State v. Billias

• Decision Date: 14 March 1989
• Docket Number: Nos. 6264,6265,s. 6264
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Peter J. BILLIAS.

Page 448

555 A.2d 448

17 Conn.App. 635

STATE of Connecticut v. Peter J. BILLIAS.

Nos. 6264, 6265.

Appellate Court of Connecticut.

Argued Nov. 7, 1988.

Decided March 14, 1989.

[17 Conn.App. 636] John F. Cocheo, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, Sr., State's Atty., for appellee (State).

M. Donald Cardwell, with whom, on the brief, were John M. Abels, Hartford, and Melvin Scott, New London, for appellee (defendant).

Before BORDEN, EDWARD Y. O'CONNELL and STOUGHTON, JJ.

BORDEN, Judge.

The state appeals, with the permission of the trial court, from two separate judgments of the court dismissing the informations filed against the defendant. ¹ The first information charged the defendant with illegal possession of marihuana in violation of General Statutes § 21a-279(c). The second information charged him with illegal possession of cocaine with intent to sell in violation of General Statutes § 21a-278(b), and illegal possession of drug paraphernalia in violation of General Statutes § 21a-267(a). The The defendant moved to suppress all evidence seized by the police from the defendant on December 31, 1986, on the grounds that the search was invalid under both the fourth and fourteenth amendments of the United States constitution, and article first, § 7, of the Connecticut constitution. The following undisputed evidence was presented on the motion to suppress, through the testimony of Gerald T. Carson, a constable of the town of Ledyard.

                dismissals followed the granting of the defendant's motion to suppress certain evidence contained in a gym bag taken by the police from the defendant's car at the [17 Conn.App. 637] time of his arrest and searched while he was being booked at police headquarters. 2  The state claims that the court erred in granting the motion to suppress the evidence yielded by the search of the bag because (1) the search was a valid inventory search, (2) the search was undertaken in reasonable good faith reliance on written police guidelines, and (3) the seizure of the bag and its ensuing search was valid as a search incident to a lawful custodial arrest. 3  We find no error
                

During the afternoon of December 31, 1986, Carson, while in his cruiser, stopped the defendant in his car for traveling in excess of fifty-five miles per hour in a twenty-five mile per hour zone. After obtaining the defendant's driver's license and registration, Carson determined by a records check that the defendant's license was under suspension. Carson asked the defendant to step out of his car, and arrested him for operating a motor vehicle while his license was under suspension. Carson then summoned another police officer to the scene in order to help prevent an accident, because a commercial towing company was going to tow the defendant's car from its hazardous position on the highway and because Carson was going to take the defendant to the police station. While the defendant was in Carson's cruiser, Carson took custody of a closed, canvas gym bag from the passenger section of the defendant's car "because we [were] going to tow the vehicle...." Carson also testified that at that time he had no reason to believe that the bag contained contraband or explosives, or that it was anything other than a bag in a motor vehicle that he had stopped for an infraction.

Carson testified further that it was "not usual" to inventory the contents "of the entire car," and that he refrained from doing so because "there was nothing in the car but [the gym] bag and a radar detector...." He copied the serial number of the radar detector, but did not take custody of it. He did not inventory or take custody of anything in the glove compartment. The defendant's car was towed, and Carson testified that he took the defendant, along with the gym bag, to the state police headquarters in Montville where the defendant was to be booked for operating a motor vehicle while his license was under suspension.

About three or four minutes after arriving at police headquarters, Carson asked the defendant to empty his pockets, which yielded $1000 in bills of small denominations. Carson testified that he "then began to inventory the bag...." He opened the gym bag, which contained two bundles of cash totaling $960 and a small plastic bag containing marihuana. In this connection, Carson testified that the Ledyard police had a "written policy ... with regards to ... these inventory-type matters," namely, that "the state police [direct] us to inventory all personal items on any accused person brought into the police station ... and take custody of same." He testified that the reason for this was "to make sure we had an accurate receipt of what the defendant had when he came into the department so that, when he left, he would get all the items that we'd taken care of." ⁴

