State v. Andrews

• Decision Date: 25 March 1994
• Docket Number: No. 11703,11703
• Citation: 637 A.2d 787,33 Conn.App. 590
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Charles ANDREWS.

Page 787

637 A.2d 787

33 Conn.App. 590

STATE of Connecticut v. Charles ANDREWS.

No. 11703.

Appellate Court of Connecticut.

Argued Oct. 5, 1993.

Decided Feb. 15, 1994.

Certification Denied March 25, 1994.

John J. Bennett, Ansonia, for appellant (defendant).

Leon F. Dalbec, Jr., Wallingford, with whom, on the brief, were Mary M. Galvin, State's Atty., and Frank McQuade, Supervisory Asst. State's Atty., for appellee (State).

Before EDWARD Y. O'CONNELL, FREDERICK A. FREEDMAN and SCHALLER, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a plea of nolo contendere made pursuant to General Statutes § 54-94a, ¹ of a charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a(a). ² The defendant filed a motion to suppress evidence and a motion to dismiss. After an evidentiary hearing, the trial court issued a written memorandum of decision denying both motions. The defendant elected to enter a plea of nolo contendere, conditioned on his right to appeal the denial of the motions. That same day, the defendant was sentenced to a term of imprisonment of six months, execution suspended, with one year probation, 100 hours of community service, and a $500 fine. This appeal followed.

The defendant claims that the trial court improperly (1) denied his motion to suppress evidence, which was based on the ground that the search and seizure of evidence regarding intoxication was in violation of the fourth and fourteenth amendments to the United States constitution and article first, §§ 7, 8 and 9, of the Connecticut constitution, ³ and (2) denied his motion to dismiss which was based on the ground that his arrest and seizure were in violation of General Statutes § 54-1f. ⁴ We affirm the decision of the trial court.

The trial court found the following facts. On January 18, 1992, the defendant was operating his motor vehicle in Derby. Shortly after midnight, Charles Sampson, a Shelton auxiliary police officer, was driving his personal vehicle home from his job at the Shelton police department. ⁵ While traveling through Derby, Sampson observed the defendant operating his vehicle in an erratic manner. Sampson saw the defendant's vehicle run a stop sign, go onto the curb and continue traveling down the road. Sampson observed that the defendant was unable to keep his car on the traveled portion of the roadway. At trial, Sampson testified that the defendant, while driving, "had crossed over the center of the road, traveling northbound in the southbound side of the road and also striking the right hand shoulder of the road multiple times."

After witnessing these events, Sampson called the Derby police from his cellular phone. In the meantime, he continued to follow the defendant, who continued to drive in an erratic manner. Sampson then flashed his headlights and turned on a blue flashing light he had as a Derby volunteer firefighter. The defendant pulled over. Sampson turned off his lights, got out of his vehicle, approached the defendant's car and asked the defendant to wait for the Derby police. Sampson was dressed in his auxiliary police uniform. Although Sampson did not ask any questions, or request any information, the defendant handed his license and registration to Sampson who looked at them and returned them to the defendant. Sampson then returned to his car and awaited the arrival of the Derby police.

The Derby police arrived at the scene shortly thereafter. They spoke with Sampson, who explained what had happened, and they approached the defendant's vehicle, which was still running with its lights on. While asking the defendant for his license, the officers smelled a strong odor of alcohol and noted that the defendant's speech was slurred. They asked the defendant to perform some field sobriety tests which he failed. Thereafter, he was arrested by the Derby police for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a).

The defendant first claims that Sampson's conduct violated the fourth amendment of the United States constitution. The fourth amendment protects the defendant's person from unreasonable searches and seizures by the federal government. The fourth amendment is made applicable to state action by the fourteenth amendment. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Holliman, 214 Conn. 38, 43, 570 A.2d 680 (1990); State v. Rice 172 Conn. 94, 97, 374 A.2d 128 (1976). Fourth amendment constitutional guarantees against unreasonable searches and seizures apply, however, only to governmental action and not to action by private citizens acting in their private capacity. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). Evidence seized by an individual acting in a private capacity, even illegally, will not be excluded from a criminal trial. See 1 W. LaFave, Search and Seizure (2d Ed.1987) § 1.8(a), p. 174. Therefore, before we reach the question of whether there was an unreasonable search and seizure by Sampson invoking constitutional guarantees, we must first address the threshold issue of whether there was sufficient governmental action to invoke these constitutional guarantees.

