State of Connecticut v. Raheem Gilliam (2012)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTIONS TO SUPPRESS AND DISMISS

The defendant, Raheem Gilliam, has filed an amended motion to suppress evidence obtained as a result of a search incident to a warrantless arrest and moves to dismiss the information against him on the ground that there is insufficient evidence and/or cause to place the defendant on trial.   The defendant is charged with stealing a firearm in violation of General Statutes § 53a–212, weapon in a motor vehicle in violation of § 28–38, and possession of marijuana in violation of § 21a–279(c).

The court will first consider the motion to suppress.   The defendant argues that there was insufficient evidence to support a finding that there was probable cause to believe that the defendant had committed a crime.

The court finds that Officer Fazzino possessed the requisite reasonable and articulable suspicion to justify the stop of the vehicle, owned and operated by Rodney Atkins, as required by Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), due to motor vehicle violations of an illegal U-turn and a cracked windshield.   Compare with State v. Thomas, 98 Conn.App. 542, 548–49 (2006), cert. denied, 281 Conn. 910 (2007) (“a Terry stop is also justified to detain a motor vehicle when there exists a reasonable and articulable suspicion of a traffic violation”).

The bulk of the defendant's challenge goes to the fruits obtained as a result of the warrantless search of Atkin's vehicle, namely the stolen firearm.   It is well established 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 thus, he is precluded from contesting the validity of the search ․ In sum, [s]tanding does not exist even though the accused is the target of the search ․ or on some automatic basis because of having been charged with a possessory crime.”  (Citations omitted;  internal quotation marks omitted.)  State v. Thomas, supra, 98 Conn.App. 550–51.

Even if the defendant had standing to challenge the search, the court cannot conclude the search was improper.  “[The automobile] exception to the warrant requirement demands that the officers have probable cause to believe that the vehicle contains contraband ․ The absence of probable cause ․ will render any warrantless search unreasonable ․ The probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made ․ The plain view doctrine is based upon the premise that the police need not ignore incriminating evidence in plain view while they are ․ otherwise entitled to be in a position to view the items seized ․ It has long been settled that objects in the plain view of an officer who [is legally justified in stopping an automobile] are subject to seizure and may be introduced in evidence.”   (Citations omitted;  internal quotation marks omitted.)  Id., 552.

The defendant was in the passenger seat of the vehicle.   When the officer sought the vehicle's registration, the defendant opened the glove compartment to retrieve it, and another officer observed a 9mm bullet laying inside the compartment.   Based on this observation, Officer Fazzino had a reasonable and articulable suspicion that a handgun might be in the vehicle, and asked the occupants to exit the vehicle.   Both the defendant and Atkins exited the vehicle and were searched for weapons, but none were found on their persons.   The vehicle also was searched,¹ and a stolen handgun was found under the driver seat.

When the officer first approached the vehicle, the defendant was observed “slumped down” in the passenger seat.   Officer Fazzino observed that it was impossible in Atkin's vehicle to slide a handgun under the seat from the front of the driver seat.   He observed further that the gun could have been placed there by either Atkins, the driver, by his reaching behind his own seat, or it could have been placed by the defendant, who could have reached behind the driver seat from his slumped position in the passenger seat.

The defendant's position is that, because he only “could have” put the gun under the seat, there is insufficient evidence to support a finding of probable cause to support his arrest on the weapons charges, rendering the search of his person incident to the arrest invalid.   This search disclosed that the defendant possessed a marijuana cigarette in his pocket.

The court is persuaded that the totality of the circumstances support a finding of probable cause for arrest on the weapons charges.  “With respect to warrantless arrests ․ the trial court, in determining whether the arrest is supported by probable cause, is required to make a practical, nontechnical decision whether, under all the circumstances ․ there is a fair probability that the defendant had committed or was committing a felony ․ Moreover, it is also important to note that [t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.”  (Citation omitted;  internal quotation marks omitted.)  Id., 555.

Here, a 9 mm bullet was in plain view of the officers.   A search of the vehicle revealed the presence of a stolen gun, which both occupants denied possessing.   The defendant was observed sitting in a position which would have allowed him to conceal the gun, although either occupant could have placed the gun under the seat.   It was reasonable under the circumstances for the officer to conclude that the defendant had committed a felony.

“It is an established rule that a properly conducted warrantless search incident to a lawful arrest is itself lawful ․ This exception permits a police officer to conduct a full search of an arrestee and to seize evidence as well as weapons ․ Thus, if the defendant's arrest was lawful, the subsequent warrantless search ․ also was lawful.”  (Citations omitted;  internal quotation marks omitted.)  Id. Accordingly, the search incident to his arrest, which disclosed the marijuana cigarette, also was lawful.

The defendant premises his motion dismiss pursuant to General Statutes § 54–56 and Practice Book § 41–8(5)(8) and (9) on the ground that there is insufficient evidence and/or insufficient cause.²  The court concludes that dismissal is not warranted in the present case.

For all the foregoing reasons, the motions to suppress and to dismiss are DENIED.

MAUREEN M. KEEGAN, J.

FOOTNOTES

FN1. The defendant obliquely attempts to challenge Atkin's “purported” consent to search the vehicle, but he has no standing to assert such a challenge..  FN1. The defendant obliquely attempts to challenge Atkin's “purported” consent to search the vehicle, but he has no standing to assert such a challenge.

FN2. General Statutes § 54–56 provides:  “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”Practice Book § 41–8 provides, in relevant part:  “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information ․ (5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial ․ (8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid;  or (9) Any other grounds.”The court notes that the defendant did not raise a constitutional challenge to the law defining the defense charged or articulate a basis other than “insufficiency of evidence or cause.”.  FN2. General Statutes § 54–56 provides:  “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”Practice Book § 41–8 provides, in relevant part:  “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information ․ (5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial ․ (8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid;  or (9) Any other grounds.”The court notes that the defendant did not raise a constitutional challenge to the law defining the defense charged or articulate a basis other than “insufficiency of evidence or cause.”

Keegan, Maureen M., J.