*1 OF STATE CONNECTICUT JENKINS CHRISTOPHER 18077) (SC Zarella, Palmer, Norcott, Katz, Vertefeuille and Js.* * justices seniority listing their status on this court as reflects argument date of oral *3 officially September 7, 2010 Argued released October James M. senior Ralls, attorney, assistant state’s with whom, brief, on the were Murphy, Scott attorney, state’s and Paul senior Rotiroti, assistant attorney, state’s for appellant (state). H.
Timothy Everett, special public defender, with whom, brief, on Christopher Houck, certified intern, appellee for legal (defendant). L.
Jon Schoenhom filed a brief the Connecticut Lawyers Criminal Defense Association as amicus *4 curiae.
Opinion
NORCOTT, J. In this certified
we
appeal,
consider the
limitations, under the fourth amendment
to the United
States
first,
constitution1 and article
7, of the Connecti-
§
1
provides:
“The fourth
to the
amendment
United States constitution
‘The
people
right
persons, houses, papers,
effects,
of
to be secure in their
and
against
violated,
seizures,
unreasonable searches and
shall not be
and no
probable
issue,
upon
cause, supported by
warrants shall
but
oath or affirma
tion,
particularly describing
place
persons
searched,
and
to be
and the
things
applicable
or
to be seized.’ The fourth amendment has been made
Gonzalez,
to the states via the fourteenth amendment.” State v.
278 Conn.
n.4,
(2006).
344
zona
Johnson,
323,
U.S.
129 S. Ct.
L.
781, 2d 694
Mena,
Ed.
Muehler v.
(2009),
U.S.
Ct. 1465,
S.
After Morgan the Altima on the shoulder of turnpike its near with intersection Griswoldville Avenue, a short distance south Krispy former shop, Kreme he doughnut Pennsyl- radioed the Altima’s vania plate license number his dispatcher, who checked it and not report any did matters of concern. Morgan approached then the defendant on the driver’s *6 for the him of the reason Altima, informed side of the license, and registration his driver’s requested and the defen- questioned also papers. Morgan insurance the defendant told itinerary; his travel regarding dant daughter his visiting from returning that he was Morgan a New gave Morgan defendant then in New York. The Pennsylvania rental and a valid Jersey driver’s license that, during testified Morgan for the Altima. agreement stop, the traffic the and the remainder of exchange this nervous,” “quick “unusually appeared gave defendant eye and did not make contact questions to his answers” with him. papers back to his then took the defendant’s
Morgan personal and where he checked the defendant’s cruiser, learned dispatcher, with his and vehicular information warrants, wants or cau- outstanding were no that there also Morgan to the defendant. pertaining tions scene of requested backup respond officer to the he had decided that stop, the traffic because he his ask the defendant for consent to search going to an infraction ticket Morgan vehicle. then write began illegal for the lane changes.
By ticket, the Morgan writing the time had finished supervisor, Der- backup Sergeant the officer shift uni- Sutton, arrived, wearing rick had also full approached the defendant and asked Morgan form. then explain the him to exit his car order better to ticket.5 defendant, the but Morgan explained then the ticket to it him did at that time. On the basis give not his from distractions around that he created of traffic on the on regular Morgan shoulder, ticket, shoulder. in by practice testified because that enables parking turnpike, such as radios or cellular offsetting lane of is to ask his cruiser half in the when safety it well as to from working driver for himself and Morgan to exit his or her car for an have traffic enforcement on Altima, telephones. to show right which was driver’s full attention away travel Morgan also defendant driver lane, parked and half on explanation turnpike, to move testified amount entirely
defendant’s continued nervous demeanor and account any- his him travels,6 Morgan asked whether he had thing person. on his “illegal” replied defendant he did have illegal him, on anything Morgan *7 patted then down the did defendant, which not reveal Morgan contraband.7 then asked whether the defen- dant had in anything the The “illegal” Altima. defendant replied that all he had in car was some beer on the floor passenger seat, and told he Morgan that could “go you ahead and check. You can if check want.”8 point, At this Morgan inquire did not farther of the defendant, or advise him he could refuse to allow Morgan to Morgan search the car. then instructed defendant stand Sutton, Morgan with to began search the interior of the Altima. Morgan testified stop, neither nor had he Sutton drawn their had weapons, handcuffed, nor threatened or otherwise coerced the defendant. of
Morgan began his search the Altima on the driver’s of immediately side the vehicle and proceeded open compartment a closed in its console, center he where found a package wrapped paper. white tissue paper plastic tissue concealed a bag contained powder a white substance that Morgan identified cocaine. At that point, Morgan stopped search, handcuffed placed the defendant and him under arrest. arrest, Following defendant’s search of the rest of the Altima, area, the backseat and trunk including revealed additional and a quantity cocaine of her- large oin.9From the time that Morgan stop, initiated until 6Morgan not, however, did it unusual consider that the rental vehicle was registered in a different state than its driver was licensed. 7Morgan that he did believe that testified not the defendant was armed stop. at the time of the respect phrasing For additional discussion with to the of the defendant’s consent, opinion accompanying see footnote 38 of this and the text. propriety We note that defendant not contest does of this subse quent search of Altima. fifteen search, only ten to obtained consent he testified of that he time elapsed, period had minutes stop. The entire average with an traffic was consistent inception minutes, from its twenty lasted at most arrest. the defendant’s until with two the defendant charged the state Thereafter, who person narcotics possession of counts (a) la-278 § in violation of drug-dependent of narcotics possession each of and one count (b),10 (a), possession 21a-279 Statutes § General violation Statutes in violation of General paraphernalia drug turn without a improper an making (a), 2la-267 § then 14-242. The defendant § violation signal from him and his all seized suppress evidence moved *8 impermissibly was stop that the traffic vehicle, claiming or reasonable and probable cause extended without he had not volunta- suspicion, and also that articulable the of his vehicle. rily consented to court, Alexander, J., following an eviden- The trial only witness, the tiary Morgan at which was hearing suppress. The trial the motion to denied defendant’s by a proven preponder- the had court found that state “freely and of the evidence that the defendant had ance voluntarily ... in the search of his given “the initial motor vehicle motor vehicle” because length traffic violations; was result of observed (b) proscribes, alia, possession note 21a-278 inter both the § We that present charged in the case and sale of narcotics. substitute information (b) (a) on of § violations 21a-278 the basis the defendant with of illegal appears alleged drugs.” This defendant’s certain statement “[s]ale point proceedings At before the trial to be a scrivener’s error. no participated that had in the actual court did the state claim the defendant present Additionally, drugs. judgment file in the sale of we note pleaded (b) to § 21a-278 violation which defendant case notes [ijntent “[pjossession [njarcotics with was [s]ell.” nolo contendere charged Accordingly, we to the crimes with which the defendant refer (b) possession (a) intent to sell § 21a-278 of narcotics with under drug-dependent. person who is (no minutes); than was brief more fifteen professional
the conduct of the officer was and not overbearing; the defendant told the officer to check his illegal items; [and] vehicle for the defendant did not Noting withdraw his consent at time.” that it was appropriate Morgan ask defendant to exit stop; Pennsylvania generally his car see Mimms, 434 U.S. 98 S. 54 Ed. Ct. L. 2d 331 (1977); (1988); Dukes, State v. Conn. 547A.2d specifically the trial court then declined to credit the claim defendant’s that “his statement to the only evening was meant to have the officer look at the spontane considering beer car,” in his the defendant’s response inquiry presence Morgan’s ous about the illegal “unambiguous:go items to be ahead and check.” Following suppress, the denial of his motion to pleaded defendant contendere, nolo conditioned on his right appeal, pursuant § to General 54-94a,11 Statutes possession to one count of of narcotics with intent to by person drug-dependent sell who is not in violation (b). § Handy, of 21a-278 court, J., The trial then sen years twenty imprisonment, tenced the defendant to suspended years, years eight execution after five probation. appealed judgment
The defendant
from the
of convic-
Appellate
*9
tion to
Court,
the
which concluded that the
suppressed
trial court should have
the evidence taken
unlawfully
from the defendant’s car because he “was
.
detained .
. his consent to search the vehicle was
provides
part:
defendant,
§
General Statutes
in
54-94a
relevant
“When
prior
trial,
plea
to the commencement of
enters
nolo contendere condi
right
appeal
tional on the
to take an
from the court’s denial
the
defendant’s
suppress
dismiss,
motion
imposition
to
or
to
motion
the
the
defendant after
may
appeal
prescribed by
provided
of sentence
file an
within the time
law
ruling
a trial
suppress
court has
that a
determined
on such
to
motion
dispositive
motion to dismiss would be
of the case. The
to
issue
be consid
appeal
proper
in
ered
such
an
shall
limited to whether it was
for the
suppress
court to have denied the motion to
or the motion to dismiss.
. . .”
.
.
and
. the state
illegal
that
detention
tainted
detention.” State
illegal
the taint of the
failed to purge
Jenkins, supra,
App.
Appellate
424. The
Conn.
Ohio,
Terry
392 U.S.
under
Court stated
(1968),
determining
S.
Having
necessary
pur-
initial
beyond the time
effectuate its
then concluded that
pose,
Appellate
Court
Appellate
rejected
claim
the record
also
the state’s
Court
Morgan
inadequate
appellate
respect
had
review with
to whether
paperwork to him. The court noted that
returned the defendant’s ticket and
given
ticket,
Morgan had not
the defendant
record indicated that
any inadequacy
point
charged to
on
should be
the state because
and that
this
proof
it
of the defendant’s
bore the burden of
establish
voluntariness
Jenkins, suppression hearing.
104 Conn.
at the
App. 430.
*10
state’s evidence “did not establish that
had
Morgan
suspicion
expand
scope
to
reasonable
the
of the
inquiry
into an
of whether the
engaged
defendant was
illegal activity
unrelated to the
underlying
Morgan
was
on
than a
proceeding
anything more
Therefore,
mere hunch.
Morgan began
question
once
to
illegal
the defendant about unrelated
for-
activity, the
merly
stop morphed
valid motor vehicle
illegally
into an
prolonged
the
Id.,
seizure of
defendant.”
434. Applying
Illinois,
three factor test articulated in Brown 590, 603-604,
U.S.
95 S. Ct.
45 L.
2d 416
Ed.
to
whether
(1975),
police
determine
the taint of
miscon-
been attenuated,13
Appellate
duct has
further
Court
determined that the defendant’s consent
tainted
was
improper
detention and that the
had not
state
that taint
purged
because the consent was
while
given
the defendant
illegally detained,
was
were
there
no intervening circumstances
such as an admonition
that the defendant had the
right
search,
refuse the
and that
official
Morgan’s
particularly
was
misconduct
testimony
on the
of his
flagrant
patted
basis
that he had
basis. any justifiable
defendant down without
Jenkins,
supra,
App.
104 Conn.
Accordingly,
434-36.
Appellate
Court reversed the defendant’s conviction
and remanded the case to the trial court with direction
grant
suppress.14 Id.,
defendant’s motion to
437.
Illinois, In Brown considering
U.S.
whether
poisonous tree,
“exploitation
confession
the fruit of the
or the
of an
arrest,”
illegal
Supreme
Court concluded that the
“voluntariness
requirement.” Id.,
statement
is a threshold
604.
Court then
voluntary,
concluded
once the confession was determined to be
reviewing court then must consider other “relevant” factors to determine
attenuated, including specif
whether taint of the
misconduct has been
ically: (1)
temporal proximity
confession”; (2)
“[t]he
the arrest
presence
intervening circumstances”;
(3)
purpose
“the
“the
flagrancy
Id.,
analysis
of the official
. . .”
603-604. The Brown
misconduct.
applicable
Cates,
See State well
consents as
statements.
202 Conn.
615, 621,
(1987).
On this appeal on inadequate relied an Appellate improperly: (1) Court properly claims not reached out to decide record and Mor- court, specifically whether trial raised before the prior the defendant patted had down improperly gan Altima; and (2) to search the obtaining his consent constitution, the federal that, under the concluded stop be limited to its scope of a traffic must length proba- was that there purpose, particularly given initial two had committed traffic ble cause that the defendant the presence. response, in In defen- Morgan’s violations alternative argues and also strongly disagrees, dant Appellate of affirming judgment the the grounds involuntary; (2) that: his consent to search (1) Court scope of the defendant’s Morgan’s search exceeded the defendant’s con- consent; Morgan and obtained (3) first, of article of § sent to search violation App. Specifically, Jenkins, supra, 437. been 104 Conn. effectuated. State similarly present Judge in the case devoid noted that record is Schaller “[t]he important respect factors” with to “critical matters courts of certain stop completed,” purpose has been use to of traffic determine whether registra- namely, Morgan and had the defendant’s license whether returned Id., explained Noting tion, 441. to him. had issued and the traffic citation and stop purpose has of of a traffic been achieved that the issue when Connecticut, completed question stop and that an unsettled of law is jurisdictions approaches legality varying to the other have taken stop, questioning the initial motorists about issues unrelated to officers inadequately Judge had briefed also that the defendant Schaller determined unconstitutionally Morgan had extended traffic whether the issue of by purpose stop explaining had whether the the traffic in detail rejected Id., Judge the defendant’s 441-49. Schaller then been effectuated. appeal, namely, “(1) [Ejven if his had been on that: consent other claims person, by prior voluntary, his it was tainted unconstitutional search actually (2) he consented to the search of failed to establish that state voluntarily any vehicle, given (4) (3) to search was not constitution search was obtained a violation of Connecticut consent to investiga- police improperly converting into a a traffic criminal Id., tion.” 450. constitution, Connecticut he posits provides which specific greater protections for motorists than does the federal constitution.
“Our standard of review of a trial findings court’s conclusions connection with motion suppress well defined. A will finding fact not be disturbed *12 it clearly unless in view erroneous of the evidence and pleadings in the whole .... record the [W]here the legal conclusions of court are we challenged, must they determine whether and legally logically are correct they support and whether find in the facts out in set the memorandum of decision .... We undertake a probing ques more factual review when a constitutional hangs tion the balance.” (Citation omitted; internal State quotation Burroughs, 288 marks omitted.) 836, 843, 955 Conn. A.2d 43 (2008). presented issues appeal this the concern articulation and application of the relevant federal and state constitutional rules governing the conduct routine traffic stops. Unless specifically noted; part IIB see of this we opinion; agree with they the defendant present questions of law over which our review is plenary.
I ADEQUACY OF THE FOR RECORD REVIEW OF
CLAIMS TO THE PERTAINING
PATDOWN OF SEARCH
THE DEFENDANT Given the fact sensitive nature sup- constitutional pression inquiries, we begin with state’s claim the Appellate improperly Court considered the fact of patdown an illegal search in agreeing with the defen- dant’s contention that his Altima was tainted previously performed illegal search. The state notes that the issue was not in the raised suppress defendant’s motion to litigated during the suppression Brunetti, relies on State and hearing,
223 U.S. denied, 549 A.2d 1 cert. 39, (2006), 901 279 Conn. L. 2d 85 1328, (2007), Ed. 127 S. Ct. A.2d (1994), Medina, Conn. inadequate for is, therefore, the record to contend that to State pursuant claim unpreserved of this review 239-40, A.2d (1989). 213 Conn. Golding, Appellate that the defendant contends response, In record considered evidence properly Court failed the trial court because suppression hearing emphasizes that fact, findings make detailed ade his to ensure record complied obligation with he a motion for articula quate review appellate filing for upheld by of which the trial court’s denial tion, defendant’s Court. We conclude Appellate validity patdown during failure to litigate inadequate the record rendered suppression hearing issue, Appellate that the of this Golding review with any impropriety improperly Court considered *13 analysis in its of the defen patdown respect the dant’s claims. additional relevant following
The record reveals the
history.
the
and
When
defendant
procedural
facts
found
suppress
the
court to
the narcotics
moved
trial
was the
Altima, he claimed that the evidence
in the
seizure, namely,
his deten-
fruit of an
search
illegal
probable cause
period
“for an extended
without
tion
that the defen-
suspicion
or a reasonable and articulable
in
.
.
.’’In
activity
was
.
his
engaged
illegal
dant
no time did
motion, the defendant contended
“[a]t
vehicle,”
voluntarily consent
to the search
his
[he]
action
“was tainted
the
illegal
consent obtained
he
not feel
to leave
officers,”
and that
“did
free
[the]
officer
any questions posed by
answer
or decline to
day,
number
of the time of
due to
circumstances
scene,
to the
and the fact that
of officers called
[he]
question
mention
alone.” The defendant did not
was
suppress.
patdown in his motion to
legality
Following the suppression
at which
hearing,
Morgan
briefly
the patdown,15
testified
about
the parties briefed
argued
then
the case orally before the trial court.
In his memorandum of law, the defendant mentioned
patdown
in
search
the statement of the facts, and
only
then noted
that “the extended detention of the
defendant and the warrantless
search of his vehicle
were
promote
not conducted to
safety
officer
or to
preserve evidence.
.
.
.
failed
Morgan
to articulate
what crime he had
suspect
reason to
the defendant was
committing
patdown
stated that at the time of the
search,
suspect
he did not
that the defendant was car-
weapon.
rying
These
which
factors,
must be consid-
ered
determining
when
whether
the seizure of the
defendant was reasonable
the circumstances,
under
do
not
governmental
balance
favor of
intrusion into the
liberty.” The
defendant’s
defendant did not mention the
patdown
examining
totality
of the circumstances
and arguing
voluntarily
that his consent
given.16
The state did not
patdown
mention the
in its memoran-
dum in
nor did
trial
opposition,
court discuss the
patdown in its memorandum of decision.
previously, Morgan
only
testify
As noted
was witness to
at the
suppression hearing.
cross-examination,
exploring
On
while
the circum
Altima,
stances of the defendant’s consent to search the
the defendant asked
Morgan
replied
Morgan
whether he had searched the defendant.
in the
affirmative,
anything illegal
and further
testified
he did not find
on the
person.
testimony
Altima,
defendant’s
After further
about
Morgan
question
during recross-examination,
response
testified
to a
from
*14
why
asking
Morgan
person:
the defendant
had
his
“I
searched
asked him
anything illegal
no,
if
Morgan
he had
on him and
I
he said
and checked.”
then
that he
testified
had not believed that the defendant
armed
was
at the
testimony
only
patdown
time. This was the
about the
adduced
the
suppression hearing.
argument
court,
At oral
before the trial
the defendant mentioned the
Story,
patdown
distinguish
State in an effort to
from
this case
53 Conn.
App.
741,
denied,
732 A.2d
cert.
251 Conn.
After the defendant if his consent even specifically “(1) he contended voluntary, it was tainted been the vehicle had search person, (2) his search by prior, unconstitutional actually that he consented to establish the state failed search any consent to vehicle, (3) to the search of the to search voluntarily (4) given not was constitu- of the Connecticut by obtained a violation was stop a traffic police improperly converting by tion the added.) investigation.”17 (Emphasis a criminal into 423-24; id., also App. see Jenkins, 104 Conn. appeal claim on defendant’s relevant (“the 427-28 expanded the improperly Morgan relates whether about the defendant questioning scope activity he in unrelated illegal whether was engaged person the defendant’s performing and then search the purpose effectuating for car, and his after the initial seeking In connection with had been achieved”). the moved for claim, of this defendant Golding review answer, to have the trial court seeking an articulation car, his the was ordered from inter alia: “After defendant person and, if . . . search the defendant’s Morgan did . Did find that the what . . the court so, purpose? for was Did the court search of the defendant reasonable? person in determin- consider defendant’s subsequent whether the search of defendant’s ing posi- car was The state did take constitutional?” the trial court motion, tion on the defendant’s but Thereafter, Appellate it. Court granted denied denial, for review of that but denied defendant’s motion requested.18 the relief Court, Appellate Having we briefs to the deem reviewed the defendant’s representa description arguments Appellate of his an accurate Court’s tion of the claims that he made therein. receipt brief, part, upon moved For its of the defendant’s state for seeking
permission rectification, include a late motion for file report, mentioned, Morgan’s police which was but not admitted as record report suppression hearing. at The state claimed that an exhibit proper patdown had invited because it been indicated Appellate motion Court denied the state’s the defendant himself. *15 Appellate
Subsequently, the Court with agreed the argument state’s that “the issue of whether the defen person dant’s illegally was searched was not raised in trial the court and that the is inadequate record establish the whether defendant consented to the person,” his if noted “even we assume an arguendo that search of defen illegal person occurred, dant’s this, itself, in and of does not necessarily invalidate search of the defendant’s car.” State v. Jenkins, supra, Conn. App. 428 n.11. Nevertheless, after that determining defendant’s unlawfully consent followed an prolonged detention, Appellate Court, the three factor applying attenu ation test articulated Brown v. Illinois, supra, 603-604; U.S. see footnote 13 opinion; of this the third “puipose factor which considers the and flagrancy misconduct”; Brown Illinois, supra, 604; “Morgan stated that: testified he conducted a patdown search of the although defendant he did not believe the defendant was armed. While the record inadequate to determine whether the defendant’s person was illegally searched, disconcerting it is that he such patdown conducted officer testified without justifiable (Emphasis basis.” added.) v. Jenkins, supra, 436; id., see also 428 n.11 (“as herein, discussed the fact that the defendant patted prior down to the search of his car is relevant to whether his consent was tainted”).
