State of Connecticut v. Dale Sterpka (2014)

MEMORANDUM OF DECISION RE MOTION TO SUPPRESS

On March 6, 2013, the defendant, Dale Sterpka, filed a motion to suppress all evidence seized at the time of his arrest on the grounds that the traffic stop was unlawfully extended, the defendant was illegally seized, and the vehicle was illegally searched.   Hearings were held on the motion to suppress on June 4, 2013, June 11, 2013, and July 16, 2013.   The motion to suppress is granted.

I

FACTS

The following testimony was presented during the hearings on the motion to suppress.   On November 17, 2012, at approximately 6:08 p.m., Officer Richard Galpin of the Thomaston Police Department was traveling south on Bridge Street, a one-way street, when he saw the defendant's vehicle enter Bridge Street, traveling in the wrong direction, and pass his cruiser.   Officer Galpin initiated a stop of the defendant's vehicle.   Upon approach, Officer Galpin noticed a passenger in the vehicle, later identified as Eric Bailey.   Officer Galpin testified that Bailey “seemed nervous ․ but nothing erratic.”   Officer Galpin obtained the defendant's identification and registration.   Officer Galpin testified that he noticed the defendant had bloodshot eyes, but testified that he did not note this observation in his report.¹  Officer Galpin also testified that he “didn't see” and “couldn't tell” if the defendant's eyes were dilated.   Officer Galpin further testified that he noticed that the defendant's reactions were delayed or slow, and that he seemed nervous and had difficulty performing more than one task at a time.   Officer Galpin testified that he did not detect an odor of alcohol on the defendant and the defendant's speech was not slurred.   Additionally, Officer Galpin testified that he observed a folding saw on the passenger side floor, but also testified that he did not note this observation in his report.

Officer Galpin returned to his cruiser and called the information into dispatch, but did not run a criminal records check on either the defendant or Bailey.   A few minutes later, Officer Michael Gagne arrived on the scene.   Officer Galpin informed Officer Gagne of his belief that the defendant may have been under the influence of alcohol or narcotics and his intention to conduct a field sobriety test.   The defendant was then asked to exit the vehicle.   Officer Gagne testified that the defendant did not have any difficulty exiting the vehicle and was able to follow the commands given to him by both officers.   Officer Gagne also testified that he was unable to observe whether the defendant's eyes were bloodshot even though he “looked directly at his face ․ [and] lit up his face enough.”

Officer Galpin testified that he did not notice any contraband at that time, but Officer Gagne testified that, when the defendant exited the vehicle, he noticed a wax paper baggie on the driver's side floorboard of the vehicle.²  Officer Gagne testified that the wax paper baggie drew his attention because he knew that such packing is “consistent with heroin—heroin packaging.”

Officer Galpin testified that he brought the defendant to the front of his cruiser, which was parked to the rear of the defendant's vehicle, and asked the defendant if he had any narcotics or weapons on him, and if there was anything in the vehicle he should know about.   The defendant responded in the negative.   Officer Galpin patted down the defendant for officer safety but did not find any weapons or contraband.   Officer Galpin testified that, after this pat down, Officer Gagne alerted him to his observation of a wax paper baggie on the driver's side floorboard.   Officer Galpin testified that, based on this information, the focus of the investigation shifted, and he asked the defendant for permission to search the vehicle, to which the defendant consented.   In contrast, the defendant testified that he was not asked for and did not consent to a search of his vehicle.

