State v. Boisvert

• Citation: 40 Conn.App. 420,671 A.2d 834
• Decision Date: 22 April 1996
• Docket Number: No. 14338,14338
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Andre BOISVERT.

Page 834

671 A.2d 834

40 Conn.App. 420

STATE of Connecticut v. Andre BOISVERT.

No. 14338.

Appellate Court of Connecticut.

Argued Nov. 1, 1995.

Decided Feb. 27, 1996.

Certification Denied April 22, 1996. ^*

Robert J. McKay, Hartford, with whom, on the brief, was Gregory A. Thompson, Milldale, for appellant (defendant).

Jack W. Fischer, Assistant State's Attorney, with whom, on the brief, were John A. Connelly, State's Attorney, and John Davenport, Assistant State's Attorney, for appellee (State).

Before DUPONT, C.J., and FOTI and SPALLONE, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered by the court, following his plea of nolo contendere, ¹ to the offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a(a). ² The dispositive issue in this appeal is whether a roadside sobriety checkpoint, established for the purpose of detecting violations of § 14-227a(a), violates the provisions of article first, §§ 7 and 9, ³ of the Connecticut constitution.

The trial court found the following facts. On September 10, 1993, at approximately 11 p.m., the defendant was operating a motor vehicle on Wolcott Road, which is Route 69, in the town of Wolcott. At that time, five Wolcott police officers, together with five or six members of the state police, were conducting a sobriety checkpoint near the intersection of Wolcott and Nichols Roads. The defendant stopped his automobile at the checkpoint, and a Wolcott patrol officer engaged the defendant in a brief conversation, inquiring where the defendant was coming from and whether he knew the time. The defendant did not know the correct time, emitted an odor of alcohol on his breath, and slurred his speech. The officer instructed the defendant to pull his vehicle into an adjacent parking lot and turn off his vehicle's engine. Thereafter, the defendant failed certain field sobriety tests. The officer also determined that the defendant's driver's license was under suspension. Upon completion of the field tests, the police officers arrested the defendant and transported him to police headquarters where they administered breathalyzer tests. The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a(a) and operating a motor vehicle while his license was under suspension in violation of General Statutes § 14-215(c). ⁴

On November 5, 1995, prior to the commencement of trial, the defendant filed a motion to dismiss the charges against him, alleging that "there is neither statutory or state constitutional authority, absent probable cause, to stop a driver on the Connecticut roadways." The trial court denied the defendant's motion and filed a written memorandum of decision that addressed the defendant's claim "that the initial stop of his vehicle during the sobriety checkpoint constituted an unreasonable and unlawful seizure in violation of the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the Connecticut constitution." ⁵

The trial court, in a well reasoned memorandum of decision, rejected the defendant's claim that sobriety checkpoints violate article first, § 7, of our state constitution. The court analyzed the constitutionality of sobriety checkpoints by employing a test that balanced the competing interests of the state against the individual's liberty, as had been done by our Supreme Court in State v. Januszewski, 182 Conn. 142, 148, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981). The defendant conceded during oral argument, and we agree, that this balancing test, as adopted by the trial court, is the proper test to use in this case. The defendant argues, however, that the test was not properly employed. ⁶ He argues that the stop of an automobile for the purpose of a sobriety check, even if conducted pursuant to neutral criteria and even if involving only a brief and unobtrusive stop, is not permissible under article first, § 7. The defendant contends that stopping a motor vehicle at a sobriety checkpoint is unreasonable without a suspicion of wrongdoing because an individual's right to privacy must outweigh the state's interest in safety. We do not agree.

