Lead Opinion
Opinion
In this certified appeal, we consider the limitations, under the fourth amendment to the United States constitution
The record reveals the following facts and procedural history. On the night of May 7, 2004, Michael Morgan, a detective with the Newington police department, was patrolling the Berlin Turnpike (turnpike) in Newington in connection with a special traffic safety detail known as turnpike traffic enforcement. Morgan drove an unmarked police cruiser, but wore a full police uniform, complete with a badge, a sidearm, and a utility belt with handcuffs, pepper spray and a Stinger flashlight. At approximately 11:15 p.m., Morgan observed a Nissan Altima (Altima), operated by the defendant and proceeding northbound on the turnpike, make two abrupt lane changes without signaling. Morgan then activated his cruiser’s emergency lights and initiated a traffic stop for making lane changes without signaling in violation of General Statutes § 14-242.
After Morgan stopped the Altima on the shoulder of the turnpike near its intersection with Griswoldville Avenue, a short distance south of the former Krispy Kreme doughnut shop, he radioed the Altima’s Pennsylvania license plate number to his dispatcher, who checked it and did not report any matters of concern. Morgan then approached the defendant on the driver’s side of the Altima, informed him of the reason for the stop and requested his driver’s license, registration and insurance papers. Morgan also questioned the defendant regarding his travel itinerary; the defendant told Morgan that he was returning from visiting his daughter in New York. The defendant then gave Morgan a New Jersey driver’s license and a valid Pennsylvania rental agreement for the Altima. Morgan testified that, during this exchange and the remainder of the traffic stop, the defendant appeared “unusually nervous,” gave “quick answers” to his questions and did not make eye contact with him.
Morgan then took the defendant’s papers back to his cruiser, where he checked the defendant’s personal and vehicular information with his dispatcher, and learned that there were no outstanding warrants, wants or cautions pertaining to the defendant. Morgan also requested a backup officer to respond to the scene of the traffic stop, because he had decided that he was going to ask the defendant for consent to search his vehicle. Morgan then began to write an infraction ticket for the illegal lane changes.
By the time Morgan had finished writing the ticket, the backup officer and shift supervisor, Sergeant Derrick Sutton, had arrived, also wearing a full police uniform. Morgan then approached the defendant and asked him to exit his car in order better to explain the ticket.
Morgan began his search of the Altima on the driver’s side of the vehicle and immediately proceeded to open a closed compartment in its center console, where he found a package wrapped in white tissue paper. The tissue paper concealed a plastic bag that contained a white powder substance that Morgan identified as cocaine. At that point, Morgan stopped the search, handcuffed the defendant and placed him under arrest. Following the defendant’s arrest, a search of the rest of the Altima, including the backseat and trunk area, revealed additional cocaine and a large quantity of heroin.
Thereafter, the state charged the defendant with two counts of possession of narcotics by a person who is not drug-dependent in violation of § 2 la-278 (a) and (b),
The trial court, Alexander, J., following an eviden-tiary hearing at which Morgan was the only witness, denied the defendant’s motion to suppress. The trial court found that the state had proven by a preponderance of the evidence that the defendant had “freely and voluntarily given consent ... in the search of his motor vehicle” because “the initial motor vehicle stop was a result of observed traffic violations; the length of the stop was brief (no more than fifteen minutes); the conduct of the officer was professional and not overbearing; the defendant told the officer to check his vehicle for illegal items; [and] the defendant did not withdraw his consent at any time.” Noting that it was appropriate for Morgan to ask the defendant to exit his car during the stop; see generally Pennsylvania v. Mimms,
The defendant appealed from the judgment of conviction to the Appellate Court, which concluded that the trial court should have suppressed the evidence taken from the defendant’s car because he “was unlawfully detained . . . his consent to search the vehicle was tainted by that illegal detention and . . . the state failed to purge the taint of the illegal detention.” State v. Jenkins, supra,
Having concluded that the stop had been extended beyond the time necessary to effectuate its initial purpose, the Appellate Court then concluded that the state’s evidence “did not establish that Morgan had reasonable suspicion to expand the scope of the stop into an inquiry of whether the defendant was engaged in illegal activity unrelated to the underlying stop or that Morgan was proceeding on anything more than a mere hunch. Therefore, once Morgan began to question the defendant about unrelated illegal activity, the formerly valid motor vehicle stop morphed into an illegally prolonged seizure of the defendant.” Id., 434. Applying the three factor test articulated in Brown v. Illinois,
On appeal to this court, the state argues that the Appellate Court improperly: (1) relied on an inadequate record and reached out to decide claims not properly raised before the trial court, specifically whether Morgan improperly had patted down the defendant prior to obtaining his consent to search the Altima; and (2) concluded that, under the federal constitution, the scope or length of a traffic stop must be limited to its initial purpose, particularly given that there was probable cause that the defendant had committed two traffic violations in Morgan’s presence. In response, the defendant strongly disagrees, and also argues as alternative grounds for affirming the judgment of the Appellate Court that: (1) his consent to search was involuntary; (2) Morgan’s search exceeded the scope of the defendant’s consent; and (3) Morgan obtained the defendant’s consent to search in violation of article first, § 7, of the Connecticut constitution, which he posits provides greater specific protections for motorists than does the federal constitution.
“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 .... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Citation omitted; internal quotation marks omitted.) State v. Burroughs,
I
ADEQUACY OF THE RECORD FOR REVIEW OF CLAIMS PERTAINING TO THE PATDOWN SEARCH OF THE DEFENDANT
Given the fact sensitive nature of constitutional suppression inquiries, we begin with the state’s claim that the Appellate Court improperly considered the fact of an illegal patdown search in agreeing with the defendant’s contention that his consent to search the Altima was tainted by the previously performed illegal search. The state notes that the issue was not raised in the defendant’s motion to suppress or litigated during the suppression hearing, and relies on State v. Brunetti,
The record reveals the following additional relevant facts and procedural history. When the defendant moved the trial court to suppress the narcotics found in the Altima, he claimed that the evidence was the fruit of an illegal search and seizure, namely, his detention “for an extended period without probable cause or a reasonable and articulable suspicion that the defendant was engaged in illegal activity . . . .’’In his motion, the defendant contended that, “[a]t no time did [he] voluntarily consent to the search of his vehicle,” any consent obtained “was tainted by the illegal action of [the] officers,” and that he “did not feel free to leave or decline to answer any questions posed by the officer due to the circumstances of the time of day, the number of officers called to the scene, and the fact that [he] was alone.” The defendant did not mention or question the legality of the patdown in his motion to suppress.
Following the suppression hearing, at which Morgan testified briefly about the patdown,
After the defendant appealed to the Appellate Court, he contended specifically that, “(1) even if his consent to search the vehicle had been voluntary, it was tainted by a prior, unconstitutional search of his person, (2) the state failed to establish that he actually consented to the search of the vehicle, (3) any consent to search was not given voluntarily and (4) any consent to search was obtained by a violation of the Connecticut constitution by the police improperly converting a traffic stop into a criminal investigation.”
Subsequently, the Appellate Court agreed with the state’s argument that “the issue of whether the defendant’s person was illegally searched was not raised in the trial court and that the record is inadequate to establish whether the defendant consented to the search of his person,” and noted that, “even if we assume arguendo that an illegal search of the defendant’s person occurred, this, in and of itself, does not necessarily invalidate the search of the defendant’s car.” State v. Jenkins, supra,
Before this court, the defendant renews his argument, accepted by the Appellate Court, that, under Brown v. Illinois, supra,
The defendant’s various claims in this certified appeal are an amalgam of issues both preserved and unpre-served in the trial court. With respect to those issues that are unpreserved, he seeks review pursuant to State v. Golding, supra,
Our recent case law addressing whether a record is adequate for review under the first prong of Golding makes clear that this preservation exception operates in a very restrictive manner, particularly in the fact sensitive context of illegal search and seizure claims. The leading recent decision on this topic is State v. Brunetti, supra,
We thereafter concluded that the record was inadequate for review of the defendant’s joint consent claim under the first prong of Golding. Id., 56-64. We rejected his argument that the trial court’s statement, in ruling on his suppression motion, that “[i]t is clear that at least one of the parties, one of the parents, declined to consent to [the] search,” “perfected the record for review because it [constituted] a finding, supported by [the] evidence, that the defendant’s mother had declined to consent to the search.” (Internal quotation marks omitted.) Id., 56. We disagreed with the defendant’s reliance on testimony that his mother had declined to sign the consent form, and emphasized that, “the act of declining to sign a consent to search form is not tantamount to a refusal to consent to the search; rather, it is simply one of several relevant factors that a court considers in determining the validity of a consent to search. . . . Because the refusal to sign a consent to search form is one of several factors to be considered in determining the validity of consent, such refusal does not vitiate consent otherwise found to be valid in light of all of the circumstances.” (Citation omitted; emphasis in original.) Id.
Most importantly, we emphasized that, “because the defendant’s motions to suppress did not implicate the mother’s consent or lack thereof, the state was not on notice that it was required to establish, on the basis of the totality of the circumstances, that the defendant’s mother had consented to or acquiesced in the search. In such circumstances, the state bears no responsibility for the evidentiary lacunae, and, therefore, it would be manifestly unfair to the state for this court to reach the merits of the defendant’s claim upon a mere assumption that the defendant’s mother had declined to consent to the search.”
Thus, we agree with the state that the Appellate Court improperly considered any illegality attendant to Morgan’s patdown of the defendant. Given the fact that the state was not alerted to the need to develop a factual record concerning whether potentially permissible bases, such as consent,
II
FEDERAL CONSTITUTIONAL CLAIMS
Accordingly, we now turn to the federal constitutional issues presented by the present case. First, we must consider whether Morgan’s acts of questioning the defendant about topics unrelated to the reason for the traffic stop, as well as asking for consent to search, were themselves constitutionally permissible during a routine traffic stop. If we conclude that they were, we then must address the defendant’s alternative grounds for affirmance under the federal constitution, namely that: (1) his consent was not voluntary; and (2) Morgan’s search exceeded the scope of the defendant’s consent.
