State v. Story

Opinion FOTI, J. The defendant, Michael C. Story, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a1 of possession of narcotics with intent to — 735 — sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly denied his motion to suppress evidence when it concluded that (1) his detention by police following a traffic stop was not unjustifiably prolonged and (2) he had voluntarily consented to a search of his vehicle. We affirm the judgment of the trial court. The trial court found the following facts from the evidence adduced at the suppression hearing. On April 13, 1994, Trooper James Keeney of the Connecticut state police was conducting stationary radar surveillance on Interstate 84 westbound in East Hartford. He clocked the defendant’s vehicle traveling eighty-two miles per hour in a posted fifty-five mile per hour zone. Keeney stopped the vehicle without incident and, prior to approaching, called headquarters by radio and verified that the vehicle was not stolen or otherwise wanted by the police. Keeney then approached the vehicle, briefly interviewed the occupants and obtained identification from each party. The vehicle was occupied by the defendant, who was driving, and a companion, Charles Harris. Both the defendant and Harris are physically imposing, each standing well over six feet and weighing about 300 pounds. Keeney then returned to his cruiser to write a citation for the defendant’s speeding infraction. He again radioed headquarters requesting information about the defendant and Harris, specifically whether — 736 — there were any outstanding warrants for their arrest. He received a negative response. Trooper Marlon Drummond overheard Keeney’s radio transmissions and drove to the scene to provide assistance. When he arrived, Keeney was still in his cruiser writing the citation. Keeney then went to the driver’s side of the defendant’s vehicle and presented him with the citation. Drummond proceeded to the passenger side. Prior to approaching, Keeney resolved to ask the defendant for permission to search the vehicle. He did not believe that he had probable cause to justify a search or even an articulable suspicion of wrongdoing. He was merely proceeding on a hunch that he might find contraband in the vehicle. Keeney felt that there were two other factors essential to that decision. It was the middle of the night when traffic was slow, so he had time to linger over the stop, and he had a backup present. Keeney gave the defendant the citation and asked him to step out of the vehicle. The defendant complied. The officers were armed and in uniform, but their guns were holstered. Keeney then asked the defendant if there were any illegal substances in the car and the defendant replied that there were not. Keeney asked the defendant if he could search the vehicle and the defendant replied, “Go ahead—no problem.” Drum-mond overheard Keeney’s request as well as the defendant’s reply. At that time, the defendant was not in custody and would have been free to leave if he had refused permission. Drummond then escorted Harris to the front of the vehicle and kept him occupied during the search that ensued. The defendant unlocked the trunk of the car with a key at Keeney’s request. A search of the trunk revealed a bag which contained a substance that the defendant admitted was cocaine. He also stated that there were — 737 — more drugs in the console between the front seats of the car. Keeney immediately informed the defendant that he was under arrest and handcuffed him. Keeney then ordered Drummond to arrest Harris, which he did. Keeney then searched the vehicle and discovered the additional cocaine in the vehicle’s console. I The defendant first argues that the warrantless search of his vehicle was unreasonable under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut2 because he did not voluntarily consent to the search. This claim is based, specifically, on the defendant’s assertion that he was detained for an unreasonably long period of time and because he was not told that he was free to leave after the citation was issued.3 We do not agree. A warrantless search is not unreasonable under the fourth amendment to the United States constitution when a person with authority to do so has freely consented. State v. Martinez, 49 Conn. App. 738, 743, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1168 (1998). “The question of whether a defendant has given voluntary consent to . . . search ... is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the . . . — 738 — search.” State v. Vargas, 34 Conn. App. 492, 496, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994). “The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom.” State v. Ortiz, 17 Conn. App. 102, 103-104, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988). In this case, the trial court made specific findings regarding the defendant’s consent to search. In its memorandum of decision, the trial court found that the defendant stepped out of the car when asked and said, “Go ahead—no problem,” when asked by Keeney if he could search the vehicle. At that time, the defendant was not in custody and would have been free to leave if he had refused permission. The colloquy between the defendant and Keeney was overheard by Drummond. While the defendant concedes that the initial stop of his vehicle was lawful, and that his initial detention was proper, he argues that once the citation was issued, the detention became improper. He argues that the police unjustifiably prolonged his seizure after they issued the traffic citation. The trial court found, however, that the defendant was not in custody, was free to leave, voluntarily exited the vehicle and then gave his consent to search. The trial court found the testimony of Keeney and Drummond to be credible and that, by contrast, “the defendant’s testimony lacked plausibility and consistency in certain key respects.” We do not retry the case or evaluate the credibility of witnesses but, rather, defer to the trial court’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. State v. Martinez, supra, 49 Conn. App. 745. The issue in this case is not one initially of seizure; the defendant was “seized” the moment his vehicle was — 739 — stopped. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). The issue raised by the dissent is one of a subsequent seizure after the citation was issued. Was the defendant “seized” when he was asked to step out of the car, and therefore in custody? The question is not whether he first gave his consent to search, and then was asked to step out of the vehicle. Rather, the question is whether, at the time he was asked to exit his vehicle, he was free to leave. What starts out as a consensual encounter becomes a seizure if, on the basis of a show of authority by the police, a reasonable person in the defendant’s position would have believed that he was not free to leave. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). Whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave presents a mixed question of law and fact qualifying for independent review. State v. James, 237 Conn. 390, 405-406, 678 A.2d 1338 (1996). Whether a restraint on freedom of movement existed is “factual and will not be overturned unless it is clearly erroneous.” State v. Walton, 41 Conn. App. 831, 836, 678 A.2d 986 (1996). “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. 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]here the legal conclusions of the court are challenged, 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 . . . .” (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997). The trial court’s factual findings are not clearly erroneous, nor does the defendant claim that they are as — 740 — relative to his being free to leave at any time or his voluntarily exiting his car. The defendant neither contests the legality of the stop, nor contends that his will was overborne. He argues only that he never consented to the search. “Whether there was valid consent to a search is a factual question that will not be lightly overturned on appeal.” State v. Zarick, 227 Conn. 207, 226, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). The trial court’s factual findings clearly lead to the conclusion that the defendant’s will was not overborne, and that the consent, both in exiting of the vehicle and to the search, was his unconstrained choice. The dissent would have us, as an appellate court, preclude the trial court, once the reason for the initial stop has been completed, from determining whether the police overreached, by their request to exit the vehicle, into constitutional voluntariness. See State v. Northrop, 213 Conn. 405, 419, 568 A.2d 439 (1990). We conclude, however, that the trial court properly applied the legal standard to the facts and concluded that the defendant voluntarily exited the vehicle and voluntarily consented to the search. He was free to leave at any time and was not in custody. Accordingly, we conclude that the defendant’s consent to search was not obtained in violation of the fourth amendment. II The defendant next argues that the search of his vehicle was unreasonable because he did not voluntarily consent to the search. Specifically, he argues that his will was overborne by the officers. We do not agree. In making our inquiry, “[t]he ultimate question ‘is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.’ State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986).” State v. MacNeil, 28 Conn. App. 508, 514, — 741 — 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). Here, there is no evidence that the officers employed a coercive or deceptive procedure to obtain the defendant’s consent, nor is there any evidence that the defendant did not feel free to leave after the summons had been issued; he was neither threatened nor was he blocked from leaving. On the basis of these facts, the trial court’s finding that, under the totality of the circumstances, the defendant voluntarily consented to a search of his vehicle, was not clearly erroneous. It, therefore, properly denied the defendant’s motion to suppress. The judgment is affirmed. In this opinion LANDAU, J., concurred. Footnotes [1] General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the — 735 — right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of noryurisdictional defects in the criminal prosecution.” [2] The defendant invokes both the United States constitution and the Connecticut constitution in support of the claims in his brief. At oral argument, however, he conceded that he did not adequately brief his claims under our state constitution. We, therefore, decline to review them and address only his federal constitutional claims. See State v. Joyce, 243 Conn. 282, 288 n.6, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998). [3] During oral argument, the defendant requested that we set forth a “bright-line” rule requiring all persons stopped for motor vehicle traffic violations to be informed that they need not give consent to search, and that they are free to go before a consent to search may be deemed voluntary. The defendant concedes that he did not brief this claim and raised it for the first time at oral argument. We, therefore, decline to review this claim.