Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Date: 08-29-2016
Case Style: STATE OF CONNECTICUT v. PHIL KINCH
Case Number: AC 37433, AC 37434
Judge: F. Herbert Gruendel
Court: Connecticut Appellate Court
Plaintiff's Attorney: Matthew R. Kalthoff, deputy assistant state’s attorney, John C. Smriga, state’s attorney, Richard L. Palombo, Jr., senior assistant state’s attorney, and Marc R. Durso, assistant state’s attorney
Defendant's Attorney: Gwen Bishop
Description: This case involves an investigatory stop of a motor vehicle. The defendant, Phil Kinch, appeals from the judgments of conviction, rendered after jury trials, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and failure to appearinthefirstdegreeinviolationofGeneralStatutes § 53a-172 (a) (1). On appeal, the defendant claims that thetrialcourtimproperlydeniedhismotiontosuppress certain evidence. He further maintains that, should he prevailonthatclaim,hisconvictionforfailuretoappear also must be set aside. We affirm the judgments of the trial court. Therelevantfactsarelargelyundisputed.Ontheevening of July 12, 2011, members of the Bridgeport Police Departmentwereconductingsurveillanceinthevicinity of 740 Ellsworth Street (property), which was considereda‘‘hotzone’’duetotheprevalenceofviolentcrime in that area. A multistory apartment complex with a small parking lot was located on the property. From an unmarked police vehicle, Sergeants Bradford Seely and Ronald Mercado were on the lookout for an individual with a ‘‘weird walk . . . a weird gait’’ who allegedly ‘‘had been robbing people in this neighborhood numerous times within the past few weeks . . . .’’ At approximately 11 p.m., they observed an individual with a distinctive gait wearing a red shirt and black pants, who met with a ‘‘black male, a white male and a white female’’ as he approached the property. At that time, Seely placed a request over police radio for the assistance of a marked police vehicle to ‘‘help identify the individual wearing the red shirt and the black pants.’’1 Officers Manual Santos and Bobby Jones, who were on patrol in a marked police vehicle, responded to Seely’s request. When they arrived at the property, they observedthreeindividualswalkingtowardablackToyotaScionXD(vehicle)intheparkinglot.Thoseindividuals then entered that vehicle. At that time, the officers were ‘‘acting on orders to stop parties in that [parking] lot.’’ Santos observed a white male in the driver’s seat, a white female in the front passenger seat, and a black male in the rear passenger seat of the vehicle. At the suppressionhearing,Santosidentifiedthedefendantas the individual in the rear passenger seat. As they parked their patrol car behind the vehicle, the officers observed ‘‘a lot of movement going on’’ in the vehicle. Santos testified that ‘‘both the driver and the front right passenger, the female, they just kept looking towards the rear of the vehicle, the rear compartment to the passenger that was in the rear, [their] handsweremoving,theirheadsweremoving,theykept looking at us and . . . looking at this rear seated pas
senger.’’Santos,whowasdressedinfulluniform,exited his patrol car and approached the driver’s side of the vehiclewithaflashlightinhand.AsSantos‘‘waslooking at the rear passenger [from outside the vehicle, he] observed on the floor next to his feet . . . a small digitalscale,aclearplasticZiploctypesandwichbagwhich had a white or off-white type substance inside it. [He] observed . . . a blood cigarette, which . . . is a cigarettewrapperwithcontrabandinitthatsomeonewould smoke. [He] also observed a brown paper bag that had cigartubeskindofprotrudingfromit.’’Allthreeindividuals then exited the vehicle and were placed under arrest.Atthattime,thepoliceseizedvariousitemsfrom the vehicle. The defendant was charged with possession of narcotics with intent to sell by a person who is not drugdependent in violation of § 21a-278 (b). He thereafter filed a motion to suppress the evidence seized from the vehicle.2 In that motion, the defendant alleged that the ‘‘seizureandsearchofthevehicleoccupiedbythedefendant were conducted by members of the Bridgeport Police Department without a valid warrant, without probablecause,withoutreasonableandarticulablesuspicion, and not incident to a lawful arrest.’’ (Emphasis added.) AttheoutsetoftheJune27,2013suppressionhearing, the state claimed that the defendant lacked standing to contestthe validityof thesearch ofthevehicle, arguing that ‘‘[i]t was not his car and prior court cases have indicated that a person who’s a backseat passenger in a car that he does not own does not have standing to object to the search of that vehicle.’’ In response, the defendantarguedthathewasentitledtoproceedpursuant to Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). Perhaps mindful that a reasonableexpectationofprivacyanalysisentailsafact specific inquiry; see State v. Boyd, 295 Conn. 707, 718, 992 A.2d 1071 (2010), cert. denied, 562 U.S. 1224, 131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011); the court did not act on the state’s motion at that time, stating, ‘‘All right. I’ll allow the matter to go forward.’’3 The only two witnesses at that hearing were Seely and Santos. At the conclusion of their testimony, the statereneweditsclaimthatthedefendantlackedstanding to contest the seizure of the evidence in question. The state argued that the present case was ‘‘very similar’’ to State v. Thomas, 98 Conn. App. 542, 550–51, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007), in which this court recognized that ‘‘[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 . . . is precluded from contesting the validity of the search.’’ (Internal quotation marks omitted.) In response, the
defendant again directed the court’s attention to Brendlin v. California, supra, 551 U.S. 249. In rendering its oral decision, the court stated, ‘‘I’m . . . denying the state’s motion on the standing, and I’m going to deny the motion to suppress.’’ The court then detailed the basis of its determination that the officers possessed a reasonableandarticulablesuspicionofcriminalactivity at the time of their encounter with the defendant. A jury trial followed, at the conclusion of which the defendant was found guilty of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). The defendant was scheduled to be sentenced on September 11, 2013, but did not appear at that proceeding. Approximately two months later, the court sentenced the defendant to a term of twelve years incarceration, execution suspended after eight years, with four years of special parole. As a result of his failure to appear for sentencing on September 11, 2013, the defendant was arrested and charged with one count of failure to appear in the first degree.Thedefendantpleadednotguiltytothatcharge. After a trial, the jury found the defendant guilty. The court rendered judgment accordingly and sentenced the defendant to a term of two years incarceration, to beservedconsecutivetohissentenceonhisconviction for possession of narcotics with intent to sell. This consolidated appeal of the judgments of conviction for possession of narcotics with intent to sell and failure to appear followed. I The defendant first claims that the court improperly deniedhismotiontosuppresstheevidenceseizedfrom the vehicle because the investigatory stop by police was not supported by a reasonable and articulable suspicion ofcriminal activity.The stateconcedes that‘‘the seizure of the vehicle’s occupants was not supported by a reasonable and articulable suspicion that criminal activity was afoot.’’ The state nonetheless maintains that, because the defendant did not establish a reasonable expectation of privacy in the vehicle, the court’s ruling on the motion to suppress must be affirmed on thealternategroundthatthedefendantlackedstanding to contest the search of the vehicle.4 We agree with the state.5 ‘‘[S]tanding is a fundamental requirement of jurisdiction.’’(Internalquotationmarksomitted.)Statev.Johnson, 301 Conn. 630, 642, 26 A.3d 59 (2011). ‘‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the courtunlesshe[orshe]has,inanindividualorrepresentativecapacity,somerealinterestinthecauseofaction, oralegalorequitableright,titleorinterestinthesubject matter of the controversy. . . . When standing is put