Permissible Scope of Investigation during Routine Traffic Stops
The state, relying on Arizona v. Johnson, supra,
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, supra, 392 U.S. 1.
“It is well established, however, that [t]he police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. . . . The authority to permit a reasonable search for weapons for the protection of the police officer is narrowly drawn applying only where he has reason to believe that he is dealing with an armed and dangerous individual .... The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. . . . And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Citations omitted; internal quotation marks omitted.) State v. Nash,
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 [ajmendment 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.” (Citation omitted; internal quotation marks omitted.) United States v. Sharpe,
Applying this reasoning in the traffic stop context, the United States Supreme Court recently followed Muehler v. Mena, supra,
Accordingly, decisions in the wake of Arizona v. Johnson, supra,
We emphasize, however, that in evaluating the duration of a traffic stop, the reviewing court still must consider the stop through the lens of the time reasonably
A review of the Appellate Court’s opinion in the present case indicates, then, that it did not apply the correct legal standard, in that it relied on pre-Muehler case law,
Applying the proper legal standard to the facts of the present case, we conclude that Morgan did not measurably or unreasonably prolong his traffic stop of the defendant. In so concluding, we note that it is undisputed that the traffic stop for unsignaled lane changes was valid at its inception, and also that, under Pennsylvania v. Mimms, supra,
B
Whether the Defendant’s Consent Was Voluntary
Having determined that the traffic stop itself was not conducted in a manner that violated the fourth amendment, we now must consider whether the defendant voluntarily consented to the search of his vehicle.
“A warrantless search is not unreasonable under either the fourth amendment to the constitution of the United States or article first, § 7, of the constitution of Connecticut if a person with authority to do so has freely consented to the search. . . . The state bears the burden of proving that the consent was free and voluntary
“In determining whether a defendant’s will was overborne in a particular case, the [c]ourt has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused ... his lack of education ... or his low intelligence . . . the lack of any advice to the accused of his constitutional rights . . . the length of detention . . . the repeated and prolonged nature of the questioning . . . and the use of physical punishment such as the deprivation of food or sleep . . . .” (Citations omitted.) Schneckloth v. Busta-mante, supra,
In evaluating the voluntariness of the defendant’s consent, we note that, “while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” Id., 249. The Supreme Court has emphasized that this rule remains applicable to requests for consent to search during traffic stops, calling it “unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.” Ohio v. Robinette, supra,
Moreover, that consent to search is given while a defendant is being detained does not render it involuntary per se, as “the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” United States v. Watson, 423 U.S. 411, 424,
With respect to the remainder of the defendant’s claims,
We further disagree with the defendant’s claim that Morgan and Sutton behaved in a “subtly coercive” manner because they were armed, the defendant was a minority from out of state who was alone in his car, and the traffic stop took place on a dark area of the turnpike. The defendant has not proffered any evidence to contradict, or demonstrated a void of supporting evidence, with respect to the trial court’s finding that “there was no untoward conduct on the part of either . . . Morgan or . . . Sutton” and that “there was no threatening, coercive or overpowering behavior exhibited at any time during this incident.” The fact that the police officers were armed with their duty sidearms does not render the atmosphere coercive, particularly as there is no evidence
C
Scope of the Defendant’s Consent
The defendant next proffers a second ground for affirming the judgment of the Appellate Court, namely, that the state did not prove that he actually had consented to a complete search of the Altima’s passenger compartment. Relying on Florida v. Jimeno,
“The standard for measuring the scope of a suspect’s consent under the [f]ourth [a]mendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id., 251. “The scope of a search is generally defined by its expressed object.” Id. “Although objective reasonableness is a question of law [over which our review is plenary], the factual circumstances are highly relevant when determining what a reasonable person would have believed to be the outer bounds of the consent that was given.”
In Jimeno, the Supreme Court concluded that it was “reasonable for an officer to consider a suspect’s general consent to a search of his car to include consent to
Post-Jimeno case law makes clear that, on the basis of the exchange between Morgan and the defendant, Morgan reasonably could have understood the defendant’s invitation to “check” the Altima as an invitation to search the interior of the car and unlocked compartments therein, including its center console. First, Morgan’s question about the presence of “anything illegal” in the car reasonably is understood as directing the defendant’s attention to contraband such as narcotics or weapons, despite the fact that he did not mention those items specifically.
m
STATE CONSTITUTIONAL CLAIMS
As his final proffered alternative ground for affirming the judgment of the Appellate Court, the defendant provides an analysis under State v. Geisler,
“It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . .
“The Geisler factors serve a dual purpose: they encourage the raising of state constitutional issues in a manner to which the opposing party — the state or the defendant — can respond; and they encourage a principled development of our state constitutional jurisprudence. Although in Geisler we compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven. . . . [N]ot every Geisler factor is relevant in all cases.” (Citation omitted.) State v. Morales,
A
Operative Constitutional Text
With respect to the first Geisler factor, namely, the operative constitutional text, we agree with the state that the language of article first, § 7, does not support the defendant’s claim of greater protections than are provided under the fourth amendment. See footnotes 1 and 2 of this opinion. The state provision “closely resembles” the fourth amendment; State v. Barton,
B
Connecticut and Federal Case Law
We also agree with the state that contemporary federal case law governing the police conduct during routine traffic stops; see parts II A and B of this opinion; similarly does not support the defendant’s interpretation of the state constitution.
Moreover, the defendant has not identified any on point Connecticut case law interpreting the federal constitution that conflicts with the federal constitutional principles recently articulated in Arizona v. Johnson, supra,
C
Constitutional History
With respect to the relevant constitutional history, we agree with the defendant that the “original 1818 state constitution predates the automobile age,” and that article first, § 7, “was adopted in the automobile age and should be interpreted to include protection of individual citizens while in cars from the abuse of governmental power.” With respect, however, to whether the historical circumstances surrounding the adoption of article first, § 7, support the defendant’s claim to greater protections under that provision than are afforded by the federal constitution, we have stated that “[t]he declaration of rights adopted in 1818 appears to have its antecedents in the Mississippi constitution of 1817, which in turn derived from the federal bill of rights and the Virginia declaration of rights of 1776. . . . The search and seizure provision in our 1818 constitution, then article first, § 8, closely resembles the fourth amendment to the United States constitution. Although its enumeration was changed to article first, § 7, when the 1965 constitution incorporated article first, § 4, into article seventh, its language has not been altered since its original adoption. . . . The language of article first, § 7, which was based upon the fourth amendment, was adopted with little debate. . . . Thus, the circumstances surrounding the adoption of article first, § 7, lend weight to the view that, in most cases, a practice permitted under the fourth amendment is permissible under article first, § 7.” (Citations omitted; internal quotation marks omitted.) State v. Mikolinski, supra,
D
Sister State Case Law
The defendant relies specifically on state constitutional case law from ten states, Alaska, Kansas, Massachusetts, Minnesota, Montana, New Jersey, Pennsylvania, Vermont, Washington and Wyoming in support of his argument that we should interpret article first, § 7, to preclude, in the context of a routine traffic stop, requests for consent to search and other questioning unrelated to the purpose of the stop.
In our view, the most comprehensive and persuasive of these cited decisions is State v. Carty,
Like the New Jersey Supreme Court, the Minnesota Supreme Court has interpreted its state constitution to require that officers have “reasonable, articulable suspicion” of criminal activity prior to asking for consent to search during a routine traffic stop. State v. Fort,
Case law from the high courts of Massachusetts and Pennsylvania is similarly restrictive, as both states also do not permit police to inquire beyond the purpose of a traffic stop in the absence of a reasonable suspicion of criminal activity. The case law from these states, however, is not persuasive because of the cursory state constitutional analyses contained in those opinions. See Commonwealth v. Torres,
In O’Boyle v. State,
With respect to state constitutional decisions issued after the United States Supreme Court’s decision in Muehler v. Mena, supra,
Finally, we find the Alaska Court of Appeals decision in Brown v. State,
E
Economic and Sociological Factors
With respect to the relevant economic and sociological factors, the defendant first contends that, as a practical matter, many citizens do not feel free to refuse consent to a search during a routine traffic stop. Numerous commentators, in articles revealed by our independent research, support this assertion.
The defendant and the amicus also emphasize the “national concern” regarding racial profiling and pre-textual stops. The defendant cites General Statutes § 54-11 et seq., the Alvin W. Penn Racial Profiling Prohibition Act, which, inter alia, prohibits law enforcement officers from “engag[ing] in racial profiling” and provides in relevant part that “[t]he detention of an individual based on any noncriminal factor or combination of noncriminal factors is inconsistent with this policy.”
F
Conclusion
Having performed a complete Geisler analysis of the defendant’s state constitutional claims in this appeal, we conclude that article first, § 7, does not provide greater protection than does the federal constitution with respect to consent searches during routine traffic stops, and we decline to adopt the rules proposed by the defendant. Our own constitutional language, precedents and history do not support a ready departure from the federal case law in this area, particularly because the recent United States Supreme Court decisions do not represent a sea change from prior Connecticut precedent. See State v. Oquendo, supra,
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.
In this opinion VERTEFEUILLE and ZARELLA, Js., concurred.
Notes
“The fourth amendment to the United States constitution provides: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ The fourth amendment has been made applicable to the states via the fourteenth amendment.” State v. Gonzalez,
The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
We granted the state’s petition for certification limited to the following issue: “Did the Appellate Court correctly determine that the trial court improperly denied the defendant’s motion to suppress?” State v. Jenkins,
General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, for a first offense shall be imprisoned not less than five years or more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years or more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years, or (2) such person’s mental capacity was significantly impaired, but not so impaired as to constitute a defense to prosecution.”
