29 Conn. App. 207 | Conn. App. Ct. | 1992
The defendant, Jonathan Miller, appeals from a judgment of conviction, rendered after a conditional plea of nolo contendere; see General Statutes § 54-94a;
The facts necessary to resolve this appeal are as follows. On March 17, 1990, at about 10 p.m., Elizer Negron, his six year old son and his eighteen year old brother were seated in Elizer’s automobile, which was parked in the fire lane of Waldbaum’s Foodmart on New Britain Avenue in West Hartford, while they waited to pick up Elizer’s wife. As they sat and waited, three men walked past the vehicle from the rear. As the men walked past the car on their way into the supermarket, one of them said to Elizer, “What’s up?” Shortly thereafter, as the three men ran out of the supermarket, both Elizer and his brother heard a scream, and then heard someone from inside the store yell that there had been a robbery.
The three men who had exited the supermarket raced across the parking lot toward New Britain Avenue. Two of them, including the man who said “What’s up,” ran toward the Piper Brook restaurant and got into a car, while the third ran toward a neighboring Dunkin
Elizer followed the vehicle in an attempt to ascertain its make and license plate number. Both he and his brother noted that the vehicle was a light grey Chrysler bearing the Connecticut license plate “428GFK.” Upon obtaining the getaway car’s make and license plate number, they returned to Waldbaum’s and reported this information to a West Hartford police officer. A check of the vehicle’s registration revealed that it was registered to Jonathan Miller of 41 Arlington Street in Hartford. Police officers from both West Hartford and Hartford went to Arlington Street in Hartford to apprehend Miller. When the officers arrived, neither the defendant nor the car was present.
West Hartford detective Jay St. Jacques parked his unmarked car at one end of Arlington Street and two other West Hartford police officers parked at the other end of the block in another unmarked car. All other police vehicles then left the area at St. Jacques’ request.
About forty minutes after the robbery, St. Jacques observed a light grey Chrysler traveling down Arlington Street. St. Jacques followed the vehicle until it stopped on the side of Arlington Street. As the driver exited the car, St. Jacques pulled up from behind, trained his high beams on the car’s driver, drew his weapon and identified himself as a police officer. The driver was the defendant.
As St. Jacques awaited back up assistance, the defendant made a comment about not hanging around, made a quick move back into his car and attempted to start it. As he did so, additional West Hartford police arrived and removed the defendant from the vehicle, patted him down for weapons, handcuffed him and placed him in the backseat of a West Hartford police
The West Hartford police then contacted Elizer Negron and his brother to have them identify the defendant. Because the Negrons also lived on Arlington Street and did not want the defendant to know their identities or address, the police transported them from their Arlington Street residence to the parking lot of the Batchelder School in Hartford, where they were met by other West Hartford police officers driving the cruiser containing the handcuffed defendant. At the school parking lot, the officers removed the defendant from the vehicle and shined a spotlight on him. Both Negron brothers immediately identified the defendant as the person who had walked by their car at Waldbaum’s Foodmart and said, “What’s up.”
The defendant was transported to the West Hartford police station, where he was charged with robbery. His car was towed from Arlington Street to the West Hartford police department garage, where it was secured and searched without a warrant. The search uncovered a .357 Smith and Wesson revolver in the car’s trunk.
The defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4). He filed a pretrial motion to suppress tangible evidence, claiming that the search of the vehicle at the police garage violated both the United States and the Connecticut constitutions. The trial court denied the motion, and the defendant was acquitted of
In this appeal, the defendant argues that the trial court improperly rejected each of the following grounds offered in support of his motion to suppress: (1) the West Hartford police acted outside their territorial jurisdiction when they performed an investigation, stake out, Terry
I
The defendant first claims that because the gun seized from his car was the product of an extraterritorial and, hence, illegal investigation, stakeout, Terry stop and warrantless seizure of his car in Hartford by the West Hartford police, the trial court improperly denied his motion to suppress. We disagree.
