State v. Carey

534 A.2d 1234, 13 Conn. App. 69, 1987 Conn. App. LEXIS 1148
CourtConnecticut Appellate Court
DecidedDecember 22, 1987
Docket5797
StatusPublished
Cited by12 cases

This text of 534 A.2d 1234 (State v. Carey) 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. Carey, 534 A.2d 1234, 13 Conn. App. 69, 1987 Conn. App. LEXIS 1148 (Colo. Ct. App. 1987).

Opinion

Borden, J.

The defendant appeals from the judgment of conviction for possession of narcotics in violation of General Statutes § 21a-279 (a), following a conditional plea of nolo contendere. His plea of nolo contendere was conditioned upon his right to appeal the trial court’s denial of his motion to suppress certain evidence found in his possession pursuant to a search incident to an arrest without a warrant. The dis-positive issue is whether there was probable cause to arrest the defendant prior to the challenged search. We find no error.

The following evidence was adduced at the hearing on the defendant’s motion to suppress. Officers William Discordia and Clemente Delacruz, and Trooper Sidney Luther, all then assigned to the statewide narcotics task force, were conducting surveillance of suspected narcotic activity at an apartment building located on Federal Street in New London. The building had been the scene of prior drug activities and trafficking, and arrests had been made for narcotics offenses. On this occasion, Discordia was positioned on the stairway between the second and third floors, while Delacruz and Luther were positioned on the third floor.

The defendant and Eric Malloy entered the building. Luther testified that he heard one say to the other, “What do you want, coke or dope?” to which the other responded, “Coke.” On the basis of this conversation, Luther believed that a sale was about to take place. Neither of the other officers heard this conversation. One of the individuals then entered an apartment, while the other waited in the hallway. The testimony of Luther suggested that it may have been Malloy who went into the apartment.

[71]*71Soon thereafter, Discordia observed the defendant and Malloy in the second floor stairwell. Malloy was holding a clear plastic vial of what appeared to be “crack,” a cocaine derivative. Discordia testified that he believed, at that point, either that the defendant had given the vial to Malloy or that Malloy was showing the vial to the defendant. Each of the officers, including Discordia, testified that he did not witness any other events which normally accompany a drug transaction, namely, an exchange of money, or an exchange of possession of drugs. Delacruz testified that he believed the defendant was only being shown the vial and “that a sale was about to take place.” Luther also testified that he “didn’t know if the drug transaction had actually occurred,” and that he believed that the defendant was “in the position of the receiver.”

At that point, the officers came out of hiding. Discordia grabbed the vial from Malloy, placed him under arrest, and searched him. Delacruz and Luther informed the defendant that he was not free to leave. The court determined, and neither party disputes, that this constituted an arrest of the defendant. Delacruz and Luther ordered the defendant to empty his pockets. The defendant removed from his pocket, among other things, a matchbook with a glassine bag sticking out of it. The glassine bag appeared to contain heroin, and was seized by Delacruz and Luther. The defendant was then placed under arrest for possession of the heroin.

At the conclusion of the hearing on the defendant’s motion to suppress the heroin seized from him, the court determined that there was probable cause to arrest the defendant prior to searching him and denied the defendant’s motion. On appeal, the defendant argues that, at the time of their search of him, the police lacked the necessary probable cause to arrest him, as there existed no facts known to the officers to conclude that he was engaged in any wrongdoing. Accordingly, he contends [72]*72that the search incident to that arrest violated his right to be free of unreasonable searches and seizures under the federal1 and state2 constitutions. We disagree.

“We note at the outset that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well delineated exceptions. ... It is the state’s burden at trial to establish the exception. . . . If evidence obtained without a warrant was obtained as a result of a valid search and seizure incident to a lawful arrest, such evidence was not illegally obtained and is admissible.” (Citations omitted.) State v. Lizotte, 11 Conn. App. 11, 17, 525 A.2d 971, cert, denied, 204 Conn. 806, 528 A.2d 1154 (1987). The issue before us, then, is whether the search of the defendant was incident to a lawful warrantless arrest.

A police officer is authorized to arrest, without a warrant, “any person who the officer has reasonable grounds to believe has committed or is committing a felony.” General Statutes § 54-If (b); State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983). “[T]he term ‘reasonable grounds’ as used in the statute is to be equated with probable cause.” State v. Dennis, supra.

[73]*73“In order to establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.” (Citations omitted.) State v. Cobuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert, denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). “In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). “Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, [742,] 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).” Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984); see also Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).

“In its oral memorandum of decision the court made only limited factual findings and legal conclusions. We, therefore, must look to all the evidence produced in support of its decision.” State v. Mitchell, 7 Conn. App. 46, 49, 507 A.2d 1017 (1986), aff d in part and rev’d in part on other grounds, 204 Conn. 187, 527 A.2d 1168, cert, denied, U.S. , 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

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Bluebook (online)
534 A.2d 1234, 13 Conn. App. 69, 1987 Conn. App. LEXIS 1148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carey-connappct-1987.