Although § 21a-278 (b) was the subject of technical amendments in 2007; see Public Acts 2007, No. 07-217, § 97; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision.
Morgan testified that, when working traffic enforcement on the turnpike, his regular practice is to ask the driver to exit his or her car for an explanation of the ticket, because that enables Morgan to show the driver the amount of traffic on the turnpike, as well as to have the driver’s full attention away from distractions such as radios or cellular telephones. Morgan also testified that he created a lane of safety for himself and the defendant to move around in by parking his cruiser half in the right travel lane, and half on the shoulder, and offsetting it from the Altima, which was parked entirely on the shoulder.
Morgan did not, however, consider it unusual that the rental vehicle was registered in a different state than its driver was licensed.
Morgan testified that he did not believe that the defendant was armed at the time of the stop.
For additional discussion with respect to the phrasing of the defendant’s consent, see footnote 38 of this opinion and the accompanying text.
We note that the defendant does not contest the propriety of this subsequent search of the Altima.
We note that § 21a-278 (b) proscribes, inter alia, both the possession and sale of narcotics. The substitute information in the present case charged the defendant with violations of § 21a-278 (a) and (b) on the basis of the defendant’s alleged “[s]ale of certain illegal drugs.” This statement appears to be a scrivener’s error. At no point in the proceedings before the trial court did the state claim that the defendant had participated in the actual sale of drugs. Additionally, we note that the judgment file in the present case notes that the § 21a-278 (b) violation to which the defendant pleaded nolo contendere was “[pjossession of [njarcotics with [ijntent to [s]ell.” Accordingly, we refer to the crimes with which the defendant was charged under § 21a-278 (a) and (b) as possession of narcotics with intent to sell by a person who is not drug-dependent.
General Statutes § 54-94a provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. 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. . . .”
The Appellate Court also rejected the state’s claim that the record was inadequate for appellate review with respect to whether Morgan had returned the defendant’s ticket and paperwork to him. The court noted that the record indicated that Morgan had not given the defendant the ticket, and that any inadequacy on this point should be charged to the state because it bore the burden of proof to establish the voluntariness of the defendant’s consent at the suppression hearing. State v. Jenkins, supra,
In Brown v. Illinois, supra,
In his dissent, Judge Schaller concluded that the defendant had failed to provide an adequate record for review of his claim that he had been detained unlawfully because the purpose of the traffic stop already had been effectuated. State v. Jenkins, supra,
As noted previously, Morgan was the only witness to testify at the suppression hearing. On cross-examination, while exploring the circumstances of the defendant’s consent to search the Altima, the defendant asked Morgan whether he had searched the defendant. Morgan replied in the affirmative, and further testified that he did not find anything illegal on the defendant’s person. After further testimony about the search of the Altima, Morgan testified during recross-examination, in response to a question from the defendant asking why Morgan had searched his person: “I asked him if he had anything illegal on him and he said no, and I checked.” Morgan then testified that he had not believed that the defendant was armed at the time. This was the only testimony about the patdown adduced during the suppression hearing.
At oral argument before the trial court, the defendant mentioned the patdown in an effort to distinguish this case from State v. Story,
Having reviewed the defendant’s briefs to the Appellate Court, we deem the Appellate Court’s description of his arguments an accurate representation of the claims that he made therein.
For its part, upon receipt of the defendant’s brief, the state moved for permission to file a late motion for rectification, seeking to include in the record Morgan’s police report, which was mentioned, but not admitted as an exhibit at the suppression hearing. The state claimed that the report indicated that the patdown was proper because it had been invited by the defendant himself. The Appellate Court denied the state’s motion for permission to file a late motion for rectification, and subsequently denied the state’s motion for reconsideration en banc of that denial.
We noted that, other than the testimony that the defendant’s mother had refused to sign the consent form, the defendant had “presented no other evidence on the issue. Because the mother’s actions relating to the consent to search were not at issue at the suppression hearing — the defendant had claimed only that his father had not given valid consent to search and, in fact, expressly had indicated that the mother’s consent was not necessary— the state had no reason to present any evidence regarding the mother’s consent or lack thereof, and, consequently, it did not do so. As a result, we simply do not know any of the other circumstances surrounding the mother’s refusal to sign the consent to search form.” (Emphasis altered.) State v. Brunetti, supra,
In so concluding, we relied on State v. Medina, supra,
See, e.g., United States v. Jahkur, 409 F. Sup. 2d 28, 31-32 (D. Mass. 2005); State v. Caraveo,
We note that the state contends, in its brief, that Terry restrictions are inapplicable to the routine traffic stop in the present case because Morgan had probable cause to believe that the defendant had committed a traffic violation. Indeed, the state notes that, the provisions of General Statutes § 51-164o (b) notwithstanding, the defendant constitutionally could have been subjected to custodial arrest for the minor traffic offense; Atwater v. Lago Vista,
In Muehler v. Mena, supra,
Although the majority opinion in Ohio v. Robinette, supra,
Cases on point released subsequent to Muehler v. Mena, supra,
Other jurisdictions had concluded similarly under the fourth amendment even prior to the publication of Muehler. See United States v. Childs,
Prior to the United States Supreme Court’s 2005 decision in Muehler v. Mena, supra,
Particularly in light of Arizona v. Johnson, supra,
Indeed, the cited portions of United States v. Jones, supra,
In Brigham, the en banc Fifth Circuit noted, however, that police officers could question a motorist on any subject during a traffic stop; United States v. Brigham, supra,
The Appellate Court also noted that, in State v. Story,
We note that several courts have held the timing of the questioning or requests for consent to have independent constitutional significance, and have emphasized that questioning after discrete events such as the issuance of a ticket or warning, or the return of a driver’s paperwork, may create a detention distinct from the initial stop, which then would require independent justification such as consent or reasonable suspicion. Put differently, these courts conclude that the return of the paperwork marks the end of the initial traffic stop, and determining the consensual nature of the subsequent interaction requires analysis of whether the driver reasonably would have felt free to leave under United States v. Mendenhall,
Because we conclude that the defendant was not subjected to an illegal seizure, we need not consider whether the evidence taken from the consent search was the fruit of the poisonous tree subject to the attenuation analysis of Brown v. Illinois, supra,
Practice Book § 84-11 (a) provides in relevant part: “Upon the granting of certification, the appellee may present for review alternative grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the appellate court. ... If such alternative grounds for affirmation or adverse rulings or decisions to be considered in the event of a new trial were not raised in the appellate court, the party seeking to raise them in the supreme court must move for special permission to do so prior to the filing of that party’s brief. Such permission will be granted only in exceptional cases where the interests of justice so require.” The state acknowledges that the defendant raised these claims properly before the Appellate Court, and we may, therefore, review them without special permission.
We note that the state had the burden of proving the voluntariness of the consent to the search by a preponderance of the evidence. See United States v. Isiofia,
Relying on Ornelas v. United States,
As noted previously, we decline to consider the defendant’s second proffered ground for finding his consent involuntary, namely, that Morgan already had escalated the encounter by patting down the defendant without justification. See part I of this opinion.
See also, e.g., United States v. Walker, 922 F. Sup. 724, 727 (N.D.N.Y. 1996) (noting that defendant’s “original consent to search the vehicle was spontaneous, unsolicited, and without any indication that it was produced by coercion”); State v. Sullivan,
But see United States v. Canipe,
We disagree with the defendant’s reliance on United States v. Isiofia,
Relying on Morgan’s testimony during cross-examination that he did not record in his report the specific words used by the defendant, the defendant argues that the trial court committed clear error when it found that the exact words of his consent were “go ahead and check. You can check if you want.” We disagree. Morgan’s testimony on cross-examination, while acknowledging that he did not quote the defendant verbatim in his report, nevertheless does not contradict Morgan’s earlier statements that the defendant had invited him to “check” the car.