in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . .’’ (Internal quotation marks omitted.) State v. Long, 268 Conn. 508, 531, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004). The question of standing presents an issue of law over which our review is plenary. Weiss v. Smulders, 313 Conn. 227, 239, 96 A.3d 1175 (2014); see also State v. Kalphat, 285 Conn. 367, 374, 939 A.2d 1165 (2008) (issues raising questions of law in context of motion to suppress subject to plenary review). In conducting that plenary review, the factual findings underlying a court’s decision on a motion to suppress ‘‘will not be disturbed unless [they are] clearly erroneous in view of the evidence and pleadings in the whole record. . . . [H]owever, when a question of fact isessentialtotheoutcomeofaparticularlegaldetermination that implicates a defendant’s constitutional rights,andthecredibilityofwitnessesisnottheprimary 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.’’ (Internal quotation marks omitted.) State v. DeMarco, 311 Conn. 510, 519, 88 A.3d 491 (2014). A As a preliminary matter, we note that the parties presented differing views of the applicable legal standard at the suppression hearing. The state relied on Connecticut precedent, and State v. Thomas, supra, 98 Conn. App. 542, in particular. In Thomas, this court held in relevant part that ‘‘[i]n order to challenge a search or seizure on fourth amendment grounds, a defendantmustshowthathe hasareasonableexpectation of privacy in the place searched. . . . 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. . . . [B]ecause the defendant did not establish an expectation of privacy in the areas of the automobile that were searched, he has no standing to challenge the constitutionalityofthesearch.’’(Citationsomitted;internalquotation marks omitted.) Id., 550–51; see also State v. Gonzalez, 278 Conn. 341, 348–49, 898 A.2d 149 (2006) (‘‘the [United States] Supreme Court has long held that a reasonable expectation of privacy in the subject of a search is a prerequisite for fourth amendment protection’’ [footnote omitted]). Bycontrast,thedefendantatthesuppressionhearing submitted that he possessed standing to contest the validity of the search of the vehicle pursuant to Brendlin v. California, supra, 551 U.S. 249. In Brendlin, the United States Supreme Court addressed the question
of whether, when a police officer makes a traffic stop, a passenger in the motor vehicle ‘‘is seized within the meaning of the [f]ourth [a]mendment.’’ Id., 251. The court answered that query in the affirmative, stating that ‘‘a passenger is seized . . . and so may challenge the constitutionality of the stop.’’ Id. The defendant in that case was a passenger in a motor vehicle that was stopped to verify the validity of a temporary operating permit. Id., 251. During the course of the investigatory stop, the police discovered that the defendant ‘‘was a parole violator with an outstanding no-bail warrant for his arrest.’’ Id., 252. The police thus ordered the defendant to exit the vehicle and placed him under arrest. Id. When they then conducted a search ‘‘incident to [that] arrest, they found an orange syringe cap on his person.’’ Id. A subsequent search of the vehicle disclosed‘‘tubing,ascale,andotherthingsusedtoproduce methamphetamine.’’ Id. Significantly, Brendlin concerned onlythe seizure of a passenger, and not the search of the vehicle itself. As the United States Supreme Court made clear, the defendant ‘‘moved to suppress the evidence obtained in the searches of his person and the car as fruits of an unconstitutional seizure, arguing that the officers lackedprobablecauseorreasonablesuspiciontomake thetrafficstop.HedidnotassertthathisFourthAmendmentrightswereviolatedbythesearchof[the]vehicle, cf. Rakas v. Illinois, [439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)],6 but claimed only that the traffic stop wasan unlawfulseizure ofhis person.’’