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. Brito

Court of Appeals of Connecticut

January 17, 2017

STATE OF CONNECTICUT
v.
EDWIN BRITO

          Argued October 13, 2016

         Appeal from Superior Court, judicial district of New Britain, geographical area number fifteen, D'Addabbo, J. [motion to suppress]; A. Hadden, J. [judgments].

          Emily Wagner, assistant public defender, for the appellant (defendant).

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Helen J. McLellan, senior assistant state's attorney, for the appellee (state).

          Lavine, Keller and Mihalakos, Js.

          OPINION

          KELLER, J.

         In this consolidated appeal, the defendant, Edwin Brito, appeals from the judgments of conviction rendered by the trial court following his conditional pleas of nolo contendere made pursuant to General Statutes § 54-94a. In one case, the defendant pleaded guilty to one count of possession of a hallucinogenic substance in violation of General Statutes § 21a-279 (b) and, in the other case, the defendant pleaded guilty to one count of possession of hallucinogenic substance with intent to sell in violation of General Statutes § 21a-277 (a). The defendant entered the pleas after the court denied his two motions to suppress certain evidence that the police discovered following two warrantless searches. These searches were incident to two unrelated traffic stops involving the defendant. As he did before the trial court, the defendant challenges the constitutionality of these searches. We affirm the judgments of the trial court.

         The following facts and procedural histories underlie the present appeals. On April 23, 2012, the police stopped the defendant while he was operating his automobile, conducted a patdown search of the defendant and, later, conducted a warrantless search of his automobile. The police seized marijuana, PCP, and heroin from the automobile. In connection with this incident, the defendant was charged in docket number H15N-CR12-0263322-S with several drug related offenses, including possession of a narcotic substance with intent to sell. On June 22, 2012, the defendant was a passenger in an automobile that was stopped by the police. During a warrantless search of the automobile, the police seized a substance believed to be saturated with PCP from the area of the front passenger seat. In connection with this incident, the defendant was charged in docket number H15N-CR12-0264151-S with possession of a hallucinogenic substance.

         In each of these criminal cases, the defendant challenged the lawfulness of the police conduct and filed motions to suppress the evidence seized by the police as the fruits of police illegality. With respect to both the April and June incidents, the defendant argued that the police lacked probable cause to stop the automobile, to conduct a patdown search of his person, and to search the automobile. The state objected to both motions. On September 12 and 25, 2013, the court held a consolidated evidentiary hearing related to both motions to suppress. The parties submitted post hearing briefs to the court, and, on November 15, 2013, the court heard oral argument related to the motions.

         In its memorandum of decision of January 3, 2014, the court, D'Addabbo, J., separately addressed each motion to suppress evidence. It denied both motions. Later, the defendant pleaded nolo contendere, in docket H15N-CR12-0264151-S, to possession of a hallucinogenic substance and, in docket number H15N-CR12-0263322-S, to possession of a narcotic substance with intent to sell. Both pleas, which were accepted by the court, Hadden, J., were conditioned on the defendant's right to take an appeal from the court's denial of his motions to suppress. In each case, the trial court determined that the court's ruling on the motion to suppress was dispositive of the case. In docket number H15N-CR12-0264151-S, the court sentenced the defendant to two and one-half years incarceration, followed by a term of special parole of two and one-half years, to run concurrently with the sentence imposed in docket number H15N-CR12-0263322-S. In docket number H15N-CR12-0263322-S, the court sentenced the defendant to two and one-half years incarceration, followed by a term of special parole of four years, to run concurrently with the sentence imposed in docket number H15N-CR12-0264151-S.

         In AC 36541, the defendant appeals from the judgment of conviction rendered in docket number H15N-CR12-0264151-S. In AC 36543, the defendant appeals from the judgment of conviction rendered in docket number H15N-CR12-0263322-S. This court has consolidated the two appeals. Additional facts will be set forth as necessary.