In any event, we note that courts have concluded that other words synonymous with “check” also have the legal effect of a request to “search.” See United States v. Canipe, supra,
The defendant also relies upon article first, § 9, of the Connecticut constitution, which provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” We agree with the state that the defendant’s reliance on this section is, in essence, superfluous, because, 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. See State v. Lamme,
The defendant also asks for a requirement that the state prove, at a subsequent suppression hearing, the voluntariness of the consent by a heightened standard of proof. The defendant’s analysis of this particular request is, however, limited to a sentence supported by a footnote citing three cases, State v. Hight,
In their dissents, neither Justice Katz nor Justice Palmer disputes our conclusion under Arizona v. Johnson, supra,
See, e.g., State v. Miller,
Justice Katz cites to several of this court’s decisions, namely, State v. Wilkins, supra,
The defendant cites State v. Conger,
The defendant also relies on sister state case law interpreting the federal constitution, as well as some decisions applying state statutes restricting the scope of traffic stops. To the extent that the case law interprets the federal constitution, it, like those federal decisions preceding Muehler v. Mena, supra,
The defendant’s reliance on case law from Montana, Vermont and Washington is misplaced because the cited cases do not stand for the proposition that those states have implemented increased state constitutional protections in the area of consent searches. With respect to Montana, the defendant cites State v. Hill,
Similarly, State v. Cunningham,
Finally, the defendant relies on State v. Glossbrener,
The court further emphasized that 95 percent of detained motorists from whom consent was sought had agreed to searches of their vehicles, but that only 20 percent of those searches yielded any contraband, which “undermined” the court’s confidence in the “effectiveness of roadside consents as a law enforcement technique . . . .” State v. Carty, supra,
Contrary to Justice Katz’ assertion, we do not suggest that State v. Fort, supra,
The lack of an independent state constitutional analysis makes Commonwealth v. Torres, supra,
In Commonwealth v. Strickler, supra,
We find misplaced the defendant’s reliance on another Wyoming case, Garvin v. State,
Our independent research has revealed three other states, Indiana, New Hampshire and Tennessee, that utilize, in essence, reasonableness standards under their state constitutions in this context. For example, in State v. Washington, supra,
Similarly, in State v. McKinnon-Andrews,
Finally, the Tennessee Supreme Court, in State v. Cox,
In relying on state constitutional case law from Arkansas and Washington requiring law enforcement officers to give warnings prior to seeking consent to search a home in the “knock and talk” context; see, e.g., State v. Brown,
The court stated that, under Kansas law, during a routine traffic stop, “a law enforcement officer may request the motorist’s driver’s license, car registration, and proof of insurance; conduct a computer check; issue a citation; and take those steps reasonably necessary to protect officer safety. The stop can last only as long as necessary to complete those tasks, and those tasks must be diligently pursued. ... If no information raising a reasonable and articulable suspicion of illegal activity is found during the time period necessary to perform the computer check and other tasks incident to a traffic stop, the motorist must be allowed to leave without further delay.” (Citations omitted; internal quotation marks omitted.) State v. Smith, supra,
We note also that the federal constitutional analysis in State v. Smith, supra,
We respectfully disagree with the Kansas court’s reading of the cases upon which it relied in support of its conclusion that the Tenth Circuit’s bright line rule requiring the return of a driver’s documents and the completion of the stop in order for a consent to be valid, could not be squared with the more expansive view of questioning and requests for consent to search followed subsequent to Mena. First, in United States v. Valenzuela, supra,
The decision in Brown describes the state’s defense of the consent search during the routine traffic stop in that case as “eminently defensible under federal law,” including Muehler v. Mena, supra,
It also has been argued that requests for consent searches in the context of routine traffic stops should be deemed a practice that is impermissible per se, particularly given the perceived ineffectiveness of warnings. See C. Lassiter, “EHminating Consent from the Lexicon of Traffic Stop Interrogations,” 27 Cap. U. L. Rev. 79, 133-34 (1998) (discussing ineffectiveness of warnings in preventing involuntary consent, particularly by uneounseled motorists, and stating that “voluntary uncounseled consent to search and seizure which would lead to the discovery of self-incriminating evidence strains faith in the law”). But see B. Lawrence, note, “The Scope of Police Questioning During a Routine Traffic Stop: Do Questions Outside the Scope of the Original Justification for the Stop Create Impermissible Seizures if they do not Prolong the Stop?,” 30 Fordham Urb. L.J. 1919, 1948 (2003) (supporting constitutionality of questioning and requests for consent to search that do not prolong traffic stops because “the state interest in drug interdiction outweighs the minimal privacy interest” implicated by questioning).
We note that Professor LaFave has been highly critical of the United States Supreme Court’s recent Terry and traffic stop jurisprudence, in particular criticizing the drug dog case, Illinois v. Caballes, supra,
General Statutes § 54-11 provides: “(a) This section and section 54-lm shall be known as the ‘Alvin W. Penn Racial Profiling Prohibition Act’.
“(b) For the purposes of this section, ‘racial profiling’ means the detention, interdiction or other disparate treatment of an individual solely on the basis of the racial or ethnic status of such individual.
“(c) No member of the Division of State Police within the Department of Public Safety, amunicipalpolice department or any other law enforcement agency shall engage in racial profiling. The detention of an individual based on any noncriminal factor or combination of noncriminal factors is inconsistent with this policy.
“(d) The race or ethnicity of an individual shall not be the sole factor in determining the existence of probable cause to place in custody or arrest an individual or in constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a motor vehicle.”
Dissenting Opinion
dissenting. Both the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution protect individuals against unreasonable searches and seizures. In this case, it is undisputed that the initial stop of the defendant, Christopher Jenkins, for improperly changing lanes was reasonable and, therefore, valid under both of these provisions. See State v. Jenkins,
“It is well established that federal constitutional . . . law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . State v. Oquendo,
“The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled. In State v. Geisler, [supra,
I agree with the majority that neither the text nor the constitutional history of article first, § 7, support the defendant’s claim to greater protections under the state constitution than the federal constitution. I disagree, however, with the majority’s analyses of persuasive relevant federal precedents, related Connecticut precedents, the persuasive precedents of other state courts and contemporary understandings of public policy. I believe that these four factors necessitate a conclusion that article first, § 7, requires us to examine both the temporal and substantive scope of a routine traffic stop and that, more specifically, a consent search during a routine traffic stop is not valid unless there is a reasonable and articulable suspicion to believe that a detained driver or passenger has engaged in, or is about to engage in, criminal activity.
I
FEDERAL PRECEDENTS
As I previously have noted herein, I do not dispute the majority’s conclusion that
As both the majority and the state properly recognize, the reasonableness of traffic stops under the fourth amendment is analyzed under the framework established in Terry v. Ohio,
The United States Supreme Court had been careful, however, to limit the boundaries of such warrantless stops. The court acknowledged that it had “held in the past that a search which is reasonable at its inception may violate the [f]ourth [a]mendment by virtue of its intolerable intensity and scope. . . . The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.” (Citations omitted; internal quotation marks omitted.) Terry v. Ohio, supra,
Drawing from the scope analyses set forth in Terry and Royer, several federal courts had required that routine traffic stops, justified under Terry, be reasonable in both duration and manner. See, e.g., United States v. Boyce,
The United States Supreme Court recently seemed to refute this reasonableness in manner approach in Arizona v. Johnson, supra,
The
II
CONNECTICUT PRECEDENTS
A review of this court’s precedents indicates that we never before have adopted the broadly permissive approach to the scope of Terry stops, including routine traffic stops, championed by the state and suggested by the United States Supreme Court’s recent decisions. This court consistently has concluded that, under our state constitution, a Terry stop must be both justified at inception and reasonably circumscribed. See State v. Wilkins, supra,
Our jurisprudence also supports the specific rule that the defendant asks us to adopt — that an officer conducting a routine traffic stop must have a reasonable and articulable suspicion of criminal activity unrelated to the initial traffic stop before asking for consent to search a vehicle. This court has required that a Terry stop be grounded upon “reasonable and articulable suspicion that the individual has committed or is about to commit a crime”; (internal quotation marks omitted) State v. Nash,
Ill
SISTER STATE PRECEDENTS
State courts have taken widely varying approaches to the proper analysis of the scope of a routine traffic stop. Some states either have expressly adopted the purely durational test under their state constitutions or have held that their state constitutions provide no greater rights than the federal constitution.
I begin with the several cases in which state courts have drawn from both federal and state constitutional provisions in limiting the scope of roadside traffic stops and requiring a reasonable and articulable suspicion of criminal activity unrelated to the initial stop before a police officer validly can ask for consent during a roadside search. In State v. Smith
I next turn to the New Jersey Supreme Court’s holding in State v. Carty,
I agree with the majority that Carty differs from the present case on three grounds: (1) the New Jersey Supreme Court consistently has afforded a higher level of scrutiny to consent searches than does the United States Supreme Court; (2) the New Jersey police were subject to both a federal decree and state police policy Umiting coercive investigatory techniques; and (3) the court had before it an extensive factual record demonstrating the violation of the federal decree and state police policy. Despite these distinctions, however, there are several reasons why Carty is relevant and persuasive. First, although this court has not afforded greater protections than the federal courts concerning consent searches specifically, this court also has found that the Connecticut constitution provides greater protection against official searches and seizures, generally. See State v. Wilkins, supra,
I also find persuasive the Minnesota Supreme Court’s decision requiring that officers have reasonable and articulable suspicion of criminal activity independent of the initial traffic violation before asking for consent to search during a traffic stop. See State v. Fort,
Similarly, the Court of Appeals of Alaska recently held that “an officer’s questions about other potential crimes, and an officer’s requests for permission to conduct a search, are significant events under the search and seizure provision of the Alaska [c]onstitution, [article first, § 14]. More specifically, we conclude that, under the circumstances presented in this case, the officer conducting the traffic stop was prohibited from requesting [the defendant’s] permission to conduct a search that was (1) unrelated to the basis for the stop and (2) not otherwise supported by a reasonable suspicion of criminality.” Brown v. State,
IV
RELEVANT PUBLIC POLICY
Routine requests to search a detained motorist, in the absence of any suspicion of criminal activity beyond an initial traffic violation, represent a real and disturbing burden on motorists
Although we have no specific data evidencing the frequency of consent searches during routine traffic stops in Connecticut, the fact that so many people must drive in order to fulfill their daily work, family and educational needs means that many Connecticut citizens may be subject to requests for consent searches and the significant interruption that such searches entail. See Brown v. State, supra,
V
CONCLUSION
Having reviewed the relevant Geisler factors, I conclude that article first, § 7, of the Connecticut constitution provides greater protection than the federal constitution with respect to consent searches during routine traffic stops in that it requires that the scope of a Terry stop be reasonable both in substance and duration. This conclusion is supported by this court’s long emphasis on the overall reasonableness of Terry searches, especially in light of the uncertain and conflicting dictates of federal law, as well as persuasive sister state precedents and contemporary public policy concerns. In order to effectuate the requirement that Terry stops be both substantively and temporally reasonable in scope, I further conclude that a consent search during
In determining whether reasonable and articulable suspicion exists, “a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. ... [A] court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom.” (Internal quotation marks omitted.)