Officer Galpin testified that he proceeded to the passenger side of the vehicle, where Officer Gagne was positioned.   Officer Galpin asked Bailey to exit the vehicle and inquired as to whether Bailey had anything that would harm the officers.   Bailey responded in the negative.   Officer Galpin testified that he then began to pat down Bailey and felt what he thought was a syringe, based on the T-shaped top.   According to Officer Galpin, at that point, Bailey shifted his body, blocking Officer Galpin from his pocket, and informed Officer Galpin that the object in his pocket was a pen.   Officer Galpin continued his search of Bailey, ultimately locating two syringes.   Officer Galpin testified that the defendant and Bailey were then handcuffed and placed in separate cruisers.   Officer Gagne testified that when he handcuffed the defendant, he asked him if there were any drugs in the vehicle, to which, according to Officer Gagne, the defendant replied that he “believed there were” but “didn't know where they were located.”   Officer Gagne further testified that, at this point, no decision about an arrest had been made, but that Bailey and the defendant were handcuffed “for officer safety because there were narcotics ․ in plain view on the passenger's side and Mr. Bailey had needles in his possession.”

Officer Galpin testified that Officer Gagne then led him over to the passenger side of the vehicle and pointed to a bundle of wax paper baggies between the crease of the passenger seat and the frame of the vehicle.   Officer Galpin testified that he retrieved his camera and began to photograph the various items located in the vehicle.   Although Officer Galpin testified that he did not recall photographing the wax paper baggie that Officer Gagne allegedly observed on the driver's side floor, he did testify that he independently observed the wax baggie during the search of the vehicle and noted such in his report.   Officer Galpin testified that his main role was to photograph the evidence while Officer Gagne searched the vehicle.   In contrast, Officer Gagne testified that Officer Galpin was the “lead investigator” and assisted in the search.

The defendant was charged with two counts of possession of narcotics, possession with the intent to sell narcotics, possession of drug paraphernalia, failure to carry an insurance card, and failure to carry an operator's license.   On March 6, 2013, the defrndant filed a motion to suppress all evidence seized at the time of his arrest.³

II

PARTIES' ARGUMENTS

The defendant moves to suppress all evidence seized on the grounds that the police exceeded the permissible scope and duration of the stop, the defendant was illegally seized, and the vehicle was illegally searched in violation of the fourth amendment to the United States constitution and article first, §§ 7 and 9, of the Connecticut constitution.

The defendant concedes that the traffic stop was justified at its inception based on the fact that he did, in fact, drive the wrong way down a one-way street.   The defendant argues, however, that the officers' actions after the stop did not reasonably relate to the circumstances that justified the stop.   According to the defendant, Officer Galpin did not observe any other motor vehicle violations, the defendant had a valid driver's license, his vehicle was properly registered, and there was no evidence that he had a prior criminal history.   The defendant further asserts that Officer Galpin's purported justification for the continued seizure, to wit, that the defendant was under the influence of alcohol or drugs, was unreasonable and not supported by the facts, and that the officers' testimony as to the events of that evening is inconsistent.   The defendant also asserts that he was illegally seized as a reasonable person would not have felt free to leave when he was asked him to perform a field sobriety test.   Finally, the defendant argues that the warrantless search was illegal as he never gave consent to search his vehicle;  any consent given was not an act of free will;  he was not advised of his constitutional rights;  the presence of two police officers suggests that the situation was coercive;  and the plain view exception to the warrant requirement does not apply.

In contrast, the State argues that the detention of the defendant was based on a reasonable and articulable suspicion as Officer Galpin observed that the defendant had bloodshot eyes, his reactions were delayed or slow, he had difficulty multi-tasking, and when the defendant exited the vehicle to perform a field sobriety test, Officer Gagne noticed a wax paper baggie on the floorboard of the vehicle.   The State also contends that the warrantless search did not unreasonably prolong the stop, as the length of the stop, from initial stop to the time of the search, was approximately seventeen minutes.   Furthermore, the State argues that the defendant validly consented to a search of his vehicle, and the consent was voluntary as the defendant was not handcuffed at the time, the officers were not required to inform the defendant that he was free to leave, and the request to search was made approximately six to eight minutes after the stop had been initiated.   Finally, the State argues that the officers had probable cause to search the vehicle based on Officer Gagne's observation of a wax paper baggie on the floorboard of the vehicle, Officer (Jalpin's discovery of two syringes on Bailey, and Officer Gagne's observation of a bundle of wax paper baggies between the crease of the passenger seat and the frame of the vehicle.