The defendant’s theory that municipal police officers are powerless to conduct the aforementioned activities outside of their precincts is rooted in article tenth, § 1, of the Connecticut constitution,
We first address the propriety of the West Hartford police investigation and warrantless seizure of the defendant’s car in Hartford. Our resolution of this issue is controlled by our Supreme Court’s decision in State v. Kuskowski, 200 Conn. 82, 510 A.2d 172 (1986). In
Kuskowski was convicted at trial of possession of cocaine and possession of cocaine with intent to sell. Id., 83. On appeal, he argued that the trial court improperly failed to grant his motion to suppress the fruits of the warrantless search of his car because the Brookfield police officers acted outside of their jurisdiction. Id., 84-85. The court described the defendant’s argument as “based on the faulty premise that Dohertyviolated the law when she left her jurisdiction and entered the town of Bridgewater to investigate the defendant’s vehicle.” Id. “Doherty,” the court reasoned, “no less than any other citizen, had a right to stand beside the defendant’s car and peer in.” Id., 85. When she saw the torch, she had every reason to rouse the defendant, and in doing so, she observed cocaine and paraphernalia in plain view. Id. These observations, the court concluded, gave her probable cause not only to seize the contraband on the console, but also to search the trunk. Because we discern no material variance between either the facts or legal arguments in State v. Kuskowski, supra, and those in this case, we
We also reject the defendant’s claim that the West Hartford police conducted an illegal extraterritorial stop and frisk of his person, also known as a Terry stop, that required the trial court to grant his motion to suppress. “The disposition of this issue necessarily turns on the application of the ‘fruit of the poisonous tree’ doctrine, which requires courts to exclude evidence that is the product or ‘fruit’ of police conduct in violation of the fourth amendment. Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Under Wong Sun, the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been ‘ “come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ Id., 488, quoting J. Maguire, Evidence of Guilt (1959) p. 221; State v. Villafane, 171 Conn. 644, 655, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).” State v. Ostroski, 201 Conn. 534, 545, 518 A.2d 915 (1986).
Here, even assuming, without deciding, that the Terry stop of the defendant was illegal, we cannot agree that this rendered the gun inadmissible. The seizure of the defendant’s gun was not the fruit of the Terry stop of the defendant’s person but of the valid seizure of the defendant’s car upon probable cause to believe that it was the getaway car in an armed robbery. See State v. Graham, 200 Conn. 9, 20, 509 A.2d
II
The defendant argues next that the gun seized from the trunk of his car was the fruit of his illegal arrest. We disagree.
The defendant contends that his detention on Arlington Street was not a Terry stop, as the trial court found it was, but was instead an arrest. He argues further that this arrest was not supported by probable cause, and, therefore, that the trial court should have suppressed the gun, which he claims was the fruit of the unlawful arrest. Whether the detention of the defendant was a Terry stop or an arrest is immaterial to whether the trial court should have excluded the gun from evidence. For the reasons we noted earlier, we need not decide either the character or the legality of the defendant’s detention on Arlington Street because the seizure of the gun was not the fruit of that detention. See State v. Graham, supra.
The defendant’s claim is without merit.
III
The defendant next asserts that the warrantless search of his motor vehicle at the West Hartford police garage violated both the fourth amendment to the United States constitution
It is “a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ ” (Emphasis in original.) Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In this case, we decide whether this axiom, the cornerstone of so much of our search and seizure jurisprudence, must be adhered to as an essential component of our state constitution’s Declaration of Rights.
In order to appreciate fully this cardinal principle, it is appropriate to restate the basis for the warrant requirement and the reasons why the limitations on the automobile exception articulated in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), particularly the exigent circumstances requirement, represent a fair accommodation between the basic rule requiring prior judicial approval of searches and the legitimate needs of law enforcement officials. Because the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution were enacted in response to the same historical experience and protect the same fundamental values, the early history of the provisions may be analyzed together. See State v. Marsala, 216 Conn. 150, 167-68 n.12, 579 A.2d 58 (1990).
“The Fourth Amendment is a restraint on Executive power. The Amendment constitutes the Framers’
The Massachusetts experience is, from a historical viewpoint, helpful in understanding Connecticut’s search and seizure provision because the Connecticut colony was, both culturally and politically, an outgrowth of the Massachusetts colony and was settled under a commission from the Massachusetts court. C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 90 n.8 (1982).
This history, however, provides only part of the justification for the warrant requirement. “The requirement also reflects the sound policy judgment that, absent exceptional circumstances, the decision to invade the privacy of an individual’s personal effects should be made by a neutral magistrate rather than an agent of the Executive. In his opinion for the [United States Supreme] Court in Johnson v. United States, [333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 2d 436 (1948)], Justice Jackson explained: ‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ ” California v. Acevedo, supra, 1994-95 (Stevens, J., dissenting).