Before this court, defendant renews his argument, accepted by the Appellate Court, that, under Brown Illinois, supra, 422 U.S. 603-604, patdown illegal demonstrates that Morgan engaged had in “flagrant” misconduct extending stop. defendant also on patdown support relies of his alternative ground affirming the judgment Appellate permission rectification, subsequently to file a motion for late denied the state’s motion for of that reconsideration en banc denial. *16 involuntary that his Court, namely, person signi- the of “search defendant’s] because [the were as if he already being treated he was fied that “a fundamental patdown the violated and arrest,” under may not law that principle of constitutional [the] justification.” without a citizen touch appeal certified claims in this The defendant’s various unpre- preserved of issues both are an amalgam issues respect With those trial court. served the pursuant to State review unpreserved, are he seeks under which “a 239-40, Golding, supra, Conn. error constitutional prevail on a claim of defendant can condi- following if all of the only at trial preserved to review the adequate the record is tions are met: (1) of error; the claim is constitutional claim of alleged (2) right; a fundamental the violation of alleging magnitude clearly exists the constitutional violation alleged (3) trial; a fair clearly the defendant of deprived analysis, the state has subject if to harmless error (4) con- alleged harmlessness of the failed to demonstrate In beyond reasonable doubt. stitutional violation conditions, of defendant’s absence one these that the defendant relies claim will To extent fail.” claims, his patdown support constitutional on the Golding rule implicates frisk itself legality not raise that issue before the because defendant did trial court. record is law whether a addressing
Our recent case Golding adequate prong for review under first exception operates preservation makes clear that this particularly in the very manner, in a fact restrictive and seizure claims. illegal sensitive context topic recent decision on this is State v. leading we Brunetti, wherein declined to Conn. claim, first time review defendant’s made appeal, because, on he entitled a new trial “that was his father had consented to the search though even [of the defendant’s home], the search was constitutionally infirm because the defendant’s mother, pres- who was ent when the police obtained the father’s consent, declined to consent to the search.” Specifically, before the trial court, the defendant’s suppress motion to bloody found in clothing the home where he had lived with his parents, and the confession that followed his arrest, solely focused validity on the of his father’s con- sent to the search, on ground that his father had *17 been improperly induced to agree to the Id., search. 48-49. suppression hearing transcript subsequently revealed that the defendant’s mother had refused to sign written proffered consent form by the police, but neither the state nor defense inquired counsel fur- ther about the mother’s refusal to sign the form, consent despite the fact that she had testified at the hearing. Id., 49-50. The trial court’s ruling on the defendant’s motion to suppress concluded that “the defendant’s father’s consent to search was knowing voluntary, and, therefore, constitutionally Id., valid.” 50. After the defendant was convicted of murder and filed an appeal, he moved for articulation of numerous questions, “ including whether his mother ‘decline to give her [d] ” consent for a search of the house?’ Id., 52. The trial court denied the motion for an articulation, and we subsequently declined to order it to issue requested Id., articulation. 53-54.
We thereafter concluded that the record was inade-
quate for review of the
joint
defendant’s
consent claim
under the first
prong Golding. Id., 56-64. We rejected
his argument that the trial court’s statement,
in ruling
on
suppression
his
motion,
is clear that at
“[i]t
least one of the parties, one of the parents, declined to
consent
to
search,” “perfected the record for
[the]
review because it
supported
finding,
[constituted]
evidence,
the defendant’s
[the]
mother had
declined to consent to the search.” (Internal quotation
with the defen-
We
Id.,
disagreed
56.
omitted.)
marks
mother had
testimony that his
on
dant’s reliance
sign
emphasized
form,
to
declined
a consent search form
sign
declining
“the act of
search;
to the
a refusal to consent
tantamount
is not
factors that
relevant
simply
it is
one of several
rather,
validity
a con-
determining
in
a court considers
a con-
sign
the refusal to
. . . Because
sent to search.
factors to
is one of several
to search form
sent
consent, such
validity of
determining
considered
found to be
otherwise
not vitiate consent
refusal does
(Citation
of the circumstances.”
valid in
of all
light
Id.
omitted; emphasis
original.)
that, “because
emphasized
we
importantly,
Most
implicate the
did not
suppress
motions to
defendant’s
was not on
thereof,
lack
the state
mother’s consent or
establish, on the basis
required
notice that it
the defendant’s
circumstances,
totality
search.
acquiesced
had consented to or
mother
*18
responsibility
no
circumstances,
the state bears
In such
and, therefore,
it would
evidentiary lacunae,
for the
to reach the
the state for this court
manifestly unfair to
assump-
upon a mere
defendant’s claim
merits of the
tion that the defendant’s
to con-
mother had declined
Id., 59; see
(Emphasis
original.)
to the search.”19
sent
obligation
state had no
id., 62
(“because
also
the moth-
any
regarding
adduce
evidence
incentive to
testimony
that the defendant’s mother
We noted
other than the
form,
“presented
sign
the defendant had
no other
had refused to
the consent
relating
actions
to the consent
on the issue. Because the mother’s
evidence
suppression hearing
to search were not at issue at the
defendant had
—the
and,
only
given
had not
valid consent
to search
claimed
that his father
necessary—
consent was fact, expressly
had indicated that the mother’s
present any
regarding
reason to
evidence
the mother’s
the state had no
result,
thereof, and, consequently,
lack
it did not do so. As a
we
consent or
simply
surrounding
do not know
of the other circumstances
the mother’s
(Emphasis altered.)
State sign the consent
to search form.”
refusal to
Brunetti, supra,
er’s consent or lack
no conclusion —
can be drawn from her failure
reasonably
no inference —
[emphasis
the form”
we
sign
added]). Accordingly,
satisfy
that “the defendant has failed to
concluded
Golding
first
because the facts revealed
prong
inadequate
are
to establish whether the alleged
record
did,
fact,
Id.,
constitutional violation
occur.”20
64.
recent case law is consistent with Brunetti
Our other
consistently
and makes clear that we
have declined
Golding
review to fourth amendment claims
grant
predicate
wherein the
factual record was not com-
pletely developed
before the trial court. See State
Dalzell,
709, 721,
282 Conn.
Thus, agree we any illegality attendant to Mor- improperly considered Given the fact that of the defendant. gan’s patdown develop need to a factual alerted to the state was not potentially permissible whether concerning record patdown existed for the bases, consent,21, such as Appel- for the improper that it was search, we conclude or to draw patdown negatively late Court to label the Morgan’s inferences from it on the basis of adverse presented complete may which not have testimony, respect pat- to the of what had occurred with picture patdown to consider the Thus, down. we decline to it fact, than a historical and ascribe anything other legal significance. no
II
FEDERAL CONSTITUTIONAL CLAIMS
turn to the federal constitu-
we now
Accordingly,
First, we
presented by
present
issues
case.
tional
acts of
Morgan’s
questioning
must consider whether
the reason for
topics
about
unrelated to
defendant
search,
for consent to
stop,
asking
the traffic
as well as
constitutionally permissible during
were themselves
2005);
See,
e.g.,
United States Caraveo,
Ariz.
Jahkur,
routine traffic If we they conclude that we were, then must address the grounds defendant’s alternative for affirmance under the constitution, namely federal that: his consent was (1) voluntary; not and (2) Morgan’s scope exceeded the of the defendant’s consent.
A
Scope
Permissible
of Investigation during
Routine
Stops
Traffic
Johnson,
Arizona
state,
on
relying
supra, 555
Robinette,
Ohio
U.S.
supra,
519 U.S.
claims that, under the
Terry
v. Ohio,
restrictions of
supra,
392 U.S.
questioning during
routine traffic
carefully
need not be
purpose
tailored to the initial
of the stop,
long
stop’s
so
as the
overall duration is not
“measurably
beyond
extended”
necessary
the time
accomplish the tasks attendant
to that reason for the
stop.
response,
In
the defendant contends that Morgan
ordered him from his car at a point when the traffic
stop should have ended with the issuance of the traffic
ticket and the return of the defendant’s papers,
thus
Terry purposes
an
creating
independent stop
improperly
separate
lacked its own
basis of reasonable
beyond
suspicion
violation. The
moving
defendant
yet
further
because
not
argues
Morgan had
issued
the ticket and had retained his documentation,
defendant was not free to leave at the time Morgan
thereby
asked for consent to search,
his con-
rendering
improper stop
supported by
sent the fruit of an
suspicion.
reasonable
We
Morgan’s ques-
conclude that
tions,
request
his
including
search,
for consent to
were
they
permissible
measurably
because
did not
extend
stop.
of the traffic
duration
considering
constitutionality
Courts
under the
fourth amendment of a
officer’s
with
interaction
stop apply
princi-
motorist
routine traffic
ples developed under the line of case law implementing
Terry Ohio, supra,
holding
the central
392 U.S.
330;
Johnson, 555 U.S.
Arizona
See,
e.g.,
1.22
*21
3138,
S. Ct.
420, 439, 104
McCarty,
468 U.S.
Berkemer v.
Bell,
States
v.
555 F.3d
United
(1984);
L. Ed. 2d 317
82
129 S.
945,
U.S.
denied, 557
cert.
(6th Cir.),
535, 539-40
United States
v.
(2009);
roadside temporary of a traffic violation. The sei investigation ordinarily passengers continues, zure of driver and reasonable, stop. remains for the duration of the Nor mally, stop police ends when the have no further scene, need to control the and inform the driver and they ... An passengers are free leave. officer’s inquiries justification into matters unrelated to the stop, plain, the traffic this has made do not [c]ourt convert the encounter into other than a law something inquiries seizure, long ful so as those do not measur ably stop.’24 extend the duration (Citation omitted; emphasis Johnson, supra, Arizona v. added.) 333; id., 327, 334 (concluding passenger 555 U.S. see stop was seized incident to lawful traffic of driver and properly officer could frisk with passenger suspicion that he was danger reasonable armed and Caballes, 405, 408-409, see also Illinois v. 543 U.S. ous); L. S. Ct. 160 Ed. 2d 842 of trained (2005) (use require independent justification. it did not an fourth amendment Muehler Mena, supra, 24 101. majority opinion Robinette, Although Ohio 519 U.S. 39-40, voluntariness, “lawfully was cast terms of and concluded that a go” seized” defendant need not be informed that he is “free to before voluntary, consent to search a routine traffic will be deemed it necessarily read, subject given must be its statement that the defendant was being questioned; id., 35; brief, permitting to a seizure at the time of such stop. questioning during note, incidental of a the course routine traffic We however, dissent, predi underlying his Justice Stevens attacked the majority’s determination, namely, cate of the that the defendant was “law fully Id., Specifically, seized.” 49. Justice Stevens concluded that defendant had been detained would because he not have felt free to leave search, primarily at the time that the officer asked him for consent to because ” “question sought you get gone.’ (Emphasis itself an answer ‘before added.) Id., that, “by 47. Justice Stevens also determined the time [the automobile, was asked for consent to search his lawful traffic defendant] end; given warning, speeding had come to an had been his and the [he] provided justification violation no further for detention. The continued only justifiable, all, grounds.” if detention was therefore at on some other *24 Id., 50.Justice Stevens then concluded because there nowas reasonable suspicion justify detention, “(the to a further continued detention officer’s] illegal Id., of constituted an seizure.” 50-51. [the defendant] of car around exterior sniffing dog narcotics not it did stop permissible because traffic lawful stop of “the duration the privacy interests and implicate offense and entirely justified . was the traffic . . W. ordinary stop”); such a cf. inquiries incident Ed. 2004 & 2009-2010 and Seizure LaFave, (4th Search 9.3, p. 91. Sup.) § Terry during under
Thus,
permissible
questions
whether
stop
inquiries
include
about
routine traffic
well
con
contraband, as
as
carrying
or driver are
car
the vehicle.
for consent
to search
requests
comitant
LaFave,
2004),
p.
9.3
supra (4th
(d),
4 W.
Ed.
§
See
pp.
9.3,
p. 397,
(2009-2010 Sup.), §
and
9.3 (e),
§
U.S.
Caballes, supra,
that Illinois
(noting
do
requests for
to search that
405, supports
are permis
These
stop).
inquiries
not extend duration
they
purpose
initial
even if
are irrelevant
sible
they
as
violation,
long
so
namely,
traffic
stop,
time
beyond
“measurably
not
extend”
do
necessary
complete the
of the traffic
investigation
Consideration
warning.
and issue a citation or
violation
completion
necessarily includes the
period
that time
stop,
“a check
including
to the traffic
of tasks attendant
and criminal
license,
registration,
vehicle
of the driver’s
as
history,
warning,”
of the citation or
writing
destination
questions
about the
background
well
trip.
the driver’s
United States
Olivera
purpose of
also, e.g.,
Cir.
see
Mendez,
(8th
2007);
484 F.3d
State, supra,
(“[i]t
rendering amendment, unreasonable under the fourth aparticular detention is reasonable in length “[w]hether question, per is a fact-intensive and there is no time se stops.” limit on all traffic United States v. Olivera 510; Mendez, supra, see also v. Byndloss State, 391 Md. A.2d 462, 469-72, 492, 893 1119 traffic (2006) (upholding stop wherein motorist was for approximately detained thirty minutes, already even after officer had drafted written of warning, computer because and communica problems impeded completion tion of license and checks, warrants which for allowed time narcotics sniff dog to ing brought be scene). decisions in wake
Accordingly,
of Arizona v.
Johnson, supra,
323,
similarly
555 U.S.
hold
and,
of
upholding
stops
reasonable,
conduct
such
as
uniformly
emphasized
have
the de minimis nature of
the nontraffic related
requests
con-
questioning
for
stop
sent
search within
context of the
as a whole.25
point
subsequent
Mena, supra,
on
Cases
released
to Muehler v.
544 U.S.
prior
93,
Johnson,
323,
similarly
v.
but
to Arizona
555 U.S.
are
Turvin, supra,
(noting
illustrative. See
v.
United States
Cir. 2010)
(extension
of traffic
curiam)
question
five to six minutes to
driver
passengers
was reasonable and did not violate fourth amendment);
v. Everett,
United States
(6th
601 F.3d
495-96
Cir.
2010) (adopting reasonableness standard for determin
ing
subjects improp
whether
on unrelated
questioning
erly extended duration of routine
United
stop);
traffic
v. Taylor,
States
596 F.3d
376 (7th Cir.) (officers
did
violate
fourth amendment
traffic
briefly
for seat belt infraction
questioning defendant
presence
about
of “weapons, drugs, or
items on
illegal
person
his
or in the
requesting
vehicle”
then
con
denied,
sent to
cert.
search),
U.S.
130 S. Ct.
L.
United States Derv
3485, 177 Ed. 2d
(2010);
erger,
337 Fed.
Appx. 34,
35-36 (2d
2009) (per
Cir.
*27
(“[w]e
any
conclude without
for
curiam)
need
further
factfinding that the five minutes of questioning [about
the defendant’s nervous demeanor and contents of his
not significantly
did
extend the time
car]
[the defendant]
United
was detained” during stop for seat belt
violation);
States v.
Rivera,
1009, 1013-15
F.3d
Cir.
(8th
2009)
(concluding
questions
trooper’s
about whether
“
”
defendant
‘had guns or
in the truck’
anything illegal
did
“measurably
stop
they
not
extend”
because
were
immediately
asked
after
first four
questioning during
six
of
minutes
seventeen minute stop,
directly
related
406,
(S.D. 2004) (“[a]n
impermissibly
scope
expand
not
officer does
stop merely by asking
questions,
subject
of a traffic
the driver
if the
even
questioning
original purpose
stop,
long
of the
is unrelated to the
questioning
unduly
initial,
as the
does not
extend the duration of the
valid
Gaulrapp,
seizure”);
600, 609,
(App.
v.
207 Wis. 2d
We emphasize, however, that in
dura
evaluating the
stop,
tion
a traffic
the reviewing court
must
still
consider the stop through the lens of the time reason
ably necessary
purpose
to effectuate the initial
of the
stop,
expansions
traffic
stop beyond
are constitutionally impermissible
time
in the absence
independent
an
objectively reasonable,
basis of
arti
White,
States e.g., United
suspicion. See,
culable
Cir.
935,
(10th
F.3d
cert.
U.S.
2009),
denied, 559
United
130 S. Ct.
176 L.
2d 202
Ed.
(2010);
v. Bell, States
243
(traffic
v.
526
Cir.
Peralez,
1115, 1119-21 (8th
2008)
F.3d
only
stop,
minutes,
while
was unreason
lasting
sixteen
ably
questions
purpose
when
unrelated to
extended
between
stop
the bulk of the interaction
“constituted
occupants”
and video
trooper
van’s
“off-topic questions
more than
showed
recording
detained”).
was
doubled the time [the defendant]
pres-
in the
Appellate
opinion
A
Court’s
review the
apply the correct
indicates, then, that it did not
ent case
pre-Muehler
in that
it relied on
case
legal standard,
if a seizure has
law,26
determining
and stated
“[i]n
26
Supreme
v.
2005
in Muehler
Prior to the United States
Court’s
decision
100-101,
jurisdictions
Mena, supra,
had
544
federal and state
U.S.
some
purpose
interpreted Terry
questioning
to
be limited to the
mean
must
beyond
stop,
pmpose
could not
extended
without
of the traffic
suspicion
independent
of criminal
or an
basis
reasonable
either consent
activity,
yielded by permissible
might
reasonable
have
which
well
been
inquiries
plans.
concluding,
In
these courts relied on the
travel
so
about
Ohio, supra,
Terry
v.
392 U.S.
Court’s statement
United States
pursuant
19-20,
of whether a seizure and search
that the determination
Terry stop
a dual one—whether the officer’s action
were reasonable “is
justified
reasonably
scope
inception,
it
related
at its
and whether was
place.”
justified
See
which
the interference
the first
circumstances
(10th
2001) (en banc);
Holt,
1215, 1228
v.
F.3d
Cir.
Caldwell
United States
264
State,
1037,
(Del. 2001) (decision
on
based
federal
v.
780 A.2d
1045-46
People Gonzalez,
220, 235-36,
constitution);
Ill.
260
v.
204
2d
789 N.E.2d
analysis
(2003) (adopting
state constitu
under federal and
reasonableness
conduct altered fundamental nature of
tions
determine whether
Harris,
222, 240,
stop),
People v.
228
2d
exceeded the
motor vehicle
court
the
must determine whether
the
action
officer’s
justified
inception
was
at its
and whether it was reason
in
to
ably
scope
justified
related
the circumstances
Carcare,
See State v.
place.
the interference in the first
756,
Conn. App.
767,
Applying
legal standard to the
facts
present case,
we conclude that
Morgan did
measurably
unreasonably
his
prolong
traffic
In
defendant.
so
we
it
concluding,
note that
undisputed
the traffic
lane
unsignaled
changes
inception,
was valid at its
also that,
under
Pennsylvania v. Mimms, supra,
247
questioning
protracted
it to Mm.29Unlike the
giving
which
1120-21,
F.3d
v.
526
Peralez,
United States
ques-
these two
case,
encounter in that
dominated the
a de
more than
in the
case did
create
present
tions
stop, and therefore
of the overall
minimis extension
29
questioning
timing
or
have held
We note that several courts
significance,
requests
independent
and
for
to have
constitutional
consent
emphasized
questioning
such as the issuance
discrete events
have
after
may
paperwork,
warning,
create a
of a driver’s
a ticket or
return
require indepen
stop, which
would
then
detention distinct from
initial
differently,
suspicion.
justification
or reasonable
Put
such
consent
dent
paperwork
marks the end of
courts
return of
these
conclude
subsequent
stop,
determining
the consensual nature
initial traffic
and
reasonably
analysis
requires
have
would
of whether
driver
interaction
Mendenhall,
544, 554, 100
under United States
v.
446 U.S.
felt free
leave
Ferris,
364,
356,
State 1870,
(1980).