(Emphasis added;footnoteadded.)Id.,253.Brendlinthereforehas little bearing on the question of whether a passenger has standing to challenge the search of a motor vehicle and the seizure of items contained therein.7 See, e.g., United States v. Wilbourn, 799 F.3d 900, 908 (7th Cir. 2015) (‘‘Passengers in cars stopped by police are deemed ‘seized’ for Fourth Amendment purposes and are entitled to challenge the constitutionality of the detention.Brendlinv.California,[supra,551U.S.249]. This principle, however, does not extend so far that it recognizes a legitimate expectation of privacy for passengers who do not have a possessory interest in a vehicle.’’); United States v. Symonevich, 688 F.3d 12, 19 (1st Cir. 2012) (explaining that Brendlin does ‘‘not extend Fourth Amendment rights to passengers who challenge only the search of the vehicle in which they weretraveling’’); Atkins v.Commonwealth,57Va.App. 2, 12, 698 S.E.2d 249 (2010) (‘‘[b]y its own language, Brendlin does not address whether a passenger can challengethelegalityofasearchofthevehicleinwhich he is a passenger’’). It therefore is not surprising that, in the years since Brendlin wasdecided,theappellatecourtsofthisstate have adhered to the reasonable expectation of privacy standard in assessing whether a defendant possesses the requisite standing to contest the search of a motor
vehicle or items discovered therein. See, e.g., State v. Boyd, supra, 295 Conn. 718; State v. Michael D., 153 Conn. App. 296, 304–305, 101 A.3d 298, cert. denied, 314 Conn. 951, 103 A.3d 978 (2014); State v. Jevarjian, 124 Conn. App. 331, 338, 4 A.3d 1231 (2010), appeal dismissed, 307 Conn. 559, 58 A.3d 243 (2012); State v. Vallejo, 102 Conn. App. 628, 635–36, 926 A.2d 681, cert. denied,284Conn.912,931A.2d934(2007).Accordingly, to ‘‘meet this rule of standing, the defendant must demonstratethathehadareasonableexpectationofprivacy in the area or subject of the search.’’ State v. Kimble, 106 Conn. App. 572, 583, 942 A.2d 527, cert. denied, 286 Conn. 912, 950 A.2d 1289 (2008). B With that legal standard in mind, we turn our attention to the present case. Following a suppression hearing, the court orally denied the state’s request to deny the motion to suppress for lack of standing. Because a determination that the defendant possessed a reasonable expectation of privacy was a necessary prerequisite to the court’s conclusion that the defendant had standing to contest the search of the vehicle; see State v. Davis, 283 Conn. 280, 313, 929 A.2d 278 (2007) (‘‘a defendant may not invoke the fourth amendment to challenge the legality of a search unless he first can establish a legitimate expectationof privacy in the area searched’’); the issue is whether such a determination is substantiated by the record before us. ‘‘Theburdenofprovingthe existenceofareasonable expectation of privacy rests on the defendant.’’ State v. Gonzalez, supra, 278 Conn. 349; see also State v. Kalphat, supra,285 Conn.375 (defendantbears burden of establishing facts necessary to demonstrate basis for standing). To establish a reasonable expectation of privacy, the defendant bore the burden of demonstratingboth(1)thathemanifestedasubjectiveexpectation of privacy in the area of vehicle searched and (2) that his expectation was one that society would consider reasonable. See State v. Boyd, supra, 295 Conn. 718. Yetthedefendantdidnotofferanytestimonialordocumentary evidence whatsoever at the suppression hearing. The defendant did not testify at that hearing and at no time did he assert a possessory interest in either thevehicleortheitemsdiscoveredtherein.8 Putsimply, the record is bereft of any evidence of such an interest. Ourprecedentinstructsthat‘‘[p]assengersinanautomobile, neither claiming nor demonstrating a possessory interest in the automobile, generally are regarded as lacking a reasonable expectation of privacy in the automobile.’’ State v. Kimble, supra, 106 Conn. App. 584; accord United States v. Anguiano, 795 F.3d 873, 878 (8th Cir. 2015) (‘‘a mere passenger does not have standing to challenge a vehicle search where he has neitherapropertynorapossessoryinterestintheautomobile’’ [internal quotation marks omitted]); State v.