The warrant requirement also “is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of a search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity.” (Emphasis in original.) Coolidge v. New
With the foregoing in mind, both our state courts and the federal courts repeatedly have stated that warrant-less searches are per se unreasonable “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, supra; State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). The automobile exception to the warrant requirement first was recognized by the United States Supreme Court in Carroll v. United States, supra. There, federal agents had probable cause to believe that the defendant’s car was carrying illegal liquor. The Supreme Court upheld the warrantless roadside search of the car’s passenger compartment, and the automobile exception was bom. The Carroll court offered two rationales for the exception: (1) exigency, because a car inherently is mobile, and (2) the diminished expectation of privacy that people have in the contents of their automobiles. By declaring that exigency is one of the two primary justifications for the automobile search, the court reaffirmed the oft stated principle that a search warrant is required except where it is excused by some exigency.
Our analysis does not end here, however, because the defendant claims also that the search violated article first, § 7, of the Connecticut constitution. It is now beyond dispute that “in some instances . . . the protections afforded to the citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court. State v. Dukes, 209 Conn. 98, 112, 547 A.2d 10 (1988); State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988); State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985). . . . ‘[I]n the area of fundamental civil liberties — which
Although our state constitutional decisional law is in its infancy, some distinct, principled jurisprudential theories are emerging for determining when it is appropriate to invoke our state constitution and to afford greater protections to Connecticut residents than those supplied by the United States Supreme Court’s interpretations of consonant provisions of the federal constitution. Although the basis for departure is perhaps most obvious where either the text or the historical setting of the Connecticut constitutional provision^ at issue varies materially from that of its federal counterpart, our courts have in some instances interpreted our state constitutional provisions more broadly than their federal counterparts even where, as is the case with the search and seizure provisions of the two documents, there is no material difference between either the texts or the historical backgrounds of the two provisions. See, e.g., State v. Marsala, supra. This has been particularly so where the United States Supreme Court “has created exceptions to or deviated from rules previ
In State v. Marsala, supra, our Supreme Court decided that the so called good faith exception to the exclusionary rule, recognized by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), was inimical to the preference of article first, § 7, for the integrity of the warrant issuing process. In State v. Geisler, 222 Conn. 672, 686-87, 610 A.2d 1225 (1992), our Supreme Court held that the remedial purposes of our state constitution’s exclusionary rule would not be served adequately by the rule set forth in New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), under which courts are free, without resort to an attenuation-of-taint analysis, to admit a postarrest statement of a defendant who, although illegally subjected to a warrantless arrest inside of his home, gave a postarrest statement outside of his home. The court declared that the central purpose of Connecticut’s exclusionary rule, the deterrence of police misconduct, would not be furthered adequately by the rule articulated in New York v. Harris, supra. Thus, the court concluded, article first, § 7, cannot coexist with such a rule.
Our Supreme Court’s decisions in State v. Geisler, supra, and State v. Marsala, supra, did not rest on any textual or historical distinction between the fourth amendment and article first, § 7. Indeed, in each case the court noted that these provisions contain similar language and share historical roots. State v. Geisler, supra, 686, 688-89; State v. Marsala, supra, 159, 167 n.12; see also State v. Barton, 219 Conn. 529, 540, 594 A.2d 917 (1991). In each case, the court analyzed the shared purpose of the federal and state search and sei
This analysis also was employed by our Supreme Court in State v. Barton, supra, in which the court abandoned its previous departure from the United States Supreme Court’s methodology for undertaking a probable cause review of a warrant affidavit. See State v. Kimbro, supra, 235, overruled, State v. Barton, supra. The court’s decision in Barton was not based on a conclusion that the court in Kimbro had erroneously determined that the history or text of article first, § 7, differed from that of the fourth amendment in some material respect. Rather, it carefully reexamined the shared history and purpose of the state and federal search and seizure provisions and concluded that the approach adopted by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), was indeed “consistent with the history and policy concerns of analogous Connecticut constitutional provisions. . . .” State v. Barton, supra, 546.
In addition to this general theory of state constitutional search and seizure jurisprudence, recent cases
With our state constitution’s manifest preference for a warrant in mind, we turn to an analysis of the contours of the automobile exception to that requirement. Our Supreme Court has recognized that article first, § 7, of the Connecticut constitution contains an automobile exception to its warrant requirement, under which the police may search the passenger compartment of an automobile, including closed containers therein, on the roadside, upon probable cause to believe that they contain the fruits or instrumentalities of a crime. State v. Dukes, supra. This rule is justified by exigent circumstances and the diminished expectation of privacy in the passenger compartment of an automobile — the twin justifications for the well established automobile exception since its genesis in Carroll v. United States, supra, — and thus comports with our state constitutional tradition that tolerates only those departures from judicial process that are narrowly tailored to conform to the exigencies that justify them.
