobile. The police seized marijuana, PCP, and heroin from the automobile. In connection with this incident, the defendant was charged in docket number H15N–CR12–0263322–S with several drug related offenses, including possession of a narcotic substance with intent to sell. On June 22, 2012, the defendant was a passenger in an automobile that was stopped by the police. During a warrantless search of the automobile, the police seized a substance believed to be saturated with PCP from the area of the front passenger seat. In connection with this incident, the defendant was charged in docket number H15N–CR12–0264151–S with possession of a hallucinogenic substance.

In each of these criminal cases, the defendant challenged the lawfulness of the police conduct and filed motions to suppress the evidence seized by the police as the fruits of police illegality. With respect to both the April and June incidents, the defendant argued that the police lacked probable cause to stop the automobile, to conduct a patdown search of his person, and to search the automobile. The state objected to both motions. On September 12 and 25, 2013, the court held a consolidated evidentiary hearing related to both motions to suppress. The parties submitted posthearing briefs to the court, and, on November 15, 2013, the court heard oral argument related to the motions.

In its memorandum of decision of January 3, 2014, the court, D'Addabbo, J. , separately addressed each motion to suppress evidence. It denied both motions. Later, the defendant pleaded nolo contendere, in docket H15N–CR12–0264151–S, to possession of a hallucinogenic substance and, in docket number H15N–CR12–0263322–S, to possession of a narcotic substance with intent to sell. Both pleas, which were accepted by the court, Hadden, J. , were conditioned on the defendant's right to take an appeal from the court's denial of his motions to suppress. In each case, the trial court determined that the court's ruling on the motion to suppress was dispositive of the case. In docket number H15N–CR12–0264151–S, the court sentenced the defendant to two and one-half years incarceration, followed by a term of special parole of two and one-half years, to run concurrently with the sentence imposed in docket number H15N–CR12–0263322–S. In docket number H15N–CR12–0263322–S, the court sentenced the defendant to two and one-half years incarceration, followed by a term of special parole of four years, to run concurrently with the sentence imposed in docket number H15N–CR12–0264151–S.

In AC 36541, the defendant appeals from the judgment of conviction rendered in docket number H15N–CR12–0264151–S. In AC 36543, the defendant appeals from the judgment of conviction rendered in docket number H15N–CR12–0263322–S. This court has consolidated the two appeals. Additional facts will be set forth as necessary.

In both appeals, the defendant challenges the judgments of conviction on the ground that the court improperly denied his motions to suppress evidence. Accordingly, before turning to the merits of each appeal, we set forth general principles of review that apply to the defendant's claims. "[T]he standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, [however] and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence.... [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision ...." (Internal quotation marks omitted.) State v. Kendrick , 314 Conn. 212, 222, 100 A.3d 821 (2014).

IAC 36541

In its memorandum of decision with respect to the motion to suppress filed in docket number H15N–CR12–0264151–S, the court set forth the following findings of fact: "On June 22, 2012, Wethersfield Police Officer Tyler Weerden was assigned to the midnight shift with a primary assignment of patrolling the Berlin Turnpike and being proactive in motor vehicle violation enforcement. At or about 1:30 a.m., Officer Weerden was parked on the shoulder of the Berlin Turnpike near Nott Street in Wethersfield in his fully marked police vehicle. Officer Weerden testified that at approximately 1:34 a.m., he observed a white Acura motor vehicle proceeding northbound with a nonilluminated rear [registration plate] light. Officer Weerden testified that after this observation he proceeded to follow the vehicle and also was searching for a location to make a motor vehicle stop. Officer Weerden testified that while he was following the vehicle, he was able to observe that there was more than one occupant in it. Officer Weerden indicated that he proceeded to activate the emergency lights and directed the Acura to the side of the road near Jordan Lane [in] Wethersfield. After notifying Wethersfield police dispatch of the stop, he approached the passenger side of the vehicle and began engaging the occupants in conversation. While approaching the vehicle, Officer Weerden testified that he observed the front passenger do a ‘shoulder dip.’ This heightened his concern of the existence of illegal narcotics or a weapon. He observed two individuals in the front section and one individual in the rear seat. Officer Weerden testified that his observation of the front seated passenger (later identified as the defendant ...) was that this passenger ‘seemed out of it,’ ‘lethargic,’ ‘sweating,’ appeared to be ‘under the influence of something,’ and that he had ‘trouble keeping his head up.’ Officer Weerden indicated that the passenger's conduct was not consistent with the conduct of the other passengers in the vehicle.

"Officer Weerden testified that the operator of the vehicle, Pedro Alvarado, Jr., and no other occupant had a motor vehicle operator's license.

"Officer Weerden testified that he asked the driver of the vehicle if there was anything illegal in the vehicle. Officer Weerden observed the operator look at the defendant. After Officer Weerden told the operator not to look at the passenger, but to answer the question, [Alvarado] responded to Officer Weerden that there wasn't anything illegal, but the defendant had consumed alcohol. Officer Weerden testified that he did not smell any odor of alcohol and that based on his training and experience, he believed that the passenger, [the defendant], was under the influence of drugs. Further, Officer Weerden testified that since he believed the defendant was under the influence of drugs, he developed a concern about additional drugs and guns in the vehicle. He asked [the defendant], ‘what are you on?’ Officer Weerden also testified that he observed ‘loose tobacco’ on the front passenger floor which, based upon his training and experience, was consistent with illegal narcotics ingestion. Officer Weerden testified that he asked the defendant to exit the vehicle. Officer Weerden then did a ‘quick’ patdown of the defendant looking for weapons. After the patdown, [the defendant] was placed back in the vehicle.

"Officer Weerden testified that he searched the defendant's name through the computer system to determine if there were any outstanding warrants for him.

"Wethersfield Police Officer Kevin Foster arrived at the location. In preparation for a search of the vehicle, all three occupants were asked to exit the vehicle. Officer Brian Shea arrived with Officer Foster and informed Officer Weerden that the defendant was recently arrested for narcotic offenses.

"Officer Weerden and Officer Foster conducted a search of the interior compartment of the vehicle.

"Officer Weerden indicated that as a result of Officer Foster's search of the front seat passenger area, he observed a substance soaked in what he believed to be ‘PCP’ and a cell phone. Officer Foster seized this item, indicating to Officer Weerden what he had located. ...