State v. Brokaw

629 A.2d 1170, 32 Conn. App. 505, 1993 Conn. App. LEXIS 377
CourtConnecticut Appellate Court
DecidedAugust 17, 1993
Docket11114
StatusPublished
Cited by4 cases

This text of 629 A.2d 1170 (State v. Brokaw) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brokaw, 629 A.2d 1170, 32 Conn. App. 505, 1993 Conn. App. LEXIS 377 (Colo. Ct. App. 1993).

Opinion

Lavery, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine with the intent to sell by person who is not drug-dependant in violation of General Statutes § 21a-278 (b).1 The defendant claims that the trial court improperly (1) denied his motion to suppress evidence by improperly ruling that he was not illegally seized in violation of his rights under the fourth amendment to the United States constitution and árticle first, § 7, of the Connecticut constitution, (2) denied his motion for a mistrial which was based on the state’s improper cross-examination of a defense witness, and (3) permitted testimony concerning his prior arrest. We affirm the judgment of the trial court.

The record reveals the following facts. On December 21, 1990, at approximately 5:10 p.m., Detective Trevor Thorpe of the narcotics division of the Meriden police department received a telephone call from a confidential informant. In the past, this informant’s reliable and accurate information had resulted in arrests and seizures of narcotics. The informant told Thorpe [508]*508that at approximately 5:30 p.m. the defendant would be in the Fontana DiCalabria bar possessing cocaine for sale, and that a truck belonging to the defendant’s son would be outside. The informant also stated that he had purchased cocaine from the defendant in the bar on a regular basis, most recently within the prior two weeks.

On the basis of this information, Thorpe and two other police officers went to the Fontana DiCalabria bar at 5:30 p.m. to investigate. After verifying that a truck parked in front of the bar, which matched the informant’s description, belonged to the defendant’s son and that the defendant was inside, the officers entered the bar. They wore plain clothes and did not identify themselves or display any weapons as they approached the defendant to question him. When the defendant noticed the three officers approaching him, he turned to his left toward the kitchen to evade them. Simultaneously, the defendant pulled from his pocket a clear plastic bag containing what appeared to be narcotics. The defendant fled into the nearby kitchen, pursued by the officers, and dropped the bag into a trash can. The police officers arrested the defendant and retrieved the plastic bag, which proved to contain cocaine.

I

The defendant’s first claim is that the trial court improperly denied his motion to suppress the narcotics found in his possession. The trial court found that the defendant was not seized in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, and that the officers had probable cause to arrest the defendant. We conclude that the defendant was not seized in violation of his constitutional rights. Therefore, we do not have to reach the issue of probable cause.

[509]*509For the purposes of our state constitution, our Supreme Court defines a person as “seized” when “ ‘by means of physical force or a show of authority, his freedom of movement is restrained.’ ...” State v. Ostroski, 186 Conn. 287, 291, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982), quoting United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). This objective test hinges on whether “ ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” State v. Ostroski, supra, 291-92. Recently, our Supreme Court reiterated this standard in State v. Oquendo, 223 Conn. 635, 652, 613 A.2d 1300 (1992). The Oquendo court held that our state constitution affords a higher level of constitutional protection with regard to seizures than does the fourth amendment to the United States constitution, as interpreted by the United States Supreme Court.2 Id., 649-50.

Seizure does not require physical restraint. See id., 653. Absent physical restraint, seizure results from a show of authority sufficient in the particular circumstances to make a reasonable person believe he was not free to walk away. State v. Ostroski, supra. Such a seizure occurred in State v. Oquendo, supra. In that case, [510]*510a uniformed police officer in his cruiser stopped a couple walking along a deserted street at 1 a.m. The officer questioned them about their activities and told them to approach him with the duffle bag they were holding. The late hour, the deserted locale, and the visible display of weapons persuaded our Supreme Court that “a reasonable person in the defendant’s position would not have believed that he was free to ignore [the officer’s] instruction and walk away.” State v. Oquendo, supra. Thus, although not physically restrained, the defendant was seized.

In this case, however, no seizure occurred. The defendant claims that the officers seized him by entering the bar and walking toward him. To uphold the defendant’s claim we would have to conclude that a reasonable person would have believed he was not free to leave when, while sitting in a bar with several other patrons, he was approached by three men he did not know, who wore plain clothes and did not display weapons or badges. We are unable to do so; the approach of three unidentified people under those circumstances does not create a constitutional seizure.

In State v. Rivera, 23 Conn. App. 592, 594, 583 A.2d 931 (1990), cert. denied, 217 Conn. 807, 584 A.2d 1192 (1991), we said: “A fleeing defendant’s fourth amendment rights are not implicated until the pursuing police officer first issues a command to halt. Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). ‘Our own case law brings us to the same result. “We know of no Connecticut case . . . that holds that merely following another, absent any show of force or authority or direction to halt, constitutes a stop within the meaning of the fourth amendment.” ’ State v. Oliver, 17 Conn. App. 108, 110-11, 550 A.2d 316 (1988), quoting State v. Rodriguez, 14 Conn. App. 574, 577, 542 A.2d 342 (1988).” The defendant in Rivera was followed by a police officer who did not dis[511]*511play a weapon or make a show of authority, while the defendant in the present case was approached by plain clothes officers who did not display weapons or make a show of authority. Like the defendant in Rivera, the fourth amendment rights of the defendant here were not implicated through the mere approach of the police officers.

We conclude, on the basis of the foregoing reasons, that a seizure did not take place within the meaning of article first, § 7, of the Connecticut constitution and, therefore, that the defendant’s motion to suppress was properly denied.3

II

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State v. Brokaw
632 A.2d 705 (Supreme Court of Connecticut, 1993)
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Bluebook (online)
629 A.2d 1170, 32 Conn. App. 505, 1993 Conn. App. LEXIS 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brokaw-connappct-1993.