The circumstances that may cause the police to be deprived of valuable evidence in the event that they apply for a warrant before conducting a roadside search are legion. They include the presence of an alerted criminal bent on flight, the fleeting opportunity to search a vehicle on an open highway, the presence of contraband, stolen goods or weapons, the presence of confederates waiting to move the evidence and the inconvenience of a special police detail to guard the immobilized automobile. Coolidge v. New Hampshire, supra, 462. A requirement that the police seize and hold all vehicles that they want to search until a warrant is obtained would require police departments either to “have available the people and equipment necessary to transport impounded automobiles to some central location”; Arkansas v. Sanders, 442 U.S. 753, 765 n.14, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); or to post a guard at the roadside with the automobile until warrants could be secured. Cady v. Dombrowski, 413 U.S. 433, 447, 93 S. Ct. 2523, 37 L. Ed 2d 706 (1973).
Our courts have not, however, considered whether the police may, consistent with article first, § 7, conduct a warrantless search of a securely impounded automobile.
“Fidelity to this established principle requires that, where exceptions are made to accommodate the exigencies of particular situations, those exceptions be no broader than necessitated by the circumstances presented. For example, the Court has recognized that an arrest creates an emergency situation justifying a warrantless search of the arrestee’s person and of ‘the area from within which he might gain possession of a weapon or destructible evidence’; however, because the exigency giving rise to this exception extends only that
“The Court holds that [the circumstances under which the police may forgo obtaining a warrant] include making a warrantless search of the entire vehicle on the highway — a conclusion reached by the Court in Carroll without discussion — and indeed appears to go further and to condone the removal of the car to the police station for a warrantless search there at the convenience of the police. I cannot agree that this result is consistent with our insistence in other areas that departures from the warrant requirement strictly conform to the exigency presented.” Chambers v. Maroney, supra, 61-63 (Harlan, J., dissenting).
Justice Harlan’s position regarding warrantless searches of impounded automobiles is consistent with the principles underlying the warrant requirement of article first, § 7. We take our commitment to the judicial process seriously, and cannot tolerate a warrant-less search of an impounded automobile, where exigent circumstances, the principal circumstance that justifies the automobile exception in the first instance, have evaporated. To do so would constitute an abdication of our “constitutional duty to construe article first, § 7, in a way that adequately protects the rights of individuals in Connecticut and also [our] supervisory responsibility, as [an] overseer of the judiciary in Connecticut . . . .” State v. Barton, supra, 545.
In reaching our decision, we reject the sole rationale offered by the Supreme Court in Chambers v. Maroney, supra, 52, in support of extending the automobile exception from the street to the station house: “The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” First, the assertion that probable cause to search obtained at the station house misses the point of the warrant requirement, which is that, whenever possible, the determination as
The state, in its brief, points to a potential irony in our decision — that in our attempt to encourage the resort to judicial process, we will instead encourage the police to conduct complete vehicle searches before impounding an automobile. We believe that this fear, although perhaps justified, is overstated. First, under State v. Dukes, supra, the police are fully entitled to conduct a roadside search of an automobile upon probable cause to believe that it contains the fruits or instrumentalities of crime. Our Supreme Court apparently has no constitutional quarrel with such a procedure, even when the driver is handcuffed and belted into a police cruiser. See id. Second, we do not believe that the net gain in roadside searches — the number of instances in which police who otherwise would have conducted a station house search would instead conduct a roadside search in order to avoid applying for a warrant — would be particularly significant. Where the police want to pursue the fastest and easiest course, they presumably will conduct a roadside search whether or not we require a warrant before conducting a station house search. The process of securing and towing the vehicle is itself cumbersome and time consuming. Where the police fear for their safety, we fully expect them, if they want to conduct a search of the vehicle, to secure the vehicle at a safe location before searching it, even if applying for a warrant is the “price” the police pay for their safety. We neither encourage nor want the police to conduct searches under circumstances that pose a threat to their safety.
Undoubtedly, in light of our decision, there will be some instances where the police, in order to avoid having a neutral and detached magistrate determine whether probable cause to search exists, will conduct
We note that we are not alone in reaching this conclusion. Both Utah, in State v. Larocco, 794 P.2d 460 (Utah 1990), and Rhode Island, in State v. Benoit, 417 A.2d 895 (R.I. 1980), have squarely rejected the rule of Chambers v. Maroney, supra, as being incompatible with the search and seizure provisions of their state constitutions. Other states have reaffirmed, under their state constitutions, the absolute requirement that exigent circumstances be present whenever a warrantless automobile search is conducted. See State v. Ritte, 68 Haw. 253, 256-57, 710 P.2d 1197 (1985); State v. Koch, 302 Or. 21, 32-33, 725 P.2d 1285 (1986).