355 Md.
248 permissible were under and Johnson. Muehler More- delay stop in over, Morgan did not need to the order search, Sutton, backup to conduct the his officer, process arrived while he still in was the the writing ticket. we Accordingly, conclude that the traffic unreasonably was not not an prolonged was illegal detention violated the fourth amendment.
B Whether the Voluntary Defendant’s Consent Was determined that traffic Having the itself was not conducted in a manner that violated the fourth amendment, we now must consider the whether defen voluntarily dant consented to the search of his vehicle.30 This is because the lawfulness of the defendant’s seizure question is a different from whether the consent voluntary. See, search was e.g., United States Valen zuela, 494 F.3d 891 (10th Cir.), denied, cert. 552 U.S. 128 S. L. Ct. Ed. 2d (2007); v. State, supra, Salmeron 739. Raising Ga. this claim as an upon alternate which ground may we affirm the judgment Appellate Court; the see Practice Book 84-11 (a);31 § defendant contends that his consent subjected we illegal Because conclude that the defendant to an seizure, need not we consider whether the evidence taken from the consent subject poisonous analysis search was the fruit of the tree to the attenuation Illinois, Nowell, See, e.g., of Brown 422 U.S. 603-604. 686, 700, 817 only (2003). Conn. A.2d 76 We consider whether defendant’s voluntary totality consent was under circumstances. provides part: (a) “Upon § Book granting Practice 84-11 in relevant certification, may appellee present grounds for review alternative upon may judgment provided grounds which the be affirmed those were appellate grounds raised and briefed court. ... If such alternative rulings for affirmation or adverse decisions be in the considered event court, appellate party of a seeking new trial were not in the raised supreme special permission raise them in the court must move for to do prior filing party’s permission granted so to the of that brief. will Such only exceptional justice require.” cases where the interests of so acknowledges properly state defendant these raised claims before Appellate Court, may, therefore, special per and we them review without mission.
249
voluntary
free and
of his car was not
to the search
see Schneckloth
circumstances;
totality
the
under the
of
Bustamonte,
2041,
93 Ct.
248-49,
U.S.
S.
36
412
and Sutton
(1973);
(1) Morgan
L.
2d 854
because:
Ed.
they
manner since
were
“subtly
in a
coercive”
behaved
minority
was a
from out of state
defendant
armed, the
place
traffic
took
car,
who
alone in his
and the
was
already had
turnpike; (2) Morgan
a
area of the
on dark
down the defendant
patting
the
escalated
encounter
informed the
neither officer
justification;
(3)
without
search;
his
to consent to the
defendant of
refuse
right
free to leave because
the defendant
not
(4)
license,
his
rental
yet
had
returned
not
Morgan
response,
In
the state contends
agreement
ticket.
fact on this issue are
trial court’s
of
findings
the
officers
clearly
namely,
not
erroneous —
deceptive
manner —and
did
act
a coercive or
spontaneous nature of the defen-
further relies on the
response
his
Morgan
invitation to
to search
car
dant’s
question
presence
illegali-
about the
of
Morgan’s
we conclude
record,
ties
reviewed the
Having
therein.
properly
trial
determined that
defen-
court
voluntary
totality
was free and
under
dant’s consent
circumstances.
not unreasonable under
“A warrantless
search is
of the
the fourth amendment
to the constitution
either
first, 7,
constitution of
United States
article
§
authority
if
to do so has
person
a
with
Connecticut
. . .
state bears
freely consented to the search.
was free and
proving
that the consent
burden
affirmatively estab-
voluntary32 ....
The state must
32
proving
had the
the voluntariness of
We note that
state
burden
by preponderance of the
See United
to the search
evidence.
Ortiz,
Isiofia,
(2d
2004);
17
State
States
370 F.3d
Cir.
Conn.
App. 102, 103,
(per curiam),
denied, 209 Conn.
lish that the consent was
mere
authority
a claim lawful
is
to
enough
to
of
meet the
question
. . .
state’s burden.
The
whether
to
freely
voluntarily
a search has
fact been
and
given,
.
product
coercion, express
implied
or
the
of
or
.
.
question
totality
is a
of fact to be determined from the
all the
As a question
fact,
of
circumstances.
...
of
it
normally
be
upon
to
decided
the trial court
the
evidence before that court
the
together with
reasonable
be
inferences to
drawn from that evidence.
. . . We
may
trial
reverse
court’s
on
findings
appeal
[the
factual]
only
they
if
clearly
quotation
are
erroneous.” (Internal
marks omitted.)
Azukas,
State v.
“In will determining whether defendant’s was over- particular borne in a case, the has assessed the [c]ourt totality of all the surrounding circumstances —both the of characteristics the accused and the details of the 33Relying States, on Ornelas United 517 U.S. 116 S. Ct. (1996), L. Ed. 2d 911 engage contends defendant that we should in de novo review of trial court’s determination of about voluntariness Ornelas, Supreme his general consent. In Court concluded “as a suspicion probable matter of determinations reasonable cause should appeal. Having this, point be reviewed on de novo said we hasten to out reviewing findings court should both take care to review of historical only give weight fact error and clear due to inferences drawn from judges Id., facts those resident local law enforcement officers.” is, however, only appellate 699. Ornelas decision limited of review probable suspicion and, determinations of cause and reasonable inasmuch any extending as defendant has not cited cases that decision to the subjective determination; more voluntariness see Schneckloth v. Busta monte, supra, (“account subtly U.S. must be taken of coercive questions, possibly subjective person well as vulnerable state of the consents”); apply clearly who we continue to of erroneous standard respect to trial review courts’ determinations with of voluntariness consents search. interrogation. into account taken Some of factors youth ... his lack of the accused included the have intelligence . . . the lack his low of ... or education rights his constitutional to the accused of advice repeated pro- length . . . the . . . detention questioning longed . use . . and the nature of the deprivation punishment physical food such as the (Citations omitted.) sleep Schneckloth Busta- . . . .” analyzing factors, 226. In these 412 U.S. mante, *36 noted that it had “determined Court surrounding confession, factual circumstances psychological impact accused, on the assessed significance legal of how the accused evaluated Id. reacted.” evaluating of the defendant’s
In the voluntariness subject’s knowledge we “while the consent, note right account, taken into to is a factor to be a refuse required prosecution to such is not demonstrate voluntary establishing knowledge prerequisite a a to emphasized Court has Id., consent.” 249. requests applicable to for consent rule remains that this stops, calling during it “unrealistic to to traffic search require always police to inform detainees that officers may they go to free to before a consent search are voluntary.” Robinette, Ohio v. 519 U.S. deemed People Schneckloth); e.g., (following also, see Red (Colo. 2000)(consent to dersen, 1176, 1182-83 992P.2d voluntary, given during ongoing was traffic despite right to motorist of his officer’s failure advise pursuant give warning Miranda v. to refuse or L. 1602, 86 S. Ct. 16 Ed. Arizona, 436, 478-79, 384 U.S. [1966]). 2d 694 given is consent to search while
Moreover, being
not
it
detained does
render
involun-
defendant
custody
tary per
never
se, as
fact of
alone has
been
“the
enough
confession
in itself to demonstrate
coerced
Watson,
United States
search.”
Ct.
411, 424,
820,
U.S.
96 S.
A.2d 115 (2006)
consent,
defendant’s
while
(The
given
arrest in
back of a police cruiser,
under
was volun-
tary because he
“does
claim to have been threatened
any way by anyone
at
He
alleged
the scene.
has not
improper promises
were made to him or that he
subjected
other more subtle forms of coer-
improperly
cion that might
impaired
have
judg-
his
rev’d in
ment.”),
part
on other
grounds,
Conn.
Thus,
With
to the
remainder
the defendant’s
claims,34although the officers
not
did
inform him of his
to
right
refuse to consent
to
search,
the
this factor is
mitigated by
spontaneity
of the defendant’s invita-
to Morgan
tion
to check
vehicle,
response
his
to
Morgan’s question limited to the presence of “anything
spontaneous
the car. The
illegal”
nature of that invita-
tion,
given
which was not
in response
specific
to a
previously,
As noted
we decline to
consider
defendant’s second
proffered ground
finding
involuntary, namely,
Morgan
for
his consent
already
by patting
had escalated the encounter
down the defendant without
justification.
part
opinion.
See
this
I of
“inapposite” the
search,
to
request
consent
renders
for
of his right
the defendant
failure to advise
officers’
Brown,
States
to the search. United
refuse to consent
(“[although
Cir.
see also id.
F.3d 410, 416
2009);
(9th
notify
co-occupant
admittedly did not
agent]
[the
[the
not
consent
she had a
right
house]
for a
requirement
search,
factor
not an absolute
this
inappo
. .
also
voluntariness
.
seems
finding of
consent
co-occupant] volunteered
given
site
that [the
omitted]);
any prompting whatsoever”
without
[citation
Pedroza,
Cir.
United States
(7th
269 F.3d
involuntary
was
claim that consent
2001) (rejecting
for
permission
volunteered
because “[the defendant]
even
his home and
agents
[vehicle]
fed
Indeed,
numerous
agents
it”).
before the
asked
spontaneity
eral and state courts have considered
prior
or an invitation to search without a
consent,
indication of
voluntariness.”35
request,
“strong
as
[its]
Kennedy,
C Scope Defendant’s Consent proffers The defendant next a second ground for affirming judgment Appellate Court, namely,
255 actually con he had prove that did not that state passenger complete search of the Altima’s sented to a Jimeno, v. 500 U.S. Florida on Relying compartment. 297 the defen L. 2d 1801, 114 (1991), 111 Ct. Ed. 248, S. car, extensively searching his by dant contends he scope consent, his which exceeded the Morgan for to check only an invitation was limited claims response, In by seat. passenger on floor beer objec it was relies on Jimeno argues state also the defen Morgan to construe tively reasonable We a search. consent invitation as an actual dant’s objectively that it was state and conclude with the agree con interpret defendant’s reasonable for Morgan passenger to a search of Altima’s extending sent storage areas therein. compartment and unlocked suspect’s of a scope “The measuring standard for is under [a]mendment [f]ourth typical rea would the ‘objective’ reasonableness —what exchange have understood person sonable “The suspect?” Id., 251. the officer and the between expressed its scope of a search is defined generally objective is a object.” reasonableness “Although Id. plenary], law which our review is question of [over when relevant highly factual circumstances are person would have what a reasonable determining bounds of the consent that believed to be outer Mendoza-Gonzalez, F.3d United States 318 given.”36 123 S. 663, denied, 1049, cert. 538 U.S. (5th Cir.), 667 United also, e.g., L. Ed. 2d 1091 see 2114, 155 (2003); Ct. Rich, States (“[objective 992 F.2d 505 502, (5th Cir.) de question of law that is reviewed reasonableness 36 597, Canipe, (6th Cir.) (applying F.3d But United States 569 604 see clearly of review to District Court’s determination erroneous standard 1036, scope denied, consent), 130 cert. 558 U.S. search did not exceed Gutierrez-Mederos, 655, (2009); L. Ed. 2d 499 United States S. Ct. 175 denied, 932, 1992) (same), 800, (9th U.S. 113 S. F.2d cert. 507 803 Cir. (1993). L. Ed. 2d Ct. U.S. S. novo”), denied, cert. 114 Ct. *40 Ed.
L.
2d 312 (1993).
In Jimeno,
Court concluded that it was
an
suspect’s
“reasonable for
officer
consider a
gen-
eral consent
ato
search of his car to include consent
paper
to examine a
bag lying on the floor of the car.”
v. Jimeno, supra,
Florida
Post-Jimeno
law makes clear
on the basis
the exchange
of
Morgan
between
the defendant,
Morgan reasonably could have understood the defen-
dant’s
invitation
“check” the Altima as an invitation
to search the interior of the car and
compart-
unlocked
ments therein,
center
including
First,
its
console.
Mor-
question
gan’s
presence
about the
of “anything illegal”
in the car reasonably is understood as directing the
defendant’s attention to contraband such as narcotics
despite
or weapons,
the fact that he did not mention
those
specifically.37
items
See United States v. Canipe,
disagree
We
Isiofia,
with
defendant’s reliance on
United States
(2d
2004),
support
argument
Morgan
259 he when told permission to conduct a search gave [the at the pointing while trooper] ‘you can check the car’ 734, 735, Stephens, (Utah P.2d 737 946 vehicle”); State v. could police App. conclude that 1997) (“we [the officer] general defendant’s reasonably have believed [the] the front seat or ‘check’ under to ‘look’ to the contents of weapons extended drugs or we Accordingly, under front seat). leather case” found scope of the did not exceed Morgan conclude that by the interior of the searching defendant’s consent unlocked center con Altima, its including defendant’s compartment. sole
m
CLAIMS
CONSTITUTIONAL
STATE
for affirming
alternative
proffered
ground
As his final
Appellate Court,
pro-
the defendant
judgment
Geisler,
672,
analysis
vides an
under State v.
Conn.
contends that we
684-86,
cion of illegal activity” prior to
asking
consent; and
inform the
(2)
motorist
that he or she is free to leave
and to refuse consent.40 The defendant, supported by the
amicus curiae Connecticut
Lawyers
Criminal Defense
Association, contends that
adopt
we should
this new
constitutional
rule in order to address the psychological
pressures experienced by
stopped
Connecticut citizens
by
provide
and to
them with heightened pro-
specter
tection from the
of racial profiling, pretextual
stops and other arbitrary police actions based on non-
criminal factors.
In response,
the state contends
the defendant’s
proposed
constitutional
rules
are
unworkable, would
purpose
vitiate the
of consent
searches and that
federal
existing
constitutional protec-
tions are sufficient. The state also contends
because the record lacks evidence of racial
profiling
bias,
other
the defendant and the amicus
this
“[ask]
requirement
The
prove,
defendant also asks for a
that the state
at a
subsequent suppression hearing,
by height
the voluntariness ofthe consent
a
proof.
analysis
ened
particular
standard of
request
The defendant’s
of this
is, however,
supported by
limited to a
citing
cases,
sentence
a footnote
three
Hight,
State v.
(2001),
146 N.H.
Johnson,
“The Geisler factors serve a dual
purpose:
they
of state constitutional
encourage
raising
issues
a manner to which
opposing party
state or the
—the
*45
respond;
they
princi-
defendant —can
a
encourage
pled development
jurispru-
of our state constitutional
Geisler we
Although
compartmentalized
dence.
factors that should be considered in order to stress that
systematic analysis
a
is required,
they
we
recognize
may
inextricably
.
every
interwoven.
.
. [N]ot
Geisler factor is relevant in all cases.”
omit-
(Citation
State Morales,
ted.)
n.10,
232 Conn.
657 A.2d
Geisler
(1995). Moreover,
proper
analysis
a
does
require
simply
tally
us
and follow the decisions
favoring
party’s
one
state
claim; deeper
constitutional
review of those decisions’
required
underpinnings
only
because we follow
“persuasive” decisions. See
Kerrigan Health,
Commissioner
Public
289 Conn.
135, 240-41,
A
Operative Constitutional Text
to the first Geisler factor, namely, the
respect
With
operative
text,
constitutional
we
with
agree
the state
that the
language
first,
support
article
does not
§
protections
defendant’s claim of greater
than are
provided under the fourth amendment. See footnotes
1 and 2
opinion.
provision
of this
The state
“closely
resembles” the fourth amendment; State v. Barton, Conn. 529, 540,
B
Case Law
Connecticut and Federal
contemporary
fed-
We also
with the state
agree
conduct
rou-
during
eral case law governing
opinion;
II A and B of this
stops;
parts
tine traffic
see
interpreta-
similarly
support
does not
the defendant’s
respect
With
to Connecti-
tion of the state constitution.41
41
disputes
dissents,
nor Justice Palmer
our
In their
neither Justice Katz
Johnson, supra,
323,
v.
555 U.S.
and Muehler v.
conclusion under Arizona
precedent
Mena, supra,
93,
suggests
federal
that the
544 U.S.
“that recent
stop
permissibility
following
is dictated
of a consent search
a routine traffic
stop.”
does, however, posit
Katz
that this
the duration of the
Justice
departure
“holding
a substantive
from settled fourth amendment
constitutes
requires
scope
investigation during Terry
jurisprudence,”
of the
which
“carefully
justification
stop
underlying
. . . .” Florida
to be
tailored to its
Royer,
491, 500,
1319,
(1983). Justice
460
103 S. Ct.
cut case
we have in the
although
past interpreted
first,
7,
protections
article
to the citizens
§
“[afford]
beyond
provided by
of this state
those
the fourth amend-
constitution,
provision
ment to the federal
as that
has
interpreted by
been
Supreme Court”;42
the United States
purpose
a traffic
must be limited to the
of the traffic
may
subject
Nevertheless,
drugs”).
thus
not be extended to the
until the
otherwise,
body
United States
Court concludes
we deem the
part
opinion
dispositive
case law discussed in
II B of this
to be
of both
the defendant’s federal constitutional claims and the federal factor of the
analysis.
Geisler
42See, e.g.,
Miller,
363, 386-87,
(1993) (“a
State v.
227 Conn.
630A.2d 1315
supported by probable cause,
warrantless automobile search
but conducted
impounded
police station,
after the automobile has been
at the
violates
first, 7”);
Oquendo,
635, 647-53,
§
article
State
223 Conn.
U.S. 93.43Cf. State
223 Conn.
v.
C
History
Constitutional
respect
history,
With
to the relevant constitutional
we
with the defendant
that the
agree
“original
decisions, namely,
Justice Katz cites to several of this court’s
State v.
Wilkins, supra,
Lamme, supra,
240 Conn.
State v.
216 Conn.
State
Edwards,
57, 72,
(1990),
Carter,
v.
v.
Conn.
state
in
automobile
first,
7,
adopted
that article
“was
§
interpreted
protection
be
to include
age and should
while in cars from the abuse of
of individual citizens
power.”
respect, however,
With
governmental
surrounding
whether the historical circumstances
defendant’s
adoption
first,
7, support
of article
§
greater
protections
provision
under that
than
claim to
we have stated
constitution,
are afforded
the federal
adopted
appears
declaration of
in 1818
rights
that “[t]he
Mississippi
in the
constitution
to have its antecedents
in
federal bill of
1817,
which
turn derived from the
and the
declaration of
of 1776.
rights
Virginia
rights
1818 con-
provision
. . . The search and seizure
our
closely
article
resembles the
stitution,
first,
8,
then
§
amendment
to the United States constitution.
fourth
first,
its enumeration was
to article
Although
changed
incorporated
when
1965 constitution
article
7,
§
has not been
first, 4,
seventh,
language
into article
its
§
adoption.
altered since its
. . . The
original
language
first,
7,
upon
of article
which was based
the fourth
§
. . .
amendment,
adopted
Thus,
with little debate.
adoption
surrounding
the circumstances
of article
first,
weight
cases,
lend
to the view
most
§
practice permitted
under the fourth amendment
permissible
first,
omitted;
under article
7.” (Citations
§
Mikolinski,
State
quotation
internal
marks
omitted.)
Davis, supra,
see also 548-49;
256 Conn.
reasonably may
D
Sister State Case Law
specifically
The defendant
relies
on state constitu-
Alaska, Kansas,
ten
Massa-
states,
tional case law from
Jersey,
New
chusetts, Minnesota, Montana,
Vermont,
Wyoming
Pennsylvania,
Washington
interpret
we should
article
support
argument
of his
in the context of a routine traffic
first,
preclude,
§
ques-
and other
requests
for consent
to search
stop,
stop.45Only
those
purpose
unrelated to the
tioning
Minnesota,
Alaska, Kansas, Massachusetts,
from
cases
*50
warrant
Jersey, Pennsylvania
Wyoming
and
New
discussion.46
significant
45
interpreting the federal
The defendant also relies on sister state case law
constitution,
applying
restricting
as well as some decisions
state statutes
interprets
scope
stops.
of traffic
To the extent that the case law
constitution, it,
preceding
decisions
Muehler v.
federal
like those federal
Johnson, supra,
323,
Mena, supra,
93,
v.
lacks
544U.S.
and Arizona
555 U.S.
analysis.
Kerrigan
persuasive
purposes
this
See
current
value for
Geisler
Health, supra,
Snell,
157, 161,
undisputed
(2004) (“It
Mont.
191
P.3d
[the
suspicion
particularized
had
vehicle. Mon
[the defendant’s]
officer]
require
justification
requesting consent.”).
tana law does not
additional
for
Similarly,
Cunningham,
401,
(2008),
v.
