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State v. Correa

Court of Appeals of Connecticut

October 9, 2018

STATE OF CONNECTICUT
v.
RICARDO CORREA

          Argued April 24, 2018

         Procedural History

         Information charging the defendant with the crimes of possession of more than four ounces of marijuana, conspiracy to possess more than four ounces of marijuana, possession of a controlled substance with intent to sell, conspiracy to possess a controlled substance with intent to sell, possession of narcotics, conspiracy to possess narcotics, possession of narcotics with intent to sell by a person who is not drug-dependent, conspiracy to possess narcotics with intent to sell by a person who is not drug-dependent, operation of a drug factory, and conspiracy to operate a drug factory, brought to the Superior Court in the judicial district of Stamford, geographical area number one, where the court, Blawie, J., denied the defendant's motion to suppress certain evidence; thereafter, the defendant was presented to the court on a conditional plea of nolo contendere to conspiracy to possess a controlled substance with intent to sell, conspiracy to possess a controlled substance with intent to sell by a person who is not drug-dependent, and conspiracy to operate a drug factory; judgment of guilty in accordance with the plea; thereafter, the state entered a nolle prosequi as to the remaining charges, and the defendant appealed to this court. Affirmed.

          Laila M.G. Haswell, senior assistant public defender, with whom, on the brief, was Lauren Weisfeld, chief of legal services, for the appellant (defendant).

          Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Susan M. Campbell, deputy assistant state's attorney, for the appellee (state).

          Alvord, Prescott and Beach, Js.

          OPINION

          ALVORD, J.

         Following a conditional plea of nolo contendere, entered pursuant to General Statutes § 54-94a, [1]the defendant, Ricardo Correa, appeals from the judgment of conviction of conspiracy to possess a controlled substance with intent to sell in violation of General Statutes §§ 53a-48 and 21a-277 (b), conspiracy to possess a controlled substance with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (a), and conspiracy to operate a drug factory in violation of General Statutes §§ 53a-48 and 21a-277 (c). The defendant entered his conditional plea following the court's denial of his motion to suppress evidence seized from a motel room he was renting. On appeal, the defendant claims that the trial court erred in denying his motion to suppress because: (1) a warrantless dog sniff outside the door of his motel room violated his state constitutional rights, and (2) a warrantless visual search of his motel room violated his state and federal constitutional rights. We affirm the judgment of the trial court.

         The trial court set forth the following findings of fact in its memorandum of decision on the defendant's motion to suppress. During the early morning hours of February 5, 2013, Sergeant Christopher Broems of the Stamford Police Department was parked on Home Court, a street immediately behind the America's Best Value Inn motel (motel) on East Main Street in Stamford. Sergeant Broems, a nineteen year veteran of the Stamford Police Department who also spent three years in the New York City Police Department, had made many prior arrests at the motel for narcotics, prostitution, and other criminal activity. From the street, Sergeant Broems was surveilling the motel for evidence of possible illegal activity. He was parked approximately fifty yards away from the motel and had a clear, well illuminated view of the motel, which included two floors of numbered motel room doors that opened onto the back parking lot.

         At approximately 1:20 a.m., Sergeant Broems observed a silver colored 2004 GMC Yukon pull into the motel parking lot. Only the passenger in the Yukon, who was later determined to be Eudy Taveras, exited the Yukon, while the operator remained in the vehicle with the headlights on. Taveras approached and entered room 118 of the motel, which was on the first floor, where he remained for less than one minute. Taveras returned to the vehicle, which then left the motel. Given the location, time of night, and duration of the visit, Sergeant Broems believed that he may have witnessed a narcotics transaction out of room 118. Sergeant Broems radioed to a nearby colleague, Officer Vincent Sheperis, that he intended to stop the Yukon, and then drove in the direction of the Yukon.

         When the operator of the Yukon, who was later determined to be Charles Brickman, observed Sergeant Broems approaching the Yukon in his marked Stamford Police SUV, he turned off the Yukon's headlights. A short distance from the motel, Sergeant Broems stopped the vehicle. Officer Sheperis joined Sergeant Broems, acting as backup. When Sergeant Broems and Officer Sheperis approached the vehicle, they both smelled a strong odor of marijuana emanating from inside the Yukon. Sergeant Broems and Officer Sheperis removed Taveras from the vehicle, and Taveras admitted to possessing ‘‘weed.'' A search of Taveras revealed two glass jars with yellow tops containing marijuana, along with three other similar, but empty, yellow topped glass jars, as well as a knotted corner of a plastic sandwich bag containing heroin. On the basis of this evidence, Sergeant Broems requested a sweep of the Yukon by a canine officer trained in the detection of narcotics.

