State v. Sulewski, No. 26394.

Page 485

912 A.2d 485

98 Conn.App. 762

STATE of Connecticut v. Kazmierz SULEWSKI.

No. 26394.

Appellate Court of Connecticut.

Argued September 13, 2006.

Decided December 19, 2006.

COPYRIGHT MATERIAL OMITTED

Jon L. Schoenhorn, Hartford, with whom was Johanna M. Canning, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Scott J. Murphy, state's attorney, and Paul N. Rotiroti, assistant state's attorney, for the appellee (state).

DiPENTIMA, ROGERS and PELLEGRINO, Js.

ROGERS, J.

The issue in this appeal is whether the trial court properly denied the defendant's motion to suppress items found at his residence following an investigative or Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The defendant, Kazmierz Sulewski, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere¹ to possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b). The court accepted the defendant's plea after it denied his motion to suppress. On appeal, the defendant claims that the court improperly denied his motion to suppress, which was based on a motor vehicle stop that was allegedly invalid under the federal and state constitutions.² We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant's appeal. On December 5, 2001, a confidential informant engaged in a controlled buy of narcotics from the defendant. At the time of the transaction, the defendant was known to the confidential informant only as "Kaz," a Polish male from Bristol who used a van owned by American Home Patient, Inc., to deliver cocaine. After the police confirmed that a hand-to-hand transaction involving a substance that tested positive for cocaine had taken place, Officer Jerry Chrostowski of the New Britain police department conducted further investigation regarding the van driven by the defendant. Chrostowski ascertained that American Home Patient, Inc., was located in New Britain and closed at 5 p.m., which was a little more than one hour after the controlled buy had taken place. Chrostowski set up surveillance, saw the defendant exit the business and drive away in the same delivery van that was observed during the controlled buy.

A short time later, a marked police cruiser, driven by a fully uniformed police officer, Maurice Violette, also of the New Britain police department, stopped the defendant, having been directed by Chrostowski to stop the van and to obtain the identity and address of the driver because the driver had recently engaged in an illegal narcotics transaction. Violette told the defendant that he was investigating an incident in which an automobile similar to the defendant's had been involved. Violette testified that although this statement was not accurate, he made it in order to obtain the defendant's name and address. Once Violette obtained that information, he returned the defendant's license and registration and told the defendant he was free to leave. During the stop, the defendant was not asked to leave his van, he was not handcuffed and the van was not searched by the police. The stop was brief, lasting approximately five minutes. The information gathered from this stop, along with an additional controlled buy and further surveillance, was later used as the basis to obtain a January 3, 2002 search warrant for the defendant and his residence.

On May 17, 2004, the defendant filed a motion to suppress all the evidence seized from his residence on January 4, 2002, as the fruits of an illegal motor vehicle stop to obtain the defendant's identification information. The defendant claimed, inter alia, that the stop was illegal because there was no lawful basis to conduct a stop solely to obtain his identification, and there was no reasonable and articulable suspicion allowing for the search and seizure of his person. After conducting an evidentiary hearing on the defendant's motion and hearing oral arguments, the court denied the motion to suppress. In its written memorandum of decision denying the defendant's motion, the court found that a reasonable and articulable suspicion existed to stop the vehicle, reasoning that there is a legitimate law enforcement purpose in not immediately effectuating an arrest of a suspect under these circumstances when the identity of a confidential informant in a controlled buy would be exposed.

The defendant then entered a plea of nolo contendere conditioned on his right to appeal from the court's denial of his motion. He was sentenced to a total effective term of incarceration of fifteen years, execution suspended after eight years, followed by five years of probation. This appeal followed. Additional facts will be set forth as necessary.

As an initial matter, we note that "[o]ur 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 . . . . [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court's memorandum of decision . . . ." (Internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 92 890 A.2d 474, cert. denied, ___ U.S. ___, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006).

I

The defendant claims that the court improperly denied his motion to suppress because under the fourth amendment to the United States constitution,³ the police did not have a reasonable and articulable suspicion at the time of the stop, and there was no legitimate basis for the stop because its purpose was to obtain identification and residence information. We disagree.⁴

A

The defendant argues that a reasonable and articulable suspicion did not exist at the time of the stop because more than one and one-half hours⁵ elapsed between the time of the transaction and the motor vehicle stop, and, therefore, the stop was invalid under Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868.⁶

"Under the fourth amendment to the United States constitution . . . a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime." (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 281, 764 A.2d 1251 (2001).

"[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.... Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868.... 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." (Citations omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 505, 838 A.2d 981 (2004); see also Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

"The determination of whether a reasonable and articulable suspicion exists rests on a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct." (Internal quotation marks omitted.) State v. Santos, supra, 267 Conn. at 504-505, 838 A.2d 981.

The court based its finding of a reasonable and articulable suspicion on the observations of police officers and the reliability of the confidential informant. The defendant challenges the factual bases of both. The defendant first argues that the court erroneously found that the officers could conclude that the defendant had engaged in a narcotics transaction. Sergeant Shawn Farmer of the New Britain police department testified that he gave the confidential informant money to purchase narcotics from the defendant and then radioed other officers, including Chrostowski, to set up surveillance in the area of Maple Street, where the controlled buy was to occur. Farmer testified that he parked near the area of the controlled buy and saw the confidential informant walk through a backyard but lost sight of him. He further testified that within two minutes, he received a radio transmission that the transaction was complete and that the confidential informant returned to him and stated that the defendant had just sold him a substance that later produced a positive reaction for cocaine. Chrostowski testified that he observed the confidential informant standing at the arranged location on Maple Street, observed the defendant exit from the driver's side of a white American Home Patient van and engage in an exchange with the confidential informant consistent with a hand-to-hand narcotics transaction. The defendant maintains that because Chrostowski only saw the confidential informant standing at the arranged location, but did not observe the confidential informant emerge from the backyard, the officers could not conclude that the defendant was the source of any narcotics obtained by the confidential informant that day. The court had ample evidence from which it could conclude that the defendant had engaged in a hand-to-hand narcotics transaction with the confidential informant that day. The court found that the facts of this case exceeded the reasonable and articulable standard required by case law and stated that the stop was predicated on probable cause to believe that the defendant recently had engaged in an illegal narcotics sale. The court had before it testimony from Chrostowski that he personally...