183 Vt.
supra, suspicion (reasonable 644-45; id., see also prophylactic purpose preventing rule “serves the police turning fishing from a routine traffic into a expedition activity stop”). for criminal unrelated to the Carty We to follow decline because the record present specific case lacks the evidence of instances by police of law enforcement abuses officers our jurisdiction prompted similar to which the New Jersey interpret provide state court its constitution to protections high- enhanced to motorists on that state’s ways. State v. Snell, 157, 161, See Mont. 99 P.3d (2004) Carty (declining to follow defendant because argue “does not less establish—that Montana —much abusing authority”). law enforcement are officers their Jersey Supreme Like New Court, the Minnesota interpreted Court has its state constitution require to suspicion” have “reasonable, officers articulable activity prior asking
of criminal for con- stop. sent a routine traffic State (Minn.2003). Fort, 660N.W.2d415, Fort, however, legallyinapposite, in that case, because the Minnesota prece- court was constrained to follow its then recent dog interpreted dent in a sniff case that had both the pre-Illinois supra, fourth amendment, Caballes, 408-409, U.S. and the state constitution, to limit “the scope stop investigation and duration of a traffic . . . justification stop.”48 to the for the Fort, State v. technique Carty, supra, sents as a law . . enforcement . .” N.J. 645. *52 48Contrary assertion, suggest Fort, to Justice Katz’ we do not v. that State supra, 416, any way Caballes, 660 N.W.2d is in “undermined” v. Illinois supra, 408-409, 543 U.S. at least not as matter of Minnesota state constitu Rather, having persuasive tional law. we view Fort as limited value with respect inquiry because, Fort, to our Connecticut state constitutional the Minnesota Court was constrained to follow relevant recent precedent constitution, namely, Wiegand, supra, under its state State v. 645 contrast, jurisprudential landscape N. W.2d In 135-37. our state constitutional analytically dispositive precedent part Wiegand. an lacks like See III B of opinion. this
271 Wiegand, 645 v. 418; id., 418-19, discussing see reasonable 125, 2002) (requiring (Minn. N.W.2d 135-37 activity of narcotics related suspicion articulable car). sniff of justify dog exterior of Massachusetts and high law from the courts Case also similarly restrictive, as both states Pennsylvania is inquire beyond purpose permit police do not suspicion a reasonable stop in the absence of traffic states, law from these activity. case of criminal cursory state however, persuasive is not because See analyses opinions. contained in those constitutional 158, Mass. 674 Commonwealth Torres, v. 424 in a traffic inquiry routine (1997) (“police N.E.2d of a license and production must end on the valid police inferring have grounds unless registration involved passengers or were operator that either his ... or in other engaged in the commission of a crime omitt quotation marks suspicious conduct” [internal Strickler, Commonwealth 47, 69, v. 563 Pa. ed]);49 Penn under (“[o]ur jurisprudence A.2d 884 (2000) [the would sustain a sylvania constitution], however, which of, search conducted in the context but detention, wholly to, in its an scope ongoing is unrelated constitutionally-valid no detention since there can be a traffic or similar independently following of a suspicion scope . . . and the absent reasonable justify the reasons that detention circumscribed noted, [Terry id., (“[a]s 70 n.20 omitted]); it” [citation strongly its Ohio, supra, progeny 392 U.S. 1] Com analysis independent an state makes The lack of constitutional rely upon, Torres, supra, 153,particularly Mass. monwealth difficult suppress especially given at were founded that the motions to issue fact Id., upon and the Massachusetts constitution. both fourth amendment Gonsalves, 662-63, But see Commonwealth 429 Mass. 711 N.E.2d 154. relying (characterizing Torres (1999) constitutional decision and state Mimms, rejecting Pennsylvania precluding U.S. on it in requiring without “rea motorists to exit their vehicles officers from others). danger to officer or sonable belief’ *53 stop equivalent that a traffic as of
suggest
[viewed
stop]
a
an
Terry
appropriate
is not
vehicle within which
inquiries
potential
to make
about
unlawful conduct
to
stop
supported by
suspic
unrelated
not
reasonable
with a
Indeed,
Pennsylvania appellate
we
ion”).50
agree
point
court’s characterization of this
in Strickler as
Acosta,
1078, 1087
dicta. See Commonwealth v.
815 A.2d
Super.)
n.8
on record
(Pa.
(concluding
that defendant’s
product
consent
traffic
during
proposition
coercion and
in dicta
citing Strickler
question
that “there
some
regarding the constitution
ality
attempt
to secure
[the
officer’s]
[the
the investigative deten
defendant’s]
appeal
Pa.
tion”),
denied,
710,
350 (2003).
A.2d
O’Boyle
In
P.3d
State,
411 (Wyo. 2005),
the Wyoming Supreme
did
adopt
specific
Court
not
rule such
v. Carty, supra,
followed
emphasized
N.J.
but
inquiry
reasonableness
Strickler, supra,
Pennsylvania
50 InCommonwealth v.
563 Pa.
Supreme
sought
apply
Supreme
Court
United
States
Court’s then
Robinette, supra,
Strickler,
recent decision in Ohio v.
With
to state
Court’s decision
States
after the United
decision
93,
the Kansas
Mena, supra,
U.S.
Muehler v.
dissent and the
by both
Katz
her
upon
relied
Justice
890,
184 P.3d
Smith,
Kan.
defendant,
Ed.
Ct.
172 L.
2d
1062, 129 S.
denied,
cert.
555 U.S.
but,
review,
closer
facially on-point
upon
(2008),
Smith,
In
ultimately
persuasive
value.
lacking
100-101,
Mena, supra,
that Muehler v.
court concluded
expand
officers to
does not
law enforcement
“[allow]
stop to include a search not related
scope
of a traffic
stop,
given
even if a detainee has
purpose
Rather, we continue
permission for the search.
rule that consensual
to our
longstanding
adhere
a detention for a traffic
period
searches
. . .
[fjourth
are invalid under
[a]mendment
Cox,
right
to a
of their
to consent
search. See State
motorists
decline
181-84;
Brown,
(Tenn. 2009)
also State v.
S.W.3d
see
*56
manner,
scope
time,
trooper’s] investiga
(concluding
and
of
that “[the]
[the
request
stop”
proper parameters of a
when
tion
not
traffic
did
exceed
stop
of
for
to
was made “less than ten minutes” from start
consent
information).
waiting
and
while
for license and vehicular
occurred
53
Washing
relying
law from Arkansas and
In
on state constitutional case
prior
requiring
give warnings
seeking
to
ton
law enforcement officers to
context; see, e.g.,
and talk”
State
to search a home in the “knock
Ferrier,
460,
Brown,
466,
(2004);
v.
722
State v.
136
356 Ark.
156 S.W.3d
103, 118-19,
quotes O’Boyle
(1998);
960
927
Justice Palmer
Wash. 2d
P.2d
State, supra,
412,
proposition
“the
117P.3d
for the
that the
standards [that
involving] premises
applied
have
. . .
in
searches —where the
been]
[cases
likely
premises
turn
is on
or her
and
feels freer to
law
individual
his
own
away
applicable
more
in the context of roadside
enforcement
even
[are]—
stopped
a
the traveler has been
for
traffic offense
vehicle searches —where
quotation
omitted.)
(Internal
to
marks
observation
and not free
leave.”
This
is
is, however,
Supreme
Wyoming
with the well
Court
inconsistent
that,
expectation
proposition
an
contrast to
individual’s
of
established
“[i]n
home,
expectation
privacy
inheres with automo
in his own
a diminished
1173,
Cantu,
(10th
2005);
405 F.3d
1179
Cir.
see
biles.” United States
602,
also,
Pittman,
(1989) (“there
e.g.,
Conn.
A.2d 155
State v.
privacy
automobile”).
expectation
in an
is a diminished
of
and
state
v. Smith, supra,
State
[the
constitution].”54
419.
is unpersuasive
Smith
because it lacks an indepen-
analysis.
dent state
Moreover,
constitutional
as noted
previously,
Kansas
Court’s more recent
decision in State v. Morlock, supra,
289 Kan.
makes
clear
to the
is
that,
analyzing
extent Smith
the federal
constitution,
it
longer
no
law because
good
Arizona
v. Johnson,
129 S.
supra,
787-88,
Ct.
“eliminated
doubt
applied
Muehler
rationale
to traffic
stops.”55
opinion.
See also footnote 28
this
of
law,
stop,
during
stated
The court
under Kansas
a routine traffic
may request
license,
“a law enforcement officer
car
the motorist’s driver’s
proof
registration,
insurance;
computer check;
and
of
a
conduct
issue a
citation;
steps reasonably necessary
safety.
protect
and take those
officer
only
necessary
long
complete
tasks,
can last
as
and
those
pursued.
diligently
raising
those tasks must be
...
If no information
suspicion
illegal activity
reasonable and articulable
of
is found
period necessary
perform
computer
time
check
other tasks
stop,
incident to a traffic
the motorist must be allowed to leave without
delay.” (Citations omitted;
quotation
omitted.)
further
internal
marks
State
Smith, supra,
277 decision Appeals Court of Finally, we find the Alaska to State, App. 2008), 624 in Brown (Alaska 182 P.3d a internal significant value because of persuasive lack relied inconsistency opinion. The Alaska court in the literature survey of academic comprehensive on a in its determi- id., 630-32; support of law; case existing pro- law afford sufficient does not nation that “federal are asked consent tection to motorists who vehicle, belongings or their their person, search of their observed stop.”56 Id., 629. The court a traffic during by car, to travel people most need that, “because “ ” vehicle, weapons illegal presence in his ‘or items’ other him about the search,” questioning “[asking] “did not since and then for consent to stop.” rejected appreciably lengthen The court the defen the duration of the pertained only rule, noting bright-line volun that it dant’s on the reliance validity search is not “the consent to tariness and that [defendant's [the] Yeomans, Id., Second, in 211 891. United States at issue in this case.” denied, opinion), Appx. 753, (10th Cir.) (unpublished 550 U.S. cert. Fed. (2007), L. Ed. the Tenth Circuit noted 127 S. Ct. 2d only that the return driver’s documents meant officer’s the failure to defendant, passenger, “never became with the driver and the his interaction occurred, questioning drugs and [the consensual” and “when about stop car, of their the traffic and the consented to search defendant driver] detention, The court then continued to be a not a consensual encounter.” properly Court denied defendant’s motion concluded that District had drugs suppress, “questioning because it determined that about did unreasonably detention, and therefore did not violate ourth extend the [¶] Finally, Guerrero-Espinoza, [ajmendment.” Id., 759. in United States 1302, 1308 (10th appears generis 2006), to be F.3d n.6 Cir. which sui because apply trooper facts, emphasized of its the court that Mena did not because already by stop returning the documents and had ended the traffic driver’s speeding warning they away to him while sat in the cruiser from the defen dant, stopped passenger in then concluded because car. court was over those had the defendant not aware that the since events leave, place presence, thus taken out of his he would not have felt free to rendering involuntary. Id., 1309-10. his 56The of the consent decision Brown describes state’s defense “eminently traffic as defensible the routine that case law,” Mena, including U.S. under federal Muehler 100-101. 628-29; id., (“the [fjourth State, supra, also Brown v. 182 P.3d see Court, interpreted United and as States [a]mendment courts, protec applied circuit offers little various federal courts state situation”). tion to this motorists *58 near-inevitability because people of the will commit traffic infractions, stop the ‘routine’ traffic has become the doorway widespread and probing searches persons, vehicles, Id., 631-32. The luggage.” Alaska court then stated that present facts of this case “[t]he an example of an apparently unjustified ongoing infringement privacy of the rights of Alaska citizens. And, explained as we have here, it is uncertain whether any remedy. offers We there [fourth amendment] fore conclude Alaska state must [the constitution] be interpreted to grant protections broader than its counterpart federal Id., situations like this.” 633-34. Curiously, however, the Alaska backpedaled court then somewhat, and stated “we need not decide whether state should be interpreted [the constitution] to completely preclude requests for searches routine stop traffic unless the search is related to the ground for the supported is otherwise aby suspicion criminality. reasonable We leave ques tion day.” Id., another 634. The court then held simply that the record in Brown “presented] particu larly egregious example this practice” because of the trooper’s failure to inform the defendant of the disposition reason for the or its prior to requesting consent to search. Id. Katz’ attempts Justice to salvage Brown this notwithstanding, necessarily limitation persuasive diminishes the value of the case in support request defendant’s for a specific state constitu tional rule in See Murphy Anchor Connecticut. also age, Alaska Court of Appeals, Docket A-10345, No. No. App. 2010 Alaska LEXIS *11 (March 2010) (memorandum opinion) (noting that defendant “misin Brown teiprets asserting that we did adopt this general restriction on traffic police authority during stops” [emphasis in original]); Bostwick v. State, Alaska Court of Appeals, No. A-10224, Docket No. 5569, 2010 App. *5, Alaska LEXIS 21, 7-8 (February 24, 2010) Brown as “limited opinion) (describing (memorandum *59 which involved case, and that this stating to its facts” require not also “does stop,” traffic “far from a routine during searches of whether consent us to resolve” issue suspicion). require reasonable stops routine traffic E Factors Sociological Economic and sociologi and respect With to the relevant economic practi as a contends factors, cal the defendant first to many not free refuse citizens do feel matter, cal stop. traffic Numer during to a search routine consent by indepen our in revealed commentators, ous articles See, S. research, support e.g., this assertion.57 dent Facts, Empirical Research Chanenson, “Get the Jack! of Landscape Consent Changing and the Constitutional (2004) (dis 71 Tenn. L. Rev. 451-52 Searches,” study percent 89.3 of 9028 cussing that showed that traffic consent to search people granted studied “The ‘Routine Maryland LaFave, in and W. stops Ohio); ‘Routine,’ Much from to Finish: Too Stop’ Traffic Start Mich. L. Rev. Amendment,” Fourth Enough Not most innocent, motorists 1843, 1891 (2004) (“[g]uilty their stopped by police asked for consent to search requests argued in the context It also has been that searches impermissible stops practice routine traffic should be deemed of per se, particularly given perceived warnings. of See C. ineffectiveness Stop Interroga Lassiter, “EHminating of Consent from the Lexicon Traffic tions,” Cap. (1998) (discussing of L. ineffectiveness U. Rev. 133-34 involuntary consent, particularly warnings preventing uneounseled “voluntary motorists, stating to search and uncounseled consent discovery self-incriminating evidence would lead to the seizure which Lawrence, Scope law”). note, Police But see B. “The strains faith in the Scope Stop: Questioning During Questions Traffic Do Outside the Routine Original Stop Impermissible if Justification for the Create Seizures (2003) they Prolong Stop?,” 30 Urb. L.J. do not Fordham requests constitutionality questioning (supporting for consent drug stops prolong traffic because “the state interest search that do implicated by ques privacy outweighs minimal interest” interdiction tioning). expressly permission will their
vehicles give vehicles, resulting upon thousands thousands of motor year” vehicle searches of innocent travelers each quotation respect With omitted]). marks [internal request defendant’s for a state prophylac constitutional requiring tic rule law enforcement officers to inform refuse, motorists of their right to endorsed Justice Palmer in his dissent, sup even those commentators position porting that have acknowledged, however, warnings do not significantly reduce the rate of consent. See S. Chanenson, supra, 466 (likening warnings “ ” they soup’ hurt, ‘chicken in that help); cannot could *60 note, M. Phillips, “Effective Before Warnings Consent Searches: Practical, Necessary, and Am. Desirable,” 45 L. 1185, Crim. Rev. 1206-1208 that (2008) (observing “warnings appear would to be futile, as one of the fea tures that make them practical negligible effect —their on rate of consent —also ineffective,” make them arguing but that their might administration reduce coer or racially discriminatory cive atmosphere in consent stops). specifically We note request the defendant’s rule requiring suspicion prior reasonable to seek supported ing by is noted Professor Wayne R. LaFave, supra, LaFave.58See W. 102 L. Mich. 1893, Rev. citing Fort, supra, State v. 660 415; N.W.2d also 4 W. LaFave, supra, see (4th 2004) Ed. 9.3 (e), § 397 p. (same).
The defendant and the
emphasize
amicus also
pre-
“national concern”
racial
regarding
profiling and
stops.
textual
The defendant cites General
54-§
Statutes
58We
highly
note that Professor
has
LaFave
been
critical of the United
Terry
stop jurisprudence,
partic
States
Court’s recent
and traffic
in
criticizing
drug dog case,
Caballes, supra,
405,
ular
Illinois v.
543 U.S.
subsequent
upon
Mena, supra,
which the
in
decisions Muehler v.
U.S.
93,
Johnson, supra,
323,
founded,
and Arizona v.
555 U.S.
are
as “ill-consid
ered”;
LaFave, supra, (2009-2010 Sup.)
9.3, p. 94;
e.g., id.,
also,
4 W.
§
see
pp.
(describing
significant departure
prior Terry
77-78
Caballes as
from
scope
precedents limiting
stop).
Prohibition
11 et
Profiling
Alvin W. Penn Racial
seq.,
offi
law enforcement
alia, prohibits
inter
Act, which,
provides
“engag[ing]
profiling”
from
racial
cers
of an individual
part detention
in relevant
“[t]he
non
or combination of
any
based on
noncriminal factor
In
policy.”59
with this
factors is inconsistent
criminal
beyond evidence limited
the state
response,
argues
that Mor
participants
specifically,
race
—
Sutton,
white,
is
and that the defendant
gan
is no evi
backup officer, are African-American —there
racially
were
record that
actions
Morgan’s
dence
emphasize that
We
with the state and
agree
motivated.
whatsoever
does not contain
evidence
the record
motivated,
racially
were
or that
actions
Morgan’s
or
abu
practice of racial
other
profiling
the “insidious”
Donohue,
police;
Conn.
sive conduct
n.11,
denied,
F
Conclusion
complete
analysis
Having performed
Geisler
state
appeal,
defendant’s
constitutional claims in this
we
that article
not
first,
provide
§
conclude
does
protection than does the
greater
federal constitution
respect
with
to consent searches
routine traffic
stops,
proposed by
and we decline to
adopt
rules
the defendant. Our own
prece
constitutional
language,
history
ready
not support
departure
dents
do
particularly
from the federal
law in this area,
case
because the recent United States
Court deci
represent
sions do
change
prior
sea
from
Connect
precedent.
icut
Oquendo,
See State v.
supra, 223 Conn.
Moreover,
only
647-49.
relevant sister state consti
provides
tutional decision
protection
greater
than
the fourth
context,
amendment
this
is
but written
persuasively,
v. Carty, supra,
The with direction is to that court case remanded of the trial court. judgment affirm Js., ZARELLA, this VERTEFEUILLE opinion In concurred.
KATZ,
Both the fourth amendment
J., dissenting.
7, of
first,
and article
§
the United States constitution
individuals
protect
against
constitution
the Connecticut
is
case,
In this
it
searches and seizures.
unreasonable
defendant,
Chris-
undisputed that
initial
rea-
lanes was
topher Jenkins,
improperly changing
these
therefore, valid under both of
and,
sonable
Jenkins,
See App.
104 Conn.
provisions.
us
question
“It is well federal . . established that constitutional . law establishes minimum national standard for the exercise of individual and not rights does inhibit state affording from governments higher protection levels . . for such . rights. Oquendo, Conn. 649, 613 Moreover, A.2d 1300 have (1992). we held that area fundamental civil liberties —which [i]n agree majority’s part opinion that, 1 I with the conclusion in I of its because adequate the defendant failed to an create record before the trial court regarding validity patdown search, Appellate improperly Court analyzing regarding considered that conduct defendant’s claims search, vehicle than other as a historical fact. asking adopt In addition to the court to this under standard the state constitution, requests adopt following the defendant that this court rules: conducting (1) stop an officer a routine traffic has elevated into justifiable investigatory must inform the motorist that he is free prerequisite obtaining leave free to refuse consent search as a ended; any (2) consent after the traffic has must state show that exchange clearly unambiguously an between officer and a motorist supports actually the conclusion that the motorist consented to the search performed; (3) higher proof the state be held to a should standard of during routine, stops. for consent that occur searches noncriminal traffic analysis directly addressing The defendant offered has no these claims support case law that would tend to them. I therefore decline address them. con rights the declaration of protections
includes all
Connecticut constitution—
tained in article first of the
In
constitu
resort
....
such
we sit as
court
last
*64
law
referent is Connecticut
adjudication, our first
tional
have
full
Connecticut citizens
panoply
rights
and the
expect
due.
decisions of
Accordingly,
as their
come
defining fundamental
Supreme Court
the United States
respectful
authority to be afforded
persuasive
are
rights
by
Connecti
they are to
followed
consideration, but
they provide
when
no less individual
only
cut courts
. .
by
law.
.
protection
guaranteed
than is
Connecticut
Marsala,
58
State
150, 160,
(1990).
v.