In light of our Supreme Court’s decision in State v. Badgett, 200 Conn. 412, 432-34, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), our conclusion that the warrantless search of the defendant’s automobile was not excused by the automobile exception to the warrant requirement does not require us to exclude the evidence unlawfully seized. Rather, we must remand the case to the trial court for further proceedings to determine whether the evidence illegally seized can be admitted under the “inevitable discovery” exception to the exclusionary rule adopted by the United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). State v. Badgett, supra, 432-33.
“Under the inevitable discovery rule, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. [Nix v. Williams, supra,] 444. To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation. United States v. Cherry, 759 F.2d 1196, 1205
“In light of Nix v. Williams, we remand the case to the trial court to determine whether the inevitable discovery doctrine is applicable under the circumstances of this case. See New York v. Class, 475 U.S. 106, 119n., 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986). . . . Among the factors to be considered are: (1) whether an inventory search would have been justified under the circumstances; (2) whether such a search would have been conducted according to standard [West Hartford] police operating procedures; and (3) whether a search pursuant to these procedures would have uncovered the [gun]. See South Dakota v. Opperman, [428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976)]; State v. Gasparro, [194 Conn. 96, 107, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985)].” (Emphasis in original.) State v. Badgett, supra, 433-34; compare State v. Roseboro, 221 Conn. 430, 446, 604 A.2d 1286 (1992).
The case is remanded for further proceedings in accordance with this opinion.
In this opinion Foti, Lavery, Landau and Freedman, Js., concurred.
While we agree with parts I and II of the majority’s opinion, the dispositive issue of this case involves examination of the defendant’s evidentiary claim under the fourth amendment to the federal constitution and article first, § 7, of our state constitution. Both provisions create a reasonableness standard and proscribe only unreasonable searches and seizures. State v. Dukes, supra, 121. “There is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails.” State v. Januszewski, 182 Conn. 142, 148, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).
The majority revisits one of the four well recognized automobile exceptions
Our constitutional preference for warrants is the underpinning of the majority’s conclusion that the police in this case should have obtained a warrant before searching the trunk of the defendant’s automobile after it was impounded at the police station subsequent to its seizure with probable cause. In its rush to establish that we must give our preference for warrants more than lip service, the majority glosses over United States and Connecticut Supreme Court precedent recognizing the vitality of the automobile exceptions to the warrant requirement; see, e.g., Chambers v. Maroney, 399 U.S. 42, 52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct. 280, 69 L. Ed. 543 (1925); State v. Dukes, supra, 120; State v. Badgett, supra, 428; as well as the indubitable principle that once probable cause has been established, a warrantless seizure and search of an automobile at the scene of an initial stop is not unreasonable. See, e.g., Chambers v. Maroney, supra; Carroll v. United States, supra; State v. Dukes, supra; State v. Badgett, supra. The majority also does not note Connecticut precedent that concludes, relying on federal precedent, that a warrantless search of an automobile, with probable cause, conducted after the initial seizure at a place other than the scene of seizure is not unrea
In State v. Delossantos, supra, the defendant urged the court to use state constitutional grounds to abandon federal constitutional requirements for a warrant-less search of a car incident to a lawful arrest, and urged that New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), be abandoned and replaced with a case-by-case evaluation of the ability of the arrested defendant at the scene of the arrest to destroy or reach contraband in his or her car. The Delossantos court stated: “In considering the level of individual protection and the scope of a warrantless search of an automobile under article first, § 7, of the Connecticut constitution, we have observed that ‘our automobile exception permits a warrantless search of an automobile whenever the police have probable cause to do so. See, e.g., State v. Badgett, [supra]. It is also correct that we recognized that the police may make a search without a warrant incident to a lawful custodial arrest. Id., 424 . . . .’ ” State v. Delossantos, supra, 266. The Supreme Court in Delossantos did not abandon the federal rule in favor of one that gave broader rights under the state constitution, although it had been specifically asked to do so. There is no reason to conclude that the Connecticut Supreme Court, having followed the federal cases when the warrant-less search is incident to a lawful arrest, would not fol
The majority disagrees with the well established principle that if an immediate warrantless search of a vehicle on the street is permissible because probable cause to search exists, then a warrantless search soon thereafter at the police station also is permissible. United States v. Johns, 469 U.S. 478, 485, 105 S. Ct. 881, 83 L. Ed. 2d 890 (1985); United States v. Ross, 456 U.S. 798, 807 n.9, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); Chambers v. Maroney, supra, 52; Texas v. White, 423 U.S. 67, 68, 96 S. Ct. 304, 46 L. Ed. 2d 209 (1975) (per curiam).
