State v. Rolon

337 Conn. 397

253 A.3d 943

STATE of Connecticut

v.Richard ROLON

SC 20423

Supreme Court of Connecticut.

Argued June 5, 2020

Officially released November 13, 2020^**

Ronald S. Johnson, with whom was Shawn Adams, for the appellant (defendant).

Sarah Hanna, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.^*

ECKER, J.

The defendant, Richard Rolon, appeals from the judgment of conviction rendered by the trial court following his conditional plea of nolo contendere to the charge of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court improperly denied his motion to suppress evidence seized after his warrantless detention in the parking lot of a multiunit apartment building, contending that he was not an "occupant" within the "immediate vicinity" of the premises subject to a search warrant under the exception to the fourth amendment's warrant requirement established in Michigan v. Summers , 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), and Bailey v. United States , 568 U.S. 186, 193, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013) ( Summers exception). We agree and, therefore, reverse the judgment and remand the case to the trial court with direction to grant the defendant's motion to suppress.

The controlling facts are those found by the trial court following an evidentiary hearing on the defendant's motion to suppress. "Members of the Statewide Narcotics Task Force conducted a six week long investigation into the suspected narcotics trafficking of an individual named Richard Rivera .... During the course of that investigation, an undercover police officer made a number of controlled drug purchases from Rivera at his home located at apartment C-1 of 12-14 South Street, Hartford.¹ On the basis of that investigation, [the] police applied for and obtained a search warrant for Rivera's apartment, as well as arrest warrants for Rivera based on his prior sales of narcotics to the undercover officer.

"After securing these warrants, [the] police developed an operational plan for their coordinated execution. On the date the warrants would be served, the plan contemplated that [the] police would conduct surveillance of the driveway and parking area of 12-14 South Street, doing so by means of a city of Hartford street camera that [the] police could remotely access and direct toward the target location. This camera allowed [the] police from an off-site location to view via a live feed the events occurring in the targeted area. The plan also anticipated that an additional controlled purchase from Rivera would be arranged by the undercover officer, with that purchase to be conducted at a location some distance away from Rivera's South Street apartment. [The] [p]olice would be prepared to arrest Rivera when that sale was consummated and then to immediately execute the search warrant at his apartment. Between the officers assigned to surveillance, those responsible for the arrest of Rivera, and the members of the search warrant execution team, approximately twenty to thirty police officers were tasked with carrying out the operational plan.

"On January 31, 2017, the police put their plan into effect. Consistent with that plan, officers established their street camera surveillance of the driveway and parking area of 12-14 South Street and monitored the activities occurring there from approximately 10 a.m. until noon.² At approximately 11:13 a.m., [officers] on the surveillance team saw a car enter the driveway of the target address and back into a parking space against a chain-link fence that separated 12-14 South Street from a neighboring parcel. The car was recognized by officers as one that Rivera or his criminal associates had been seen operating during the course of the police investigation.

"As the car was backing into the space, [the] police observed a man walk from the area of the rear entrance of 12-14 South Street toward the area in which Rivera's car had just parked. The man's identity was unknown to [the] police at the time, as he had not previously come to their attention during the course of their investigation into Rivera's activities. The man, who was subsequently identified as the defendant ... walked past the driver's side door of Rivera's car and then out of view of the camera. As [the defendant] passed Rivera's car, [the] police saw the driver's door of the car open and a man emerge from the driver's seat. Upon exiting his vehicle, this man, who [the] police recognized and later confirmed was Rivera, stood just outside his car between the open door and the car itself. [The] [p]olice then observed Rivera begin to engage in a conversation with someone who was out of the camera's view. In order to determine the identity of the party with whom Rivera was conversing, [the] police slightly adjusted the direction of the camera. By doing so, [the] police were able to observe that the other party to this conversation was [the defendant], who was standing by the driver's door of a second car that was parked in the space next to Rivera's.³ [Because] the surveillance camera did not have audio capability, [the] police were unable to overhear the content of the conversation.

"The conversation lasted approximately thirty seconds and appeared to end when Rivera, at approximately 11:14 a.m., sat back down in his driver's seat and closed his car door. As that occurred, a woman was seen walking from the rear of 12-14 South Street toward the area of Rivera's and [the defendant's] cars. This woman had not previously come to the attention of [the] police during their investigation into Rivera but was later identified as the [defendant's codefendant], Yashira [A.] Espino. As Espino approached the cars, [the] police observed [the defendant] reenter the camera's view, pass by Espino, and return to the rear entrance area of 12-14 South Street.

"Approximately [one] minute later, at 11:16 a.m., [the] police saw [the defendant] again leave the rear of 12-14 South Street and walk back toward his car. Within seconds, [the] police observed [the defendant's] car, a dark Camry with New Jersey license plates, exit its parking space and proceed down the driveway toward South Street, passing the front of Rivera's parked car while doing so. As soon as [the defendant's] car passed Rivera's, [the] police saw Rivera pull his car out of its parking space and follow [the defendant's] car down the driveway. The positioning of the street camera did not allow [the] police to see the cars actually entering onto South Street.

"Approximately forty-five minutes later, and in accordance with the police operational plan, Rivera was arrested on Franklin Avenue after selling an additional quantity of narcotics to the undercover officer. Upon learning of Rivera's arrest, Detective [Sean] Mikeal, who was assigned to the search warrant execution team, drove immediately to the arrest location and retrieved Rivera's keys to apartment C-1 of 12-14 South Street .... Mikeal then returned to South Street and rejoined the other members of the search warrant execution team who were at that time staged in several vehicles in close proximity to the target address preparing to execute the search warrant at Rivera's apartment.

"As Mikeal and the other members of his team were about to drive their vehicles into the driveway of 12-14 South Street to commence the execution of the search warrant, [the defendant's] Camry was observed entering the driveway just ahead of them and then backing into the same space it had occupied earlier. The car's reappearance on the scene, particularly in the moments just before the warrant's execution, was entirely unexpected by [the] police. Even before any occupants of [the defendant's] car had exited it, the search warrant execution team members drove their vehicles into the driveway of 12-14 South Street. Approximately four or five officers, all of whom were wearing shirts or vests clearly identifying themselves as police officers, immediately exited their vehicle and approached [the defendant's] parked car—at least one of the officers doing so with [a] gun drawn. ... Mikeal, who may or may not have had his gun drawn, went directly to the driver's side of [the defendant's] car. Trooper Dawn Pagan simultaneously approached the passenger side of the vehicle. These officers determined that the car was occupied by a male driver later identified as [the defendant], a female front seat passenger later identified as Espino, and a small child in the backseat.

"Upon reaching the driver's door, Mikeal opened the door and immediately detected the odor of marijuana coming from inside the vehicle. From his vantage point outside the vehicle, Mikeal also observed a marijuana cigarette in the car's center console and a number of white baggies in the area of the driver's side door handle—baggies he recognized to be of a type used for the packaging of heroin. As Pagan reached the passenger's door, she, too, detected the odor of marijuana coming from the vehicle and observed a marijuana cigarette in the front center console area. Both [the defendant] and Espino were then removed from [the] vehicle and placed into custody. [They] later informed [the] police that Espino was the tenant in apartment C-2 of 12-14 South Street and that [the defendant] frequently resided with her at that address." (Footnote altered; footnotes in original; footnotes omitted.)

On the basis of the evidence obtained during the search and seizure of the defendant, Espino, and the defendant's motor vehicle, the police obtained a search warrant for Espino's apartment at C-2 of 12-14 South Street. During the execution of that search warrant, the police discovered more than 5000 bags of powdered...