216 Conn.
579 A.2d
our
constitution is an instrument
Recognizing that
state
length
for great
...
is intended
stand
progress
narrowly
interpreted too
not be
of time
should
literally
we
cases
. . .
have concluded
several
too
provides
protection
constitution
broader
that the state
than does the federal constitution.
rights
of individual
v. Mar
Oquendo, supra], 652;
State
v.
See, e.g., [State
Dukes,
State
98, 112,
v.
209 Conn.
sala,
supra, 171;
(Citation
A.2d 10
and cases cited therein.”
(1988),
State
v.
omitted;
quotation
omitted.)
internal
marks
“Spe
DeFusco,
632,
I agree majority with the neither text nor *65 history 7, constitutional of article first, support § protections to greater defendant’s claim under the state constitution than federal constitution. I disagree, however, persuasive majority’s analyses with the rel- evant federal related precedents, prece- Connecticut dents, persuasive precedents of other state courts contemporary public policy. I understandings of believe that four a these factors necessitate conclusion first, 7, requires that article us § to examine both the and substantive temporal scope of a stop routine traffic more a specifically, a stop routine traffic is not valid a unless there is reason- able and suspicion articulable to believe that a detained driver or passenger in, has engaged or is about to engage activity. in, criminal
I FEDERAL PRECEDENTS previously As I have noted I do not herein, dispute majority’s precedent conclusion that recent federal permissibility suggests that of a consent search following routine traffic is dictated the dura- stop. tion of the For the follow, however, reasons that it a substantive constitutes my holding is view that such a juris- from fourth amendment departure settled prudence. properly majority recognize,
As
and the state
both
stops
the fourth
of traffic
under
the reasonableness
the framework estab-
analyzed
amendment
is
under
Ohio,
1,
1868, 20
Terry
v.
392 U.S.
88 S. Ct.
lished in
Johnson,
v.
U.S.
See Arizona
(1968).
L. Ed. 2d 889
State
172 Ed. 2d
323,
781,
(2009);
129 S.
L.
330,
Ct.
Terry,
Wilkins,
Under
however, had “held in the stops. The court it acknowledged inception at its that a search which reasonable past *66 its may by virtue of violate [f]ourth [a]mendment scope . . . The of the intensity scope. and intolerable by justified and the cir- strictly must be tied to search permissible.” which rendered its initiation cumstances quotation omitted.) internal marks omitted; (Citations Terry Ohio, 17-19. the court Although 392 U.S. scope on set limitations bright-line declined to out in which search, it warned that manner of the “[t]he is, course, of and were conducted the seizure they were inquiry as whether part as vital a of the proceeds at all. The warranted [f]ourth [a]mendment scope upon governmental of as much limitations by imposing preconditions upon action its initiation. . . . The entire of purpose deterrent the rule excluding evidence seized in violation of the [f]ourth [a]mendment on assumption upon rests that limitations the fruit to be gathered quest tend limit the itself.” (Citation omitted; quotation internal Id., marks 28-29. omitted.) Subsequently, in v. Royer, supra, Florida 460 U.S. scope the court clarified that investigative] “[t]he [an carefully detention must be tailored to its underlying justification . . . investigative detention [and the] be temporary longer necessary must last no than is purpose stop.” effectuate the Drawing scope from the analyses Terry set forth in Royer, several federal had required courts that rou traffic stops, justified tine Terry, under be reasonable See, both duration e.g., and manner. United States Boyce, 1102, 1111 F.3d Cir. (11th 2003) (“[T]here possible are two for police tests when a investigation of a scope exceeds . stop. routine traffic . . The test first comes from the Tenth Circuit and limits the questions may officer questions ask those justified that are suspicion reasonable of criminal activity or safety reasonable . . concerns. . The sec test ond comes from Fifth Circuit and holds that questions unrelated reason the initial only are they unlawful if extend duration initial seizure.” omitted.]); United States [Citations Holt, 229 F.3d (10th Cir. 2000) (“the [United Supreme Court has indicated although States] permissible scope an investigatory detention depends particular on the facts and circumstances case, each it must in case last no longer than necessary to purpose effectuate the of the stop carefully underlying tailored to its justification” [emphasis added; quotation internal marks omitted]). Accordingly, these courts had required that, *67 routine stop, traffic an “officer’s actions must be reason-
289 justi- which ably in to the scope related circumstances . The traffic place. in the . . fied interference first the . . beyond purpose . stop may expanded original its acquires stop detaining if officer the initial the during say is to suspicion activity, criminal that reasonable objective particularized acquire must officer particular person stopped of suspecting basis for quotation activity.” omitted; internal criminal (Citations Clarkson, United States v. 551 F.3d omitted.) marks also United States v. 2009); 1201 Cir. see 1196, (10th Henderson, (concluding Cir. (1st 2006) F.3d Terry stop because exceeded bounds traffic infor- identifying officer’s “demand for defendant’s] [the his defen- subsequent investigation mation and [the scope changed the expanded stop, of the dant] United stop, stop”); of the target prolonged Mix, Sup. 156 Mass. States 2009) F. 2d (D. that ana- District Court cited First Circuit cases (The they lyzed scope stops of traffic and concluded temporal as well as a a functional standard “suggest what degree one: What of intrusiveness and duration justified stop?”). the rationale for recently seemed The United States Court approach to refute this reasonableness manner Johnson, Arizona 332-34, U.S. wherein of a detained police questioning it addressed whether the scope traffic had exceeded motorist Ultimately, stated a of the initial detention. the court unqualified inquir officer’s broad, conclusion “[a]n justification ies into matters unrelated to into stop ... do not convert encounter traffic seizure, as those long other than a lawful so something measurably inquiries do not extend duration conclusion, the court Id., reaching 333. In this stop.” Mena, Muehler heavily prior relied on its decision L. 96, 125 (2005), Ct. Ed. 2d 1465, 161 544 U.S. S. Caballes, in turn had relied on Illinois which *68 405, 407, 834, U.S. 125 S. Ct. 160 L. Ed. 842 (2005), 2d which Terry stops, neither of involved or searches that justifications. were independent underlying See Johnson, supra, Arizona v. v. 333-34; Mena, Muehler supra, 101.3 majority reads recent jurisprudence this as dic-
tating
requirement
that the
in Terry
reasonableness
as long
satisfied
as the duration of a routine traffic
stop is
unreasonably
conclusion,
not
extended. This
if
see
correct;
dissenting
footnote 3
this
opinion;
indicates that
States Supreme
United
Court has
Mena, supra,
101,
In
v.
Muehler
544 U.S.
“Our
court noted:
recent
opinion
Caballes, [supra,
405],
There,
v.
in Illinois
543 U.S.
is instructive.
performed
dog
stop
we held
sniff
that a
a traffic
does
violate the
ourth
Wenoted that
lawful
[¶]
seizure can become unlawful if
[a]mendment.
beyond
reasonably
prolonged
required
complete
mission,
it is
the time
accepted
but
the state court’s determination that the duration of the
by
dog
dog
was not
. .
extended
sniff. .
Because
that a
we held
sniff
subject
[fjourth [ajmendment,
rejected
was not a search
to the
we
notion
purpose
drug
investigation
the shift in
from a
traffic
lawful
into a
supported
suspicion.
was unlawful
it
because was not
reasonable
here,
lawful;
. . . Likewise
the initial . . . detention was
the Court of
Appeals
questioning
find
did not
that the
extended the time [the defendant]
[ajmendment justification
[fjourth
was detained. Thus no additional
inquiring
immigration
required.” (Cita-
about [the
status was
defendant’s]
omitted;
quotation
omitted.)
tions
internal
marks
separate
Because neither Muehler nor Caballes involved a
search under
amendment,
the fourth
the United States
Court cases relied on
majority
squarely
proper analysis
the state and the
do not
address the
of a
purpose
Terry stop
shift in
between a lawful
and a consent search. Nonethe
less,
recognize
weight
precedent
because I
that the
of federal
after Arizona
Johnson, supra,
333-34,
apurely
applying
555U.S.
tends toward
durational
analysis
police inquiries
requests
to both
and
for consent made within a
stop;
484,
Everett,
routine
(6th
traffic
see United
States
601 F.3d
489-90
2010);
Taylor,
373,
(7th
Cir.
States v.
United
596 F.3d
2010);
375-76
Cir.
Rivera,
1009,
United
(8th
2009);
States
570 F.3d
1013-15
Cir.
United
Cousin,
Court,
No.1:09-CR-89,
States v.
United States District
Docket
3688,
January
(E.D.
U.S.
2010);
Dist. LEXIS
*8-10
Tenn.
United States
Mbodji,
Court,
1:09-CR-29,
States
United
District
Docket No.
2010 U.S.
January
(E.D.
8, 2010);
Dist. LEXIS
*13-14
Tenn.
United States v.
McBride,
Court,
1:09-CR-21-TS,
States
United
District
Docket No.
2009 U.S.
(N.D.
4, 2009);
Dist. LEXIS
*12-13
December
Ind.
I do not contest
majority’s
regarding
conclusion
federal law.
prior jurisprudence
its
departed
from
significantly
substantively Terry
stops
both
tem
to be
requiring
Royer porally
reasoning
reasonable.
I find
Royer to be
persuasive
applying
cases
federal
limitation
scope
origi
they
because
best effectuate
Terry,
consistently
nally
followed
established
*69
a more
by
exacting
I believe that
Accordingly,
this court.
Terry stop
purely
analysis
scope
of a
than
required
by majority
temporal approach endorsed
it is
Indeed,
pre
under
Connecticut constitution.
Supreme
cisely
in which the United States
in situations
protective of
precedents
Court has eschewed
individual
that this
permissive approaches
in favor of more
rights
constitution
court has found that
Connecticut
protective doc
requires
earlier,
adherence to the
more
Linares,
trines. See State
345, 382-83,
v.
232 Conn.
“public forum”
II
PRECEDENTS
CONNECTICUT
precedents
A
of this
indicates that
review
court’s
broadly permissive
adopted
we never before have
Terry stops, including
routine
approach
scope
to the
suggested
stops, championed
traffic
state
recent decisions.
the United States
Court’s
consistently
This
has concluded
under our
court
Terry stop
justified
constitution,
must be both
state
circumscribed. See State
reasonably
inception
at
v. Wilkins,
240 Conn.
(“[a]rticle first,
7§§
permit
of our state constitution
officer
appropriate
circumstances and in an
in appropriate
manner an
investigative pur-
detain
individual for
poses even
there is
though
probable
no
cause to make
an
State
[emphasis
arrest”
added]);
Lamme,
Conn.
172, 184,
A.2d 484 (1990) (“circumscribed
Terry stop
process
nature” of
of due
minimizes risk
violation under Connecticut
constitution); State Edwards,
Conn.
Our jurisprudence also supports specific rule that the defendant asks us to adopt an officer conduct- —that a ing stop routine traffic a must have reasonable and articulable suspicion activity criminal unrelated to the initial stop traffic before asking for consent search a vehicle. This court that a Terry required has stop grounded upon “reasonable and articulable sus- picion that the individual has committed is about to omitted) marks quotation crime”; a (internal commit (2006); 899 A.2d Nash, State Conn. has “a rea- Terry that the officer requires a frisk while suspect a suspicion articulable sonable and may commence before dangerous armed and [he] investigative an protective patdown Indeed, we have cautioned stop.” Id., 633. “[b]efore of a citizen person a hand on the police places officer] [a constitutionally he must have anything, in search of In the case doing for so. adequate, grounds reasonable he must be weapons, self-protective search of the from which he reason- particular facts point able to armed and danger- the individual was ably inferred that Like Id., marks 631. quotation omitted.) (Internal ous.” Terry frisk, Terry to a the transition from a consent search from a routine traffic transition such, procedure. As purpose involves a shift must be precedents grounded our this shift suggest encounter’s suspicion reasonable relevant to and articulable sus- direction, namely, new reasonable routine activity unrelated to the initial picion of criminal traffic violation.
Ill PRECEDENTS SISTER STATE widely approaches varying courts have taken traffic proper analysis scope to the routine expressly adopted Some states either have stop. state constitutions purely durational test under their provide that their state constitutions no or have held *71 than the federal constitution.4 Others have greater rights 4 17, 23, Teagle, (App. 2007) (“any 170 266 See State v. 217 Ariz. P.3d delay asking min attributable to for defendant’s consent was de additional People Vibanco, unreasonably stop”); v. and did not extend the traffic imus App. 1, 14, Rptr. (2007) (“[investigative 151 Cal. 4th 60 Cal. 3d 1 activities stop permissible long beyond original purpose a traffic . . . are as they stop beyond take”); prolong the the time it would otherwise do not 757, (“the conformity States, (Fla. 1997) clause Holland v. 696 So. 2d 759 only first, 12, not binds the Florida § article of the Florida constitution] [of interpretation Supreme the United States Court’s of the courts to follow 294 require,
determined that their constitutions
generally,
analysis
exacting
scope
more
of the
of routine traffic
stops
require
stops
and therefore
such
to be substan-
tively reasonable under the
A signifi-
circumstances.5
group
cant
of states has
between
distinguished
[ajmendment
[cjonstitution
‘provide
the United States
to
but also
[f]ourth
greater protection
interpretations’
People Harris,
”);
no
than those
288
222, 237,
scope
(2008) (adopting
Ill. 2d
I
with
and state constitutional
drawn from both federal
have
stops
traffic
scope
of roadside
provisions
limiting
*74
suspicion
articulable
a reasonable and
requiring
stop before a
to the initial
activity unrelated
criminal
a road
validly
during
can ask for consent
police officer
402, 419,
v.
286 Kan.
In State
Smith
side search.
628, 172
129 S. Ct.
denied,
1062,
cert.
555 U.S.
P.3d
Court held
the Kansas
L. Ed. 2d 639 (2008),
(1997) (relying
constitutional
on both federal and state
I next turn to the New
Carty,
in State
I with the differs from the agree present Jersey case on three the New grounds: (1) Supreme consistently a higher Court has afforded level scrutiny to than consent searches does the United Jersey police Court; (2) States the New were *76 constitution, first, seven, paragraph Like the Connecticut article of the Jersey provides: people right New constitution “The to be secure in persons, houses, papers, effects, against their and unreasonable searches seizures, violated; except upon warrant shall not be and no shall issue probable cause, supported by affirmation, particularly describing oath or place papers things to be searched and the to be seized.” police policy and state
subject to both a federal decree
techniques; and
investigatory
(3)
coercive
Umiting
it an extensive factual record demon
court had before
decree and state
the violation of the federal
strating
there
police policy. Despite
distinctions, however,
these
why Carty
persua
reasons
is relevant and
are several
this court has not afforded
First, although
greater
sive.
courts
protections
concerning
than the federal
specifically,
searches
this court also has found that the
provides
protection
Connecticut constitution
greater
seizures, generally.
official searches and
See
against
Wilkins, supra,
State v.
State
v.
505;
240 Conn.
504 —
Miller, supra,
Geisler, supra,
State
379-80;
227 Conn.
Marsala, supra,
State
216 Conn.
690;
Conn.
Dukes, supra,
State
I also find have reasonable and that officers requiring decision activity independent of criminal suspicion articulable asking for consent of the initial traffic violation before v. Fort, State stop. to search a traffic See during Therein, the court 415, (Minn. 2003). N.W.2d 418-19 stop scope and of a traffic noted that “the duration justification for the must be limited to the investigation State stop.” Id., case, It relied on an earlier 418. Wiegand, support. for 2002), 645 N.W.2d (Minn. “In were explained: Wiegand, The court the defendants but the con stopped headlight, a bumed-out a using dog ducted search narcotics-detection suspicion drug- absence of reasonable articulable of We activity. [Id., 128-29, related reversed 137]. among things, defendants’ convictions other holding, [first], that under of the Minnesota [con [a]rticle [§] any scope or duration of expansion stitution stop justified by traffic a reasonable articulable must State suspicion activity. [Id., of other criminal 135].” Fort, framework, although 418-19. Under this supra, initial “the stop proper, investigative traffic subsequent inquiry, and questioning, consent beyond scope went traffic and was unsupported suspicion.” articulable reasonable Id., 419. the court affirmed trial court’s Accordingly, the con order evidence discovered suppressing sent search.11 11Although majority suggests Fort is undermined because Wie Caballes,
gand
longer
good
no
would be
law after Illinois
543 U.S.
grounded
unwarranted
the court
Fort
its
conclusion is
because
proposition
first,
10],
Wiegand
§
”under
reliance on
on the
[article
any expansion
scope
of a
the Minnesota
duration
[constitution
suspicion
justified
articulable
of other
traffic
must be
reasonable
Fort, supra,
activity.” (Emphasis added.)
Similarly, Appeals recently *78 questions held that potential “an officer’s about other requests permission crimes, and an officer’s to con a search, significant duct are events under the search of the provision [c]onstitution, seizure Alaska [arti first, cle More we specifically, that, conclude § 14]. presented case, circumstances this under conducting prohibited officer the traffic stop from requesting permission to conduct a [the defendant’s] search (1) that was unrelated to the basis for the stop supported (2) suspi otherwise a reasonable criminality.” State, Brown cion of P.3d (Alaska App. In 2008). conclusion, this reaching acknowledged court that precedents, federal including Mena, Muehler supra, 544 U.S. did not prevent the officer from in a engaging completely consent search Brown v. State, unrelated to initial stop. traffic supra, 629 conclude that law (“we federal does not protection afford sufficient who motorists are asked to consent to a of person, search their their vehicle, or their belongings during stop”). traffic The court noted, however, that the Alaska Court and Court of Appeals repeatedly interpreted had first, 14, article of § provide state’s constitution to greater protection to the Alaska provided by citizens of than that the fourth amendment to the federal Id., constitution. 633. Draw ing from state search and jurisprudence seizure inter preting the constitution, public Alaska as well as policy concerns precedent, and sister state the court con cluded that the Alaska interpreted constitution “must be to grant protections broader than its federal counter part” in situations involving consent searches during stops.12 routine Id., traffic 634. 12Despite specific language, majority import this dismisses the State,
Brown Appeals 182 P.3d because Alaska Court ultimately specific case, concluded under the facts it “need not interpreted completely decide whether state should be [the constitution] preclude requests for searches a routine traffic unless the search supported ground is related to the for the or is otherwise areasonable
IV
PUBLIC POLICY
RELEVANT
motorist,
requests
detained
Routine
activity beyond
any suspicion of criminal
the absence of
represent
a real and dis-
violation,
an initial
traffic
on
and a substantial breach
turbing burden
motorists13
criminality-
question
day.
suspicion
We
for another
Because
leave
example
presents
particularly egregious
of this
case
[the defendant’s]
holding
police practice,
case can be more narrow.”
our
defendant’s]
[the
Id., 634.
revisiting Brown,
Appeals
has characterized
In
Alaska Court
per
setting
considerations,
se
that the
various
not a
rule
case as
forth
constitutionally
thus
invalid—if the
detention becomes unreasonable —and
*79
necessary
duration, manner,
scope
investigation
longer
or
lasts
than
stop.
Murphy Anchorage,
purpose of
See
v.
Alaska
to effectuate the
the
Appeals,
A-10345,
5576,
App. LEXIS
Docket No.
No.
2010 Alaska
Court of
State,
28,
(March 17, 2010)
decision);
(memorandum
v.
*11-12
Bostwick
5569,
App.
Appeals,
A-10224,
Alaska
Alaska Court of
Docket No.
No.
2010
21,
24,
(memorandum
Skjervem
(February
2010)
decision);
*6-7
LEXIS
my view,
State,
1101, 1105(Alaska App. 2009).
the
court’s
215 P.3d
In
Alaska
holding
qualification on
of
in
is insufficient to discount
the reach
the
Brown
analysis
analysis empha
persuasive
in
That
value of the court’s
that case.
importance
considering
a
of
reasonableness of
sized the
substantive
suspicionless
stop,
highlighted
dangers
traffic
and
of
routine
stops.
contrast,
case-by-
By
subsequent
during such
the court’s
searches
arbitrary
application
per
factors
and
with the
case
of
seems
inconsistent
adopted by
specifically
dangers.
counter the
se rules
other states
same
Moreover, even if
factors articulated in
are relied
the nondurational
Brown
only occasionally,
approach
such an
with
on
court
inconsistent
majority’s per
only
rule that
is the
factor relevant for fourth
se
duration
purposes.
amendment
13
analysis of
The defendant and the amicus curiae focus much of their
policy
what this
has labeled
“insidious
relevant
considerations on
court
profiling.”
quotation
specter
(Internal
omitted.)
marks
State v.