There is no question that the initial detention of the defendant at the sobriety checkpoint was for general investigatory purposes and did not constitute an actual arrest of his person or a complete seizure of his person or automobile. Nonetheless, a sufficient restraint on the defendant's liberty is evident and implicates his right under article first, § 7, to be secure in his person against "unreasonable searches and seizures." ⁷ The question, therefore, is simply whether the stop was reasonable. "[T]here can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." Camara v. Municipal Court, 387 U.S. 523, 536-37, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). We judge the permissibility of a particular law enforcement practice by balancing its intrusion on the individual's interests against its promotion of legitimate state governmental interests, and examine the intrusion to determine whether it is the minimum search necessary under the circumstances. State v. Lamme, 19 Conn.App. 594, 599, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990).

"The state has a vital interest in keeping intoxicated drivers off the roads and highways.... Balanced against that strong state interest is the intrusiveness of roadside sobriety testing, by which police measure the physical performance of a suspected intoxicated driver before allowing that person to continue driving." Id. While the results of a sobriety test are admissible if the test does not involve long delay or unreasonable intrusion and is administered on the basis of a reasonable and articulable suspicion; id.; the defendant goes one step further and argues that the initial stop itself must be based on "reasonable or articulable suspicion," otherwise the defendant maintains, the stop does not pass state constitutional standards under article first, § 7.

Article first, § 7, of the Connecticut constitution may provide more substantive protection to citizens than does the fourth amendment of the United States constitution. State v. Miller, 227 Conn. 363, 379, 630 A.2d 1315 (1993); State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985). "Just as the commands of the fourth amendment are not absolute, neither are those of article first, § 7, of the state constitution." State v. Geisler, 222 Conn. 672, 691, 610 A.2d 1225 (1992). In this case, we must decide whether greater protection is afforded by article first, § 7, of the Connecticut constitution than by federal law, specifically in forbidding the use of sobriety checkpoints. We conclude that sobriety checkpoints are a valid exercise of police power under our state constitution, that no requirement of a "reasonable or articulable suspicion" must exist for the initial stop, and that the balancing test, which is not challenged herein, is the proper test to be utilized. That test determines whether the strength of the public interest in combating the threat to public safety of operators of motor vehicles whose ability to operate may be impaired due to the consumption of intoxicating liquor, and the effectiveness of roadside checkpoints outweigh the minimal intrusion on a motorist's privacy. Our inquiry, however, does not end here. We must determine whether the trial court properly utilized the balancing test to conclude as it did.

While we may not disturb facts found by the trial court unless the finding is clearly erroneous; State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985); because the issue involves a claimed constitutional right, we examine the record thoroughly to determine whether the subordinate facts justify the trial court's conclusion that the initial stop of the defendant was constitutionally valid. State v. Howard, 221 Conn. 447, 454, 604 A.2d 1294 (1992).

A citizen's reasonable right to privacy may not be subject to random or arbitrary intrusions merely at the whim of law enforcement. Minimal intrusion in the interest of public safety may be allowed in the form of checkpoint stops when the stop is conducted pursuant to a practice embodying neutral criteria. The trial court recognized these concerns in applying the balancing test to the facts of this case and determined that on September 10, 1993, the Wolcott police, assisted by the state police, conducted the spot check and kept interference with individual liberty to a minimum. Moreover, the trial court found that the majority of drivers were stopped for only a minute or two, were required to answer a few questions and produce the expected papers, and that there was no evidence of abusive or threatening conduct by the police against individuals stopped. No persons were singled out arbitrarily for investigation, and the officers in the field had no discretion whatsoever as to whom to stop. All drivers were stopped except during one brief period when a supervisor, in order to alleviate a traffic backup, ordered that a number of cars should be allowed to pass.

The procedure in conducting this spot check was in accordance with state police guidelines promulgated by the commissioner of public safety in § 16.1.6, entitled "Spot Checks," of the department of public safety's Administration and Organizational Manual. Among other things, these procedures require that the establishment and method of operation be approved in advance by certain ranking officers, that the location, date and time be carefully chosen after considering many factors, including the safety of the public and those conducting the operation and the potential inconvenience to the public. The guidelines also specify that notice of a spot...