In the trial court, the state sought to justity the warrantless search of the bag on the sole ground that it was a valid inventory search under Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), and State v. Gasparro, 194 Conn. 96, 107-108, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S.Ct. 90, 88 L.Ed.2d 74 (1985). ⁵ The court held, however, that the search of the bag at the police station was not the result of an inventory search of the defendant's car, and that the search of the bag at the police station did not fall within the parameters of Illinois v. Lafayette, supra. The court granted the motion to suppress on both federal and state constitutional grounds, ⁶ and granted the defendant's subsequent motions to dismiss. See footnote 2, supra. This appeal followed.

I INVENTORY SEARCH

We first consider the state's claim that the search of the defendant's gym bag was a valid inventory search. We begin our analysis with the seizure of the bag from the defendant's car. We agree with the defendant and the trial court that the search of the bag at state police headquarters, following its seizure from the car, cannot be justified as part of an inventory search of the defendant's car.

"In the performance of their 'community caretaking functions,' police are frequently obliged to take automobiles into their custody." State v. Gasparro, supra, 194 Conn. at 107, 480 A.2d 509, quoting South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). This exception to the warrant requirement, which does not depend on the presence of probable cause, is based on the interests of the police in protecting the owner's property while it is in their custody, in protecting themselves against claims of lost, stolen or vandalized property, and in protecting themselves against danger potentially posed by the property inventoried. Colorado v. Bertine, supra; State v. Murphy, 6 Conn.App. 394, 398, 505 A.2d 1251 (1986). ⁷

Although the validity of an inventory search does not depend on whether the police could have accomplished the same ends by means less intrusive than those actually employed, ⁸ an inventory search must be conducted pursuant to "reasonable police regulations relating to inventory procedures administered in good faith y(4)27" Colorado v. Bertine, supra, 479 U.S. at 374, 107 S.Ct. at 742. This requirement, which is based on the need to minimize police discretion in undertaking such searches, is an unbroken cord that ties together the inventory search cases. See, e.g., Colorado v. Bertine, supra, at 374 n. 6, 107 S.Ct. at 742 n. 6 ("our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria"); Illinois v. Lafayette, supra, 462 U.S. at 648, 103 S.Ct. at 2610 (not unreasonable for police, as part of routine procedure incident to incarcerating arrested person, to search any article in his possession, according to established inventory procedures); South Dakota v. Opperman, supra, 428 U.S. at 383, 96 S.Ct. at 3104 (when inventory search conducted according to established police department policy, officer does not make discretionary and perhaps arbitrary determination to search) (Powell, J., concurring); United States v. Frank, 864 F.2d 992 (3d Cir.1988) (permissible for police to open closed container in inventory search if following standard police procedures); State v. Badgett, 200 Conn. 412, 431, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986) (state has burden to offer evidence of police department practice for inventory searches); State v. Gasparro, supra, 194 Conn. at 108, 480 A.2d 509 (standardized procedure for making inventory as soon as reasonable after reaching police station deters false claims and inhibits theft or negligent handling of arrestee's possessions); State v. Nelson, 17 Conn.App. 556, 573-74, 555 A.2d 426 (1988) (inventory search must be conducted according to established procedure).

It is clear that the police headquarters search of the defendant's bag seized from the defendant's car was not pursuant to any police regulation or practice regarding inventory searches of cars. Carson's testimony disclaimed any practice of inventorying the contents of the car, which was to be towed from the highway, and the state did not otherwise establish any such regulation or practice. Thus, with respect to the seizure of the bag from the car and the later search of the bag at police headquarters, the state did not offer evidence to meet its burden of proving a police department practice for inventory searches of impounded vehicles. State v. Badgett, supra, 200 Conn. at 431, 512 A.2d 160; see State v. Gasparro, supra, 194 Conn. at 108, 480 A.2d 509 (police officer testified that it was routine departmental policy to bring impounded vehicle to police parking lot and make complete inventory of contents); State v. Nelson, supra.

We turn, therefore, to the state's principal inventory claim, namely, that the search of the defendant's...