[racial]
648,
Donahue,
636,
denied,
(1999),
251
305 interests). Although, on searches, infringe dignitary may consent, refuse ostensibly, a driver in this situation grant feel to compelled most motorists will detained vehicles, regardless of permission to search their See 4 W. they carrying in fact are contraband. whether p. 9.3 2004) (e), and Ed. LaFave, (4th § Search Seizure State, supra, Brown studies notes; (listing and motorists who majority vast demonstrating “the to request this will accede subjected type are Carty, supra, search”); officer and allow the the context motor (noting N.J. 644-45 “[i]n side of stops, where the individual is at the vehicle officer seeking road and confronted a uniformed her it is a stretch of the vehicle, search his or feels imagination to assume that the individual com- indicating that pelled listing to consent” and studies nearly percent of detained motorists granted many concerns, these states search). Recognizing have statutory provisions protecting enacted motorists of a routine traffic violation from detained because except consent searches when circumstances evi- activity independent dence criminal of the traffic viola- opinion. tion. See footnote of this dissenting specific evidencing we no data Although have frequency of consent searches routine traffic stops many people fact that must Connecticut, the so daily family work, drive in order to fulfill their many needs means that Connecticut citi- educational subject requests zens may be consent searches interruption that such searches significant State, entail. See Brown P.3d 631-32 by car, people most need to travel (“because near-inevitability will commit people because of the has infractions, the ‘routine’ traffic become traffic *81 doorway and searches of widespread probing vehicles, Moreover, research persons, luggage”). and these have in fact become more suggests that searches frequent, part drugs in dual because of the wars on (listing State, and terrorism. Brown v. See “[c]ases from other states [that] show this practice phenomenon”); LaFave, is not an isolated 4 W. supra, p. (“[Requesting apparently consent has yet part become another of the ‘routine’ of ‘routine stops’ ”); Vargas, traffic Lazos “Missouri, S. The ‘War Immigrants: Legal Challenges on Terrorism’ and Post (2002). 9/11,” 67 Mo. L. 775, 813, Rev. I therefore strong public policy arguments conclude that are there weighing limiting in favor of consent searches under- during stops. taken routine traffic
V
CONCLUSION Having reviewed the factors, relevant Geisler I con- § first, clude that article of the Connecticut constitu- provides protection greater tion than the federal respect constitution with to consent searches stops requires scope in routine traffic that it that the Terry stop aof be reasonable both and substance supported by duration. This conclusion is this court’s long emphasis Terry on the overall reasonableness of especially light searches, of the uncertain con- and flicting persuasive dictates federal law, as well as precedents contemporary public policy sister state and requirement In concerns. order to effectuate the Terry stops substantively temporally be both and rea- scope, I sonable further conclude that a consent stop during14 search a routine traffic is not valid unless majority notes, As the timing some courts held that have of the questioning request independent signifi consent for have constitutional cance, require justification inquiries and therefore additional for made after signals purposes a discrete event the end of the traffic after the dissenting the traffic have been effectuated. See footnote 7 of this opinion. present case, Morgan In the Officer retained defendant’s license paperwork step car, him, while he asked him to out frisked approach asked the car. search Under the of our some states, legitimate Morgan sister such a would because had not yet stop. concluded the traffic
307 to suspicion and articulable is a reasonable there has engaged passenger a detained driver or believe that activity. in, to criminal in, engage or about and articulable whether reasonable determining In if, on exists, relying must consider suspicion “a court had a particu officers picture, detaining whole the the particular the objective suspecting basis for larized and activity. court of criminal ... person stopped [A] available to the specific the information must examine and at time of the initial intrusion officer the police (Internal be derived therefrom.” rational inferences to Batts, State 682, 281 Conn. omitted.) marks quotation 128 denied, U.S. 691-92, A.2d cert. a trial Although L. 2d 524 (2007). Ct. Ed. S. suppres with a of facts connection findings court’s deference, are to the determina hearing sion entitled suspicion tion of whether reasonable articulable law, subject plenary review. question existed is a of Brown, See State Conn. defen (“The but, trial factual challenges findings dant not the court’s rather, that the actions of the legal its conclusions constitutionally valid. These conclusions are sub were plenary ject review.”). present case, Appellate thoroughly
In the the Court stop surrounding the circumstances reviewed Although reasoning of their with I find the these courts and concerns they go enough police overreaching persuasive, to be I do not far believe first, 7, protecting rights § of article of Connecticut drivers under unsubstantiated, suspicionless constitution, because an permissible scope a driver’s exceeds the routine traffic violates thirty privacy first the last it is conducted within the seconds or whether thirty Moreover, approach police with this vests seconds of that encounter. power determine, by expediting requirements prolonging either Therefore, stop, justification is needed. of the routine traffic when additional Jersey adopt reasoning “A the New Court: I articulated suspicionless it whether consent search shall deemed unconstitutional Carty, stop.” preceded completion of the lawful traffic or followed supra, 170 647. N.J.
concluded as a matter law state “did not establish that Morgan suspi- had reasonable [Officer] expand scope inquiry cion into an engaged activity whether defendant was illegal *83 to underlying stop Morgan unrelated the or that was more than a mere hunch.” proceeding on anything Jenkins, My App. 104 Conn. 434. review own of the record leads me to the same conclusion. Accord- I that ingly, conclude the consent search was invalid first, 7, under article of the Connecticut § constitution. Therefore, I respectfully majority’s dissent from the reversing Appellate decision judgment Court. PALMER, J., majority The dissenting. concludes that police Detective Michael of the Morgan Newington department did not violate the of the rights defendant, Christopher Jenkins, first, 7, under article of the Con § necticut constitution when Morgan conducted con sent search of the defendant’s following vehicle his lawful for defendant a traffic violation in Newington approximately p.m. at 11:30 on May 2004. I majority’s with the disagree conclusion because I believe constitution, Morgan under the state was required to inform the he defendant that had no obliga tion to consent to the search of his vehicle and that he to leave, free once he the traffic ticket, received if he chose to withhold consent to search.1 I reach this conclusion for two interrelated First, reasons. such an necessary advisement to ensure that a waiver of the constitutionally protected right to refuse consent to a search following vehicle a routine traffic has been freely given Second, intelligently. without that advisement, there exists too of a great risk disagree inadequately 1 I with Katz Justice that the defendant briefed his Morgan’s rights claim that his vehicle violated his under the state ground Morgan on the constitution had failed to advise the defendant right that he had consent to the search of his vehicle. with the traffic detained in connection person being permitted until may who not leave the scene stop, constrained police, agree will feel do so compulsion inherent search due to element need police. with The of an encounter in the nature as in when, is all the greater such an advisement lack even a reasonable present case, the detained vehicle contains suspicion articulable failed to advise the defen- Morgan Because contraband. I that the search violated dant, would conclude first, Accordingly, article 7.§ defendant’s under rights respectfully I dissent.2 history undisputed procedural facts and relevant opinion majority set in the
to this issue are forth *84 prin- to the require repetition. turn, therefore, legal no I my analysis. that “It is well established that ciples guide law statutory constitutional and establishes federal for of individ- minimum national standard the exercise from does inhibit state rights governments ual protection rights. levels of such affording higher rely we on the United Furthermore, although . . . often Supreme interpretation of the amend- States Court’s to constitution of the United States to delin- ments the provided by the protections eate the boundaries of the we Connecticut, of have also recognized constitution majority inadequate agree of 2 I with the that the record is for review patdown Morgan’s of the the defendant’s claim search defendant and, further, obtaining Morgan’s conduct in the defendant’s unlawful to the States consent to search did not violate the fourth amendment United Finally, agree majority that, I also with the in to the constitution. contrast improper expressed by opinion, dissenting it view Justice Katz in her was not Morgan to consent to under state constitution for seek defendant’s so, despite suspicion lack of to do at search his reasonable articulable indicating least in the absence of evidence an abuse of use of consent stops by Thus, my view, following police. searches routine traffic first, 7, Morgan § violated article of the state constitution not because but, sought rather, the defendant’s consent to search his vehicle because Morgan right had advise he had the to refuse failed to the defendant to a search. to consent such
that,
instances,
provides
some
our state constitution
beyond
protections
provided by
those
the federal con
stitution,
as that
has been inteipreted
document
United States
Court.
. . .
this
Indeed,
court
has
respects,
first,
determined
certain
article
7,
state
protection
constitution affords greater
§
than
fourth
amendment
the United States consti
Miller,
State
E.g.,
363, 377,
tution.
Conn.
630 A.2d
(article
7, requires
1315 (1993)
first,
police to obtain
§
automobile); State impounded
warrant
to search
Geisler,
672, 691-92,
Conn.
icut constitution protection than greater constitution affords state respect request a with the federal constitution made officer to search a vehicle disagree, I stop. a routine traffic in connection with analysis of the majority’s remaining with the however, view, in to the conclu- factors,4 which, my leads Geisler constitution, a consent search sion under the state invalid the detained motorist of such a vehicle is unless her consent to is informed of his or withhold right such a search.
I FEDERAL PRECEDENT majority observes, As the Schneckloth Busta- S. 36 L. Ed. 2d 412 U.S. 93 Ct. monte, rejected Court the United States (1973), very amendment to the same claim under fourth present that the defendant in the federal constitution Specifically, case raises under the state constitution. question in Schneckloth concluded that “the court ‘voluntary’ was in whether a consent to search fact [of] express product coercion, or was the of duress or from question is a of fact to be determined implied, knowledge all While totality of the circumstances. be taken to refuse consent is one factor to right account, into need establish such government an qua sine non of effective consent.” knowledge unpersuaded I am Id., follow, 227. For the reasons that Schneckloth, least in analysis court’s at routine traf- request context of a for consent stop.5 fic opinion. footnote 3 of this See concerning the seminal case consent searches Because Schneckloth is stops, necessary
following it is the case some routine traffic discuss *86 detail.
In Schneckloth, analysis by the court its commenced observing judicial most extensive exposition “[t]he the meaning of of ‘voluntariness’ been developed has those cases which has had determine [c]ourt the ‘voluntariness’ aof defendant’s confession for pur- poses [ajmendment.” of the A Id., 223. [fourteenth review of court cases, explained, these “no reveals ‘voluntariness,’ mechanically talismanic definition of applicable to the host ques- of situations [in which] tion has ... literally arisen. It cannot be taken to mean choice.” ‘knowing’ (Citation omitted.) Id., 224. “Rather, ‘voluntariness’ has reflected an accommoda- complex implicated tion of the in police values ques- suspect. spectrum of a tioning At one end of the is the need acknowledged police questioning as a for tool the effective enforcement criminal laws. ... At the other end spectrum is the set reflecting of values society’s deeply felt belief that the criminal law cannot be used as an of unfairness, instrument and that the possibility of unfair police and even brutal poses tactics a real and serious threat justice.” to civilized notions of (Citations omitted.) Id., 224-25. court further explained that, in light of competing these it concerns, traditionally has framed the test for voluntariness as whether “the product confession of an essen- [is] tially free and unconstrained its choice maker . . . .” In Id., 225. determination, this making the court made clear totality that the of the circumstances must considered, and, be although the accused’s awareness of his constitutional is one several rights factors relevant to that determination, it is a dispositive Id., factor. 226-27.
The court in Schneckloth reasoned that similar anal- ysis apply should to the determination whether suspect voluntarily has given consent search. “As with questioning, two concerns must competing accommodated determining meaning of a ‘vol- *87 searches need such legitimate untary’ consent —the assuring of requirement equally important and the conclu- In this Id., reaching 227. absence of coercion.” in cases in which the sion, the court observed activity, but of illicit police may “have some evidence search,” consent to arrest or probable cause lack “may be they because purpose serve a vital searches rehable evi- obtaining important and only means of may “[pro- searches, stated, court Id. dence.” These parties], wholly that some assurance [third vide] mistakenly brought crime, of the innocent [will] [be] Id., to trial.” 228. prove requiring stated that state
The court then knew “affirmatively subject . . that the of the search . would, practice, refuse that he had right whether consent searches create serious doubt [about] support Id., 229. In continue to be conducted.” could might “There explained: of the court assertion, this the record proved it could be from rare cases [in which] affirmatively right knew of his person that a in fact commonly more where there no refuse .... But prose- any coercion, explicit implicit, of evidence would be unable to demonstrate cution nevertheless of subject in fact had known his that the of the search object very “The Id., to refuse consent.” 229-30. right subjective inquiry person’s of the nature of —the difficulty prose- understanding —underlines proof require burden rule would cution’s under [a] [that subject Any who defendant knowledge]. such [is] solely by his consent could effec- of a search authorized introduction into evidence tively frustrate the testify that he by simply failing of that fruits And he could refuse to consent. in fact knew [that] burden prosecutorial this impossibility meeting near why accepted never such has suggests [the] [c]ourt Id., 230. litmus-paper test of voluntariness.” acknowledged The court in Schneckloth seeking officer consent to search the vehicle simply subject that case could have informed the the traffic that he had the to withhold such right court, however, rejected approach, consent. The as follows: “One reasoning go alternative would *88 subject proving far toward that the of a search did know he a refuse right had to consent would be to [that] him eliciting advise of that before his right consent. . . . thoroughly impractical would be [I]t [however] impose to on normal consent search the detailed requirements anof effective Consent searches warning. part are of the standard investigatory techniques They normally law agencies. enforcement occur on the person’s or in a home highway, office, or and under informal and unstructured conditions. The circum stances that prompt request may the initial to search develop or quickly be a logical extension investigative police questioning. police may to seek investigate suspicious further circumstances or follow up to leads developed persons in questioning at the scene aof cry crime. These a far situations are from the structured atmosphere where, trial assisted counsel if he chooses, a defendant is informed of trial . . . rights. his And, surely a while closer question, these situations are immeasurably still far removed from ‘custodial interro gation’ where, v. Arizona, Miranda U.S. [384 Ct. L. 1602, 16 86 S. Ed. 2d (1966)], we found that the required certain now familiar warnings [constitution a prerequisite interrogation.” (Citation omit ted.) Schneckloth v. Bustamonte, supra, 412 U.S. 231-32. The court in rejected Schneckloth also the respon- “
dent’s contention because is a ‘consent’ waiver person’s of a rights under the [fourth [fourteenth Amendments,” waiver, establish state must be required to relinquishment “demonstrate ‘an intentional ” Id., right privilege.’ a known or abandonment of knowing observed that the court concluding, 235. In so a sub- required is whenever waiver intelligent protection; ject to invoke constitutional declines only to analysis rights those applies waiver instead, trial-type of a trial or protect the fairness needed By way example, the court 237-38. proceeding. Id., “found that custodial that, Miranda, it had observed inherently coercive, and police was by the interrogation required were warnings that detailed consequently held compulsory self-incrimi- protect privilege against made it that the clear nation. The Miranda] [c]ourt [in protect need to was the basis for decision [its] of the trial itself: fairness
“ taken when statements are present ‘That counsel obviously interrogation an individual from processes in fact-finding integrity enhances *89 ade- from protections flowing . . . the court. Without counsel, “all the careful of quate warnings rights and testimony, of giving erected around the safeguards witness, would by an or other whether accused procedure where the empty formalities in become a confes- guilt, possible most evidence compelling unsuper- already been obtained at the sion, would have ’ Arizona, police.” pleasure vised [Miranda Schneck- (Emphasis original.) 384 U.S. 466].” Bustamonte, supra, 412 U.S. 240. loth is a difference court vast The continued: “[T]here protect fair criminal trial and those rights between [fjourth under guaranteed rights [a]mendment.” that there no Thus, 241. the court concluded Id., requirement knowing and reason extend id. The searches. See waiver consent intelligent explained, was not amendment, the court fourth accuracy of the truth determin- protect designed an individual’s trial; instead, protects at it process ing arbitrary police. Id., privacy intrusion against support assertion, 242. In of this the court on relied prior its determination that is no likelihood of “there unreliability present or coercion in a search-and-seizure omitted; . . . .” quotation case internal (Citation marks Id. omitted.) Consequently, maintained, court every presumption “it cannot be said reasonable [that] voluntary to be ought against relinquishment. indulged . . part policy . is no underlying the [I]t [fourth to discourage citizens [fourteenth [a]mendments ability appre- from to the utmost of their aiding Rather, community hension of . . . criminals. has a real interest in encouraging consent, for the resulting may yield necessary search for evidence the solution and prosecution crime, may evidence that [e]nsure wholly that a person innocent is not wrongly charged awith omitted; internal (Citation quotation [crime].” marks 243. omitted.) Id., court explained further that “it would be next
to impossible apply to a search the standard relinquishment of ‘an intentional or of a abandonment ” known right privilege.’ Id. According court, to the in determining whether one knowingly voluntarily has waived a a trial in “the right, judge structured atmo- sphere of a courtroom” must conduct an examination into whether there is an competent intelligent Id., waiver the accused. 243-44. This detailed exami- nation would be unrealistic in the “informal, unstruc- tured context of a consent .... if, And *90 this reason a diluted form of ‘waiver’ were found [to acceptable, that would ample itself be recognition be] fact that there is no universal standard must that applied every be person situation a forgoes [in which] a Id., constitutional right.” 245.
Finally, the that Miranda does not explained court a compel requirement knowledge of a context Id., consent search. 246. The court asserted unlike the inherent coerciveness of custodial interrogation voluntariness, to con- ensure requires safeguards that own famil- “normally person’s occur on a sent searches specter . of incom- territory iar . . [and thus] in some remote station police interrogation municado no to simply There is reason believe inapposite. house is pre- a response policeman’s question . . . to therefore, no reason coerced; is, and there sumptively the volun- reject determining traditional test person’s response. Miranda, course, of a tariness person a not questioning did not reach investigative directly custody, is most analogous which assuredly and it did not search, situation of consent be deemed questioning ought indicate that such inherently Id., coercive.” 247. The court thus concluded a consent a routine traffic following even may pass muster under the fourth amendment subject of the have informed the though may to the give that he she decline id., search. See 248-49. William O. separate opinions, Douglas,
In Justices Brennan, Jr., J. Marshall dis- Thurgood William opinion majority sented from the in Schneckloth. suspect concluded that a should be Douglas Justice because, to withhold consent right informed his “ person many circumstances reasonable ‘[u]nder I” as read an officer’s the courteous “[m]ay might ” Id., of a backed force of law.’ expression demand vein, In the Jus- J., 275-76 same (Douglas, dissenting). . . . tice Brennan stated that holds “[t]he [c]ourt effectively right waive even an individual can this that, in the totally ignorant he is of the fact though consent, privacy his of his absence of such invasions constitutionally prohibited. wholly It escapes would to have meaningfully me our can be said how citizens guar- precious waived as constitutional something Id., of its existence.” being antee without ever aware J., dissenting). 277 (Brennan, *91 been Justice Marshall’s dissent has celebrated e.g., commentators and A. “Know- See, Loewy, scholars. ‘Consent’ Underap- Means ing ‘Knowing Consent’: preciated Wisdom of Justice Marshall’s Schneckloth Dissent,” 79 Bustamonte Miss. L.J. 104-108 (2009). Justice Marshall his with begins dissent the observation that, years ago, Stewart, Potter “[s]everal [Justice opinion of majority author in reminded Schneckloth] society us that ... a guarantees ‘[t]he [constitution a society presupposes free choice. Such the capacity Ginsburg York, of its members to choose.’ New U.S. Ct. 1274, S. 20 L. Ed. 2d (1968) [88 195] in ([Stewart, concurring I would have result). thought J.] the capacity necessarily that to choose depends [on] that is a . knowledge there choice to be made. But . . [majority reaches the curious result Schneckloth] one can relinquish choose to a constitutional be right right free unreasonable [from] —the searches —without that he has the knowing alternative of refusing police request to accede to a to search.” v. Bustamonte, supra, Schneckloth (Mar- U.S. 277 Injustice J., shall, Marshall’s dissenting). view, because always the United States Court had “scruti- with great person nized care claims that a has forgone opportunity to assert constitutional there rights,” why reason analysis no should apply with equal force to the issue of a simple “whether statement of assent to without search, more, should be sufficient permit to search and thus act relin- as a quishment of person’s] constitutional right [that the police.” Id., exclude 278 (Marshall, J., dissenting). After that cases concluding involving coerced confes- are inapposite sions of a search,6 context 6 reaching conclusion, explained phrase In this Justice Marshall that “the Voluntary way phrase Voluntary consent’ redundant seems Bustamonte, confession’ does not.” Schneckloth 280 n.6 U.S. (Marshall, J., dissenting). Relying Miranda, on Justice Marshall asserted right compulsion, of the nature of the to be free it would “[b]ecause pointless to ask whether defendant knew of it before he made *92 majority of the rejected the assertion Justice Marshall “ literally ‘cannot be taken that consent in Schneckloth ” J., Id., (Marshall, mean a choice.’ “knowing” to he that explained Marshall Indeed, Justice dissenting). made how a decision “difficulty comprehending had be can available alternatives without of knowledge Furthermore, Id. consent a choice at all.” treated as “[i]f his has chosen to person forgo means that a to search they place seek to police to from exclude the right relinquish statement; person right knowingly a to free of be no sane would right Thus, questions compulsion compulsion. violation of the of of confessions, inextricably involving coerced are intertwined. cases itself irrelevant, therefore, question knowledge right pass of of that over J., directly compulsion.” Id., (Marshall, question of and turn to the that, although dissenting). “we would not Justice further asserted Marshall coercion, ordinarily right suspect of a his to be free that could waive think they permit suspects rights example, are waive the informed for we do to sufficiently by police warnings, in itself on the belief that such information by compulsion. a would be elicited decreases the chance that statement involving Thus, nothing [any coerced confes- . . . the defendant did in case] certainly operate relinquishment rights; was to as a his sions taken to taken be a relin- fact that the defendant made statement never omitted.) Id., (Citation quishment right 281-82 to free of be coercion.” J., dissenting). (Marshall, By explained, contrast, the Schneckloth case did not Justice Marshall implicated right kind to be from misconduct of the involve the free rather, Id., by but, (Marshall, confession the issue consent. coerced J., concepts dissenting). two are Justice Marshall further observed that the substantive, from is a constitutional different because freedom coercion requirements, right, mechanism which substantive whereas consent “is a Thus, requirement applicable, otherwise are avoided.” Id. substantive may only that be conducted on the of the fourth amendment is searches supported probable properly id. of a warrant cause. See basis issued exceptions although this Marshall further asserted there are to Justice they justified by enforcement, requirement, overriding of law are needs justification Id., applicable for a which are consent is sole search. when J., explained (Marshall, dissenting). Indeed, Justice Marshall 282-83 attenuated, significantly proba- are “the needs of law enforcement more may permitted subject’s lacking if ble cause be but a search to Thus, permitted, not been obtained. searches are consent has probable exception requirements cause and war- because such an permit proper enforcement, we rant is law but because our essential they . . . their constitutional citizens choose whether wish exercise (Marshall, J., dissenting). rights.” Id., 283 search, it follows his consent cannot considered choice he knew he meaningful unless could police. I fact exclude the ... can think of no other say person situation in which we would that a agreed to some course of action if he us convinced that he did not know that there was some other might course he pursued. I have would therefore at a hold, minimum, prosecution may rely that the purported on a con- if subject sent to search of the search did not know *93 he that could refuse to consent. . . . the give Where police claim authority yet to search in fact lack such authority, subject not may the does know that he per- missibly them entry, refuse and it is lack of this knowl- edge that invalidates omitted.) the consent.”7 (Citations Id., J., 284-85 (Marshall, dissenting).