The rationale of Chambers was expressed as follows: “For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” Chambers v. Maroney, supra. Extending this rationale further to apply to the situation of the impounded vehicle, the United States Supreme Court stated that the decision to allow the warrantless search of an impounded vehicle was “based on the practicalities of the situations presented and a realistic
It is against this overwhelming body of federal and state precedent that we should carefully examine the facts of this case.
The majority, it should be noted, does not dispute that under current Connecticut law probable cause to seize and search existed at the time the defendant’s vehicle was stopped on a public street. This vehicle had been identified by witnesses as the one used earlier in the armed robbery of a store. Further, the majority concedes that the police could lawfully have conducted a warrantless search of the vehicle on the street because there was probable cause to believe the instrumentalities of the crime were within the car.
The majority, however, does not resolve or explain what happened to the probable cause during the trip from the place where the vehicle was first stopped to the police station where it was impounded. We do not believe that probable cause to search the vehicle was any more or less existent when the vehicle was impounded at the police station than it was when it was first stopped on the street.
The difficulty with the majority’s approach is that it seizes on what amounts to no more than an anomaly among automobile exception cases and attempts to resolve a perceived problem by finding greater protections for Connecticut citizens under article first, § 7. In fact, the majority’s dissatisfaction is not with any factual wrinkle under the automobile exceptions, but with the rationale of the entire Chambers line of cases because, in the majority’s view, the principle of exigent circumstances is paramount and when there is no exigency a search warrant must be obtained.
While we agree with the majority’s implicit view that we should not approach state constitutional jurisprudence only in response to federal retrenchments from fourth amendment protections, we also believe that our state constitution is an organic vehicle that, in and of itself, can provide greater safeguards than its federal counterpart, regardless of how the federal document has been interpreted. Where police behavior has been concerned, this court and the Connecticut Supreme Court have not hesitated to construe provisions in our state constitution to provide our citizens with greater protections than those afforded by consonant provisions in the federal constitution. See, e.g., State v. Barton, supra; State v. Marsala, supra; State v. Geisler, supra. This is especially true when our highest federal court has deviated or retreated from its previously broad protective readings of the fourth amendment. See, e.g., State v. DeFusco, 27 Conn. App. 248, 256, 606 A.2d 1, cert. granted, 222 Conn. 910, 608 A.2d 693 (1992), citing State v. Marsala, supra; State v. Geisler, supra. Thus far, in the context of unreasonable searches and
Because there has been no federal retreat from entrenched fourth amendment protections, and because we are not confronted with a factual situation from which we can properly announce safeguards under article first, § 7, that go beyond those enunciated by well settled federal interpretations of the fourth amendment, and, most of all, because we must follow the law as it presently has been enunciated by the Supreme Court of Connecticut, we cannot agree with the majority.
Although the majority states that “distinct, principled jurisprudential theories” now exist with respect to state constitutional analysis, we cannot find that underlying “theory.”
Given the fact that there is a diminished expectation of privacy in an automobile to begin with; United States v. Chadwick, 433 U.S. 1, 12, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974); State v. Pittman, 209 Conn. 596, 602, 553 A.2d 155 (1989); State v. Morrill, 197 Conn. 507, 541-42, 498 A.2d 76 (1985); if probable cause existed to search the automobile on the street and the defendant’s privacy interest in it is the same at the police station as on the street, we fail to see exactly what increased privacy interests the majority’s state constitutional analysis extends to the citizens of our state.
Finally, we should not forget that the Connecticut Supreme Court has stated that “ ‘[t]he rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating . . . often opposing interests. . . .’” State v. Kimbro, 197 Conn. 219, 223, 496 A.2d 498 (1985). “Dressed today in Connecticut constitutional
We firmly believe, as does the majority, that state constitutions are, in the words of Justice William J. Brennan, Jr., “a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.” W. Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harv. L. Rev. 489, 491 (1977). We certainly should not regard our state constitution as an ephemeral document; see, e.g., State v. Dukes, supra, 115; but instead must apply it, when appropriate, to give effect to the noble principles to which the majority alludes. At the same time, however, we must remember that “[a] principle to be vital must be of wider application than the mischief that gave it birth.” W. Brennan, supra, 495. The factual circumstances here are truly anomalous. Will not the police in the vast majority of automobile search cases conduct
Judges are continually engaged in the delicate yet difficult task of balancing various concerns involving conflicting rights and duties. We seek to protect society as a whole from unlawful activity while at the same time ensuring that individual citizens’ constitutional protections are not intruded upon or eroded. It was former Chief Justice Roger J. Traynor of the Supreme Court of California who once stated that judges must keep “the peace between the Constitution and common sense.” R. Traynor, “The Devils of Due Process in Criminal Detection, Detention, and Trial,” 33 U. Chi. L. Rev. 657, 680 (1966).
