State v. McCormack, 31584.

132 Conn.App. 490

33 A.3d 264

STATE of Connecticut

v.John McCORMACK.

No. 31584.

Appellate Court of Connecticut.

Argued Sept. 22, 2011.Decided Dec. 13, 2011.

Alan Jay Black, for the appellant (defendant).

Samuel S. Saltman, certified legal intern, and Harry Weller, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Thomas M. DeLillo, assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEACH and BEAR, Js.

BEAR, J.

The defendant, John McCormack, appeals from the judgments of conviction, rendered after he entered conditional pleas of nolo contendere to the offenses of larceny in the first degree in violation of General Statutes § 53a–122, burglary in the third degree in violation of General Statutes § 53a–103 and stealing a firearm in violation of General Statutes § 53a–212. On appeal, the defendant claims that the trial court improperly denied his motion to suppress certain evidence. We disagree, and, accordingly, affirm the judgments of conviction.

In its September 8, 2008 memorandum of decision denying the defendant's motion to suppress, the trial court set forth the following facts.¹ “During the early months of 2007, a rash of residential burglaries occurred in the Norwich/Bozrah area near Wawecus Hill Road, Briar Hill Road (Norwich) and South Road (Bozrah). One such burglary occurred in the early afternoon on February 14, 2007, at 12 Wawecus Hill Road at a home owned by [Leon] and [Rena] Barnowski. [Rena] Barnowski was preparing to leave her home on a clear, cold day. She saw a person wearing a black or blue colored sweatshirt with hood pulled over the head with dark pants walking in front of her home. The individual was of an unknown race but appeared to have the upper body shape of a man. She left home and returned approximately one hour later finding her home broken into with several items of personal property stolen including her husband's .38 caliber handgun.

“Two days prior to the break-in, [Leon and Rena] Barnowski had seen a similar looking person walking by their home between 12 and 2 p.m. [Leon Barnowski] described him as a suspicious looking person with a dark colored hooded sweatshirt with the hood pulled over his head. He was looking down in a manner that was not consistent with the normal people seen walking on their street in their rural neighborhood. Their view was clear and unobstructed and [at] a distance of 90 to 100 feet.

“After the break-in on February [14], the Barnowskis supplied information to a trooper from the Connecticut state police of the burglary, [a] description of the individual seen on February [12] and [14] and the items stolen which included cash, a flashlight and the handgun. The trooper in turn disseminated the information to local police departments including the Norwich police.

“During the time period of the Barnowski burglary, other burglaries were occurring in the street areas in question. Trooper [Harold] French, who was investigating those crimes, developed a similar description from another source or witness. [Scott] Carr of 273 Old Salem ... Road, Bozrah, gave a statement on March 19, 2007, indicating that he observed a person described as a mixed male Hispanic and white wearing snow camo pants, a white jacket with a black hood or sweatshirt underneath with the hood over his face.... Carr's home was broken into by an unknown burglar.... Carr also described the individual as having his hood on and his face was down.... Carr saw the man shortly after his home was broken into in and around the time the Barnowski home was burglarized. That information was also supplied to the Norwich police department by the state police.

“During the lunch hour of March 21, 2007, [Rena] Barnowski saw an individual matching the description of the person she saw walking by her house on February [12] and [14]. She contacted her husband who contacted the Norwich police department. Officers [Joseph] Dolan and [Peter] Camp were dispatched to the area in question. Each officer was aware that the individual matching the description had been seen in the Wawecus Hill Road area during the time that the previous burglaries had occurred and that a handgun had been stolen.

“Both officers observed the defendant walking on Carey Lane in Norwich after directions as to his whereabouts [were] supplied by [Rena] Barnowski. He was wearing a black hooded sweatshirt with the hood pulled over his head. He had his hands in the pockets of his sweatshirt.

“Officer Dolan ordered the defendant to remove his hands from his sweatshirt pocket and the defendant complied. He then advised the defendant that he was not under arrest and that he was detained. The officer then handcuffed the defendant for his and the officer's safety. Officer Dolan then began to pat him down for weapons. Immediately while patting him down, Dolan saw a handgun in his sweatshirt pocket. The defendant told the officer that he was not properly licensed nor legally permitted to carry the gun. The defendant was then advised of his rights and placed under arrest.”

The state initially charged the defendant with various criminal violations in multiple dockets.² The defendant moved to suppress the evidence obtained by the police during the investigatory stop, including his statements to the police, as fruit of an unlawful search and seizure pursuant to the fourth amendment of the United States constitution and article first, § 7, of the constitution of Connecticut. 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, under the totality of the circumstances, the defendant's detention and search were justified by a reasonable and articulable suspicion. Specifically, the court noted that the police were “sent out to locate an identifiable individual who was seen in the area prior and subsequent to the specific burglaries in the same general locale by at least three individuals.” In addition, the court noted that descriptions of the burglary suspect given to police, while not identical, “were significantly similar describing a male with dark clothes, a hooded sweatshirt, looking down with hands in his pockets.”

After the court denied his motion to suppress, the defendant entered conditional pleas of nolo contendere to one count each of larceny in the first degree, burglary in the third degree and stealing a firearm. ³ The court accepted the pleas and sentenced the defendant to a total effective term of twelve years incarceration, execution suspended after four years, followed by five years probation.⁴ The state entered a nolle prosequi on each of the other open counts. This appeal followed.

On appeal, the defendant claims that the trial court improperly denied his motion to suppress. The defendant argues that, because there was no articulable suspicion justifying his detention and the subsequent search of his person, the court's erroneous denial of his motion violated his rights under the state and federal constitutions.⁵ We are not persuaded.

“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.” (Citation omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

The standards governing our analysis under article first, §§ 7 and 9, of our state constitution “mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], with regard to [federal] fourth amendment analysis....” State v. Oquendo, 223 Conn. 635, 654, 613 A.2d 1300 (1992). “[T]he touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security ... and that reasonableness depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.... [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.... [T]he officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions.” (Citations omitted; internal quotation marks omitted.) State v. Kelly, 129 Conn.App. 109, 117–18, 19 A.3d 223, cert. granted, 302 Conn. 920, 28 A.3d 338 (2011).

“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 suspicion.... 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.... The threshold for reasonable and articulable suspicion requires less than probable cause.... The determination is not a technical one, but is informed by the factual and practical considerations of everyday life.... In this respect, the perceptions of an experienced police officer might have more significance to him in...