         In both appeals, the defendant challenges the judgments of conviction on the ground that the court improperly denied his motions to suppress evidence. Accordingly, before turning to the merits of each appeal, we set forth general principles of review that apply to the defendant's claims. ‘‘[T]he standard of review for a motion to suppress is well settled. 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]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, [however] and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence. . . . [W]here 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 memorandum of decision . . . .'' (Internal quotation marks omitted.) State v. Kendrick, 314 Conn. 212, 222, 100 A.3d 821 (2014).

         I

         AC 36541

         In its memorandum of decision with respect to the motion to suppress filed in docket number H15N-CR12-0264151-S, the court set forth the following findings of fact: ‘‘On June 22, 2012, Wethersfield Police Officer Tyler Weerden was assigned to the midnight shift with a primary assignment of patrolling the Berlin Turnpike and being proactive in motor vehicle violation enforcement. Ator about 1:30 a.m., Officer Weerden was parked on the shoulder of the Berlin Turnpike near Nott Street in Wethersfield in his fully marked police vehicle. Officer Weerden testified that at approximately 1:34 a.m., he observed a white Acura motor vehicle proceeding northbound with a nonilluminated rear [registration plate] light. Officer Weerden testified that after this observation he proceeded to follow the vehicle and also was searching for a location to make a motor vehicle stop. Officer Weerden testified that while he was following the vehicle, he was able to observe that there was more than one occupant in it. Officer Weerden indicated that he proceeded to activate the emergency lights and directed the Acura to the side of the road near Jordan Lane [in] Wethersfield. After notifying Wethersfield police dispatch of the stop, he approached the passenger side of the vehicle and began engaging the occupants in conversation. While approaching the vehicle, Officer Weerden testified that he observed the front passenger do a ‘shoulder dip.' This heightened his concern of the existence of illegal narcotics or a weapon. He observed two individuals in the front section and one individual in the rear seat. Officer Weerden testified that his observation of the front seated passenger (later identified as the defendant . . .) was that this passenger ‘seemed out of it, ' ‘lethargic, ' ‘sweating, ' appeared to be ‘under the influence of something, ' and that he had ‘trouble keeping his head up.' Officer Weerden indicated that the passenger's conduct was not consistent with the conduct of the other passengers in the vehicle.

         ‘‘Officer Weerden testified that the operator of the vehicle, Pedro Alvarado, Jr., and no other occupant had a motor vehicle operator's license.

         ‘‘Officer Weerden testified that he asked the driver of the vehicle if there was anything illegal in the vehicle. Officer Weerden observed the operator look at the defendant. After Officer Weerden told the operator not to look at the passenger, but to answer the question, [Alvarado] responded to Officer Weerden that there wasn't anything illegal, but the defendant had consumed alcohol. Officer Weerden testified that he did not smell any odor of alcohol and that based on his training and experience, he believed that the passenger, [the defendant], was under the influence of drugs. Further, Officer Weerden testified that since he believed the defendant was under the influence of drugs, he developed a concern about additional drugs and guns in the vehicle. He asked [the defendant], ‘what are you on?' Officer Weerden also testified that he observed ‘loose tobacco' on the front passenger floor which, based upon his training and experience, was consistent with illegal narcotics ingestion. Officer Weerden testified that he asked the defendant to exit the vehicle. Officer Weerden then did a ‘quick' patdown of the defendant looking for weapons. After the patdown, [the defendant] was placed back in the vehicle.

         ‘‘Officer Weerden testified that he searched the defendant's name through the computer system to determine if there were any outstanding warrants for him.

         ‘‘Wethersfield Police Officer Kevin Foster arrived at the location. In preparation for a search of the vehicle, all three occupants were asked to exit the vehicle. Officer Brian Shea arrived with Officer Foster and informed Officer Weerden that the defendant was recently arrested for narcotic offenses.

         ‘‘Officer Weerden and Officer Foster conducted a search of the interior compartment of the vehicle.