We are unable to accept the result the majority feels compelled to reach because we believe that the law, as already stated by the Connecticut Supreme Court to date, and our common sense require our dissent. Accordingly, we concur in parts I and II of the majority’s opinion, and dissent from part III.
Daly, J., concurring in part and dissenting in part. Although I agree with parts I and II of the majority opinion, I disagree with the majority’s holding that article first, § 7, of the Connecticut constitution prohibits a warrantless search of an impounded automobile. While the existence of exigent circumstances may disappear once the automobile is impounded, the probable cause to search the defendant’s automobile does not disappear once the police secure it. As long as the police have probable cause to believe that the automobile con
“Both the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut create a reasonableness standard; both proscribe only unreasonable searches and seizures.” State v. Dukes, 209 Conn. 98, 121, 547 A.2d 10 (1988). The majority focuses on the fact that once the automobile is immobilized, exigent circumstances that support the automobile exception to the warrant requirement no longer exist. The other basis for allowing warrant-less searches of automobiles, however, is that there is a lesser expectation of privacy concerning an automobile as compared to a house or an office. See Californian. Carney, 471 U.S. 386, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985); State n. Badgett, 200 Conn. 412, 428, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). The majority fails to consider this aspect of the warrant exception for automobile searches.
In State v. Dukes, supra, 120, our Supreme Court noted “that our automobile exception permits a warrantless search of an automobile whenever the police have probable cause to do so.” The court focused on the probable cause requirement and the lesser expectation of privacy concerning automobiles. The existence of probable cause that the vehicle contains contraband is crucial before the police may conduct a warrantless search of an automobile. “ ‘Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.’ (Emphasis in original; citations omitted.) State v. DeChamplain, [179
I recognize that “[d]espite the fact that one does not enjoy the same expectation of privacy as to the interior of his motor vehicle as one does in the interior of one’s home, nevertheless, ‘[t]he word “automobile” is not a talisman in whose presence the fourth amendment fades away and disappears.’ Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).... The same applies to an ‘automobile’ under article first, § 7, of the constitution of Connecticut.” State v. Dukes, supra, 126. “The exception to the warrant requirement in an automobile search demands that the searching officer have probable cause to believe that the vehicle contains contraband” or evidence related to a crime as recognized under the federal and state constitution. Id. Again, the state must show that there was probable cause to search the vehicle. This should be the critical factor when determining if the search was reasonable rather than the existence of exigent circumstances that the majority relies on to extend the state constitutional protections.
The majority opinion focuses only on the exigent circumstances aspect of the automobile exception to the warrant requirement. The majority fails to examine adequately the lesser expectation of privacy aspect of automobiles and the existence of probable cause to believe that the vehicle contained contraband in reaching its conclusion that a warrant is required when police remove an automobile from the place of its initial seizure. The critical element is that probable cause to search the vehicle must be established to justify the warrantless search. Because there was probable cause to believe that contraband was located in the defendant’s automobile, the search at the station was reasonable under both the federal and state constitutions. I do not believe that this case provides an adequate basis for extending further protection under our state constitution. I also question whether the majority’s warrant requirement for immobilized vehicles seized by the police will in actual practice provide greater protection of personal privacy.
For these reasons, I respectfully dissent.
General Statutes § 54-94a provides in pertinent 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 evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal .... The issue to be considered in such an appeal shall be limited to whether it was proper for the court to haye denied the motion to suppress . . . .”
See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Article tenth, § 1, of the Connecticut constitution provides in pertinent part: “The general assembly shall by general law delegate such legislative
The fourth amendment to the United States constitution, which was made applicable to the states in Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), 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.”
Article first, § 7, of the Connecticut constitution 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.”
See footnote 10, infra.
In State v. Schoenbneelt, 171 Conn. 119, 368 A.2d 117 (1976), the defendant challenged the warrantless search of his automobile at the police station on both federal and state constitutional grounds. Our Supreme Court, relying on Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), upheld the search. Although the defendant presented a claim under both the federal and state constitutions, the court appears to have decided the issue on only federal constitutional grounds. There is no discussion of the Connecticut constitution and all of the cases cited in support of the court’s holding are United States Supreme Court cases. Further, the court refrained from stating, as it had in the past, that the federal and state provisions at issue afford identical protections.
