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State v. Cofield

Court of Appeals of Connecticut

May 4, 1990

STATE of Connecticut
v.
Sherman COFIELD.

Argued Dec. 8, 1989.

Page 157

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, was John T. Redway, State's Atty., for appellee (state).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and LAVERY, JJ.

[22 Conn.App. 11] DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction rendered after entry of a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, [1] to charges of possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a), possession of marihuana in violation of General Statutes § 21a-279(c), and interfering with an officer in violation of General Statutes § 53a-167a. The defendant received a sentence of three years and nine months with no probation. The issues on appeal are whether the trial court properly denied the defendant's motion to suppress evidence obtained at the time of his arrest and whether the court properly granted permission to the state to retain a copy of the presentencing investigation report prepared for the defendant's sentencing hearing.

[22 Conn.App. 12] On the evening of November 21, 1987, the defendant drove a companion to a parking lot in the Maplewood Terrace housing project in Middletown. After dropping off

Page 158

his companion, he met two other men with whom he was acquainted. The two men entered the defendant's parked car, which was a 1988 white Pontiac LeMans.

On the same evening, Frank Violissi, the officer in charge of the street crime unit of the Middletown police department, received a telephone call from a confidential informant about a black male selling drugs from a car in a parking lot at Maplewood Terrace. Violissi arranged to meet the informant and drove to the meeting in an unmarked car with two other members of the Middletown police department. The three officers met with the informant at a location a short distance from Maplewood Terrace and arranged for the informant to make a controlled buy of narcotics from the alleged drug seller. The informant left to make the buy and the officers remained in their vehicle at that location. From where they waited, the officers could not see the housing project.

About fifteen minutes later, the informant returned with what appeared to be cocaine. He told the officers that he had purchased the drugs from a black male named Sonny who was wearing a red hat and was seated in the driver's seat of a 1987 blue Chevrolet Beretta. Two other men were also seated in the vehicle. The informant also told the officers that the car was parked in a specific spot in parking lot three of Maplewood Terrace and was facing the road.

Violissi then drove to Maplewood Terrace with the other officers and entered lot three, which was well lighted and almost full. He turned off the headlights of the vehicle so as not to be seen and drove toward [22 Conn.App. 13] a white car in which three men were seated. The police observed the vehicle from the rear for about thirty seconds at a distance of about ten to fifteen feet and saw no suspicious activity. The court found that the car was "parked in a place, an area described by [the] informant." Violissi then backed up the police car about thirty-five feet to where it could not be seen by the occupants of the white car. He and one of the other officers, both dressed in plain clothes with badges on chains around their necks, decided to approach the white car on foot. Violissi testified that on the basis of his experience, his "gut feeling," and his knowledge that this was a high crime area, he believed that he was in a potentially life threatening situation. Consequently, he drew his gun and carried it by his side while walking quickly to the driver's side of the car. The other officer approached the passenger side of the car in the same manner but did not draw his gun.

When Violissi reached the rear driver's side of the white vehicle, the driver looked in his outside rearview mirror and saw a man with a gun rapidly approaching his door. He turned around and looked at Violissi through the car window. Violissi testified and the court found that the defendant then exited the car, pushed Violissi, and began throwing things from his clothing. Violissi testified that he recognized the objects being thrown as money and contraband. He identified himself as a police officer and grabbed the defendant with his left hand while holding his gun in his right hand. A scuffle ensued in which Violissi stuck the barrel of his gun into the defendant's mouth in order to subdue him. All three occupants were subsequently arrested and charged with various crimes. The blue Chevrolet Beretta, the person who sold cocaine to the informant and the two other occupants of the Beretta were never found.

[22 Conn.App. 14] I

In its ruling on the suppression motion, [2] the trial court, Stengel, J., found that the informant was reliable, that the police officers had been able to corroborate the informant's information, and that the officers had a reasonable and articulable suspicion of criminal activity on which to base their initial investigative approach to the defendant's car. It further found that suspicion ripened into probable cause to arrest the defendant when the defendant pushed Violissi

Page 159

and threw drugs and money on the ground.

On appeal, the defendant challenges the court's conclusion that the initial stop was justified by a reasonable and articulable suspicion of criminal activity. He argues that he was seized within the meaning of the fourth amendment to the United States constitution when he saw Violissi approaching his car with his gun drawn, that the police did not have the requisite level of suspicion for the stop and that the evidence obtained therefrom should have been suppressed. [3]

The central issue of this appeal is whether the police had a reasonable and articulable suspicion of criminal activity to justify an investigative stop. The threshold issue is whether an investigative stop occurred at all, and, if so, when. The state argues that the defendant was not seized when he saw Violissi with the gun and, alternatively, that Violissi had a reasonable and articulable suspicion of criminal activity at that time. While it is true that not all contacts between police officers [22 Conn.App. 15] and public citizens amount to seizures implicating constitutional rights; Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968); a seizure occurs when "the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen...." Id. State v. Williamson, 10 Conn.App. 532, 540, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987). Examples of actions by police that might indicate a sufficient show of authority include "the threatening presence of several officers, the display of a weapon by an officer, [or] some physical touching of the person of the citizen...." (Emphasis added.) United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497, reh. denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980).

The state in the present case argues that no seizure took place despite the presence of the drawn gun because Violissi had not used the gun to communicate his authority or to control the defendant. The test for determining whether a seizure has taken place, however, is not whether the officer intended to communicate his authority to the defendant by display of a gun, but whether, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id.; State v. Martin, 2 Conn.App. 605, 611, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S.Ct. 2706, 86 L.Ed.2d 721 (1985). The state's argument that a reasonable person in the defendant's position would not have felt that his freedom had been restrained upon seeing a police officer with a drawn gun approaching his parked car in a parking lot at night is less than reasonable. Testimony indicated that there were no other people in the general area, that Violissi had already reached the defendant's car when he was first observed, and that he was rapidly [22 Conn.App. 16] approaching the driver's door. While the presence of a gun does not automatically convert an investigatory stop to an arrest; State v. Holloman, 20 Conn.App. 521, 526, 568 A.2d 1052 (1990); State v. Wylie, 10 Conn.App. 683, 687, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987); it is at least evidence of authority ...


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