State v. Hernandez

87 Conn. App. 464

867 A.2d 30

STATE OF CONNECTICUT v. GREGORY HERNANDEZ.

(AC 23384).

Appellate Court of Connecticut.

Argued November 18, 2004.

Officially released February 15, 2005.

Foti, Flynn and Hennessy, Js.

Louis S. Avitabile, for the appellant (defendant).

Jessica Probolus, special deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Gail P. Hardy, assistant state's attorney, for the appellee (state).

Opinion

HENNESSY, J.

The defendant, Gregory Hernandez, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, of possession of narcotics with the intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly denied his motion to suppress physical evidence and statements that he made to the police. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. On May 22, 2001, at approximately 10:06 p.m., the Waterbury police department received a 911 call complaining that the occupants of a maroon Honda were chasing and firing gunshots at a tan Mercury Topaz. While the complaint taker was collecting additional information, the dispatcher put out a general broadcast for police cars in the area of the Waterbury town green to be on the lookout for a maroon Honda wanted on a "shots fired" call. At approximately 10:10 p.m., the complaint taker finished typing her narrative of the call and officially entered the complaint into the police computer system. At 10:15 p.m., the dispatcher broadcast that the Honda currently was pursuing the Mercury away from town, toward the Waterbury police station.

At the time of the initial broadcast, Steve Pedbereznak, a Waterbury police officer, was outside the station preparing to transfer his personal belongings from his police cruiser to his personal vehicle. Alerted by the nature of the call and given his close proximity to the location where the Honda was last reported to be traveling, Pedbereznak entered his cruiser and circled the block. Approximately three minutes later, Pedbereznak saw a maroon Honda one-half block from the station. Pedbereznak immediately turned his cruiser around, began to follow the maroon Honda and radioed in a description of the vehicle as well as its license plate number. The complainants, who by that time had reached the station, when informed of Pedbereznak's findings, exclaimed, "That's the [license] plate!" That response was relayed to Pedbereznak, who then initiated a traffic stop of the Honda.

After stopping the Honda, Pedbereznak exited his cruiser, drew his weapon and, using his driver's side door as a shield, waited for backup. He ordered the defendant, who was driving the Honda, to turn off the vehicle's engine and throw the keys on the roof, and ordered the defendant and the passenger in the vehicle to put their hands outside the windows. Pedbereznak then asked the occupants if they had any weapons. They replied that they were unarmed.

The location of the stop was broadcast to backup units, which were advised to proceed with caution, as numerous weapons reportedly were involved. Gary Angon, another Waterbury police officer, was the first backup officer to arrive. Once Angon arrived, Pedbereznak ordered the defendant to step out of the vehicle and place his hands on his head. He then instructed the defendant to walk backward toward the sound of his voice. When the defendant came within reach, Angon grabbed the defendant and pulled his hands down behind his back in order to handcuff him. At that point, the defendant tensed. Angon asked the defendant whether he had a gun, contraband or anything that might prick him. Angon testified at the suppression hearing that he asked that question solely for his protection.

Angon then began performing a patdown search of the defendant's person. As he was running his hand down the defendant's back, the defendant blurted out, "She doesn't know anything about it. The dope's mine." The defendant then told Angon that he had drugs in the right front pocket of his pants. Angon reached into the defendant's right front pocket and pulled out a plastic bag containing a smaller piece of plastic that contained a brown chalk-like substance. Angon testified that, on the basis of his training and experience, he recognized the substance to be heroin. The defendant then was placed in the back of a police cruiser while Pedbereznak searched the Honda for weapons. No weapons were found. The complainants then were brought to the scene. Although they previously had identified the number on the license plate on the vehicle that the defendant was driving as having been the plate number on the vehicle involved in the shooting, at the scene they were certain that that number was not the one on the maroon Honda involved in the shooting.

Angon testified that while being transported to the station, the defendant was adamant about talking to someone in order to ensure that the female passenger of the vehicle was not arrested. Angon brought the defendant to the vice and narcotics squad where he was read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant signed a waiver form and proceeded to give a written statement in which he repeated his earlier oral statement that the drugs belonged to him and that the female passenger had no knowledge of them. The defendant testified that he cooperated with the police because he did not want the passenger to get involved.

The defendant was charged with possession of narcotics with the intent to sell in violation of § 21a-277 (a), to which he entered a plea of not guilty. The defendant then filed a motion to suppress all evidence obtained after the allegedly unconstitutional stop of the vehicle he was driving. After a hearing, the motion to suppress was denied. The defendant subsequently entered a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, reserving the right to appeal from the denial of the motion to suppress. This appeal followed.

The defendant claims that the court improperly denied his motion to suppress. Specifically, he claims that the initial stop of his vehicle was not supported by a reasonable and articulable suspicion and, even if the stop was justified at its inception, the stop became more intrusive than necessary to complete the investigation for which the stop was made. We will examine each of those claims in turn.

As an initial matter, we set forth our standard of review. "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 . . . ." (Internal quotation marks omitted.) State v. Jenkins, 82 Conn. App. 111, 115, 842 A.2d 1148 (2004).

I

The defendant first claims that the court improperly determined that the stop of his vehicle was based on a reasonable and articulable suspicion of criminal activity, as required by Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See also State v. Donahue, 251 Conn. 636, 642, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000). He argues that the dispatcher initially described the vehicle as a 1988 or 1989, four door, maroon Honda. Because the defendant was driving a 2000, two door, maroon¹ Honda, Pedbereznak could not have had the reasonable and articulable suspicion necessary to stop the vehicle. We disagree.

"The federal and state law of search and seizure in this area is well settled. Under the fourth amendment to the United States constitution and article first, [§ 7]. . . of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest. . . .

"Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicio. . . . Thus, [r]easonable and articulable...