         A canine officer, Cooper, and his Stamford Police Department handler, Sergeant Seth O'Brien, arrived on the scene shortly after Sergeant Broems' request. Cooper alerted to the center console of the vehicle, but the officers found no additional drugs. Brickman was found to have no drugs on his person. Brickman was issued an infraction ticket for operating a motor vehicle without headlights, and allowed to drive off in the Yukon. The officers detained Taveras.

         Taveras informed Sergeant O'Brien that he lived with his grandmother nearby on Charles Street in Stamford. At that point, Sergeant Broems, Officer Sheperis, and Sergeant O'Brien went to the grandmother's home on Charles Street, where they spoke with Taveras' brother. Taveras' grandmother signed a consent form allowing the officers to search Taveras' bedroom. In Taveras' bedroom, the officers found numerous plastic bags with the corners cut off, consistent with narcotics packaging, along with other bags containing an off white powder residue.

         The officers then returned to the motel. They spoke with the manager of the motel, who advised them that several days earlier, the defendant had rented room 118 for the week, until February 8, 2013, paying $430 in cash.[2] The manager provided the officers with documentation concerning room 118, including a photocopy of the defendant's driver's license. The guest registration card for room 118 also included the name of a second individual, Victor Taveras. Although the officers were not certain who Victor Taveras was, Sergeant O'Brien testified that they believed that he most likely was Eudy Taveras.

         After speaking with the manager, the officers went together to knock on the door of room 118. The officers observed a light on in the room, but no one answered the door. Sergeant O'Brien then retrieved Cooper and conducted a narcotics sweep, which included several passes along the first floor walkway where room 118 is located. On each pass, Cooper consistently alerted to the presence of narcotics at the door to room 118.

         It was then approximately 3 a.m. on February 5, 2013, a little over ninety minutes since Sergeant Broems first observed Taveras enter and exit room 118. At this point, on the basis of all that had transpired since observing Taveras enter and exit room 118, Sergeant Broems decided to apply for a warrant to search room 118. The officers decided that Sergeant Broems and Officer Sheperis would return to Stamford Police headquarters to prepare the search warrant and to process Taveras for his drug charges, and Sergeant O'Brien would remain behind on Home Court, in the same area where Sergeant Broems was parked earlier, to surveil room 118 for any possible activity. Very shortly after the officers split up, however, just as Sergeant O'Brien was getting into position to surveil room 118, he observed the defendant on foot near the motel at the corner of Home Court and East Main Street, walking away from the motel. Sergeant O'Brien, who recognized the defendant, immediately radioed for Sergeant Broems and Officer Sheperis to return to the motel to stop the defendant.

         While walking on Home Court, the defendant made eye contact with Sergeant O'Brien, who was in a marked police SUV. After the defendant made eye contact with Sergeant O'Brien, the defendant changed his direction and began walking east on East Main Street. About 100 yards from the motel, Sergeant O'Brien approached the defendant, stepped out of his police vehicle, and, addressing the defendant as ‘‘Ricky, '' told the defendant that he needed to speak with him. Initially, the defendant was cooperative. Sergeant Broems arrived on the scene, and the defendant was searched. The officers found that the defendant was carrying a large wad of cash, amounting to over $3600, in his pocket, along with a key to a room at the motel. Sergeant O'Brien informed the defendant that Taveras was taken into custody, and that ‘‘the jig is up.'' The defendant responded, ‘‘nothing in the room is mine.'' The defendant agreed to open the door to room 118 for the officers. When the officers and the defendant reached the threshold of room 118, however, the defendant changed his mind and refused to grant them entry. The officers informed the defendant that if he did not consent to a search of the room, they were going to obtain a search warrant.

         The defendant informed Sergeant Broems that there was no one in the room. To ensure that there was no one else inside the room that might destroy evidence before the officers could obtain a search warrant, however, Sergeant Broems used the defendant's room key to open the door. After opening the door, Sergeant

         Broems announced ‘‘Police!'' and looked inside the room for approximately fifteen to thirty seconds.[3] Once he was satisfied that the room contained no occupants, Sergeant Broems closed the door. While the door was open, neither Sergeant Broems, nor any other officer or Cooper, set foot in or otherwise physically entered room 118. When he did not observe anyone in the room, Sergeant Broems ‘‘cleared'' room 118. Although he did not enter the room, or take any steps to seize any evidence located inside the room, Sergeant Broems did observe a large black digital scale on a table, as well as a plastic sandwich bag lying on the floor nearby. The officers advised the defendant that he was free to leave the motel, and the defendant left.

         Following the defendant's departure, other officers of the Stamford Police Department arrived at the motel. Those officers were assigned to watch room 118 while the investigating officers prepared an application for a search warrant, with Sergeant O'Brien and Officer Sheperis acting as affiants. Several hours later, at 9:20 a.m., the court, Hon. Richard F. Comerford, Jr., judge trial referee, signed the search warrant for room 118.