III

DISCUSSION

The fourth amendment to the United States constitution requires that all searches and seizures be reasonable in their execution.   Article first, § 7, of the Connecticut constitution also provides protection against unreasonable searches.  “Under both the fourth amendment to the federal constitution and article first, § 7, of our state constitution, a warrantless search is presumptively unreasonable.”  State v. Doyle, 139 Conn.App. 367, 375, 55 A.3d 805 (2012), cert. denied, 307 Conn. 952, 58 A.3d 976 (2013).  “It is axiomatic that [u]nder the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality.”  (Internal quotation marks omitted.)  State v. Boyd, 295 Conn. 707, 717, 992 A.2d 1071 (2010), cert. denied, 131 S.Ct. 1474, 179 L.Ed.2d 314 (2011).

The defendant claims that the search was unlawful under the United States constitution and article first, §§ 7 and 9, of the Connecticut constitution.⁴  Our state constitution does not “provide the defendant with any increased protection with respect to nontraffic related questioning and requests for consent to search during routine traffic stops.”  State v. Jenkins, 298 Conn. 209, 214, 3 A.3d 806 (2010).   Moreover, “in the search and seizure context, article first, § 9, is our criminal due process provision that does not provide protections greater than those afforded by either the fourth amendment or its coordinate specific state constitutional provision, article first, § 7.” Id., 259 n.39. Therefore, the defendant's federal and state claims will be analyzed under the same framework.

“A traffic stop is a ‘seizure’ within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief.”   State v. Allardyce, Superior Court, judicial district of Hartford at Geographic Area 14, Docket No. H14H–CR10–0642594–S (May 3, 2011, Dewey, J.).   An investigative “stop does not give law enforcement officers carte blanche to stop and detain citizens indefinitely or unreasonably because, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.”  (Internal quotation marks omitted.)   State v. Jenkins, supra, 298 Conn. 234.   The State has the burden of showing that “the initial stop aroused further suspicion warranting a prolonged inquiry.”  Id., 245.   Furthermore, where a “defendant moves to suppress evidence obtained from a warrantless search, the burden is on the [S]tate to prove the existence of an exception to the warrant requirement.”  State v. Diaz, 226 Conn. 514, 553, 628 A.2d 567 (1993).

A

Initial Investigative Stop

In the present case, the initial investigatory stop was justified based on Officer Galpin's observation of the defendant's vehicle traveling in the wrong direction on a one-way street.   See State v. Dalzell, 96 Conn.App. 515, 524, 901 A.2d 706 (2006), rev'd in part on other grounds, 282 Conn. 709, 924 A.2d 809 (2007) (investigatory stop authorized if police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime);  State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988) (police have the right to stop a motor vehicle for traffic infraction).

B

Duration of Investigative Stop

“Whether an officer's continued detention of a person is consistent with constitutional limits is a deeply factual question dependent on the particular facts and circumstances of the particular case.”   State v. Nieves, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CR10–169457–S (August 25, 2010, Wenzel, J.).  “Courts considering the constitutionality under the fourth amendment of a police officer's interaction with a motorist during a routine traffic stop apply the principles developed under the line of case law implementing the central holding of Terry v. Ohio, [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] ․ Under Terry, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ․ the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions ․

“A Terry stop does not give law enforcement officers carte blanche to stop and detain citizens indefinitely or unreasonably because, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.   But our cases impose no rigid time limitation on Terry stops.   While it is clear that the brevity of the invasion of the individual's [f]ourth [a]mendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion ․ we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes ․ Thus, the Supreme Court has rejected attempts to impose ‘a hard-and-fast time limit’ on Terry stops, in favor of a reasonableness inquiry where, [i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant ․ A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing ․

“[A] lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation.   The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop.   Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave ․ An officer's inquiries into matters unrelated to the justification for the traffic stop, this [c]ourt has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  State v. Jenkins, supra, 298 Conn. 232–36.