In the present case, the Appellate Court thoroughly reviewed the circumstances surrounding the stop and concluded as a matter of law that the state “did not establish that [Officer] Morgan had reasonable suspicion to expand the scope of the stop into an inquiry of whether the defendant was engaged in illegal activity unrelated to the underlying stop or that Morgan was proceeding on anything more than a mere hunch.” State v. Jenkins, supra,
I agree with the majority’s conclusion in part I of its opinion that, because the defendant failed to create an adequate record before the trial court regarding the validity of the patdown search, the Appellate Court improperly considered that conduct in analyzing the defendant’s claims regarding the vehicle search, other than as a historical fact.
In addition to asking the court to adopt this standard under the state constitution, the defendant requests that this court adopt the following rules: (1) an officer conducting a routine traffic stop that has not elevated into a justifiable investigatory stop must inform the motorist that he is free to leave and free to refuse consent to search as a prerequisite to obtaining consent after the traffic stop has ended; (2) the state must show that any exchange between an officer and a motorist clearly and unambiguously supports the conclusion that the motorist actually consented to the search performed; and (3) the state should be held to a higher standard of proof for consent searches that occur during routine, noncriminal traffic stops. The defendant has offered no analysis directly addressing these claims or any case law that would tend to support them. I therefore decline to address them.
In Muehler v. Mena, supra,
Because neither Muehler nor Caballes involved a separate search under the fourth amendment, the United States Supreme Court cases relied on by the state and the majority do not squarely address the proper analysis of a shift in purpose between a lawful Terry stop and a consent search. Nonetheless, because I recognize that the weight of federal precedent after Arizona v. Johnson, supra,
See State v. Teagle,
In State v. Washington,
In State v. McKinnon-Andrews,
In State v. McClendon,
In State v. Cunningham,
Similarly, in O’Boyle v. State,
Although these cases do not require the exact relief the defendant in the present case seeks, they nonetheless are persuasive evidence that suspicion of a traffic violation, without more, does not authorize free ranging roadside investigations fettered only by temporal limitations.
See Ala. Code § 32-1-4 (Cum. Sup. 2009) (“[ejxcept when an arresting officer cites a person with an [electronic ticket], the officer shall, upon the giving by such person of a sufficient written bond, approved by the arresting officer, to appear at such time and place, forthwith release the person from custody”); Mont. Code Ann. § 46-5-403 (2007) (“[a] stop authorized by [§] 46-5-401 or [§] 46-6-411 may not last longer than is necessary to effectuate the purpose of the stop”); Or. Rev. Stat. § 810.410 (3) (2007) (“A police officer • . . [c] May make an inquiry into circumstances arising during the course of a detention and investigation under paragraph [b] of this subsection that give rise to a reasonable suspicion of criminal activity. . . . [e] May request consent to search in relation to the circumstances referred to in paragraph [c] of this subsection or to search for items of evidence otherwise subject to search or seizure under [Or. Rev. Stat.] § 133.535.”); R.I. Gen. Laws § 31-21.2-5 (b) (Sup. 2009) (“[n]o operator or owner-passenger of a motor vehicle shall be requested to consent to a search by a law enforcement officer of his or her motor vehicle which is stopped solely for a traffic violation, unless there exists reasonable suspicion or probable cause of criminal activity”); Wash. Rev. Code § 46.61.021 (2) (2008) (“[w]henever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person’s license, insurance identification card, and the vehicle’s registration, and complete and issue a notice of traffic infraction”); see also State v McPherson,
See People v. Brandon,
The majority suggests that the analytical approach set forth in these cases is not implicated in the present case because the factual predicate in this case is an ongoing traffic stop. I believe that they nonetheless illuminate our sister courts’ discomfort with overreaching in connection with traffic stops, but, because I would conclude that the Connecticut constitution requires a rule limiting the use of consent searches at any point during a routine traffic stop, I do not primarily rely on these cases.
Subsequently in State v. Morlock,
Like the Connecticut constitution, article first, paragraph seven, of the New Jersey constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.”
Indeed, the majority takes notice of many of these studies in its discussion of the Geisler factor relating to public policy.
Although the majority suggests that Fort is undermined because Wiegand no longer would be good law after Illinois v. Caballes, supra,
Despite this specific language, the majority dismisses the import of Brown v. State, supra,
In revisiting Brown, the Alaska Court of Appeals has characterized that case as setting forth various considerations, not a per se rule that the detention becomes unreasonable — and thus constitutionally invalid — if the duration, manner, or scope of the investigation lasts longer than necessary to effectuate the purpose of the stop. See Murphy v. Anchorage, Alaska Court of Appeals, Docket No. A-10345, No. 5576, 2010 Alaska App. LEXIS 28, *11-12 (March 17, 2010) (memorandum decision); Bostwick v. State, Alaska Court of Appeals, Docket No. A-10224, No. 5569, 2010 Alaska App. LEXIS 21, *6-7 (February 24, 2010) (memorandum decision); Skjervem v. State,
The defendant and the amicus curiae focus much of their analysis of relevant policy considerations on what this court has labeled the “insidious specter of [racial] profiling.” (Internal quotation marks omitted.) State v. Donahue,
As the majority notes, some courts have held that the timing of the questioning and request for consent have independent constitutional significance, and therefore require additional justification for inquiries made after a discrete event signals the end of the traffic stop or after the purposes of the traffic stop have been effectuated. See footnote 7 of this dissenting opinion. In the present case, Officer Morgan retained the defendant’s license and paperwork while he asked him to step out of the car, frisked him, and asked for consent to search the car. Under the approach of some of our sister states, such a search would be legitimate because Morgan had not yet concluded the traffic stop.
Although I find the reasoning of these courts and their concerns with police overreaching to be persuasive, I believe that they do not go far enough in protecting the rights of drivers under article first, § 7, of the Connecticut constitution, because an unsubstantiated, suspicionless consent search exceeds the permissible scope of a routine traffic stop and violates a driver’s privacy whether it is conducted within the first thirty seconds or the last thirty seconds of that encounter. Moreover, this approach vests police with the power to determine, by either prolonging or expediting the requirements of the routine traffic stop, when additional justification is needed. Therefore, I adopt the reasoning articulated by the New Jersey Supreme Court: “A suspicionless consent search shall be deemed unconstitutional whether it preceded or followed completion of the lawful traffic stop.” State v. Carty, supra,
Dissenting Opinion
dissenting. The majority concludes that Detective Michael Morgan of the Newington police department did not violate the rights of the defendant, Christopher Jenkins, under article first, § 7, of the Connecticut constitution when Morgan conducted a consent search of the defendant’s vehicle following his lawful stop of the defendant for a traffic violation in Newington at approximately 11:30 p.m. on May 7, 2004. I disagree with the majority’s conclusion because I believe that, under the state constitution, Morgan was required to inform the defendant that he had no obligation to consent to the search of his vehicle and that he was free to leave, once he received the traffic ticket, if he chose to withhold consent to search.
I agree with the majority that neither the text nor the constitutional history of article first, § 7, of the Connecticut constitution supports the defendant’s claim that the state constitution affords greater protection than the federal constitution with respect to a request for consent to search a vehicle made by a police officer in connection with a routine traffic stop. I disagree, however, with the majority’s analysis of the remaining Geisler factors,
FEDERAL PRECEDENT
As the majority observes, in Schneckloth v. Busta-monte,
In Schneckloth, the court commenced its analysis by observing that “[t]he most extensive judicial exposition of the meaning of ‘voluntariness’ has been developed in those cases in which the [c]ourt has had to determine the ‘voluntariness’ of a defendant’s confession for purposes of the [fourteenth [ajmendment.” Id., 223. A review of these cases, the court explained, reveals “no talismanic definition of ‘voluntariness,’ mechanically applicable to the host of situations [in which] the question has arisen. ... It cannot be taken literally to mean a ‘knowing’ choice.” (Citation omitted.) Id., 224. “Rather, ‘voluntariness’ has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws. ... At the other end of the spectrum is the set of values reflecting society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice.” (Citations omitted.) Id., 224-25. The court further explained that, in light of these competing concerns, it traditionally has framed the test for voluntariness as whether “the confession [is] the product of an essentially free and unconstrained choice by its maker . . . .” Id., 225. In making this determination, the court made clear that the totality of the circumstances must be considered, and, although the accused’s awareness of his constitutional rights is one of several factors relevant to that determination, it is not a dispositive factor. Id., 226-27.
The court in Schneckloth reasoned that a similar analysis should apply to the determination of whether a suspect voluntarily has given consent to search. “As with police questioning, two competing concerns must be accommodated in determining the meaning of a ‘voluntary’ consent — the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.” Id., 227. In reaching this conclusion, the court observed that, in cases in which the police may “have some evidence of illicit activity, but lack probable cause to arrest or search,” consent searches serve a vital purpose because they “may be the only means of obtaining important and rehable evidence.” Id. These searches, the court
The court then stated that requiring the state to prove “affirmatively . . . that the subject of the search knew that he had a right to refuse consent would, in practice, create serious doubt [about] whether consent searches could continue to be conducted.” Id., 229. In support of this assertion, the court explained: “There might be rare cases [in which] it could be proved from the record that a person in fact affirmatively knew of his right to refuse .... But more commonly where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact had known of his right to refuse consent.” Id., 229-30. “The very object of the inquiry — the nature of a person’s subjective understanding — underlines the difficulty of the prosecution’s burden under [a] rule [that would require proof of such knowledge]. Any defendant who [is] the subject of a search authorized solely by his consent could effectively frustrate the introduction into evidence of the fruits of that search by simply failing to testify that he in fact knew [that] he could refuse to consent. And the near impossibility of meeting this prosecutorial burden suggests why [the] [c]ourt has never accepted any such litmus-paper test of voluntariness.” Id., 230.