         ‘‘Officer Weerden indicated that as a result of Officer Foster's search of the front seat passenger area, he observed a substance soaked in what he believed to be ‘PCP' and a cell phone. Officer Foster seized this item, indicating to Officer Weerden what he had located. Officer Weerden took control of the item and conducted a field test to determine if it was contraband. The field test was positive.[1]

         ‘‘Officer Weerden made a determination to arrest [the defendant] based upon his observations and [the defendant's] proximity to the contraband. Based upon his knowledge and experience of ‘PCP' users, Officer Weer-den testified about his concerns of actions of individuals on ‘PCP' and the dangerous potential if weapons were available.

         ‘‘Officer Weerden did not arrest the operator of the vehicle, as he appeared not to be under the influence of drugs or alcohol. He did not issue a motor vehicle citation for failure to have the rear marker illuminated, but did cite him for operating without a license.

         ‘‘The event was captured on a DVD recording which is State's Exhibit 2.

         ‘‘The court finds Officer Weerden's testimony credible.'' (Footnotes altered.)

         In his motion to suppress, the defendant sought the exclusion of ‘‘any and all evidence, whether tangible or intangible, including statements and identifications which was seized from his person and the motor vehicle [in which] he was a passenger . . . on June 22, 2012.'' In its analysis of the defendant's motion, the court accurately observed that, in light of the evidence presented at the hearing, the evidence sought to be suppressed related only to the contraband discovered and seized by the police incident to their search of the vehicle, and, thus, the material issues before the court addressed the legality of the stop and subsequent search of the automobile by the police.[2] Essentially, the defendant argued that neither police action was supported by probable cause and that the fruit of this illegality, namely, the PCP seized from under the passenger seat of the vehicle, should be suppressed.

         In denying the motion to suppress, the court carefully analyzed the stop of the motor vehicle under relevant fourth amendment jurisprudence, including Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In relevant part, the court stated: ‘‘Based upon the facts set forth, the Court finds that there was a reasonable and articulable suspicion to conduct the motor vehicle stop, based upon the lack of an illuminated registration plate. This is an objectively lawful basis for a motor vehicle stop . . . . Hence, Officer Weerden had a reasonable and articulable suspicion, which was objectively based on the operator's violation of a motor vehicle statute. Despite the defendant's argument that the stop was pretextual, there was an objectively lawful basis for the motor vehicle stop. The motor vehicle stop of the vehicle in which the defendant was a passenger therefore was justified under the fourth amendment to the United States constitution.'' The court went on to conclude that, on the basis of information learned by Weerden during the stop, the detention and search of the vehicle in which the defendant was a passenger was lawful. The court stated that probable cause to search the entire vehicle, including any containers, for drugs or narcotics existed because of Weerden's ‘‘observations of the defendant, the conduct of the operator, and the observation of tobacco particles on the passenger floor mat.''

         Before this court, the defendant challenges the trial court's decision by arguing that the evidence, which included both a police video recording of the stop as well as Weerden's testimony that he had been directed by his supervisor to engage in pretexual stops as a basis to conduct more thorough investigations, undermined the court's finding that the registration plate on the vehicle in which he was a passenger was not illuminated. This factual error, the defendant argues, undermines the court's determination that the lack of an illuminated registration plate provided a sufficient basis to stop the vehicle. Also, the defendant argues that the totality of the circumstances did not support the court's finding that the police justifiably suspected that criminal activity was afoot. Thus, the defendant argues that the court erred in its determination that, following the stop, the circumstances afforded the police probable cause to search the vehicle extensively for drugs.