Justice rejected majority’s Marshall also the assertion paused “if an to subject officer inform the of his informality the rights, exchange would be destroyed. simple by I doubt that a statement an officer anof right individual’s to refuse would consent do much alter informality to the the except of to alert exchange, subject a fact surely to that he is entitled to know. It is not significance many years without that for of agents the Federal of Bureau have Investigation rou- tinely subjects informed of their refuse right consent, to they request when consent to . . . search. reported police in cases which the have informed sub- jects of their right show, to refuse consent also, that prosecutor rely justify “When a seeks to consent to the lawfulness [on] search, proving was, fact, aof he the burden has of that the consent in freely voluntarily given. by discharged showing This burden cannot be acquiescence authority. no more than to a A claim of lawful search conducted justified in reliance a warrant cannot later be [on] on basis of consent if it turns out that the warrant invalid. can The result be no different attempt rely when it turns out that does not even [s]tate [on] validity warrant, fact, any was, of fails to show that there warrant Bumper Carolina, 543, 548-50, at all.” v. North U.S. 88 S. Ct. (1968). L. Ed. 2d 797 disrupting without given information can is, . . . What evidence there of events. casual flow nothing disastrous suggests then, strongly rather consent, requesting police, if the before happen would refuse right subject informed the he ha[s] respected.” (Cita- refusal would be and that his J., dissenting). 287-88 Id., (Marshall, tions omitted.) [majority when the concluded “that Justice Marshall really what it practicality, speaks in Schneckloth] capital- ability continued talking is the by to accomplish of citizens so as ize on the ignorance only they could achieve subterfuge relying what of constitutional relinquishment the knowing on . . . rights. opinion [majority]
“I nothing find [in . my . . dispel belief ‘[u]nder Schneckloth] read many person might circumstances reasonable expression I” as the “[m]ay an officer’s courteous . . . Most cases, force of law.’ demand backed *94 ordinarily my given view . consent is . . that] [reflect to implicit authority in claim of acquiescence an circumstances, searches in such Permitting search. subject at the without assurance all that that, by consent, relinquishing his he search knew that I cannot rights, something his constitutional by (Citations believe is sanctioned the [constitution.” omitted.) Id., J., dissenting). 288-89 (Marshall, Supreme reaffirmed its hold-
The United States Court Robinette, in Ohio v. U.S. ing Schneckloth L. (1996). 136 Ed. 2d 347 In Robi- 39-40, 117 S. Ct. appealed from the nette, judgment the state of Ohio had the Supreme adopted which Ohio, the Court States and Ohio consti- following rule under United “ stopped for traffic offenses tutions: [must] ‘[C]itizens they clearly by detaining officer when be informed an detention, a valid before officer are free to after go attempts to in a engage interrogation. Any consensual attempt at interrogation preceded consensual must be by you phrase this time free legally go” are “[a]t ” by import.’ Id., words of similar 36. The United Supreme rejected States Court the rule announced Court Supreme of Ohio as a matter of federal consti- tutional law.8 Remarking that “the touchstone of the . . is reasonableness . [f]ourth [a]mendment [which in objective measured examining terms the total- is] ity of the circumstances”; (citation omitted; internal quotation id., marks 39; the court observed omitted) “consistently it eschewed bright-line rules [has] . . . Indeed, .” Id. relying on conclusion court Schneckloth that “it impractical would thoroughly impose on the normal consent search the detailed requirements of an quota- effective warning”; (internal tion Schneckloth Busta- omitted) id., quoting marks monte, supra, 412 231; U.S. court concluded that it would similarly require police “be unrealistic to officers always they inform detainees are free to go may voluntary.”9 before a consent to search be deemed Robinette, Ohio 39-40. Supreme Although the Ohio had on the Court decided the case basis of constitutions, Supreme
both
the federal
Ohio
the United States
Court
appropriate
it
concluded that was
consider
the federal constitutional
Supreme
entirely
issue
the Ohio
because
Court had relied almost
on fourth
jurisprudence
reaching
Robinette, supra,
amendment
its decision. Ohio v.
323
reasoning
the merits of the court’s
addressing
Before
Schneckloth,
considering
in
in
emphasis
it bears
applicable
precedent
in the context
the value of
federal
necessary
is
consider that
Geisler
analysis,
of a
it
v. Commis
Kerrigan
precedent’s persuasive
value. See
Health,
230-31, 957
sioner
Public
135,
289 Conn.
of
for
precedent
A.2d
examine
(2008)
407
(“[we
federal]
our own constitu
analogy
construing
guidance
[in
logically
are
only]
tion
when
authorities
but
[those]
quotation
persuasive
and well-reasoned”
[internal
Brunetti,
cf. State v.
40,
276 Conn.
omitted]);
marks
J., dissenting) (“a
(Palmer,
(2005)
(declining restrictive definition of seizure
D.,
Hodari
adopted in
621,
499 U.S.
626,
California
L.
purposes
S. Ct.
113 Ed. 2d 690
for
1547,
[1991],
first,
9,
part
of article
7 and
in
on
relying
reasoning
§§
Hodari
State
of dissent of
Stevens in
D.);
Justice
Geisler, supra,
The
the court
See,
widely
e.g.,
been
criticized
scholars.
legal
has
269 n.8
Gagnon,
Sup.
260,
230 F.
2d
United States
judicially created framework
2002) (“[t]he
(N.D.N.Y.
severely criticized, with
the consent doctrine has been
practical
merit,
measure of
ignoring
no small
police
citizens”),
between
realities of encounters
Cir.
(2d
2004);
rev’d on other
First, Schneckloth request that an officer’s for consent the coercive effect likely to have on a motorist who has been detained stop. in connection with a traffic As one commentator ... stated, has is remarkable is the ever-wid- “[w]hat *98 juris- consent ening gap between [f]ourth [a]mendment about prudence, hand, findings on the one and scientific compliance of and consent on the other. psychology ‘totality applied Ever since the first [c]ourt circumstances’ to consent search issues in standard 1973, case, ... it has held in case after Schneckloth only exceptions, person with that a few reasonable question the situation in either would feel free to police, terminate the encounter with or would feel [the] By police request contrast, free to refuse the to search. empirical studies over the last several decades on the psychology compliance, conformity, social social politeness influence, converged single have all on a people conclusion: the extent to which feel free to comply extremely refuse to limited under situation- ally pressures.” Nadler, induced J. “No Need to Shout: Sweeps Sup. Bus Psychology Coercion,” and the 153, argued Ct. Rev. 155. It therefore has been that the incorporate United States Court should “empirical compliance on and social influence findings jurisprudence into . . . ... to dis- [search] pel unreality’ the ‘air of that characterizes current doc- Id., 156-57; LaFave, trine.” see also W. “The ‘Routine Stop’ ‘Routine,’ Traffic From Start to Finish: Too Much Amendment,” Not Fourth 102 Mich. L. Rev. Enough . 1843, 1902 is . . nonsensical for courts (2004) (“[i]t position . . . that a to continue their embrace of the would con motorist, having seized, reasonable been not told though clude he was free to leave so] [even Maclin, T. police interrogation”); the face of ongoing Searches in “The Good and Bad News About Consent L. Rev. Supreme Court,” McGeorge (2008) police ‘request’ . . . . . . knows (“everyone [that] per understood most bag search a or automobile is M. ”); Strauss, “Reconstructing sons as a ‘command’ L. 219 n.29 Consent,” Criminology 92 J. Crim. & required person’s consent is in a (2001) (“Except [when] intim it is often in areas unfamiliar and home, sought many of us feel like we are on ‘familiar idating. How by a to the side of the road territory’ pulled when over (Schneckloth Strauss, supra, M. two?”); car or all: the inevita the most factor of “ignor[es] significant simply by virtue bility that individuals will feel coerced R. authority like the figure police”); with an dealing 39 Tex. Tech L. Rev. Weaver, Myth ‘Consent’,” “The . . . Schneckloth decision is (“The 1199 (2007) police-citi the realities of ignores because it troubling on individu pressures and the inherent zen encounters . . . comply police requests. with als to [W]hen *99 police requests permission search, to police officer advan inevitably psychological officer retains a distinct U. Ill. Barrio, supra, A. suspect.”); over the tage aspect of the baffling L. Rev. 233 most (“[t]he [United voluntary con conception Court’s of Supreme States] virtually the well-documented ignores sent is that it people mechanically obey legiti observation that most “ Traffic Dery, cf. G. ‘When Will This authority”); mate Supreme Dodge The United States Court’s Stop End?’: Every Detained Motorist’s Central Concern — Ohio of L. 559-60 Robinette,” (1998) 25 Fla. St. U. Rev. States Court’s state that United (observing positions power between ments relative regarding simply incorrect in context police officer and citizen are of routine traffic stop).
Indeed, empirical studies, on relevant sev drawing that the dissenting eral commentators have concluded in that individuals justices in Schneckloth were correct request tend to see an officer’s for consent as a demand. L. Strauss, supra, Criminology See M. 92 J. Grim. & example, evident, 236-42. For it seems on the basis of authority to empirical regarding research obedience uniform, legitimacy that individuals “attribute they obey police police officer’s uniform [and] authority reflexively.” Barrio, supra, A. 1997 U. Ill. L. 243; Burkoff, Me?,” Rev. see also J. “Search 39 Tex. people L. Rev. do not (2007) (“most Tech expect they police right have not to accede request officer’s that a search be authorized” [internal quotation Consequently, marks “the omitted]). weight authority that a suggests suspect’s igno scientific rights rance of fundamental must [f]ourth [a]mendment suspect’s be viewed as a state of mind that renders a involuntary.” Barrio, supra, 247; id., A. see also theory obedience casts serious doubt on the (“[the] vitality continued of what Schneckloth characterized as custody necessary Miranda’s central is a holding: prerequisite for a finding psychological coercion”). Thus, power police authority, curb the coercive “[t]o required officer should be to advise the sus pect prior of his to withhold consent right requesting permission warning his to search. Such would combat phenomenon by suspect the obedience assuring both that he is no consent and obligation give under ‘prepared that the officer is investigating recognize ” 247; also 4 W. privilege.’ Id., LaFave, his see Search 2004) (i), pp. Seizure Ed. 8.2 111-12 (4th (expressing § support for such approach). present provides
The factual scenario in the
case
*100
example
why
the court
in Schneckloth was
good
stopped
that a motorist
for a traffic
wrong
concluding
likely
compelled
agree
violation is not
to feel
to a
to search his or
police
request
permission
officer’s
there
Schneckloth,
her vehicle.
to the court
According
subject
is no reason to believe that the
of such
will
the encounter as coercive because the search
view
territory
familiar
“occur
on
own
driver’s]
[where]
[s]
[the
specter
police interrogation
of incommunicado
.
.
inapposite.”
some remote station house is
.
Bustamonte,
Schneckloth v.
It is fanciful to not give defendant’s vehicle did to the search of the The defen- compulsion. element of risé to a substantial not reside in this an African-American who does dant, highway, in a dark area of the state, pulled over police officer, armed and detained late at an night, minutes, at which car, up in his to fifteen there, police officer arrived at the scene point a second armed in cruiser. then directed the defen- separate Morgan vehicle, questioned him about contra- dant to exit his patdown search, conducted a person, band on his he had contraband in the vehi- asked him whether anyone held under such cle. It is difficult to see how would not feel vulnerable as a result of circumstances and there is little doubt police, the encounter with the person vulnerability, average of that light also would feel the need to accommo- that situation in the date, placate, police if not officers involved encounter. Schneckloth,
A criticism of which also is second evidence, concerns the assertion empirical based on requirement jeopardize could the con- knowledge viability fact, of consent searches. In studies tinued just opposite, is, appears that it suggest subjected stops traffic consent to vehi- persons give regardless searches at the same rate of whether cle may See, be withheld. they are aware that such consent “Miranda in Ohio: The Effects of Lichtenberg, I. e.g., ‘Voluntary’ Waiver of Fourth Amend- Robinette on 349, 370, (study 44 How. L.J. Rights,” (2001) ment 75 and 95 approximately demonstrated that between of vehicle percent of motorists agree very similar of whether regardless and that rates were their to refuse such apprised right motorists were consent, and, consequently, assertion court jeopardize that such advisement would Schneckloth viability “[c]learly continued of consent searches was *102 Phillips, note, . . . M. “Effective Warn unfounded”); Necessary, ings Practical, Before Consent Searches: Am. L. Desirable,” (2008) Crim. Rev. per study approximately (citing demonstrating being cent of motorists to consent search after agree verbally advised and in to refuse con writing right These should not be in sent). findings surprising light suspects approximately percent of the fact that who have been advised of their accordance rights with Miranda nevertheless waive their to remain right for a comply request by police silent and with a Jack! Chanenson, Facts, statement. See S. “Get the Empirical Changing Research Constitutional Landscape Searches,” of Consent 71 Tenn. L. Rev. 442 (2004). provision these data that the
Although indicating warnings has little effect on the rate at which consent may granted suggest warnings is that such are ineffec- tive, fairly may it be nevertheless argued warnings salutary purpose they likely serve a insofar as are compulsion reduce the that people feel on the basis of police “an inaccurate belief that the have the legal right compel them to R. [agree requested] to the search.” Simmons, 80 Ind. supra, sure, L.J. 819. To be motorists undoubtedly have a multitude of reasons for granting consent to all search, product of which are the inherently police stop coercive nature of the encounter; People James, see 19 Cal. 3d following 99, 114, Rptr. 561 P.2d 137 Cal. 447 (1977) may be a number of ‘rational for a (“[T]here reasons’ suspect to consent to a search even though he knows premises against contain evidence that can be used may him: example, appear cooperative for he wish to or at least to throw the off the scent order to may superficial search; he conducting lull them into is of such a nature or such believe the evidence overlooked; may he likely that it is to be location if evidence is nevertheless discov- persuaded that presence or explaining he will be successful in its ered it; may lay he intend to any knowledge of denying prosecut- himself with the groundwork ingratiating courts; may simply or he be con- ing authorities and further game up dissembling vinced that is may and, consequently, have an futile.”); warnings may forms of impact negative on what be considered acquiescence to a show of author- compulsion, such ity. R. Simmons, supra, 820; Ward, See R. see also Touro L. Rev. 477 combined forces of obedi- (“[t]he *103 authority, power of the uniform and lower ence to make it that citizens expectations privacy imperative of they choice”). be told from the outset that do have a widely Indeed, importance of Miranda is warnings accepted majority suspects even of though large who are of their under Miranda neverthe- rights advised police. less a statement to the give There also seems to be little or no basis for the asser- tions of the court in that it would be unrea- Schneckloth having prove sonable to burden the state with to that a motorist who consent to search gives course of a routine traffic was aware of his or consent; Bustamonte, her to refuse Schneckloth v. right 229-30; police 412 U.S. and that to requiring advise motorists of their to withhold consent to right adversely informality search would affect the of the thereby ability encounter, impairing police to use consent search as a standard investigatory technique. id., respect See 231-32. With to the court’s I assertion, why first see no reason the state could simply by not meet its burden of proving knowledge that the officer at the scene had advised demonstrating and that of the to withhold consent right the motorist upon choosing option. free to leave he or she was case, the burden would Indeed, ordinary in the state’s by testimony police officer readily from the be satisfied The of the was so advised. court’s subject that the it assertion, namely, “thoroughly that would second an advise- require police to such impractical” give is would ment; 231; also dubious. advisement id., easily given could be at take but a few seconds and the motorist’s consent the officer seeks same time that Am. Crim. L. Phillips, supra, M. See, e.g., to search. high courts several Rev. (observing 1185-86 warnings required police provide before states have review seeking asserting “[a] indicates that experience of these states [s] Smary, “The requirement practical”); note, E. warning Searches,” 49 Waiver and Consent Notre Doctrine of “straw-man Dame L. (1974) (criticizing Rev. in that it would be logic” court’s assertion Schneckloth impractical police engage officer thoroughly valid waiver); needed to ensure detailed examination By Supreme J. “Search and Seizure as Seen Adams, cf. They Are Serious or Is This Just Judicial Court Justices: L. 413,446-47 12 St. Louis U. Pub. Rev. Humor?,” (1993) prac- court’s consideration Schneckloth (criticizing assessing tical considerations whether *104 right advisement of to withhold consent should be required). the court in Schneckloth has been criticized
Finally, essentially the issue of how a ignoring voluntary may truly to be when fairly deemed person not know that he consent does or she giving an right, protected constitution, has absolute stated, has Thus, refuse to do so. as one commentator person “[a]ny competent give up rights can at the comprehend But it is hard to request government. of the theory permits individual that decision rights to be made someone unaware that he is relinquishing liberty.” a fundamental civil M. Cloud, “Ignorance and Democracy,” 39 Tex. Tech L. Rev. 1143, 1169 (2007). sum,
In because the reasons underlying the court’s in holding ultimately Schneckloth are not persuasive, of the holding persuasive.10 court is itself not Indeed, opinions in dissenting are Schneckloth significantly more convincing than the opinion majority Schneckloth. This court therefore is not bound adopt holding majority opinion in Schneckloth for purposes of the state constitution.
II HOLDINGS AND DICTA OF THIS COURT As I in part discussed I of opinion, this this court has interpreted article first, 7, of the § Connecticut constitu- tion as protections beyond providing guaranteed those under the fourth amendment to the federal constitution variety in a of different contexts. In no case, however, has this court or the Appellate previously Court had occasion to consider scope first, article in7,§ the context of consent generally searches or, spe- more cifically, the context of a consent search of a vehicle following stop. routine traffic Accordingly, Connecti- precedent cut is neutral on the issue of whether the state constitution provides the same or greater protec- tion than the federal respect constitution with searches of the kind present conducted in the case. 10 Inote that commentators also have criticized the court’s reliance explained Schneckloth on coerced confession cases because the court never why those cases context; e.g., are relevant in the fourth amendment D. Smith, comment, Unreasonable,” “Ohio v. McGeorge Robinette: Per Se (1998); L. Rev. whereas other commentators have characterized [ejourt’s rights’ [fjourth “the [ajmendment distinction between ‘trial rights questionable (Emphasis Kaplan added.) Dixon, [as] D. & L. Consent,” “Coerced Waiver and (1997). Coerced 74 Denv. L.U. Rev.