The court in Schneckloth acknowledged that the police officer seeking consent to search the vehicle in that case simply could have informed the subject of the traffic stop that he had the right to withhold such consent. The court, however, rejected that approach, reasoning as follows: “One alternative that would go far toward proving that the subject of a search did know [that] he had a right to refuse consent would be to advise him of that right before eliciting his consent. . . . [I]t would be thoroughly impractical [however] to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted by counsel if he chooses, a defendant is informed of his trial rights. . . . And, while surely a closer question, these situations are still immeasurably far removed from ‘custodial interrogation’ where, in Miranda v. Arizona, [
The court in Schneckloth also rejected the respondent’s contention that, because “ ‘consent’ is a waiver of a person’s rights under the [fourth and [fourteenth Amendments,” to establish waiver, the state must be required to “demonstrate ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Id., 235. In so concluding, the court observed that a knowing and intelligent waiver is not required whenever a subject declines to invoke a constitutional protection; instead, waiver analysis applies only to those rights needed to protect the fairness of a trial or trial-type proceeding.
“ ‘That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. . . . Without the protections flowing from adequate warnings and the rights of counsel, “all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.” ’ [Miranda v. Arizona, supra,
The court continued: “[T]here is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the [fjourth [a]mendment.” Id., 241. Thus, the court concluded that there was no reason to extend the requirement of a knowing and intelligent waiver to consent searches. See id. The fourth amendment, the court explained, was not designed to protect the accuracy of the truth determining process at trial; instead, it protects an individual’s privacy against arbitrary intrusion by the police. Id., 242. In support of this assertion, the court relied on its prior determination that “there is no likelihood of unreliability or coercion present in a search-and-seizure case . . . .” (Citation omitted; internal quotation marks omitted.) Id. Consequently, the court maintained, “it cannot be said [that] every reasonable presumption ought to be indulged against voluntary relinquishment. . . . [I]t is no part of the policy underlying the [fourth and [fourteenth [a]mendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. . . . Rather, the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may [e]nsure that a wholly innocent person is not wrongly charged with a [crime].” (Citation omitted; internal quotation marks omitted.) Id., 243.
The court further explained that “it would be next to impossible to apply to a consent search the standard of ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Id. According to the court, in determining whether one knowingly and voluntarily has waived a right, a trial judge in “the structured atmosphere of a courtroom” must conduct an examination into whether there is an intelligent and competent waiver by the accused. Id., 243-44. This detailed examination would be unrealistic in the “informal, unstructured context of a consent search .... And if, for this reason a diluted form of ‘waiver’ were found [to be] acceptable, that would itself be ample recognition of the fact that there is no universal standard that must be applied in every situation [in which] a person forgoes a constitutional right.” Id., 245.
Finally, the court explained that Miranda does not compel a knowledge requirement in the context of a consent search. Id., 246. The court asserted that, unlike the inherent coerciveness of custodial interrogation
In separate opinions, Justices William O. Douglas, William J. Brennan, Jr., and Thurgood Marshall dissented from the opinion of the majority in Schneckloth. Justice Douglas concluded that a suspect should be informed of his right to withhold consent because, “ ‘[u]nder many circumstances a reasonable person might read an officer’s “[m]ay I” as the courteous expression of a demand backed by force of law.’ ” Id., 275-76 (Douglas, J., dissenting). In the same vein, Justice Brennan stated that “[t]he [c]ourt holds . . . that an individual can effectively waive this right even though he is totally ignorant of the fact that, in the absence of his consent, such invasions of his privacy would be constitutionally prohibited. It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence.” Id., 277 (Brennan, J., dissenting).
Justice Marshall’s dissent has been celebrated by commentators and scholars. See, e.g., A. Loewy, “Knowing ‘Consent’ Means ‘Knowing Consent’: The Underap-preciated Wisdom of Justice Marshall’s Schneckloth v. Bustamonte Dissent,” 79 Miss. L.J. 97, 104-108 (2009). Justice Marshall begins his dissent with the observation that, “[s]everal years ago, [Justice Potter Stewart, the author of the majority opinion in Schneckloth] reminded us that ‘[t]he [constitution guarantees ... a society of free choice. Such a society presupposes the capacity of its members to choose.’ Ginsburg v. New York,
Justice Marshall also rejected the majority’s assertion that, “if an officer paused to inform the subject of his rights, the informality of the exchange would be destroyed. I doubt that a simple statement by an officer of an individual’s right to refuse consent would do much to alter the informality of the exchange, except to alert the subject to a fact that he surely is entitled to know. It is not without significance that for many years the agents of the Federal Bureau of Investigation have routinely informed subjects of their right to refuse consent, when they request consent to search. . . . The reported cases in which the police have informed subjects of their right to refuse consent show, also, that the information can be given without disrupting the casual flow of events. . . . What evidence there is, then, rather strongly suggests that nothing disastrous would happen if the police, before requesting consent, informed the subject that he ha[s] a right to refuse consent and that his refusal would be respected.” (Citations omitted.) Id., 287-88 (Marshall, J., dissenting).
Justice Marshall concluded “that when the [majority in Schneckloth] speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. . . .
“I find nothing in the [majority] opinion [in Schneckloth] to dispel my belief that . . . ‘[u]nder many circumstances a reasonable person might read an officer’s “[m]ay I” as the courteous expression of a demand backed by force of law.’ . . . Most cases, in my view . . . [reflect that] consent ordinarily is given as acquiescence in an implicit claim of authority to search. Permitting searches in such circumstances, without any assurance at all that the subject of the search knew that, by his consent, he was relinquishing his constitutional rights, is something that I cannot believe is sanctioned by the [constitution.” (Citations omitted.) Id., 288-89 (Marshall, J., dissenting).
The United States Supreme Court reaffirmed its holding in Schneckloth in Ohio v. Robinette,
Before addressing the merits of the court’s reasoning in Schneckloth, it bears emphasis that, in considering the value of applicable federal precedent in the context of a Geisler analysis, it is necessary to consider that precedent’s persuasive value. See Kerrigan v. Commissioner of Public Health,
The analysis employed by the court in Schneckloth has been widely criticized by legal scholars. See, e.g., United States v. Gagnon, 230 F. Sup. 2d 260, 269 n.8 (N.D.N.Y. 2002) (“[t]he judicially created framework of the consent doctrine has been severely criticized, with no small measure of merit, as ignoring the practical realities of encounters between police and citizens”), rev’d on other grounds,
First, Schneckloth has been criticized for overlooking the coercive effect that an officer’s request for consent is likely to have on a motorist who has been detained in connection with a traffic stop. As one commentator has stated, “[w]hat is remarkable ... is the ever-widening gap between [f]ourth [a]mendment consent jurisprudence, on the one hand, and scientific findings about the psychology of compliance and consent on the other. Ever since the [c]ourt first applied the ‘totality of the circumstances’ standard to consent search issues in Schneckloth ... in 1973, it has held in case after case, with only a few exceptions, that a reasonable person in the situation in question either would feel free to terminate the encounter with [the] police, or would feel free to refuse the police request to search. By contrast, empirical studies over the last several decades on the social psychology of compliance, conformity, social influence, and politeness have all converged on a single conclusion: the extent to which people feel free to refuse to comply is extremely limited under situation-ally induced pressures.” J. Nadler, “No Need to Shout: Bus Sweeps and the Psychology of Coercion,” 2002 Sup. Ct. Rev. 153, 155. It therefore has been argued that the United States Supreme Court should incorporate the “empirical findings on compliance and social influence into . . . consent [search] jurisprudence ... to dispel the ‘air of unreality’ that characterizes current doctrine.” Id., 156-57; see also W. LaFave, “The ‘Routine Traffic Stop’ From Start to Finish: Too Much ‘Routine,’ Not Enough Fourth Amendment,” 102 Mich. L. Rev. 1843, 1902 (2004) (“[i]t is . . . nonsensical for courts to continue their embrace of the . . . position that a reasonable motorist, having been seized, would conclude he was free to leave [even though not told so] in the face of ongoing police interrogation”); T. Maclin, “The Good and Bad News About Consent Searches in the Supreme Court,” 39 McGeorge L. Rev. 27, 28 (2008) (“everyone . . . knows . . . [that] a police ‘request’ to search a bag or automobile is understood by most persons as a ‘command’ ”); M. Strauss, “Reconstructing Consent,” 92 J. Crim. L. & Criminology 211, 219 n.29 (2001) (“Except [when] consent is required in a person’s home, it is often sought in areas unfamiliar and intimidating. How many of us feel like we are on ‘familiar territory’ when pulled over to the side of the road by a police car or two?”); M. Strauss, supra, 235 (Schneckloth “ignor[es] the most significant factor of all: the inevitability that individuals will feel coerced simply by virtue of dealing with an authority figure like the police”); R. Weaver, “The Myth of ‘Consent’,” 39 Tex. Tech L. Rev. 1195, 1199 (2007) (“The Schneckloth decision is . . . troubling because it ignores the realities of police-citizen encounters and the inherent pressures on individuals to comply with police requests. . . . [W]hen a police officer requests permission to search, the police officer inevitably retains a distinct psychological advantage over the suspect.”); A. Barrio, supra, 1997 U. Ill. L. Rev. 233 (“[t]he most baffling aspect of the [United States] Supreme Court’s conception of voluntary consent is that it virtually ignores the well-documented observation that most people mechanically obey legitimate authority”); cf. G. Dery, “ ‘When Will This Traffic Stop End?’: The United States Supreme Court’s Dodge of Every Detained Motorist’s Central Concern—Ohio v. Robinette,” 25 Fla. St. U. L. Rev. 519, 559-60 (1998) (observing that United States Supreme Court’s statements regarding relative positions of power between police officer and citizen are
Indeed, drawing on relevant empirical studies, several commentators have concluded that the dissenting justices in Schneckloth were correct in that individuals tend to see an officer’s request for consent as a demand. See M. Strauss, supra, 92 J. Grim. L. & Criminology 236-42. For example, it seems evident, on the basis of empirical research regarding obedience to authority and uniform, that individuals “attribute legitimacy to the police officer’s uniform [and] that they obey police authority reflexively.” A. Barrio, supra, 1997 U. Ill. L. Rev. 243; see also J. Burkoff, “Search Me?,” 39 Tex. Tech L. Rev. 1109, 1138 (2007) (“most people do not expect that they have the right not to accede a police officer’s request that a search be authorized” [internal quotation marks omitted]). Consequently, “the weight of scientific authority suggests that a suspect’s ignorance of fundamental [f]ourth [a]mendment rights must be viewed as a state of mind that renders a suspect’s consent involuntary.” A. Barrio, supra, 247; see also id., 240 (“[the] obedience theory casts serious doubt on the continued vitality of what Schneckloth characterized as Miranda’s central holding: that custody is a necessary prerequisite for a finding of psychological coercion”). Thus, “[t]o curb the coercive power of police authority, the police officer should be required to advise the suspect of his right to withhold consent prior to requesting his permission to search. Such a warning would combat the obedience phenomenon by assuring the suspect both that he is under no obligation to give consent and that the investigating officer is ‘prepared to recognize his privilege.’ ” Id., 247; see also 4 W. LaFave, Search and Seizure (4th Ed. 2004) § 8.2 (i), pp. 111-12 (expressing support for such approach).