“Thus, questions permissible under Terry during a routine traffic stop include inquiries about whether the car or driver are carrying contraband, as well as concomitant requests for consent to search the vehicle ․ These inquiries are permissible even if they are irrelevant to the initial purpose of the stop, namely, the traffic violation, so long as they do not measurably extend the stop beyond the time necessary to complete the investigation of the traffic violation and issue a citation or warning.   Consideration of that time period necessarily includes the completion of tasks attendant to the traffic stop, including a check of the driver's license, vehicle registration, and criminal history, and the writing of the citation or warning, as well as background questions about the destination and purpose of the driver's trip ․ Indeed, given that complications with respect to these tasks may well result in an extension of the time of detention without rendering it unreasonable under the fourth amendment, [w]hether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops.”  (Citations omitted;  internal quotation marks omitted.)  Id., 237–38.

Our Supreme Court has emphasized “that in evaluating the duration of a traffic stop, the reviewing court still must consider the stop through the lens of the time reasonably necessary to effectuate the initial purpose of the traffic stop, and expansions of the stop beyond that time are constitutionally impermissible in the absence of an independent basis of objectively reasonable, articulable suspicion ․ [J]udicial review of routine traffic stops goes beyond a strict stopwatch test;  reasonableness is not measured solely by the temporal duration of the stop alone but, rather, requires scrupulous consideration of the reasonableness of the officers' actions during the time of the stop.”  (Citations omitted;  emphasis added.)  State v. Jenkins, supra, 298 Conn. 242.  “With respect to whether the results of the initial stop aroused further suspicion warranting a prolonged inquiry, [t]he police officer's decision ․ must be based on more than a hunch or speculation ․ In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  (Internal quotation marks omitted.)  Id., 244–45.

“Because a reasonable and articulable suspicion is an objective standard, we focus not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion ․ The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the reaction of the suspect to the approach of police are all facts which bear on the issue of reasonableness ․ [P]olice officers may reasonably act upon observation of a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.”  (Citations omitted;  internal quotation marks omitted.)  State v. Miller, 137 Conn.App. 520, 538–39, 48 A.3d 748, cert. denied, 307 Conn. 914, 54 A.3d 179 (2012).

In State v. Sward, 124 Conn.App. 546, 548–49, 5 A.3d 965 (2010), the police pulled the defendant over after observing him speeding and touching the right fog line of the highway.   The trooper obtained the defendant's documents, returned to his police cruiser and determined that the defendant had a valid license, proper insurance, and the vehicle was not reported stolen.  Id., 549.   After five to ten minutes, the trooper returned to the defendant's vehicle, but “had not determined whether he would issue the defendant a summons for reckless driving or whether he would place the defendant under custodial arrest.   In order to interact with him personally, [the trooper] asked the defendant to step out of his vehicle and walk to the front of the cruiser.   [The trooper] proceeded to pat down the defendant for weapons once he exited the vehicle.”  Id. The trooper “detected an odor of alcohol on the defendant's breath [and][t]he defendant admitted to consuming two alcoholic beverages despite initially stating that he had not been drinking that night.”  Id. The trooper also observed that the defendant's eyes were red, bloodshot and glassy.  Id., 549–50.   The trooper then had the defendant perform field sobriety tests.  Id., 550.

The defendant argued that “the scope of the traffic stop was unlawfully expanded after [the trooper] returned to the defendant's vehicle and that there was no reasonable and articulable suspicion of intoxication to permit the expansion.”  Id., 550.   Employing the Jenkins analytical framework, our Appellate Court rejected the defendant's argument, holding that the police did not unlawfully extend a routine traffic stop.  Id., 554.   At the outset, the court noted that “it is proper for a police officer to ask a driver to exit his vehicle during a routine traffic stop.   A police officer has the right to stop a motor vehicle operating on a Connecticut highway even if the reason for the stop is only an infraction under our traffic laws.   Upon doing so, he prudently may prefer to ask that an occupant exit the vehicle;  any intrusion upon an occupant's personal liberty in directing that action is de minimis because, on balance, it serves to protect the officer.”  (Internal quotation marks omitted.)  Id.