335
III
DECISIONS
SISTER STATE
have consid-
of the states that
majority
A significant
Schneckloth
totality of the cir-
apply
the issue
ered
was
whether consent
assessing
test
cumstances
constitutions, and
their state
voluntary
purposes
right
advisement of the
require
express
an
do
41,
Henry
State, 621
v.
P.2d
E.g.,
consent.
withhold
App.
Knaubert,
State
v.
27 Ariz.
(Alaska 1980);
and n.9
on other
1095
overruled
53, 56-57,
(1976),
550 P.3d
1059
Grilz,
State v.
450,
136 Ariz.
666 P.2d
grounds
People Hayhurst,
295-96,
v.
194 Colo.
571
292,
(1983);
Thompson,
763, 779-
State
v.
284 Kan.
(1977);
P.2d 721
State,
Scott
121,
v.
Md.
1015
366
81, 166 P.3d
(2007);
denied,
940, 122
U.S.
rejected
Jersey
construing
Schnecklothin
the New
con-
imposed
requirement
knowledge
stitution11
a
consent searches.12The
court
Johnson observed that
“[m]anypersons, perhaps
request
most, would view the
police
having
of a
officer to
a search
make
as
the force
[sjtate
person
of law.
it is
Unless
shown
that the
right
knew
involved
that he had
to
to accede
refuse
request,
assenting
to
a
such
his
to
is
the search
meaningful.
right
One cannot be held to have
a
waived
if he was unaware of
Id.,
its existence.”
354.The court
therefore concluded that when “the
seeks
[s]tate
to
justify search
on the basis of
consent it has
burden
showing
voluntary,
that the consent was
essential
an
knowledge
right
of which
element
is
to
refuse
Although
Id.,
consent.”
353-54.
the court declined to
impose
requirement
warning
a strict
in noncustodial
Jersey
settings, under the
constitution,
New
the state
must demonstrate that the defendant
knew
he or
right
give
she had
to
refuse
consent.13Id.
Although
Justice Morris Pashman dissented.
he
agreed
majority
rejecting
with the
Schneckloth for
purposes
Jersey
of the New
constitution, he concluded
majority adopted
standard
that the
fell “short
necessary
protect
privacy rights
[was]
of what
consenting
(Pashman,
Id.,
individual.”
J.,
359
11
though
Johnson reached this conclusion even
I,
The court
article
paragraph seven,
Jersey
virtually
of the New
constitution is
identical to the
previously
interpreted
provide
fourth amendment and
had not been
Johnson, greater protections
than the fourth amendment. State 68
N.J. 353 n.2.
Johnson involved the consent search of a
residence,
holding
its
but
applies
following
stop,
to consent searches of vehicles
a routine traffic
Carty,
See, e.g.,
State 632, 639,
well.
170 N.J.
790 A.2d
modified on
grounds,
(2002).
other
174 N.J.
A.2d
provision
required
Jersey
warnings
A1999 consent decree
in New
involving requests
following
in all cases
for consent
to search
a routine
Jersey,
stop.
States traffic
Consent Decree in
United
New
Civil
No. 99-
(MLC) (D.N.J.
30, 1999),
http://www.state.iq.us/
December
available at
oag/jointapp.htm (last
August
2010).
visited
person
confronted with
dissenting). Recognizing
likely
police
for consent
request
compulsion due to the nature of the
to feel an element of
the state
encounter, Justice Pashman concluded that
person
that that
obligated
should be
to establish
consent and that the
aware of his
to withhold
right
respect
would
his decision to withhold consent
*107
Id.,
J., dissenting).
if
to
so.
366 (Pashman,
he chose
do
it
explained:
Pashman
“I find inconceivable and
Justice
an
can
suppose
to
that
individual
incomprehensible
have
as fundamental as
relinquished privileges
said to
guarantees against
those embodied in our constitutional
clearly
searches
seizures unless it
unreasonable
subject
unmistakably appears that the
of the search
have
that he did not
to submit
to the official
knew
. . .
close scru-
request. Schneckloth
cannot withstand
merely
factor
tiny
knowledge
when it treats that
one
validity
to
in
of a consent
determining
be considered
Id.,
J.,
(Pashman,
dissenting).
search.”
367-68
Similarly,
547, 551 (Miss.
in
440 So. 2d
State,
Penick
Mississippi Supreme
concluded,
Court
con
1983),
Schneckloth,
that a
trary
knowing
to
holding
necessary
may
waiver is
before consent
be deemed
Mississippi
Subsequently,
under the
valid
constitution.
Mississippi Supreme
Court clarified that the state
required
prove
is
the defendant had knowl
not
that
instead,
or
consent;
of his
her
refuse
edge
right
“impaired
must
consent or some dimin
defendant
show
capacity.”
quotation marks
(Internal
omitted.)
ished
State,
2d 858,
(Miss. 1997). Thus,
Graves
“
708 So.
waiver
not knowl
the defendant claims that his
[i]f
is on
the burden
him to raise the issue of
edgeable,
lack of
waiver.
waiver
knowledgeable
Knowledgeable
knows
as consent
the defendant
defined
[when]
refuse, being
he
has a
of his
right
cognizant
or she
premises.” Id.,
Although
864.
this
rights
her
interpre-
crystal clear,
courts have
standard is
most
it as
ted
waiver for all con-
requiring
knowledgeable
See, e.g.,
Cleckley,
sent searches.
Commonwealth v.
558 Pa.
526.
temporary
analogous
In context
to the
detention of
subject of a
stop,
is,
routine traffic
consensual
investigative encounter,14
the Hawaii
Court
constitution,
has concluded
under the Hawaii
an
subject
suspi-
must
investigating officer
inform the
of a
right
cionless encounter of his or
her
terminate
Kearns,
558, 570-72,
encounter.15 See State
Haw.
P.2d
In
the court
(1994).
particular,
concluded
that “an
can
investigative encounter
...
be deemed
if
prior
‘consensual’
start
[only]
(1)
to the
of questioning,
person
encountered was
she
informed
he or
the right
had
to decline to
participate
the encounter
any time,
and could leave at
(2)
person
there-
voluntarily participated
after
Id.,
the encounter.”16
571.
*108
14
Supreme
types
police-
“The
has said
are
Court
there
three
of
[that]
citizen encounters:
“(1)
implicate
consensual encounters
do not
the
[that]
[f]ourth [a]mend-
ment; (2) investigative detentions
are
seizures
[that]
[f]ourth [a]mendment
scope
suspi-
supported
of limited
and duration and must be
a reasonable
activity;
(3) arrests,
of
cion
criminal
and
most
intrusive of [f]ourth
only supported by probable
seizures and reasonable
if
cause.”
[a]mendment
quotation
(Internal
omitted.)
Brown,
1070,
marks
United
v.
States
496 F.3d
(10th
2007).
Cir.
Supreme
police practice
The Hawaii
Court characterized this
“walk
as a
investigation.
quotation
(Internal
Kearns,
omitted.)
and talk”
marks
State v.
558, 564,
(1994).
explained
practice
75 Haw.
tional
to consent to
search of
or
their
[are]
person.” (Internal quotation
omitted.)
marks
Id.
Kearns,
that,
that,
purposes
It must be
noted
the court stated
for
of
search,
police
required
person
are
consent
not
inform the
whose
to
court observed that
conclusion,
its
In reaching
wish
officers who
require police
appropriate
is
to
“[i]t
suspi
a reasonable
without even
question individuals
to
the individuals
activity to ensure that
of
cion
criminal
system
‘no
of criminal
because
of their rights,
are aware
depend
to
for
survive if it comes
justice can,
should,
or
abdication
on the citizens’
its continued effectiveness
constitutional
rights.’
of their
through unawareness
S. Ct.
Illinois,
378 U.S.
Escobedo
[84
‘if
Moreover,
....
the exer
12 L.
2d
(1964)
Ed.
977]
will thwart the effectiveness
rights
of
cise
constitutional
something
is
system
enforcement,
law
then there
of a
system.’
Kearns,
Id.”
very
with
State
wrong
Indeed,
State
subsequent case,
Haw. 571.
in a
supra, 75
the Hawaii
(1996),
Haw.
Moreover, at least
state
expressly
two
courts
have
Schnecklo th in the context of a “knock
apply
declined to
search,
and talk”
which has been described as a “fash
ionable . . . alternative to obtaining a search warrant
police
when
probable
officers do not have sufficient
cause to obtain a search warrant. What generally occurs
law
several
enforcement officers accost a home
doorstep
dweller on the
his or
her home and request
consent to search that
If
home.
an oral consent is given,
the search proceeds.
What is
found
officers
may then
probable
form
basis for
cause to obtain
a search warrant and result in
subsequent
seizure
quotation
of contraband.” (Internal
marks omitted.)
Brown,
State
In
Ferrier,
Supreme Court of Washington con-
cluded
under
I, 7,
article
of the Washington
§
con-
stitution,18
prerequisite
as a
for a valid knock and talk
I, 7,
Washington constitution,
Article
Washington’s
§ of the
analogue to
amendment, provides:
person
private
the fourth
“No
shall be disturbed in his
affairs,
invaded,
authority
or his home
without
of law.” As the court
observed,
provision
Ferrier
“[t]his
differs from the [f]ourth [a]mendment
[ajmendment,
in that
Washington
[u]nlike
[f]ourth
[the
constitution]
clearly recognizes
right
privacy
express
an
individual’s
no
with
limita
Ferrier, (Internal quotation
omitted.)
State tions.”
marks
136 Wash.
110.
2d
*110
“advised, prior
giving
the resident must be
search,
could
home,
the search of her
she
her consent to
Ferrier, supra,
Wash.
to consent.” State
refuse
knock and talk
“[A]ny
observed:
2d 115.
court
. . .
inherently
degree.
great
coercive
some
[T]he
by police
confronted
officers
majority
home dwellers
doorstep
question
or in
would not
on their
their home
they
warrant because
either
the absence of a search
would
required; (2)
know that a warrant is
would not
(1)
if
production, even
requesting
feel inhibited from
its
requirement; or
would
they
(3)
knew of the warrant
to make
stunned
the circumstances
simply
too
not to consent
decision about whether or
reasoned
search.” Id. To
the coercive
mitigate
to a warrantless
concluded that
talk,
of the knock and
court
effects
warn home
procedure
“officers who conduct the
[must]
to a
right
of their
to refuse consent
warrantless
dwellers
provide
protection
pri-
for
greater
search. This would
protected by
vacy
that are
the state constitution
rights
and would also accord with the state’s [f]ourth [amend-
convincing
burden of
clear and
demonstrating,
ment
voluntarily
evidence,
that consent
to a
Id., 116. The court
observed that “the
given.”
further
only
way
sure
sub-
give
right to refuse consent]
[the
If we
require warning
stance is to
of its existence.
conclusion,
were to reach
other
we would not be
that a home
to a war-
satisfied
dweller who consents
necessary to
possessed
knowledge
rantless search
case,
an
being
make
informed decision. That
proving
would be unable to meet its burden of
[s]tate
voluntary
Id.,
that a
waiver occurred.”
knowing
Brown, see
article of Arkansas see constitution);20 § also Brown, supra, State v. (“ 466 is the intimidation effect [i]t police of multiple officers on a home dwell- appearing doorstep, armed, er’s uniform sometimes and and consent requesting advising to search without the home dweller of his or her right pre- refuse consent that sents the problem”). constitutional it entry is
Although
“physical
axiomatic
the
the
is
against
home
the chief evil
which
wording
of the [fjourth
is directed”; United States
[a]mendment
Court,
United States
v.
District
297, 313,
407 U.S.
2125,
S. Ct.
32 L.
analysis
Ed. 2d 752 (1972); the
the coercive effect of
knock
and talk investigative
procedure involved in
appli-
cases also is
foregoing
request by
cable to a
search
a routine
following
inherently
traffic
because of the
type
coercive nature of the latter
of encounter. Indeed,
the Wyoming Supreme Court has observed that
atmosphere
a traffic
more
surrounding
coercive
than that attendant
knock
and talk encounter,
that “the
stating
standards
.
.
have
.
[that
been]
applied
premises
involving]
searches —where
[cases
the individual is on his
her own premises
likely
or
and
two,
15,
provides:
right
§
Article
constitution
Arkansas
“The
people
persons, houses, papers,
this
State to be
in their
secure
effects, against
seizures,
violated;
unreasonable
searches
shall not be
issue,
probable
except upon
cause, supported by
and no warrant shall
oath
affirmation,
particularly describing
place
searched,
or
to be
and the
person
thing
observed,
provision
As the court Brown
to be seized.”
this
is almost
identical
the fourth amendment to the United States constitution.
Brown, supra,
State
In his Justice perform seek consent to an otherwise “that when under search, they required should unconstitutional Pennsylvania expressly . . constitution to advise . subject right that he or she has the the search *114 any will to be give refuse consent and refusal to In respected.” Id., (Nigro, J., dissenting). reaching majority Nigro Justice stated that “the conclusion, this impact police . offi- practical . . ignore[d] average to has consent on the request cer’s on both Id., J., dissenting). Relying 530 (Nigro, citizen.” supra, v. Johnson, State 68 N.J. and Justice Mar- shall’s dissent in Schneckloth, Nigro Justice concluded person he believes has no choice but “[i]f [that] upon request, person’s consent an officer’s then that consent cannot be said to have been given voluntarily, much less safeguard knowingly intelligently. by [a]ppellant simple advocated statement [the] —a subject that the of the search has the lawful right withhold consent to search —would serve to protect only those who are unaware of rights, their who, but also those perhaps aware their although rights, become too intimidated refuse what can readily perceived as an official demand.” Common- wealth Pa. 530-31 Cleckley, J., (Nigro, rejected dissenting). Lastly, Justice Nigro majority’s assertion that the commonwealth of Pennsylvania prejudiced would be if required it was to inform sus- pects of their before rights seeking consent to search: is . . “There . little to believe, reason as the apparently Schneckloth did, requirement [c]ourt of informed consent would reduce number of con- sent searches obtained police. It has not occurred with waiver even in the wake [f]ifth [a]mendment of Miranda, expect there no reason to it [that] will in occur the face of requirement inform right to refuse Many to search. cases on hinge confessions, despite the warning Miranda requirement. Although somewhat different considera- are often present tions a confession such situation, prior as the defendant, arrest of the and thus than more suspicion mere point, exists at that there is little cause warnings to believe that to refuse right to consent will, to search great cause a degree, vast reduc- tion in the quo- number of consent (Internal searches.” omitted.) Id., tation marks J., 531 (Nigro, dissenting). Likewise, Flores, supra, 280 Or. Supreme Court Oregon Oregon concluded that the
347 than the protection provides greater no constitution searches.22 purposes of consent federal for constitution implicitly which court case, That in See 282. id., decision that Supreme Court prior Oregon overruled to inform required police predated Schneckloth to with- right of his or her the encounter subject predicated on 276-77, 281; see consent; id., hold Watson, 423 U.S. of United States reasoning (1) 2d see State (1976);23 96 46 L. Ed. 598 S. Ct. any unique the absence “of supra, 281; v. Flores, (2) widespread police misconduct conditions, local such as against unreasonable suspects’ rights infringing a different require that would seizures, searches and constitution”; per- id.; (3) state rule under the standard, “particularly for a “uniform” ceived need collaborate agencies when and law enforcement state . . . .”24Id. Hans A. Linde noted the then dissent,
In
Justice
his
explained
that the
criticism Schneckloth
existing
22
Flores,
Specifically,
defendant,
that his
Armando Zamora
contended
a bus
was invalid because the
two lockers at
station
consent to search
right
police
to consent to the
to inform him of his
to refuse
had failed
custody
Flores, supra,
was in
when
reasoning
Schneckloth was
...
the
experts
prepared
[Mjodel
who
the
Code of Pre-Arraign-
Institute,
ment Procedure
the
Law
American
by the
Law
in approving that code.
[American
Institute]
adopted
The
position
[American Law] [Institute
that before
a
on the
undertaking
basis of con-
sent, an officer
inform
must
the individual whose con-
sent
that he need
sought
not consent and that
may
found
be
anything
used as evidence ....
[I]n
short, the
would treat
[American Law] [Institute
[the]
protection
waiver of the
of a search warrant the same
as
waiver of the
to
silent.”25
right
Id.,
remain
285-86
[the]
J.,
(Linde,
dissenting). Justice Linde also
observed
as the drafters of the Model
of
Code
Pre-Arraignment
Procedure
explained
its accompanying commentary,
is a greater
there
need for
warnings
of
context
than
consent search
in the context of a custodial
“by
interrogation because,
the consent search the offi-
cer is seeking to short-circuit another means available
to
him —the use of
obtain
warrant —to
evidence. No
such alternative exists with
respect
information
It
sought
interrogation.
justifiable
seems far less
protection
omit the
warning when, by
very
consent,
act
seeking
per-
the officer is depriving the
from
son
whom it is sought
protective
screening
reporter for the search and
“[T]he
seizure sections of the
Code
Model
Pre-Arraignment
. . .
Procedure
commented
on Schneckloth as
[further]
unlikely
‘It
greater knowledge
right
follows:
seems
that there is
of one’s
right
goes
explain
to refuse a search than the
to silence.’ He
on to
that a
wholly
may
choice based on a
erroneous factual belief
not be the result of
overborne,
understanding
a will that has been
but
an
neither is it
choice.
“
searches,
police
knowledge
‘In consent
person
have full
that the
they
seeking
obligation
whom
give
from
are
consent is under no
it.
right
crucially pertinent
understanding
and,
to refuse is a fact
to an
consent
slightest
person
question
if there is the
doubt that the
is not aware of
right,
given
him,
eliciting
his
and no such information is
are
[to]
on
consent
the basis of withheld
It
information.
is hard to
such
describe
deceptive,
conduct as other than
or the
decision
[c]ourt’s
[in Schneckloth]
”
retrograde.’
Rodgers, supra,
as other than
IV ECONOMIC AND SOCIOLOGICAL CONSIDERATIONS my
In view, support these considerations the conclu- *118 sion that police required the should be to advise a motorist that he or she has a to right withhold consent example, Cox, supra, adopted in For State v. 171 S.W.3d the court governing constitution, predi as the test under Schneckloth the Tennessee analysis: following cated on the “In the consent . . case of searches . the totality adequately government’s of the circumstances test balances the pursuing investigations against in right interest criminal the to be citizen’s very free from unreasonable searches and seizures. nature of a consent exceptions requirement; search differs from the other warrant the a to subject approached regarding presumed a consent is free to decline request. . . . minority despite “Schneckloth remains the rule the occasional to efforts Accordingly, impose requirement it. scuttle to [the court] decline[s] subject right Id., 183-84; be informed of the to refuse consent.” also see Henry State, supra, (adopting P.2d 4 n.9 Schneckloth “the because requirements appropriate setting waiver formal in a trial or custodial interrogation unjustifiably hamper police proper investigation”). would trust stop. traffic Public following routine to search they required likely enhanced if are police is to be in the and the advisement, such an provide motorists with of majority vast that the empirical evidence indicates withhold right who are warned their motorists despite warn- will continue to consent grant especially important that a motorist it is ing. Indeed, when, to refuse consent right advised of his or her even present police in the officer lacks case, suspicion that the vehicle and articulable reasonable request contraband; circumstances, a in such contains expedition pursu- no a fishing for consent is more than advantage able take police to which the are ant and, many cases, nature of encounter the coercive subject’s that he she has knowledge lack without resultant right to withhold consent legal consequences. adverse
V
CONCLUSION
I
factors,
conclude
Upon review
Geisler
pro-
Connecticut constitution
first,
article
§
protection than the federal constitution
greater
vides
respect
in connec-
with
to consent searches undertaken
rea-
stops.
with
traffic
For the foregoing
tion
routine
analysis
I am
of Schneckloth
sons,
persuaded
inform
and its
the view that the
must
progeny;
right
consent, although
motorists of their
to withhold
considerably
persuasive.
more
minority position,
adopted
Indeed,
large,
those courts that have
failed
the standard articulated
Schneckloth have
in any
analysis
underlying
real
of the rationale
engage
v. Thompson,
case.
holding
the court’s
Cf.
*119
scholarly criti-
supra,