Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Kinch

Court of Appeals of Connecticut

September 6, 2016

STATE OF CONNECTICUT
v.
PHIL KINCH

          Argued April 12, 2016

         Appeal from Superior Court, judicial district of Fairfield, geographical area number two, Cronan, J.

          Gwendolyn S. Bishop, assigned counsel, for the appellant (defendant).

          Matthew R. Kalthoff, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Richard L. Palombo, Jr., senior assistant state's attorney, and Marc R. Durso, assistant state's attorney, for the appellee (state).

          Beach, Alvord and Gruendel, Js.

          OPINION

          GRUENDEL, J.

         This case involves an investigatory stop of a motor vehicle. The defendant, Phil Kinch, appeals from the judgments of conviction, rendered after jury trials, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and failure to appear in the first degree inviolation of General Statutes § 53a-172 (a) (1). On appeal, the defendant claims that the trial court improperly denied his motion to suppress certain evidence. He further maintains that, should he prevail on that claim, his conviction for failure to appear also must be set aside. We affirm the judgments of the trial court.

         The relevant facts are largely undisputed. On the evening of July 12, 2011, members of the Bridgeport Police Department were conducting surveillance in the vicinity of 740 Ellsworth Street (property), which was considered a ‘‘hot zone'' due to the prevalence of violent crime in that area. A multistory apartment complex with a small parking lot was located on the property.

         From an unmarked police vehicle, Sergeants Bradford Seely and Ronald Mercado were on the lookout for an individual with a ‘‘weird walk . . . a weird gait'' who allegedly ‘‘had been robbing people in this neighborhood numerous times within the past few weeks . . . .'' At approximately 11 p.m., they observed an individual with a distinctive gait wearing a red shirt and black pants, who met with a ‘‘black male, a white male and a white female'' as he approached the property. At that time, Seely placed a request over police radio for the assistance of a marked police vehicle to ‘‘help identify the individual wearing the red shirt and the black pants.''[1]

         Officers Manual Santos and Bobby Jones, who were on patrol in a marked police vehicle, responded to Seely's request. When they arrived at the property, they observed three individuals walking toward a black Toyota Scion XD (vehicle) in the parking lot. Those individuals then entered that vehicle. At that time, the officers were ‘‘acting on orders to stop parties in that [parking] lot.'' Santos observed a white male in the driver's seat, a white female in the front passenger seat, and a black male in the rear passenger seat of the vehicle. At the suppression hearing, Santos identified the defendant as the individual in the rear passenger seat.

         As they parked their patrol car behind the vehicle, the officers observed ‘‘a lot of movement going on'' in the vehicle. Santos testified that ‘‘both the driver and the front right passenger, the female, they just kept looking towards the rear of the vehicle, the rear compartment to the passenger that was in the rear, [their] hands were moving, their heads were moving, they kept looking at us and . . . looking at this rear seated passenger.'' Santos, who was dressed in full uniform, exited his patrol car and approached the driver's side of the vehicle with a flashlight in hand. As Santos ‘‘was looking at the rear passenger [from outside the vehicle, he] observed on the floor next to his feet . . . a small digital scale, a clear plastic Ziploc type sandwich bag which had a white or off-white type substance inside it. [He] observed . . . a blood cigarette, which . . . is a cigarette wrapper with contraband in it that someone would smoke. [He] also observed a brown paper bag that had cigar tubes kind of protruding from it.'' All three individuals then exited the vehicle and were placed under arrest. At that time, the police seized various items from the vehicle.

         The defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). He thereafter filed a motion to suppress the evidence seized from the vehicle.[2] In that motion, the defendant alleged that the ‘‘seizure and search of the vehicle occupied by the defendant were conducted by members of the Bridgeport Police Department without a valid warrant, without probable cause, without reasonable and articulable suspicion, and not incident to a lawful arrest.'' (Emphasis added.)

         At the outset of the June 27, 2013 suppression hearing, the state claimed that the defendant lacked standing to contest the validity of the search of the vehicle, arguing that ‘‘[i]t was not his car and prior court cases have indicated that a person who's a backseat passenger in a car that he does not own does not have standing to object to the search of that vehicle.'' In response, the defendant argued that he was entitled to proceed pursuant to Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Perhaps mindful that a reasonable expectation of privacy analysis entails a fact specific inquiry; see State v. Boyd, 295 Conn. 707, 718, 992 A.2d 1071 (2010), cert. denied, 562 U.S. 1224, 131 S.Ct. 1474, 179 L.Ed.2d 314 (2011); the court did not act on the state's motion at that time, stating, ‘‘All right. I'll allow the matter to go forward.''[3]

         The only two witnesses at that hearing were Seely and Santos. At the conclusion of their testimony, the state renewed its claim that the defendant lacked standing to contest the seizure of the evidence in question. The state argued that the present case was ‘‘very similar'' to State v. Thomas, 98 Conn.App. 542, 550-51, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007), in which this court recognized that ‘‘[a] passenger in a motor vehicle, who fails to demonstrate a possessory interest in the car itself or in any of the seized evidence, has no reasonable expectation of privacy in the area of the vehicle searched, and . . . is precluded from contesting the validity of the search.'' (Internal quotation marks omitted.) In response, the defendant again directed the court's attention to Brendlin v. California, supra, 551 U.S. 249. In rendering its oral decision, the court stated, ‘‘I'm . . . denying the state's motion on the standing, and I'm going to deny the motion to suppress.'' The court then detailed the basis of its determination that the officers possessed a reasonable and articulable suspicion of criminal activity at the time of their encounter with the defendant.

         A jury trial followed, at the conclusion of which the defendant was found guilty of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). The defendant was scheduled to be sentenced on September 11, 2013, but did not appear at that proceeding. Approximately two months later, the court sentenced the defendant to a term ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.