Next, the court found that “the entire traffic stop ․ meets the reasonableness inquiry articulated in Jenkins.   Although the record does not indicate the total length of time of the traffic stop, the [trial] court found that when [the trooper] went back to his cruiser to check the defendant's identification and insurance documents, he was gone only five to ten minutes.   Furthermore, counsel for the defendant stated during oral argument that the entire incident lasted ‘probably twenty-five minutes.’   Even if the stop did take twenty-five minutes in its entirety, as argued by the defendant, we believe this amount of time is not unreasonable under the circumstances of this case.”  Id., 554–55.   The court explained that “[w]hile temporal duration alone is not dispositive of the constitutionality of a traffic stop, [the trooper's] actions during the period in question, such as checking the defendant's license, insurance and registration, and questioning the defendant about the consumption of any alcoholic beverages, were all reasonable as they related to the traffic stop itself.   Although [the trooper] asked the defendant a second time if he had been drinking that night, this second inquiry concerning the consumption of alcohol did not measurably extend the duration of the stop.”  Id., 555.

The Appellate Court held that the trooper “did not unlawfully extend the duration of the traffic stop by requesting that the defendant exit his vehicle or by questioning the defendant further about whether he had consumed any alcohol that night.”  Id., 556.   The court explained that “[a]t the point [the trooper] had the defendant perform the sobriety tests, [the trooper] had detected an odor of alcohol emanating from the defendant, the defendant had been driving in excess of 100 miles per hour and his vehicle had touched the fog line, the defendant had changed his answer and admitted to consuming alcohol that evening, and [the trooper] had observed the defendant drive to the left side of the ramp rather than to the right side.   These observations all gave rise to a reasonable, articulable suspicion that the defendant was intoxicated.”  Id.

In the present case, this court finds that the State has not met its burden of establishing that the entire traffic stop meets the reasonableness inquiry articulated by Jenkins.   Given the inconsistent testimony as well as the lack of observational notations in the police report, this court does not credit the officers' testimony and finds that the officers' actions were not based on specific facts of additional criminal activity.   See State v. Douros, 90 Conn.App. 548, 554, 878 A.2d 399, cert. denied, 276 Conn. 914, 888 A.2d 85 (2005) (“[o]n a motion to suppress, [i]t is the function of the trier to determine the credibility of witnesses and the weight to be given their testimony” (internal quotation marks omitted)).

Although the officers had a right to ask the defendant to exit his vehicle based on nothing more than his traffic infraction;  State v. Sward, supra, 124 Conn.App. 554;  Officer Galpin testified that he asked the defendant to exit his vehicle for the purpose of administering a field sobriety test.   “[R]oadside sobriety tests that do not involve long delay or unreasonable intrusion, although searches under the fourth amendment, may be justified by an officer's reasonable suspicion (based on specific, articulable facts) that the driver is intoxicated ․ [W]e have noted that our case law presumes that such testing is incident to the initial stop, based on the officer's reasonable suspicion, rather than on the subsequent arrest ․ We have concluded that such roadside testing and questioning based on a reasonable, articulable suspicion in the absence of probable cause is clearly warranted within the meaning of the Connecticut constitution.”  (Citation omitted;  internal quotation marks omitted.)  State v. Hall, 110 Conn.App. 41, 53, 954 A.2d 213 (2008).