There do not appear to be any Connecticut appellate decisions directly on point. ⁶ Other jurisdictions have addressed the question of whether there was governmental action by analyzing the capacity in which the individual was acting at the time of the search and seizure. See People v. Wachter, 58 Cal.App.3d 911, 920, 130 Cal.Rptr. 279 (1976); Stevenson v. State, 43 Md.App. 120, 127, 403 A.2d 812 (1979); State v. Walker, 236 Neb. 155, 161-63, 459 N.W.2d 527 (1990); State v. Pearson, 15 Or.App. 1, 514 P.2d 884 (1973). "A proper rule is one which protects citizens from unreasonable searches and seizures by police officials and which, at the same time, does not needlessly exclude the fruits of nonpolice searches." State v. Walker, supra, 236 Neb. at 161, 459 N.W.2d 527. Generally, if an individual is acting in a private capacity at the time of a search and seizure there is no governmental action. Id. Jurisdictions are split as to whether an off duty police officer acts in a private or official capacity. "A number of jurisdictions hold that police officers are still subject to Fourth Amendment standards for searches and seizures made by them when off duty. Other jurisdictions, however, have held that off-duty police are private citizens." 1 W. Ringel, Searches and Seizures (2d Ed.1993) § 2.3(a).

Decisions of other jurisdictions that address the question of when an off duty police officer acts in a private or official capacity do not provide a clear consensus on how to resolve this issue. ⁷ We conclude that the proper analysis to determine whether an off duty police officer is acting in his or her official capacity or acting as a private citizen is to apply a twofold test. First, we must examine the capacity in which the off duty police officer was functioning when the officer initially confronted the situation and second, we must examine the manner in which he or she conducted himself or herself from that point forward. We believe such twofold test to be the "proper rule ... which protects citizens from unreasonable searches and seizures by police officials ... which, at the same time, does not needlessly exclude the fruits of nonpolice searches." State v. Walker, supra.

We now apply this twofold test to the actions and conduct of Sampson, to determine whether he was acting as a private citizen or in his official capacity as an auxiliary police officer when he caused the defendant to stop his car.

First, Sampson was off duty, outside of his jurisdiction, and driving his personal vehicle home from work when he witnessed the defendant driving erratically. Therefore, we conclude that Sampson was functioning in his private capacity when he first observed the defendant.

Second, we consider how he conducted himself thereafter. Once Sampson observed the erratic driving of the defendant and recognized that the defendant's driving was putting the defendant and others on the road in danger, Sampson called the Derby police and notified them of the defendant's location. Sampson testified at trial that the defendant virtually ran Sampson and another vehicle off the road. Only after further observing the defendant's inability to stay on the traveled portion of the roadway, did Sampson flash his headlights and his blue flashing light. ⁸

When the defendant pulled off the road, Sampson did not ask the defendant for his license and registration. The defendant simply handed them to Sampson. He did not keep the license and registration, but immediately returned them to the defendant. He did not attempt to administer any sobriety tests or to take the defendant into custody. Sampson merely asked the defendant to wait for the Derby police and returned to his car, where he also awaited the arrival of the police. The fact that Sampson immediately notified the police is further evidence that he was not acting in his official capacity. See People v. Wachter, supra; State v. Castillo, 108 Idaho 205, 697 P.2d 1219 (App.1985).

Taking into account the capacity in which Sampson was acting when he initially confronted the situation and examining his conduct thereafter, we conclude that Sampson was acting in his private capacity and not in his official capacity as an auxiliary police officer when he caused the defendant to stop his car. Because Sampson was not acting in his official capacity but was acting as a private citizen, there was no governmental action to invoke the constitutional guarantees of the fourth amendment and...