         Before we reach the merits of the defendant's claim, we address a separate argument raised by the state that, it argues, is dispositive of the present appeal. After the state filed its brief in the present appeal, but prior to the time of oral argument, by letter submitted to this court pursuant to Practice Book § 67-10, the state drew our attention to a recent decision of this court, State v. Kinch, 168 Conn.App. 62, 67-76, 144 A.3d 509, cert. denied, 323 Conn. 930, A.3d (2016). In this supplemental authority letter, the state, for the first time, raised the issue of whether the defendant had ‘‘standing'' to challenge the legality of the search of the vehicle in which he was merely a passenger. The state asserted that Kinch ‘‘may be relevant to'' the present issue in that it ‘‘defined a defendant's burden to establish standing to challenge the search of a motor vehicle in which the defendant is only a passenger, and it consolidated principles related to determining whether a defendant had a reasonable expectation of privacy in such a vehicle in order to establish standing.'' Immediately thereafter, by letter submitted to this court pursuant to Practice Book § 67-10, the defendant responded to the state's letter by drawing our attention to Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), for the proposition that ‘‘[t]he government . . . may lose its right to raise factual issues of this sort [standing] before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.'' (Internal quotation marks omitted.)

         At the time of oral argument before this court, the parties addressed the standing issue raised by the state's supplemental authority letter. The state argued that, although it had not expressly argued before the trial court that the defendant lacked standing to challenge the search, it had not taken any contrary position before the trial court that might be interpreted as a concession that the defendant had standing or that might be grounds for an argument that the state otherwise should be estopped from raising the issue of standing on appeal. The state argued that because the issue of standing implicates ‘‘subject matter jurisdiction, '' it may be raised at any time. Moreover, the state argued that, although the record does not reflect that the trial court made any findings with respect to the issue of standing, there is no evidence that would support a finding that the defendant had sustained his burden of demonstrating that he had a reasonable expectation of privacy in the vehicle searched by the police. Instead, the state argues, the uncontroverted evidence demonstrated that the defendant did not have any legal relationship to the vehicle, but was merely a passenger in it at the time of the stop.

         At the time of oral argument before this court, the defendant observed that the issue of standing had not been addressed expressly by the trial court. The defendant did not argue that the state had made any prior representations with respect to standing or that it had acquiesced in any findings made by the trial court in this regard. Instead, the defendant questioned the propriety of the state's attempt to raise the issue of standing for the first time in its letter of supplemental authority. Although the defendant acknowledged that the defense bore the burden of demonstrating that he had standing to challenge the legality of the search, he argued that because the state had not put the defendant on notice that standing was in dispute, the defense was ‘‘not able'' to present relevant evidence with respect to the issue of the defendant's interest in the vehicle searched.[3] Consequently, the defendant argued, the record is inadequate to review the issue of standing for the first time on appeal. The defendant argued that if the issue of standing is properly before this court, in light of its fact specific nature, the case should be remanded to the trial court for further proceedings related to the issue.

         Preliminarily, we address the state's argument that, because it is subject matter jurisdictional in nature, the issue of standing may be raised for the first time at the present juncture. It is well settled in our case law that ‘‘[a] person may not object to the introduction of evidence resulting from an illegal search unless he first proves that he was the victim of that search. . . . One is a victim of a search when it violates his reasonable expectation of privacy in the area searched. . . . Therefore, the first question that must be answered in any suppression case is whether the individual who seeks suppression had a reasonable expectation of privacy in the area searched. . . . An individual has a reasonable expectation of privacy if he subjectively believes that the area will remain private, and that belief is one that society is willing to recognize as reasonable. . . .

         ‘‘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 thus, he is precluded from contesting the validity of the search.'' (Citations omitted; internal quotation marks omitted.) State v. Burns, 23 Conn.App. 602, 611-12, 583 A.2d 1296 (1990). The ‘‘reasonable expectation of privacy test'' is a necessary component of an analysis under the fourth amendment to the federal constitution and analysis under article first, § 7, of the state constitution. State v. Davis, 283 Conn. 280, 323, 929 A.2d 278 (2007) (holding that search and seizure provision of Connecticut constitution does not embody automatic standing rule).