Based on the totality of the circumstances facing the officers, this court finds that the officers did not have a reasonable and articulable suspicion to justify expansion of the initial traffic stop to conduct a field sobriety test and further questioning.  “The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the reaction of the suspect to the approach of police are all facts which bear on the issue of reasonableness.”  (Internal quotation marks omitted.)  State v. Miller, supra, 137 Conn.App. 539.   Thus, this court cannot ignore that the initial stop occurred at 6:08 p.m. in a residential area, the defendant pulled his vehicle over quickly, was cooperative, did not slur his speech and did not smell of alcohol.   Certainly Officer Galpin's testimony that the defendant's “reactions were slow or delayed” and the defendant “seemed nervous” are pertinent factors to consider.   However, that testimony must be considered within the totality of the evidence.

Officer Galpin testified that he approached the defendant's vehicle and noticed that the defendant's eyes were bloodshot, his “reactions were slow or delayed” and he “seemed nervous.”   Officer Galpin explained that he asked the defendant to perform a task, such as getting his documents, and then asked the defendant a question.   According to Officer Galpin, the defendant would stop to answer the question and forget the task he had been asked to perform.   It is not known to this court whether Officer Galpin's observation of the defendant's nervous behavior and slow reactions were noted in the police report, but Officer Galpin did testify that he did not note the defendant's bloodshot eyes in his report and “didn't see” and “couldn't tell” whether the defendant's pupils were dilated.   Similarly, Officer Gagne testified that he was unable to observe whether the defendant's eyes were bloodshot even though he “looked directly at his face ․ [and] lit up his face enough.”   Officer Galpin testified further that, during his initial interaction with the defendant, he observed a folding saw on the passenger side floor, but also did not note this in his report.

Although the defendant's nervousness was a pertinent factor for the officers to consider, it was not sufficient in itself to amount to a reasonable and articulable suspicion.  State v. Miller, supra, 137 Conn.App. 539.   Our Appellate Court has noted that “a traffic stop is a stressful situation, and it is likely that some drivers will find it difficult to locate certain documents within their vehicle under this pressure,” and such is not necessarily evidence of intoxication.  State v. Sward, supra, 124 Conn.App. 556 n.4. Nonetheless, “officers may reasonably act upon observation of a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.”  (Internal quotation marks omitted.)  State v. Miller, supra, 137 Conn.App. 539.

This court does not credit Officer Galpin's testimony that the circumstances he was facing at the time he made the determination to conduct a field sobriety test were that the defendant had driven the wrong way down a one-way street, had bloodshot eyes, was nervous and had difficulty multi-tasking, and had a potential weapon, i.e., a folding saw, in the vehicle.   Observations of weapons and bloodshot eyes are generally considered important enough to be included in a police report, and an observation that a suspect has bloodshot eyes is commonly noted in police reports generated as a result of a traffic stop.   A police report “is prepared with an eye toward prosecution ․ and it is inherently accusatory ․ The primary purpose of a police report is to establish or prove past events potentially relevant to a later criminal prosecution.”  (Citations omitted;  internal quotation marks omitted.)   State v. Lahai, 128 Conn.App. 448, 469, 18 A.3d 630, cert. denied, 301 Conn. 934, 23 A.3d 727 (2011).   Furthermore, Officer Galpin did not have any knowledge that the defendant or Bailey had a prior criminal history, as he never ran a criminal records check on either.

However, a field sobriety test was never conducted.   Rather, when the defendant exited the vehicle and was escorted by Officer Galpin to the front of the patrol car, Officer Gague allegedly observed a wax paper baggie on the driver's side floor.   The State argues that this observation gave the officers a reasonable and articulable suspicion to prolong the inquiry of the defendant.   Officer Galpin testified that he did not observe the wax paper baggie simultaneously with Officer Gagne, but was informed of Officer Gagne's observation after the defendant was brought to the front of the cruiser, questioned and patted down.   However, Officer Galpin testified that he did later independently observe the wax paper baggie during the search of the vehicle and noted such in his report.

