State v. Tuck

90 Conn. App. 872

879 A.2d 553

STATE OF CONNECTICUT v. CURTIS TUCK.

(AC 24786).

Appellate Court of Connecticut.

Argued May 27, 2005.

Officially released August 23, 2005.

Dranginis, Bishop and DiPentima, Js.

Cameron R. Dorman, special public defender, for the appellant (defendant).

Christine Collyer, special deputy assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michael A. DeJoseph, deputy assistant state's attorney, for the appellee (state).

Opinion

BISHOP, J.

This case is about good citizenship and effective policing. The defendant, Curtis Tuck, appeals from the judgment of conviction for possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) and possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant raises two issues. He claims that the trial court improperly (1) denied his motion to suppress evidence pursuant to the fourth and fourteenth amendments to the United States constitution, article first, § 7, of the constitution of Connecticut, General Statutes § 54-33f and Practice Book § 41-12, and (2) prohibited the defendant from introducing evidence under General Statutes § 52-180, the business record exception to the hearsay rule. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the defendant's appeal. On December 4, 2001, Judy Goldstein, a prekindergarten teacher at the Side By Side community school, in Norwalk, was standing on the school playground with her students. Through a chain-link fence on the playground, she noticed the defendant and a woman, approximately twenty feet away from her, on Chestnut Street. Shortly thereafter, she noticed a SBJ Moving Company truck pull up alongside the defendant and the woman. Goldstein observed the defendant enter the truck through the passenger side. Goldstein witnessed an exchange between the defendant and the truck driver. She then witnessed the defendant climb out of the truck and enter a house at 15 Chestnut Street.

Believing that she had just witnessed a drug transaction, Goldstein contacted the Norwalk police department, which dispatched Officers Thomas Fern and Peter White to the school to speak with her. She described to the officers what she had witnessed, and stated that she had last seen the defendant and his female companion at 15 Chestnut Street. She gave the officers a description of their physical appearance, including their race, sex and clothing. Additionally, she told the officers that she believed she had witnessed a narcotics transaction.

After speaking with Goldstein, the officers went to 15 Chestnut Street, where they encountered the defendant and a woman, both of whom met the description given to them. As the officers approached, the couple began to walk away. The officers recognized the woman with the defendant as a prostitute and a drug user. Although the officers ordered the defendant and his female companion to stop, the defendant continued to walk away. The officers again ordered the defendant to stop. When he complied, the officers began to question him about illegal activity in the area. As the officers were speaking with the defendant, the officers observed that he looked nervous and repeatedly put his hands in his jacket pocket, even when asked to take his hands out. They asked the defendant if they could pat him down, but before they did so, the defendant confessed to possessing two bags of heroin. The defendant was arrested and the packets were seized.

At the police station, the police discovered thirteen more packets of heroin and $108 in the defendant's jacket pocket pursuant to an inventory search. The defendant was charged with possession of narcotics with the intent to sell in violation of § 21a-277 (a) and possession of narcotics with the intent to sell within 1500 feet of a school in violation of § 21-278a (b).

On April 16, 2003, the defendant filed a motion to suppress the heroin that was seized from him, claiming that the police stop and subsequent patdown had violated his constitutional rights to be free from unlawful search and seizure. Following an evidentiary hearing, the court denied the defendant's motion, finding on the basis of the totality of the circumstances, the officers had a reasonable and articulable suspicion to stop the defendant and to conduct a patdown. In denying the defendant's motion to suppress, the court concluded, on the basis of the information provided by Goldstein, that the officers "did that which could only be characterized as reasonable and acted in a reasonable fashion thereafter." Following a jury trial, the defendant was found guilty of both counts. He was sentenced to twelve years in prison, with six years special parole. This appeal followed.

I

The defendant first claims that the court improperly found that there was a reasonable and articulable suspicion to perform an investigatory stop and an ensuing patdown of his person. Specifically, he claims that the stop was predicated on mere speculation because Goldstein could not confirm that she had witnessed a narcotics transaction. He reasons that because the stop was not lawful, the officers did not have a reasonable and articulable suspicion to justify a patdown of his person. We disagree.

We first 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. Hernandez, 87 Conn. App. 464, 469, 867 A.2d 30 cert. denied, 273 Conn. 920, 871 A.2d 1030 (2005).

A

The defendant first claims that the court improperly concluded that the officers had a reasonable and articulable suspicion of criminal activity to justify the stop, as required by Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

"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 suspicion. . . . Thus, [r]easonable and articulable suspicion is . . . based not on the officer's inchoate and unparticularized suspicion or hunch, but [on] the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. . . . What constitutes a reasonable and articulable suspicion depends on the totality of the circumstances. . . . The determination of whether a specific set of circumstances provides a police officer with a reasonable and articulable suspicion of criminal activity is a question of fact for the trial court and is subject to limited appellate review. . . .

"An appeal challenging the factual basis of a court's decision that a reasonable and articulable suspicion exists requires that we determine, in light of the record taken as a whole, (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the [court's] conclusion that those facts gave rise to such a suspicion is legally correct." (Internal quotation marks omitted.) State v. Hernandez, supra, 87 Conn. App. 470-71.

The defendant claims that Goldstein's observation of him standing on Chestnut Street and then climbing into a truck to exchange something with the truck driver does not lead reasonably to the conclusion that he actually was selling drugs. He argues that it is not unreasonable to assume that he was giving the driver a handshake or exchanging something with the driver other than narcotics. The defendant further proffers that the fact that the transaction occurred in an area known for narcotics activity did not give the officers a reasonable and articulable suspicion to stop him.

The record reflects that the court properly found that the officers had a reasonable and articulable suspicion justifying the stop of the defendant. This conclusion is supported by the court's findings that the police gained information through a reliable citizen informant, that the Terry stop took place in a high crime area, that the defendant exhibited nervous and evasive behavior and that the defendant's companion was a known drug user.

The incident that gave rise to the police investigation was a report by a citizen informant, Goldstein. At the time of the incident, Goldstein was standing approximately twenty feet from the defendant. When the officers interviewed Goldstein, she recounted to the officers what she observed and "described the defendant and his companion almost exactly." She told the officers that she last saw the defendant entering a house at 15 Chestnut Street. She further stated that she believed she witnessed a narcotics transaction because narcotics transactions frequently occurred in the area, and "she saw an exchange in the truck, that money was exchanged. Something was given in return."

Our Supreme Court has stated that face to face conversations with informants...