April 12, 2016
from Superior Court, judicial district of Fairfield,
geographical area number two, Cronan, J.
Gwendolyn S. Bishop, assigned counsel, for the appellant
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).
Alvord and Gruendel, Js.
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.
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.
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.''
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.
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
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. 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
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
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
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 ...