State v. Edmonds

151 Conn.App. 763

96 A.3d 607

STATE of Connecticut

v.Michael EDMONDS.

No. 35451.

Appellate Court of Connecticut.

Argued April 17, 2014.

Decided July 29, 2014.

Nicole Donzello, senior assistant public defender, with whom was Bradford Buchta, assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Marc R. Durso, assistant state's attorney, for the appellee (state).

GRUENDEL, ALVORD and WEST, Js.

WEST, J.

The issue in this appeal is whether the trial court properly denied the defendant'smotion to suppress narcotics evidence obtained by the police pursuant to a patdown search for weapons. The defendant, Michael Edmonds, appeals from the judgment of conviction rendered by the trial court following a conditional plea of nolo contendere to one count of possession of narcotics with intent to sell in violation of General Statutes § 21a–277 (a), and one count of failure to appear in the first degree in violation of General Statutes § 53a–172.¹ The issue in this appeal is a two-tiered dispute. First, the parties disagree as to the moment at which the defendant was seized. The defendant contends that he was seized either when the police approached him in a restaurant parking lot, or when a police officer commanded him to stop. The state contends that the defendant was seized at a later point in time, when the police conducted a patdown search for weapons. Second, the parties dispute whether, at the moment of seizure, the police had a reasonable and articulable suspicion of criminal activity. The defendant claims that the police did not have a reasonable and articulable suspicion of criminal activity when he was seized, and therefore, the narcotics discovered pursuant to a patdown search were obtained in violation of his rights under article first, §§ 7 and 9, of the constitution of Connecticut, and the fourth amendment to the United States constitution. We disagree with the defendant with respect to both tiers of the dispute, and conclude that the defendant was seized when the police conducted a patdown search, at which time there was a reasonable and articulable suspicion of criminal activity. We thus affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In the original information, the state charged the defendant with possession of narcotics and possession of narcotics with intent to sell. The defendant pleaded not guilty to both charges and elected to have a jury trial. On the day of trial, the defendant failed to appear and was rearrested pursuant to a court order. Thereafter, the defendant filed a motion to suppress the narcotics seized by the police pursuant to a patdown search for weapons. The court, Rodriguez, J., held a hearing on the defendant's motion to suppress on February 20, 2013.

In denying the defendant's motion to suppress, the court set forth the following facts in an oral decision. “On January 28, 2011, at approximately 7 p.m. while on patrol in Bridgeport on Madison Avenue travelling northbound in a marked car and in uniform, Officers Elson Morales and Joseph Lawlor, the operator, observed [the defendant] standing alone behind a Subway Sandwich eatery in the shadow of the parking lot. The business is located on Madison Avenue near Capitol Avenue in Bridgeport and is considered a high crime area by law enforcement where violent crimes are commonplace. Officer Morales knew of prior commercial robberies in the area and involving this particular eatery.

“It was dark outside and the two officers were in radio contact with their supervisor, Sergeant [Ronald] Mercado. The police were anticipating the presence of visiting ... teenagers, from other areas due to a scheduled basketball game that evening at the nearby Central High School. The two officers informed Sergeant Mercado by radio of the presence of the defendant whom they saw from their police cruiser as they approached a red light.

“The two officers and Sergeant Mercado entered the parking lot at the same time and through the only two entrances into the eatery's parking lot. One entrance is from Capitol Avenue and the other is from Madison Avenue. As soon as the two officers arrived and as the defendant started to immediately walk away from the officers, he was observed by Officer Morales and Officer Lawlor to engage in movements around his waistband as he walked.

“While the police exited their vehicles and approached the defendant, he spontaneously yelled out ‘I didn't rob anyone’ and he kept saying that he was embarrassed. At this point, the police conducted a pat-down of the defendant for their safety and found what later was determined to be packaged narcotics which [fell] from the defendant's waistband area during the patdown for weapons.”

Following an evidentiary hearing, the court denied the defendant's motion to suppress. On the basis of the facts previously set forth, the court concluded that the defendant's presence in the parking lot of a Subway restaurant that previously had been robbed, and which was located in a high crime area, in addition to his “actions and utterances in response to the police presence ... did create a reasonable and articulable suspicion that warranted a patdown search of the defendant for the safety of the officers.” The court thus found that “the officer search of [the defendant] was based on valid justifiable reasons, which were created by the defendant himself. Accordingly, the defendant's motion to suppress is denied.”

Subsequent to the court's denial of the defendant's motion to suppress, the state filed a substitute information charging the defendant with one count of possession of narcotics with intent to sell and one count of failure to appear. The defendant entered a conditional plea of nolo contendere to both charges. The court, Arnold, J., accepted the defendant's plea and sentenced him to ten years incarceration suspended after four years served with three years probation on the count of possession of narcotics with intent to sell, and to four years incarceration on the count of failure to appear. The court further ordered that the sentences run concurrently for a total effective sentence of ten years incarceration suspended after four years served with three years probation. This appeal followed.

“Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. 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]here the legal conclusions of the court are challenged, 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.... We undertake a more probing factual review when a constitutional question hangs in the balance.... In the present case, in which we are required to determine whether the defendant was seized by the police, we are presented with a mixed question of law and fact that requires our independent review.” (Citations omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843–44, 955 A.2d 43 (2008).

I

We must first determine at what point the defendant was seized. The defendant claims that he was seized at two alternative points in time. First, he claims that he was seized when the police exited their vehicles and approached him in the Subway parking lot. Second, and in the alternative, he claims that he was seized when Mercado “exited his vehicle and verbally commanded [him] to stop.” The state rejects both of the defendant's claims as to the moment of seizure. It argues, as a threshold matter, that the defendant's alternative claim that he was seized when Mercado issued a verbal command to stop was not properly preserved for this appeal. The state also disagrees with the defendant's claim that he was seized when the police officers approached him, and instead, it contends that the court properly determined that the defendant was seized when Morales conducted a patdown search for weapons. We agree with the state that the defendant did not properly preserve his claim for our review with respect to Mercado, and that the defendant was seized when Morales conducted a patdown search for weapons.

A

We first conclude that the defendant's claim that he was seized when Mercado commanded him to stop was not preserved for review on appeal. We therefore decline to review it.

At the hearing on the motion to suppress before the trial court, the defendant argued that he was seized at two alternative points in time: “at the moment that the two police cars were in the parking lot and the three officers exited their vehicles,” or alternatively, “when he was told to submit to a patdown.” The defendant did not claim, as he presently does on appeal, that he was seized when Mercado “commanded the defendant to stop.” In asserting this unpreserved claim on appeal, the defendant did not affirmatively request review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).² Nevertheless, pursuant to our Supreme Court's recent decision in State v. Elson, 311 Conn. 726, 740–55, 91 A.3d 862 (2014), we must afford Golding review when the defendant has “present[ed] a record that is [adequate] for review and affirmatively [demonstrated] that his claim is indeed a violation of a fundamental constitutional right.” (Internal quotation marks omitted.) State v. Elson, supra, at 755, 91 A.3d 862.

We conclude that the defendant has failed to present a record that is adequate for review, and thus, Golding review is not warranted. In support of this conclusion, we note that there is no record of Mercado's personal account of the incident in question because he was not called as a witness to testify at the defendant's motion to suppress hearing....