Nonetheless, Officer Galpin testified that he did not recall photographing that piece of evidence and acknowledged that, if a photograph was taken, it was not included in the photographs entered into evidence during the suppression hearings.   Although this court does not draw the negative inference that the defendant suggests, i.e., that this evidence does not exist, the lack of a photograph does go to the weight of the officers' testimony.   The inconsistencies in the officers' testimony impacts negatively upon their credibility.   For example, the photographs introduced into evidence during the suppression hearings are not consistent with the officers' testimony regarding the interior of the vehicle, and its contents, as it was observed prior to a search being conducted.   There is no photograph of a saw, although Officer Galpin testified that he observed one on the passenger side floor during his initial conversation with the defendant, and there is no photograph of the wax paper baggie on the driver's side floor.

What is troubling to this court is that the State argues that it was the observation of the wax paper baggie that gave the officers a reasonable and articulable suspicion to prolong the inquiry of the defendant.   However, Officer Galpin, who by all accounts was the lead investigator, did not verify the existence of this evidence prior to determining that a search of the vehicle was warranted.   Rather, having found no contraband on the defendant and based only on Officer Gagne's statement of his observation of the wax paper baggie, Officer Galpin directed Bailey to exit the vehicle—an act which ultimately resulted in the observation of a bundle of wax paper baggies on the passenger side, the location of two syringes on Bailey's person, and the admission by the defendant that there might be drugs in the vehicle.

This court does not find Officer Galpin and Officer Gagne credible, and concludes that the State has not met its burden of putting forth ample evidence that the officers had a reasonable and articulable suspicion to extend the duration of the stop beyond its initial purpose.   Therefore, this court finds that the evidence obtained from the search is inadmissible as it was the fruit of an unlawfully extended traffic stop.   The defendant's motion to suppress is granted.

So ordered.

BY THE COURT,

Marano, J.

FOOTNOTES

FN1. The police report was not offered or entered into evidence.   This court has only the officers' testimony as to what was, or was not, included in the police report..  FN1. The police report was not offered or entered into evidence.   This court has only the officers' testimony as to what was, or was not, included in the police report.

FN2. Officers Galpin and Gagne testified that, in their training and experience, heroin is commonly packaged in small wax paper baggies or packets.   Officer Gagne explained that these baggies or packets are usually packaged in a bundle, commonly consisting of ten baggies or packets.   In the parties' memoranda and in the record, the first piece of evidence at issue is referred to as a “wax baggie,” “wax paper baggie,” “heroin baggie,” “heroin packet,” “wax paper packet,” and “wax paper fold.”   The second piece of evidence is referred to as a “bundle of packets,” a “bundle of wax paper baggies,” “wax plastic bags,” a “stack of wax paper baggies,” “wax folds,” and a “bundle of heroin.”   For clarity, the term “wax paper baggie” will refer to the first item allegedly discovered and “bundle of wax paper baggies” will refer to the second item..  FN2. Officers Galpin and Gagne testified that, in their training and experience, heroin is commonly packaged in small wax paper baggies or packets.   Officer Gagne explained that these baggies or packets are usually packaged in a bundle, commonly consisting of ten baggies or packets.   In the parties' memoranda and in the record, the first piece of evidence at issue is referred to as a “wax baggie,” “wax paper baggie,” “heroin baggie,” “heroin packet,” “wax paper packet,” and “wax paper fold.”   The second piece of evidence is referred to as a “bundle of packets,” a “bundle of wax paper baggies,” “wax plastic bags,” a “stack of wax paper baggies,” “wax folds,” and a “bundle of heroin.”   For clarity, the term “wax paper baggie” will refer to the first item allegedly discovered and “bundle of wax paper baggies” will refer to the second item.

FN3. The defendant filed a memorandum of law in support of his motion to suppress on August 20, 2013.   The State filed a memorandum of law in opposition on September 20, 2013..  FN3. The defendant filed a memorandum of law in support of his motion to suppress on August 20, 2013.   The State filed a memorandum of law in opposition on September 20, 2013.

FN4. Article first, § 9, of the Connecticut constitution provides:  “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”.  FN4. Article first, § 9, of the Connecticut constitution provides:  “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

Marano, Richard M., J.