The factual scenario in the present case provides a good example of why the court in Schneckloth was wrong in concluding that a motorist stopped for a traffic violation is not likely to feel compelled to agree to a police officer’s request for permission to search his or her vehicle. According to the court in Schneckloth, there is no reason to believe that the subject of such a stop will view the encounter as coercive because the search “occur [s] on [the driver’s] own familiar territory [where] the specter of incommunicado police interrogation in some remote station house is . . . inapposite.” Schneckloth v. Bustamonte, supra,
It is fanciful to think that the circumstances that led to the search of the defendant’s vehicle did not give risé to a substantial element of compulsion. The defendant, an African-American who does not reside in this state, was pulled over in a dark area of the highway, late at night, by an armed police officer, and detained there, in his car, for up to fifteen minutes, at which point a second armed police officer arrived at the scene in a separate cruiser. Morgan then directed the defendant to exit his vehicle, questioned him about contraband on his person, conducted a patdown search, and asked him whether he had any contraband in the vehicle. It is difficult to see how anyone held under such circumstances would not feel vulnerable as a result of the encounter with the police, and there is little doubt that, in light of that vulnerability, the average person in that situation also would feel the need to accommodate, if not placate, the police officers involved in the encounter.
A second criticism of Schneckloth, which also is based on empirical evidence, concerns the assertion that a knowledge requirement could jeopardize the continued viability of consent searches. In fact, studies suggest just the opposite, that is, that it appears that persons subjected to traffic stops give consent to vehicle searches at the same rate regardless of whether they are aware that such consent may be withheld. See, e.g., I. Lichtenberg, “Miranda in Ohio: The Effects of Robinette on the ‘Voluntary’ Waiver of Fourth Amendment Rights,” 44 How. L.J. 349, 370, 373 (2001) (study demonstrated that between approximately 75 and 95 percent of motorists agree to police search of vehicle and that rates were very similar regardless of whether motorists were apprised of their right to refuse such consent, and, consequently, assertion of court in Schneckloth that such advisement would jeopardize continued viability of consent searches was “[c]learly . . . unfounded”); M. Phillips, note, “Effective Warnings Before Consent Searches: Practical, Necessary, and Desirable,” 45 Am. Crim. L. Rev. 1185, 1201 (2008) (citing study demonstrating that approximately 88 percent of motorists agree to consent search after being advised verbally and in writing of right to refuse consent). These findings should not be surprising in light of the fact that approximately 84 percent of suspects who have been advised of their rights in accordance with Miranda nevertheless waive their right to remain silent and comply with a request by the police for a statement. See S. Chanenson, “Get the Facts, Jack! Empirical Research and the Changing Constitutional Landscape of Consent Searches,” 71 Tenn. L. Rev. 399, 442 (2004).
Although these data indicating that the provision of warnings has little effect on the rate at which consent is granted may suggest that such warnings are ineffective, it fairly may be argued that warnings nevertheless serve a salutary purpose insofar as they are likely to reduce the compulsion that people feel on the basis of “an inaccurate belief that the police have the legal right to compel them to [agree to the requested] search.” R. Simmons, supra, 80 Ind. L.J. 819. To be sure, motorists undoubtedly have a multitude of reasons for granting consent to search, not all of which are the product of the inherently coercive nature of the police stop and following
There also seems to be little or no basis for the assertions of the court in Schneckloth that it would be unreasonable to burden the state with having to prove that a motorist who gives consent to search during the course of a routine traffic stop was aware of his or her right to refuse consent; Schneckloth v. Bustamonte, supra,
In sum, because the reasons underlying the court’s holding in Schneckloth ultimately are not persuasive, the holding of the court is itself not persuasive.
II
HOLDINGS AND DICTA OF THIS COURT
As I discussed in part I of this opinion, this court has interpreted article first, § 7, of the Connecticut constitution as providing protections beyond those guaranteed under the fourth amendment to the federal constitution in a variety of different contexts. In no case, however, has this court or the Appellate Court previously had occasion to consider the scope of article first, § 7, in the context of consent searches generally or, more specifically, in the context of a consent search of a vehicle following a routine traffic stop. Accordingly, Connecticut precedent is neutral on the issue of whether the state constitution provides the same or greater protection than the federal constitution with respect to searches of the kind conducted in the present case.
III
SISTER STATE DECISIONS
A significant majority of the states that have considered the issue apply the Schneckloth totality of the circumstances test in assessing whether consent was voluntary for purposes of their state constitutions, and do not require an express advisement of the right to withhold consent. E.g., Henry v. State,
For example, in State v. Johnson,
Justice Morris Pashman dissented. Although he agreed with the majority in rejecting Schneckloth for purposes of the New Jersey constitution, he concluded that the standard that the majority adopted fell “short of what [was] necessary to protect the privacy rights of the consenting individual.” Id., 359 (Pashman, J., dissenting). Recognizing that a person confronted with a request by the police for consent to search is likely to feel an element of compulsion due to the nature of the encounter, Justice Pashman concluded that the state should be obligated to establish that that person was aware of his right to withhold consent and that the police would respect his decision to withhold consent if he chose to do so. Id., 366 (Pashman, J., dissenting). Justice Pashman explained: “I find it inconceivable and incomprehensible to suppose that an individual can be said to have relinquished privileges as fundamental as those embodied in our constitutional guarantees against unreasonable searches and seizures unless it clearly and unmistakably appears that the subject of the
Similarly, in Penick v. State,
In a context analogous to the temporary detention of the subject of a routine traffic stop, that is, a consensual investigative encounter,
In
Moreover, at least two state courts expressly have declined to apply Schneckloth in the context of a “knock and talk” search, which has been described as a “fashionable . . . alternative to obtaining a search warrant when police officers do not have sufficient probable cause to obtain a search warrant. What generally occurs is that several law enforcement officers accost a home dweller on the doorstep of his or her home and request consent to search that home. If an oral consent is given, the search proceeds. What is found by police officers may then form the basis for probable cause to obtain a search warrant and result in the subsequent seizure of contraband.” (Internal quotation marks omitted.) State v. Brown,
In Ferrier, the Supreme Court of Washington concluded that, under article I, § 7, of the Washington constitution,
Although it is axiomatic that the “physical entry of the home is the chief evil against which the wording of the [fjourth [a]mendment is directed”; United States
As in O’Boyle, several courts have taken notice of the coercion inherent in the routine traffic stop in crafting rules applicable to that factual scenario. For example, in State v. Carty,
Although other courts have not expressly adopted the rule articulated in Carty, they nevertheless have identified the coercive effects of a request for consent to search following a routine traffic stop. For example, in Brown v. State, supra,
Finally, although many state courts have adopted the Schneckloth standard under their respective state constitutions, I am more persuaded by the thoughtful dissenting opinions that have been issued in many of those cases. For example, in Commonwealth v. Cleckley, supra,
In his dissent, Justice Russeli M. Nigro concluded “that when police seek consent to perform an otherwise unconstitutional search, they should be required under . . . the Pennsylvania constitution to expressly advise the subject of the search that he or she has the right to refuse to give consent and that any refusal will be respected.” Id., 528 (Nigro, J., dissenting). In reaching this conclusion, Justice Nigro stated that “the majority . . . ignore[d] the practical impact that a police officer’s request for consent to search has on the average citizen.” Id., 530 (Nigro, J., dissenting). Relying on both State v. Johnson, supra,
Likewise, in State v. Flores, supra,
In his dissent, Justice Hans A. Linde noted the then existing criticism of Schneckloth and explained that the reasoning of Schneckloth was “rejected ... by the experts who prepared the
Ultimately, I am not convinced by the reasoning of those courts that have adopted Schneckloth as the governing standard for purposes of their state constitutions. Indeed, those courts generally have not engaged in any substantive analysis of the rationale underlying the court’s holding in Schneckloth. Moreover, they simply do not address the pervasive criticism that has been directed at Schneckloth.
IV
ECONOMIC AND SOCIOLOGICAL CONSIDERATIONS
In my view, these considerations support the conclusion that the police should be required to advise a motorist that he or she has a right to withhold consent to search following a routine traffic stop. Public trust in the police is likely to be enhanced if they are required to provide motorists with such an advisement, and the empirical evidence indicates that the vast majority of motorists who are warned of their right to withhold consent will continue to grant consent despite the warning. Indeed, it is especially important that a motorist be advised of his or her right to refuse consent when, as in the present case, the police officer lacks even a reasonable and articulable suspicion that the vehicle contains contraband; in such circumstances, a request for consent is no more than a fishing expedition pursuant to which the police are able to take advantage of the coercive nature of the encounter and, in many cases, the subject’s lack of knowledge that he or she has the legal right to withhold consent without any resultant adverse consequences.
