Defendant Challenges Detectives’ Pot Bust Tactics

[User]

On Feb. 24, 2006, detectives stopped Michael Clark in the Hill section of New Haven, an area where police were concentrating drug interdiction efforts.

Before they went on patrol, one detective said he got a call from an informant who told him there would be a light colored Chevrolet Cobalt with a Pennsylvania license plate driven by an older black male that was selling drugs.

Later that day, the detective and two colleagues saw a car matching the informant’s description. At a traffic light, they pulled up next to the vehicle. One got out, approached the car and asked the driver to roll down the window.

The detective noticed a strong odor of marijuana and, in the back of the car, saw sandwich bags filled with what looked like pot. The police removed the driver from the vehicle and handcuffed him. Tests conducted on the scene revealed that the substance in the bags was, in fact, marijuana. Clark was arrested.

Even after removing the drugs from the car, the detectives still noticed an odor emanating from the vehicle. They opened the trunk and discovered another pound of marijuana, worth nearly $5,000. Clark was also found to be carrying $612. He was charged with possession, sale of narcotics and sale of narcotics in a school zone.

Clark argued at trial that the evidence was the product of an illegal seizure not based on a “reasonable and articulable suspicion.” The trial judge, Philip A. Scarpellino agreed, ruling that the police blocked Clark’s car in an attempt to restrict his freedom of movement and that their conduct in approaching the vehicle and asking him to roll down his window would cause a reasonable person to believe he was not free to leave.

Scarpellino also said there was no way to determine how the informant even got his information, which would allow police to determine its reliability.

In response, prosecutors argued that there wasn’t an illegal seizure because police didn’t stop the vehicle. Clark’s car was stopped in traffic and, prosecutors said, police are free to approach individuals on the street without constitutional implications.

The state further argued that the seizure was based on reasonable and articulable suspicion because the marijuana odor was obvious once Clark opened his car window.

Prosecutors appealed the trial court decision to the state Appellate Court, which, in a split decision in May 2008, sided with the trial court. The Connecticut Supreme Court later decided to hear the state’s appeal as to whether the Appellate Court properly ruled that the evidence seized should be suppressed “as the fruit of an illegal search.”

Senior Assistant State’s Attorneys Margaret Gaffney Radionovas and Bruce R. Lockwood argue in their Supreme Court briefs that it’s unclear Clark even knew police were approaching his car. They point out that the detectives were in an unmarked vehicle, in plain clothes and did not identify themselves as police when asking him to roll his window down.

“The police did not activate flashing lights or siren, as their vehicle was not equipped with these; their vehicle was unmarked; there is no indication in the record that they leveled a weapon at the defendant; (the officer) did not ask the defendant to turn off his vehicle; and (the officer) requested, not demanded, that the defendant roll down the window,” the prosecutors wrote. “In short, the situation was essentially unmarked by any assertion of authority that would have led a reasonable person to believe that he was not free to leave.”

Senior Assistant Public Defender Annacarina Jacob, however, said the police officers shirts did say “police” on them and they did have badges.

“The state’s proposition that police should be permitted to drive up alongside a motorist, position themselves directly next to an occupied vehicle on a public street while temporarily stopped in traffic at a red light, order the occupant to open the window and then proceed to ask questions and/or peer into the car with hopes of discovering criminal activity, must be rejected,” as unconstitutional, wrote Jacob.


NewsHawk: User: http://www.420magazine.com/
Source: ctlawtribune.com
Copyright: 2010 ALM Media Properties, LLC.
Contact: Connecticut Law Tribune: Letters
Website: Connecticut Law Tribune: Defendant Challenges Detectives? Pot Bust Tactics