State v. DeMaio

945 A.2d 980

107 Conn.App. 462

STATE of Connecticut v. Mark DeMAIO.

No. 27596.

Appellate Court of Connecticut.

Argued January 17, 2008.

Decided May 6, 2008.

John C. Drapp III, special public defender, with whom, on the brief, was Joseph A. Jaumann, special public defender, for the appellant (defendant).

Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Donald S. MacCalmon, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and BEACH and McDONALD, Js.

McDONALD, J.

The defendant, Mark DeMaio, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279(a), and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279(d). On appeal, the defendant claims that the trial court improperly denied his motions to suppress evidence. We affirm the judgment of the trial court.

Before trial, the defendant moved to suppress statements and physical evidence obtained by the police after an investigative stop that occurred in East Haven on September 23, 2005. The defendant claimed that the police had stopped him without the requisite reasonable and articulable suspicion required by the federal and state constitutions and that the results of that stop should be suppressed.

The court conducted a hearing on the defendant's motions, and the state presented testimony from Officers David Cari, Brian Kelly and Joseph Mulhern of the East Haven police department. These officers were involved in the events that occurred up to and including the investigatory stop. The defendant presented testimony from Robert Moss, an investigator from the public defender's office.

At the conclusion of the hearing, the court found the following facts. On September 10, 2005, Cari, who had served for four years as a police officer and was trained in narcotics enforcement, arrested Paul DeMartino, a man whom Cari knew to be always truthful to him although DeMartino previously had never given Cari reliable information leading to an arrest. DeMartino informed Cari that he had purchased drugs numerous times from the defendant, a homeless man who peddled drugs. DeMartino informed Cari that the defendant was a drug courier for those coming to the Brick House Cafe and Michael's Cafe in East Haven. DeMartino told Cari that after the defendant asked him if he wanted to purchase drugs, the defendant would get on his ten speed bicycle and ride to the Wagon Wheel bar, a location in New Haven known to the police for drug transactions. According to DeMartino, the defendant would purchase drugs at the Wagon Wheel bar and, after placing the drugs in his bandana or in a pocket, would pedal back to East Haven and deliver the drugs. Cari himself knew the defendant was reputed to be a drug user and courier, and had seen the defendant riding into New Haven on his bicycle and returning to the Brick House Cafe or Michael's Cafe five or ten minutes later. Whenever Cari saw the defendant outside of these establishments, the defendant would run inside.

On September 23, 2005, at approximately 10:30 p.m., Cari was traveling westbound in a marked police car on Main Street in East Haven, when he observed the defendant leave the Brick House Cafe, mount his bicycle and ride westbound toward the New Haven town line. At this time, Cari requested unmarked vehicles to follow the defendant. Officers Mulhern and Kelly received information that the defendant was riding a bicycle westbound on Main Street toward New Haven, where it was suspected that he would purchase drugs to bring back into East Haven. Mulhern and Kelly were in an unmarked, older model Mercedes to conduct surveillance. Mulhern and Kelly followed the defendant across the East Haven town line into New Haven to the Wagon Wheel bar, and Mulhern parked the vehicle across the street facing away from the bar. Mulhern and Kelly had a clear and unobstructed view of the side of the building.

Upon arriving at the Wagon Wheel bar at approximately 10:30 p.m., the defendant dismounted his bicycle and leaned it against the building. From their vantage point, there was enough light for Mulhern and Kelly to observe the defendant "milling around" in front of the Wagon Wheel bar. As the defendant was standing in front of the bar, Mulhern witnessed a man approach the defendant and a "hand-to-hand transfer" took place, which did not resemble a handshake. Mulhern testified that he understood a hand-to-hand transaction to be consistent with a drug or money transfer. The other man left, and the defendant got on his bicycle, which had been leaning against the side of the building, and waited. The defendant, who was below a second story window, looked up toward the window. As the defendant leaned against the building, this window opened, and an arm extended out of the window. The defendant then pedaled away. Officer Mulhern did not see anything drop but inferred that something had been dropped from the window.

After Kelly radioed other officers, Mulhern and Kelly, traveling approximately one quarter of a mile behind the defendant, followed the defendant toward East Haven, maintaining consistent radio contact with Cari. As Mulhern and Kelly were following the defendant, he turned into a gasoline station and the officers drove by. Mulhern and Kelly continued to drive toward East Haven. At this point, other East Haven police officers followed the defendant into East Haven. Mulhern and Kelly drove to Dodge Avenue in East Haven, where Mulhern parked the car and shut off the vehicle's headlights while the officers waited for the defendant to reenter East Haven.

With East Haven police officers following him, the defendant turned left onto Burr Street and then turned onto Dodge Avenue. Kelly observed the defendant "erratically" riding "all over the road," and Kelly believed that the defendant posed a danger to himself and to others. A short time later, the defendant was stopped. Cari and other police officers also arrived at the scene after Kelly ordered the defendant to put his bicycle on the ground. The defendant complied, and Cari asked the defendant if he had any weapons or needles. The defendant informed Cari that he had a knife in his left front pocket. He also stated that he had a used needle in his sock. As Cari reached into the defendant's pocket to remove the knife, he felt a knife and what seemed to be, on the basis of his training and experience in narcotics enforcement, packaged narcotics in the form of a bundle of glassine envelopes wrapped with an elastic band. As Cari removed the knife and the bundle of glassine envelopes from the defendant's pocket, the defendant commented, "you got me." Field testing revealed that the envelopes contained cocaine, and the defendant was arrested.

The defendant moved to suppress his statement and the evidence seized following the investigatory stop that occurred on Dodge Avenue in East Haven on September 23, 2005, as the fruits of an illegal stop. After hearing oral argument, on January 26, 2006, the court, in an oral ruling, denied the motions to suppress.¹ On the basis of the facts set forth previously, the court concluded that a reasonable and articulable suspicion existed to stop the defendant. Thereafter, the jury found the defendant guilty of both charges. The court sentenced the defendant to five years of incarceration and two years of special parole. This appeal followed.

As an initial matter, we note that our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. As stated by our Supreme Court: "A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [When] 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 court's memorandum of decision...." (Internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 92, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006).

On appeal, the defendant claims that the court improperly concluded that the officers had a reasonable and articulable suspicion of criminal activity to justify the stop, as required by Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).² In support of his claim, the defendant argues that the court erroneously concluded that the informant was reliable and that the facts of record as found by the court do not establish that the police had a reasonable and articulable suspicion to stop him.

"Under the fourth amendment to the United States constitution ... a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime." (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 281, 764 A.2d 1251 (2001).

"[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.... Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868.... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity." (Citations omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 505, 838 A.2d 981 (2004); see also Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). "In determining the constitutional validity of an investigatory stop, both the United States Supreme Court and our Supreme...