         When the police executed the search warrant, they discovereda total of approximately 200 grams of heroin, with a street value of approximately $85, 000. The heroin was broken down into dozens of smaller baggies or glassine folds for individual sale. The officers also discovered a large quantity of U.S. currency, a laptop computer, and paper documents pertaining to a street gang, the Latin Kings. The police also discovered over four ounces of marijuana and a quantity of packaging materials, along with a vacuum sealing machine, two sifters, and two digital scales. These items were consistent with the operation of a drug factory by the defendant in the motel room. After the search warrant was executed, the police arrested the defendant at Taveras' grandmother's house on Charles Street. The defendant was charged with a variety of felony drug offenses.[4] On October 28, 2015, the defendant filed a motion to suppress ‘‘all items seized by police on February 5, 2013 from America's Best Value Inn Room #118.'' In his memorandum of law in support of the motion to suppress, the defendant argued that because Sergeant Broems' visual sweep of the room was performed without obtaining a valid search warrant, it was ‘‘per se unreasonable.'' The defendant further argued that, because the search did not fall within any recognized exceptions to the warrant requirement, as no exigent circumstances existed at the time and the conduct fell short of a protective sweep, ‘‘any evidence found as a result of the prior police illegality must be suppressed.''

         The court held a hearing on the motion to suppress on February 29, 2016. The state presented the testimony of Sergeant Broems, Officer Sheperis, and Sergeant O'Brien. At the conclusion of the suppression hearing, the state did not contest that Sergeant Broems' visual sweep of the room constituted a warrantless search within the meaning of the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. Rather, the state argued that because Officer Broems' visual sweep of room 118 was undertaken ‘‘solely for the purpose of insuring the lack of-insuring that no evidence was being destroyed, '' it was lawful pursuant to the exigent circumstances exception to the warrant requirement. The state specifically noted that the visual sweep did not constitute a ‘‘protective sweep.''[5] The state alternatively argued that, even if the visual sweep was unlawful, the evidence seized from the room was still admissible pursuant to the independent source doctrine.

         On June 22, 2016, the court denied the defendant's motion to suppress in a written memorandum of decision. The court concluded that Sergeant Broems' warrantless visual sweep was proper, under the exigent circumstances doctrine, to prevent the destruction of evidence. The court reasoned that, ‘‘when all the facts of this case as known by police at the time of the warrantless entry by Broems are viewed objectively, the case meets the criteria for a finding of exigent circumstances.'' In reaching its decision, the court noted that other courts have found that evidence destruction is frequent in drug cases, and it relied on the testimony of the police officers, including: Sergeant Broems' testimony that his only motivation to open the door to room 118 was to avoid the destruction of possible evidence; Sergeant O'Brien's testimony that, based on his training and experience, it is common for additional people to be present in a motel room, especially in the context of narcotics or prostitution, regardless of the actual number of registered parties; Sergeant O'Brien's testimony that he was concerned that, on the basis of his prior experience as a trained officer with respect to the destruction or contraband or evidence, a number of people already knew of the Stamford police's investigation into the activity in room 118, and that phone calls informing potential confederates of that investigation may have already been made, prompting the destruction of evidence; and Sergeant Broems' testimony that he believed that there was a real possibility for the loss of potential evidence of illegal activity in room 118 because the police did not continue to surveil room 118 after initially departing the motel to stop the Yukon. The court further noted that the officers were not aware of the true extent of Taveras' involvement with the room, or the possibility of the presence of other persons inside the room. The court also concluded that ‘‘even assuming, arguendo, that the act of Broems in opening the door without a warrant in order to check the room for other occupants violated the defendant's fourth amendment rights, the court finds that the evidence later seized pursuant to a search warrant is admissible under the independent source doctrine.''

         On October 19, 2016, the defendant entered a conditional plea of nolo contendere to conspiracy to possess a controlled substance with intent to sell in violation of General Statutes §§ 53a-48 and 21a-277 (b), conspiracy to possess a controlled substance with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (a), and conspiracy to operate a drug factory in violation of General Statutes §§ 53a-48 and 21a-277 (c). The plea was entered conditionally on his right to take an appeal from the court's ruling on the motion to suppress. The court, Blawie, J., rendered a judgment of conviction. The court sentenced the defendant to a term of incarceration of nine years on each of the charges, followed by six years of special parole, to run concurrently with one another, for a total effective sentence of nine years to serve followed by six years of special parole. On March 31, 2017, the court made a finding that the motion to suppress was dispositive of the case.[6] This appeal followed.

         We begin by noting that ‘‘[a]s a general matter, the 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 ...


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