         ‘‘The burden of proving the existence of a reasonable expectation of privacy rests on the defendant. . . . Absent such an expectation, the subsequent police action has no constitutional ramifications.'' (Citation omitted; internal quotation marks omitted.) State v. Kimble, 106 Conn.App. 572, 583, 942 A.2d 527, cert. denied, 287 Conn. 912, 950 A.2d 1289 (2008); see also State v. Kalphat, 285 Conn. 367, 375, 939 A.2d 1165 (2008) (defendant must establish facts necessary to demonstrate reasonable expectation of privacy); State v. Kinch, supra, 168 Conn.App. 73 (burden of proving existence of reasonable expectation of privacy rests with defendant).

         Our courts consistently have described the defendant's burden of proof in this regard in terms of standing. See, e.g., State v. Kinch, supra, 168 Conn.App. 76 (‘‘[T]here is no basis on which the court could find that the defendant satisfied his burden of proving the existence of a reasonable expectation of privacy in the area of the vehicle searched. He thus lacked standing to challenge the legality of [the search of a vehicle in which he was a passenger].''); State v. Kimble, supra, 106 Conn.App. 585 (‘‘court's conclusion that the defendant lacked standing to challenge the search of the automobile was supported by the facts found and was correct in law''); State v. Thomas, 98 Conn.App. 542, 551, 909 A.2d 969 (2006) (concluding that defendant who conceded that he was merely passenger in searched vehicle and claimed neither ownership nor possessory interest in vehicle or seized items ‘‘has no standing to challenge the constitutionality of the search'' of vehicle), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007); State v. Burns, supra, 23 Conn.App. 612 (‘‘because [defendant] has not been able to establish an expectation of privacy in the area of the automobile that was searched, he has no standing to challenge the constitutionality of the search'').

         Generally, standing is inherently intertwined with a court's subject matter jurisdiction. This court has observed that ‘‘[s]tanding is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary. . . . In addition, because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time.'' (Internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 397-98, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014); see also Megin v. New Milford, 125 Conn.App. 35, 37, 6 A.3d 1176 (2010).

         Relevant precedent, however, reflects that in the present, fourth amendment context, references to ‘‘standing'' are not jurisdictional in nature, but are accurately understood to be intertwined with an evaluation of the merits of a fourth amendment claim. After recognizing that a defendant's fourth amendment rights are personal and ‘‘may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure, '' the United States Supreme Court went on to clarify how the concept of ‘‘standing'' should be understood in fourth amendment jurisprudence: ‘‘[T]he question necessarily arises whether it serves any useful analytical purpose to consider this principle as a matter of standing, distinct from a defendant's Fourth Amendment claim. . . . [The standing requirement in Fourth Amendment jurisprudence] is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of ‘standing, ' will produce no additional situations in which evidence must be excluded. . . . [T]he better analysis forth-rightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.'' (Footnote omitted.) Rakas v. Illinois, 439 U.S. 128, 138-39, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The court, explicitly ‘‘dispensing with the rubric of standing'' that it had used in prior case law, stated that the relevant determination asks ‘‘whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.'' Id., 140; see also Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (proper fourth amendment analysis focuses on defendant's legitimate expectation of privacy in area searched).

         Consistent with this precedent, our Supreme Court observed that, in Rakas, ‘‘prior concepts of standing to contest an illegal search were abandoned in favor of an inquiry that focused directly on the substance of the defendant's claim that he or she possessed a legitimate expectation of privacy in the area searched.'' (Internal quotation marks omitted.) State v. Morrill, 197 Conn. 507, 540-41, 498 A.2d 76 (1985).

         Having brought into greater focus the legal import of the state's standing argument, it suffices to observe that, because the argument does not implicate subject matter jurisdiction, we need not treat it as a threshold inquiry that must be resolved. If the defendant is unable to demonstrate that the police acted in an unconstitutional manner by stopping and searching the vehicle, he is unable to demonstrate that the court erroneously denied his motion to suppress, and, thus, it is of no consequence whether he had a privacy interest in the vehicle that is protected by the fourth amendment.[4]Assuming without deciding that the defendant had standing to challenge the search, [5] we may uphold the trial court's decision if we reject the claim that he properly has presented to this court, namely, that the trial court erred in ...


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.