State v. Tully

• Citation: 348 A.2d 603,166 Conn. 126
• Court: Supreme Court of Connecticut
• Decision Date: 05 March 1974
• Parties: STATE of Connecticut v. Lawrence P. TULLY.

Page 603

348 A.2d 603

166 Conn. 126

STATE of Connecticut v. Lawrence P. TULLY.

Supreme Court of Connecticut.

March 5, 1974.

John C. Parker, Wilton, for appellant (defendant).

Thomas A. Minogue, Asst. State's Atty., with whom, on the brief, was Richard F. Jacobson, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

HOUSE, Chief Justice.

On a jury trial, the defendant was found guilty of the illegal possession of drugs in violation of §§ 19-480(b) and 19-481(a) of the General Statutes. The sole issue presented on his appeal to this court is whether the removal of heroin and marijuana from the automobile which the defendant was driving and the subsequent admission of them into evidence was in violation of the fourth amendment of the constitution of the United States.

The facts are not disputed. On September 29, 1970, at approximately 11:50 p.m., Officer Bruce Scott, while on routine patrol as an officer of the Wilton police department, observed an automobile operated by the defendant. Scott became suspicious because of the slow speed of the automobile, for there had been several acts of vandalism in the area. Furthermore, the automobile appeared to cross the yellow line dividing the lanes. Scott stopped the vehicle in the driveway leading to the Miller School parking lot and, upon Scott's request, the defendant handed Scott a Connecticut registration for the vehicle and a California driver's license. A check with police headquarters revealed that the defendant's Connecticut driver's license was under suspension. Scott advised the defendant that he was going to issue him a summons and that the defendant would not be permitted to operate the automobile any further. Thereupon the defendant parked the automobile in the empty school parking lot and Scott transported him in the patrol car to the Wilton police headquarters, where the defendant was issued a summons for driving while his license was under suspension. Since the defendant was unable to obtain anyone to remove the vehicle from the school parking lot, it was decided to leave it there until morning, at which time the defendant would be able to obtain its removal. At the defendant's request, Scott drove him to a friend's house in Wilton. Scott then returned to the Miller School where he conducted a routine check of the doors to the building. Thereafter he stopped at the automobile parked by the defendant in the school yard and noticed that the vent window on the driver's side of the automobile was missing. Looking into the car, Scott observed a guitar handle protruding from beneath a blanket on the rear seat. He entered the unlocked vehicle to remove the guitar and take it to headquarters for the night for safekeeping because of the recent vandalism in the area. While reaching for the guitar, Scott saw on the rear floor of the vehicle a brown shopping bag which was open at the top. Looking into the bag, Scott observed several plastic baggies containing a substance which appeared to be marijuana. Adjacent to the bag was a knapsack which Scott opened and found to contain, beneath some articles of clothing, a brick wrapped in yellow paper with green leaves protruding, eight glassine bags of a white substance, and three cubes individually wrapped in foil containing a brown substance. These packages later were determined to contain marijuana and heroin. At a hearing on the defendant's motion to suppress as evidence the items removed from the bag and the knapsack, the trial court found that the items were not in plain view from the exterior of the automobile and that they were discovered by Scott only when he entered the automobile for the sole purpose of safeguarding the guitar from vandalism.

The court found that Officer Scott did not enter the defendant's vehicle pursuant to a search warrant or with the consent of the defendant or because he had probable cause to believe that the automobile contained contraband or to make an inventory pursuant to the impounding of the motor vehicle, but expressly found that he made the entry 'with the purpose of removing a guitar from the motor vehicle for safe-keeping.'

The defendant fully protected his claims for the exclusion of the evidence by proper objections and exceptions to the rulings of the court denying his motion to suppress and admitting the evidence for the consideration of the jury and by assignments of error addressed to these rulings.

The fourth amendment to the constitution of the United States provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' These federal constitutional provisions are applicable to the states through operation of the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, rehearing denied, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72. State searches and seizures are to be judged by the same constitutional standards as exist in the federal system. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

The policy underlying the warrant requirement of the fourth amendment is that the right of privacy must yield to a right of search only when the inferences of probable cause which reasonable men could draw from evidentiary facts are reviewed 'by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564, rehearing denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120, quoting Mr. Justice Jackson in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed.2d 436. Implicit in the language of the fourth amendment is the proposition that the searches to which it refers are those that arise during the course of the policeman's function of detecting and combating criminality in the community, and that only an intrusion into an area in which an individual has a reasonable expectation of privacy, with the specific intent of discovering evidence of a crime constitutes a 'search' within the meaning of the fourth and fourteenth amendments. Cf. Cady v. Dombrowski, 413 U.S. 433, 442 n., 93 S.Ct. 2523, 37 L.Ed.2d 706. 'A search implies an examination of one's premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest.' Haerr v. United States, 240 F.2d 533, 535 (5th Cir.); United States v. Blackburn, 389 F.2d 93, 95 (6th Cir.); DiMarco v. Greene, 385 F.2d 556, 561 (6th Cir.); United States ex rel. Stacey v. Pate, 324 F.2d 934, 935 (7th Cir.), cert. denied, sub nom. Stacey v. Pate, 377 U.S. 937, 84 S.Ct. 1341, 12 L.Ed.2d 299; Black, Law Dictionary (4th Ed.), p. 1518; 79 C.J.S. Searches and Seizures § 1. The term connotes hostility between the searcher and the person whose property or possessions are being searched. United States v. Haden, 397 F.2d 460, 465 (7th Cir.). The analysis which focuses on the intent, purpose and motivation of the intrusion vis-a-vis the criminal investigatory function of a policeman is reflected somewhat in the American Law Institute's Model Code of Pre-Arraignment Procedure definition of 'search' as 'any intrusion . . . by an officer, under the color of authority, upon an individual's . . . property . . . for the purpose of seizing . . . things.' Proposed Official Draft No. 1, 1972, art. 210, § 210.1(1). In Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, the United States Supreme Court approved the use as evidence of a vehicle registration card observed by a police officer while taking an inventory of personal property in a vehicle being impounded by the police. The court there distinguished between a 'search' of the automobile and measures taken to protect the vehicle and its contents. It held (p. 236, 88 S.Ct. at p. 993): 'Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43 (83 S.Ct. 1623, 1634, 10 L.Ed.2d 726) (1963); United States v. Lee, 274 U.S. 559 (47 S.Ct. 746, 71 L.Ed. 1202) (1927); Hester v. United States, 265 U.S. 57 (44 S.Ct. 445, 68 L.Ed. 898) (1924).' Upon such reasoning, it could well be argued that, absent a nexus between the intrusion and a specific intent to gather criminal evidence, there is no search in the constitutional sense ¹ for '(p)olice officers are not required to go about their routine duties with their eyes shut.' Fagundes v. United States, 340 F.2d 673, 676 (1st Cir.). There has been no consensus among jurisdictions whether similar police action to assist a citizen is governed by fourth amendment principles. We are mindful of the admonition of the United States Supreme Court not to attribute 'too much significance to an overly technical definition of 'search." Terry v. Ohio, 392 U.S. 1, 17-18 n. 15, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889; see note, 48 A.L.R.3d 537, 548-550. Compare Fagundes v. United States, supra, and State v. Dombrowski, 44 Wis.2d 486, 171 N.W.2d 349, with Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84, and State v. Gwinn, Del., 301 A.2d 291; see also United States v. Mitchell, 458 F.2d 960 (9th Cir.) and People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464, and note, 48 A.L.R.3d 537. It is not necessary, however, to decide the question whether Officer...