We do not construe our Supreme Court’s silence on the state constitutional issue in Schoenbneelt as a decision on the merits. In that case, the court undertook absolutely no state constitutional (or Connecticut ease law) analysis. Further, Schoenbneelt was decided in 1976, well before our courts began to declare that article first, § 7, has an independent and vital life of its own. See, e.g., State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990); State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988); State v. Geisler, 25 Conn. App. 282, 594 A.2d 985 (1991), aff’d, 222 Conn. 672, 610 A.2d 1225 (1992).
In light of our conclusion that exigent circumstances are a necessary condition to any application of the automobile exception to the warrant requirement, we need not consider whether the defendant was entitled to
The following passage from State v. Bennett, 301 Or. 299, 313-14, 721 P.2d 1375 (1986) (Lent, J., dissenting), is instructive regarding this issue: “Underlying the federal decisions on vehicle searches is an asserted ‘reduced expectation of privacy’ one ha? in his automobile. Although this may be argued as to those parts of the auto that are open to view by the most casual passerby, it is just not true as to the locked trunk of the auto. All of us move in our autos effects that are most private, and when we do so we are more apt to put them in the trunk than in some other part of the vehicle. A subset of ‘all of us,’ i.e., judges and lawyers, often carry highly confidential papers in our autos, and if we are careful (as we ought to be) we probably lock them in the trunk.
“ ‘Despite the wealth of language that privacy in automobiles is less important than in other areas, most members of our society must frequently use automobiles to convey undeniably private papers and effects. For example, the workload of this court often requires judges to take their work home. The automobile provides the usual mode for transporting drafts of opinions, notations indicating the probable outcome of submitted cases, and confidential messages from other judges. To say that there is no expectation of privacy in such papers, release of which would constitute a dereliction of duty, would be to ignore reality. And judges are of course not alone in this regard.’ United States v. Edwards, 554 F.2d 1331, 1338 (5th Cir. 1977).”
We find the dissenters’ heavy reliance on State v. Delossantos, 211 Conn. 258, 266-67, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989), puzzling. State v. Delossantos, supra, involved the search incident to arrest exception to the warrant requirement, not the automobile exception. Because our Supreme Court consistently has recognized that the two exceptions are conceptually distinct; see, e.g., State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988); State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); State v. Delossantos, supra, in no way controls our resolution of the issue before us in this case.
We also acknowledge, as the state points out, that other states have construed the search and seizure provisions of their state constitutions to allow a warrantless search under the automobile exception, even where exigent circumstances are absent at the time of the search. See State v. Redfearn, 441 So. 2d 200, 201-202 (La. 1983); Commonwealth v. Moses, 408 Mass. 136, 145, 557 N.E.2d 14 (1990); State v. Gallant, 574 A.2d 385, 390-91 (N.H. 1990); State v. Tompkins, 144 Wis. 2d 116, 137-38, 423 N.W.2d 823 (1988).
Although we noted earlier that we share a common colonial history with Massachusetts, we do not find the recent decision of the Supreme Judicial Court of Massachusetts in Commonwealth v. Moses, supra, persuasive. The search and seizure provisions of the fourth amendment to the United States constitution, article first, $ 7, of the Connecticut constitution and article fourteen of the Massachusetts declaration of rights sill were enacted in response to the same abusive practices. An analysis of the early history of the Massachusetts colony is useful in determining the intent of the framers of these provisions. We remain free, however, to disagree with both the United States Supreme Court and the Supreme Judicial Court of Massachusetts regarding modem applications of our state search and seizure provision.
Our decision to remand this case for further proceedings is not intended to foreclose a subsequent appeal from the trial court’s judgment on remand. See State v. Badgett, 200 Conn. 412, 432 n.10, 512 A.2d 160 (1986).
“There are four recognized situations where a warrantless search of a car may lead to the conclusion that such a search was reasonable under
It is interesting that the majority, in its historical analysis of our state constitution, mentions that the “Massachusetts experience” is “particularly instructive” relative to article first, § 7, of our state constitution. The majority suggests that the common historical experiences of our two states lead to the conclusion that the “preference for warrants” should be the same under both state constitutions. Yet, in Commonwealth v. Moses, 408 Mass. 136, 557 N.E.2d 14 (1990), a case involving similar facts, the Supreme Judicial Court of Massachusetts held that a reasonable delay in the warrantless search of the trunk of the car at the police station did not violate either the fourth amendment of the federal constitution or article fourteen of the Massachusetts constitution.