Burns, 23 Conn. App. 602, 612, 583 A.2d 1296 (1990) (‘‘[t]he defendant acknowledges that he was merely a passenger and that mere passengers in an automobile are generally regarded as lacking a legitimate expectation of privacy in that car’’); State v. Delarosa, 16 Conn. App. 18, 32, 547 A.2d 47 (1988) (‘‘[a] passenger in a motor vehicle, who fails to demonstrate a possessory interestinthecaritselforinanyoftheseizedevidence, 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’’); cf. Rakas v. Illinois,supra,439U.S.148–49(passengerinvehiclegenerally does not have expectation of privacy in vehicle’s glove compartment, trunk, or underseat area); United States v. Barber, 777 F.3d 1303, 1305 (11th Cir. 2015) (distinguishing between passenger’s ‘‘expectation of privacy in a car’’ and ‘‘a passenger’s expectation of privacyinabagwithinacar’’andholdingthatdefendant ‘‘had standing to challenge the search of his bag, even if he lacked standing to contest the search of the car’’); People v. Lewis, 217 App. Div. 2d 591, 593, 629 N.Y.S.2d 455 (1995) (‘‘the defendant had a reasonable expectation that the privacy of the locked briefcase entrusted tohim[byhisuncle]wouldbemaintained’’whenfound on backseat of vehicle he was driving). Inaddition,itisafundamentaltenetoffourthamendment jurisprudence that a defendant has no reasonable expectation of privacy in contraband that plainly is visible to officers outside the vehicle. See Texas v. Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (‘‘[t]here is no legitimate expectation of privacy . . . shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by . . . diligent police officers’’ [citation omitted]); United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993) (‘‘there is no legitimate expectation of privacy ina car’sinterior ifan officer looksthrough the car’s window and observes contraband in plain view’’); United States v. Ramos, 960 F.2d 1065, 1067 (D.C. Cir. 1992) (‘‘the fourth amendment provides protection to theownerofonlyacontainerthatconcealsitscontents from plain view’’). A review of the record reveals that the defendant was merely a passenger in a vehicle in which contraband was discovered, which contraband Santos observedfromtheoutsideofthevehicle.Weagreewith the state that the present case is materially indistinguishable from State v. Thomas, supra, 98 Conn. App. 542, in which ‘‘[t]he defendant conceded . . . that he was merely a passenger and claimed neither an ownership nor a possessory interest in the [vehicle] or in any oftheseizeditems.Healsohasnotshownareasonable expectation of privacy in the areas of the [vehicle] that were searched.’’ Id., 551. For that reason, this court concluded that the defendant ‘‘has no standing to challenge the constitutionality of the search.’’ Id. That logic
compels a similar conclusion in the present case. Becausetheissueofstandingwasraisedattheoutset of the suppression hearing, it was incumbent on the defendant to provide an evidentiary basis on which the trialcourtreasonablycouldconcludethathepossessed an expectation of privacy in the rear floor area of the vehicle where the evidence was seized.9 See State v. Gonzalez, supra, 278 Conn. 348–49 (‘‘a reasonable expectation of privacy in the subject of a search is a prerequisite for fourth amendment protection’’[footnote omitted]). It nevertheless remains that the defendant presented no evidence of such an expectation of privacy. Cf. United States v. McCaster, United States Court of Appeals, Docket No. 94–599968 (6th Cir. October 19, 1995) (defendant ‘‘lacked a reasonable expectation of privacy in . . . the bag of cocaine found in plain view on floorboard’’ of acquaintance’s vehicle); State v. Reldan, 100 N.J. 187, 203, 495 A.2d 76 (1985) (floor of vehicle not area ‘‘entitled to a justifiable expectation of privacy’’). Given that dearth of evidence, the defendant cannot meet his burden of establishing a reasonable expectation of privacy in the area of the vehicle searched. See State v. Burns, supra, 23 Conn. App. 612 (defendant lacked standing to contest search because ‘‘there was no evidence to show’’ he possessed reasonable expectation of privacy); State v. Haynes, 7 Conn. App. 550, 553, 509 A.2d 557 (1986) (‘‘[T]he defendant did not show that he subjectively believed that the bag would remain hidden either by introducing direct evidence of his belief, or by introducing circumstantial evidencefromwhichthetrial courtcouldhaveinferred such a belief. Nor did he introduce evidence showing that any subjective expectation of privacy that he had wasreasonable.’’).Indeed,thedefendanthasnotidentified any evidence of such an expectation in his appellate brief.10 Onourcarefulreviewoftherecordofthesuppression hearing, we conclude that there 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 that search. Accordingly, the denial of the defendant’s motion to suppress was not improper.
Plaintiff's Experts:
Defendant's Experts:
Comments: Connecticut¬¬¬¬¬¬ Department of Corrections Offender Info