V
CONCLUSION
Upon review of the Geisler factors, I conclude that article first, § 7, of the Connecticut
Applying these principles to the present case, I conclude that the defendant was not properly informed of his right to withhold consent. Although the state asserts that the defendant volunteered permission to search before consent was sought, and, consequently, there was no need for Morgan to inform the defendant of his right to withhold consent, I agree with the defendant that he reasonably construed Morgan’s inquiry about whether the vehicle contained anything illegal as demonstrating Morgan’s interest in searching the vehicle. Indeed, prior to asking the defendant
I disagree with Justice Katz that the defendant inadequately briefed his claim that Morgan’s search of his vehicle violated his rights under the state constitution on the ground that Morgan had failed to advise the defendant that he had a right not to consent to the search of his vehicle.
I agree with the majority that the record is inadequate for review of the defendant’s claim that Morgan’s patdown search of the defendant was unlawful and, further, that Morgan’s conduct in obtaining the defendant’s consent to search did not violate the fourth amendment to the United States constitution. Finally, I also agree with the majority that, in contrast to the view expressed by Justice Katz in her dissenting opinion, it was not improper under the state constitution for Morgan to seek the defendant’s consent to search despite his lack of reasonable and articulable suspicion to do so, at least in the absence of evidence indicating an abuse of the use of consent searches following routine traffic stops by the police. Thus, in my view, the search violated article first, § 7, of the state constitution not because Morgan sought the defendant’s consent to search his vehicle but, rather, because Morgan had failed to advise the defendant that he had the right to refuse to consent to such a search.
This court first articulated the importance of considering these factors for purposes of state constitutional analysis in State v. Geisler, supra,
See footnote 3 of this opinion.
Because Schneckloth is the seminal case concerning consent searches following routine traffic stops, it is necessary to discuss the case in some detail.
In reaching this conclusion, Justice Marshall explained that “the phrase Voluntary consent’ seems redundant in a way that the phrase Voluntary confession’ does not.” Schneckloth v. Bustamonte, supra,
By contrast, Justice Marshall explained, the Schneckloth case did not involve the right to be free from police misconduct of the kind implicated by a coerced confession but, rather, the issue of consent. Id., 282 (Marshall, J., dissenting). Justice Marshall further observed that the two concepts are different because freedom from coercion is a substantive, constitutional right, whereas consent “is a mechanism by which substantive requirements, otherwise applicable, are avoided.” Id. Thus, the substantive requirement of the fourth amendment is that searches may be conducted only on the basis of a properly issued warrant supported by probable cause. See id. Justice Marshall further asserted that, although there are exceptions to this requirement, they are justified by the overriding needs of law enforcement, which are applicable when consent is the sole justification for a search. Id., 282-83 (Marshall, J., dissenting). Indeed, Justice Marshall explained that “the needs of law enforcement are significantly more attenuated, for probable cause to search may be lacking but a search permitted if the subject’s consent has been obtained. Thus, consent searches are permitted, not because such an exception to the requirements of probable cause and warrant is essential to proper law enforcement, but because we permit our citizens to choose whether . . . they wish to exercise their constitutional rights.” Id., 283 (Marshall, J., dissenting).
“When a prosecutor seeks to rely [on] consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance [on] a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the [s]tate does not even attempt to rely [on] the validity of the warrant, or fails to show that there was, in fact, any warrant at all.” Bumper v. North Carolina,
Although the Ohio Supreme Court had decided the case on the basis of both the federal and Ohio constitutions, the United States Supreme Court concluded that it was appropriate to consider the federal constitutional issue because the Ohio Supreme Court had relied almost entirely on fourth amendment jurisprudence in reaching its decision. Ohio v. Robinette, supra,
Justice John Paul Stevens dissented, concluding that, on the basis of the facts presented, the Supreme Court of Ohio “correctly held that [the] consent [of the defendant, Robert Robinette] to the search of his vehicle was the product of an unlawful detention.” Ohio v. Robinette, supra,
I note that commentators also have criticized the court’s reliance in Schneckloth on coerced confession cases because the court never explained why those cases are relevant in the fourth amendment context; e.g., D. Smith, comment, “Ohio v. Robinette: Per Se Unreasonable,” 29 McGeorge L. Rev. 897, 928 (1998); whereas other commentators have characterized “the [ejourt’s distinction between ‘trial rights’ and [fjourth [ajmendment rights [as] questionable (Emphasis added.) D. Kaplan & L. Dixon, “Coerced Waiver and Coerced Consent,” 74 Denv. U. L. Rev. 941, 951 (1997).
The court in Johnson reached this conclusion even though article I, paragraph seven, of the New Jersey constitution is virtually identical to the fourth amendment and previously had not been interpreted to provide greater protections than the fourth amendment. State v. Johnson, supra,
Johnson involved the consent search of a residence, but its holding applies to consent searches of vehicles following a routine traffic stop, as well. See, e.g., State v. Carty,
A1999 consent decree required the provision of warnings in New Jersey in all cases involving requests for consent to search following a routine traffic stop. Consent Decree in United States v. New Jersey, Civil No. 99-5970 (MLC) (D.N.J. December 30, 1999), available at http://www.state.iq.us/ oag/jointapp.htm (last visited August 26, 2010).
“The Supreme Court has said [that] there are three types of police-citizen encounters:
“(1) consensual encounters [that] do not implicate the [f]ourth [a]mendment; (2) investigative detentions [that] are [f]ourth [a]mendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of [f]ourth [a]mendment seizures and reasonable only if supported by probable cause.” (Internal quotation marks omitted.) United States v. Brown,496 F.3d 1070 , 1074 (10th Cir. 2007).
The Hawaii Supreme Court characterized this police practice as a “walk and talk” investigation. (Internal quotation marks omitted.) State v. Kearns,
It must be noted that, in Kearns, the court stated that, for purposes of a consent search, the police are not required to inform the person whose consent to search is sought that he or she has the right to refuse consent. State v. Kearns, supra,
See footnote 15 of this opinion.
Article I, § 7, of the Washington constitution, Washington’s analogue to the fourth amendment, provides: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” As the court in Ferrier observed, “[t]his provision differs from the [f]ourth [a]mendment in that [u]nlike the [f]ourth [ajmendment, [the Washington constitution] clearly recognizes an individual’s right to privacy with no express limitations.” (Internal quotation marks omitted.) State v. Ferrier, supra,
Article two, § 15, of the Arkansas constitution provides: “The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” As the court in Brown observed, this provision is almost identical to the fourth amendment to the United States constitution. State v. Brown, supra,
In reaching its conclusion, however, the court in Brown distinguished its automobile search jurisprudence. See State v. Brown, supra,
Accordingly, the New Jersey Supreme Court engrafted onto Johnson an additional requirement, namely, “that consent searches following a lawful stop of a motor vehicle should not be deemed valid under Johnson unless there is reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity.” State v. Carty, supra,
Specifically, the defendant, Armando Zamora Flores, contended that his consent to search two lockers at a bus station was invalid because the police had failed to inform him of his right to refuse to consent to the search. State v. Flores, supra,
See footnote 22 of this dissenting opinion.
The Supreme Court of Oregon addressed the merits of the state constitutional claim of the defendant, Armando Zamora Flores, only briefly, concluding that “requiring proof that a criminal suspect was aware of his right to refuse consent would be tantamount to requiring a police warning similar to the Miranda warning. . . .
“The application of [Miranda] to searches and seizures can ... be justified [only] on the basis that there is the same necessity for prophylaxis because of similar abuses by the police in obtaining consents to searches and seizures.” (Internal quotation marks omitted.) State v. Flores, supra,
“[T]he reporter for the search and seizure sections of the Model Code of Pre-Arraignment Procedure . . . commented [further] on Schneckloth as follows: ‘It seems unlikely that there is any greater knowledge of one’s right to refuse a search than the right to silence.’ He goes on to explain that a choice based on a wholly erroneous factual belief may not be the result of a will that has been overborne, but neither is it an understanding choice.
“ ‘In consent searches, the police have full knowledge that the person from whom they are seeking consent is under no obligation to give it. The right to refuse is a fact crucially pertinent to an understanding consent and, if there is the slightest doubt that the person in question is not aware of his right, and no such information is given [to] him, the police are eliciting consent on the basis of withheld information. It is hard to describe such conduct as other than deceptive, or the [c]ourt’s decision [in Schneckloth] as other than retrograde.’ ” State v. Rodgers, supra,
For example, in State v. Cox, supra,
“Schneckloth remains the minority rule despite the occasional efforts to scuttle it. Accordingly, [the court] decline[s] to impose a requirement that the subject be informed of the right to refuse consent.” Id., 183-84; see also Henry v. State, supra,
It may be argued, as some courts have concluded, that the state should not be required to establish that the police advised the subject of the consent search of his or her right to refuse consent, as long as the state can prove that the subject actually knew that consent could be withheld. I do not agree with this approach because it is important that the subject be made aware that the police are prepared to honor the subject’s decision to refuse consent and that no adverse consequences will befall the subject upon such a refusal. Unless the police warn the subject of his or her right to refuse consent, there remains the risk that the subject will feel compelled to agree to the search out of concern for how the police will react to a decision to withhold consent.
As I previously indicated, I agree with the majority’s conclusion that the record is inadequate to review the defendant’s separate claim that the patdown search was illegal. The fact that Morgan conducted a patdown search of the defendant, however, is relevant to the issue of whether the defendant reasonably would have considered Morgan’s subsequent inquiry regarding the presence of contraband in the vehicle as indicative of Morgan’s intent to search the vehicle.