State v. Ortiz

182 Conn.App. 580

190 A.3d 974

STATE of Connecticut

v.Monday J. ORTIZ

AC 39391

Appellate Court of Connecticut.

Argued February 22, 2018

Officially released June 12, 2018

Alice Osedach, 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 Richard L. Palombo, Jr., senior assistant state's attorney, for the appellant (state).

DiPentima, C.J., and Lavine and Pellegrino, Js.

PELLEGRINO, J.

The defendant, Monday J. Ortiz, appeals from the judgment of conviction rendered by the trial court following a plea of nolo contendere to the charges of possession of a sawed-off shotgun in violation of General Statutes § 53a–211 and possession of a weapon in a motor vehicle in violation of General Statutes § 29–38 (a). On appeal, the defendant claims that the trial court improperly denied his motion to suppress evidence seized during a warrantless search of his vehicle. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. At approximately 2 p.m. on November 22, 2013, Bridgeport Police Officer Kenneth Ruge was dispatched to the YMCA building on State Street in Bridgeport to investigate a report of an assault. The alleged assault took place at the Harrison Apartments, which are located in the same building as the YMCA. The dispatcher relayed to Ruge that the suspect was in his apartment with a shotgun. Ruge arrived at the building approximately four minutes later and was met shortly thereafter by Sergeant Joseph Szor and Officer Tyrone Teele. The three officers parked their patrol cars in front of the building on State Street and walked into the lobby area of the YMCA through the main entrance. While they were speaking with the receptionist, Samuel Sanchez approached the officers and identified himself as the victim of the assault.

Sanchez, who worked at the YMCA in the maintenance department, told the officers that the defendant, a resident of the apartment building, came up from behind him and punched him in the back of the head. The officers observed injuries to the back of Sanchez's head and called for medical assistance for him. Sanchez described the defendant as a "shorter, medium build, bald Hispanic male" and reported that he lived in apartment 417 and owned a shotgun.

As they were speaking to Sanchez, an unidentified man approached the officers and told them that the person they were looking for was sitting with a shotgun in a gray van in the parking lot. Ruge transmitted this information over his radio while the unidentified man showed them to a side door leading to the residential parking lot; the man waited for them at the door. Around the same time, Officers David Neary and Garrett Waddel arrived and, having heard Ruge's update over the radio, proceeded to the parking lot to meet the other three officers. The parking lot was fenced in, located on private property and required a key card to access it. Posted signs indicated that the lot was for permitted residents of the Harrison Apartments only. When the officers arrived, there was only one gray van parked in the residential lot.

The five officers went to the van and looked into it to see if anyone was inside. Although the windows of the van were tinted, the officers' ability to see inside the vehicle was not impeded. None of the officers saw the defendant or a shotgun in the van. The officers ran a license plate check on the van and learned that the plate did not belong to the van and that there was no information on record for the vehicle identification number.

Ruge, Szor and Teele returned to the apartment building to continue their investigation, while Neary and Waddel stayed behind in the parking lot by the van. The unidentified man held the door open so that the three officers could reenter the building from the parking lot. The officers took the elevator to the fourth floor and approached apartment number 417. They knocked on the door for several minutes and received no answer. The officers then returned to the elevator and, as the elevator doors opened, a Hispanic male matching the description given by Sanchez exited the elevator and walked directly to the door of apartment 417.

The officers stopped the man before he could open the door and asked his name; he identified himself as the defendant. He was then placed under arrest, hand-cuffed, and searched incident to the arrest. The officers seized a key fob, a 12 gauge shotgun shell, a screwdriver and a box cutter from the defendant's person. When asked if they could search his apartment, the defendant refused and told the officers to get a warrant.

The officers took the defendant in the elevator back to the first floor and outside to be placed in the back of Ruge's patrol car. Ruge and Teele remained with the defendant. Meanwhile, Szor took the key fob and returned to the parking lot. Along with Neary and Waddel, Szor approached the van again to look for a shotgun. Neary cupped his hands and peered through the tinted windows again and saw the barrel of a shotgun as well as a box with bullets spilling out of it. He stated aloud that he thought he saw the barrel of a gun. Waddel then looked and saw the gun also. Szor approached, pressed his face to the window, and saw the barrel of the weapon sticking out of a box on the backseat floor of the van. All three officers recalled cupping their hands to shield the sun while looking into the tinted windows of the van. Upon seeing the shotgun, Szor used the defendant's key fob to unlock the van and seized the shotgun.

The defendant subsequently was charged by information with one count of possession of a sawed-off shotgun, one count of possession of a weapon in a motor vehicle, and one count of assault in the third degree in violation of General Statutes § 53a–61 (a) (1). On March 2, 2016, the defendant filed a motion to suppress evidence obtained by the police as a result of the search of his vehicle.¹ On March 9, 2016, the trial court, Holden, J. , conducted a motion to suppress hearing and heard arguments from both parties. On March 10, 2016, Judge Holden denied the motion to suppress in an oral decision, finding that there was "probable cause [for the officers] to believe that the car contained contraband or evidence pertaining to a crime." On the same date, following the court's denial of the motion to suppress, the defendant entered conditional pleas of nolo contendere on the gun-related charges, reserving his right to appeal the denial of his motion to suppress.² The court, E. Richards, J. , also made a finding that the motion to suppress would have been dispositive of the gun-related charges. On May 12, 2016, Judge Richards sentenced the defendant to a total effective term of five years incarceration, execution suspended after fifteen months, followed by three years of probation. This appeal followed.³

The sole issue in this appeal is whether the seizure of the sawed-off shotgun from the defendant's vehicle was the product of an illegal, warrantless search in violation of the defendant's rights under the state and federal constitutions to be free from an unreasonable search and seizure. Specifically, the defendant argues that the warrantless search of his vehicle and the seizure of the sawed-off shotgun found within the vehicle was not justified under any of the following exceptions to the warrant requirement: (1) the search was incident to a lawful arrest of a recent occupant of a motor vehicle; (2) there was probable cause to believe that the vehicle contained contraband; and (3) the contraband was in plain view to the officers. In response, the state claims that the court correctly determined that the seizure of the shotgun was justified under the plain view doctrine. Because we agree with the state that the officers' plain view of the shotgun justified their seizure of it, we need not address the defendant's alternative arguments.⁴

We begin our analysis by setting forth the appropriate 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. Winfrey , 302 Conn. 195, 200–201, 24 A.3d 1218 (2011).

"Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law.... The trial court's determination on the issue, therefore, is subject to plenary review on appeal.... Because a trial court's determination of the validity of a ... search [or seizure] implicates a defendant's constitutional rights ... we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence.... However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) State v. Brown , 279 Conn. 493, 514, 903 A.2d 169 (2006).

We next set forth the applicable constitutional principles. "The fourth amendment to the United States constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures .... U.S. Const., amend. IV ; see also Conn. Const., art. I, § 7. Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause.... Under both the federal and state constitutions, a warrantless...