State v. Delossantos, 13230

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; GLASS
• Citation: 211 Conn. 258,559 A.2d 164
• Parties: STATE of Connecticut v. Cesar Santiago DELOSSANTOS.
• Docket Number: No. 13230,13230
• Decision Date: 23 May 1989

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559 A.2d 164 211 Conn. 258 STATE of Connecticut
v.
Cesar Santiago DELOSSANTOS. No. 13230. Supreme Court of Connecticut. Argued March 9, 1989.
Decided May 23, 1989.

[211 Conn. 259]

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Michael K. Courtney, Deputy Asst. Public Defender, for appellant (defendant).

Susan E. Gill, Asst. State's Atty., with whom, on the brief, were Walter Flanagan, State's Atty., and Robert C. Brunetti and Carolyn Longstreth, Asst. State's Attys., for appellee (state).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.

[211 Conn. 260] GLASS, Associate Justice.

The principal issue in this case is whether, under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the hatchback area of an automobile is part of the "passenger compartment" and, therefore, within the scope of a search incident to the arrest of the operator. In an amended information, the state charged the defendant, Cesar Santiago Delossantos, with the crimes of unlawful possession and transportation of cocaine with intent to sell, in violation of General Statutes (Rev. to 1987) § 21a-278(a), ¹ and possession of a weapon in a motor vehicle without a permit, in violation of General Statutes (Rev. to 1987) § 29-38. ² After a jury verdict of

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guilty on both counts, [211 Conn. 261] the trial court sentenced the defendant to a total effective sentence of twenty-three years imprisonment, execution suspended after fifteen years, and five years probation. The defendant appealed to this court from the judgment of conviction. We find no error.

The jury could reasonably have found the following facts. On the night of December 26, 1986, Connecticut state police trooper Robert Kenney was conducting a radar check for speeders on the eastbound lanes of interstate route 84 in Danbury. At approximately 10:10 p.m., Kenney detected on his radar that a two door 1980 Plymouth Horizon hatchback model automobile was traveling at the rate of sixty-eight miles per hour, thirteen miles per hour over the posted speed limit. At Kenney's signal, the defendant, who was the lone occupant of the automobile, pulled over. Upon Kenney's request, the defendant produced his operator's license and an automobile registration. The automobile was registered to Percio Urena, who lived in the same apartment building as the defendant in Danbury. Urena had loaned the automobile to the defendant two days before.

Standing at the side of the automobile, Kenney looked through the left corner of the windshield. The light of his flashlight fell on what appeared to be the wooden butt of a pistol beneath the driver's seat. Kenney ordered the defendant out of the automobile, escorted him to the front and frisked him. Kenney then entered [211 Conn. 262] the automobile from the passenger door. He reached beneath the driver's seat and removed a fully loaded .357 magnum revolver. Kenney returned to the defendant and asked if he owned the pistol and whether he had a permit. The defendant admitted that he owned the pistol and had no permit. Kenney then placed him under arrest and handcuffed and searched him. At that moment Kenney's partner, trooper Gerald Pennington, arrived on the scene. Pennington watched the defendant while Kenney searched the automobile. The search of the front and back seats uncovered nothing. Kenney then reached into the hatchback area, lifted a black imitation leather cover, and discovered a brown paper bag. Inside the brown paper bag was a clear plastic bag containing a hard packed white powder substance. Subsequent laboratory analysis revealed that the white powder substance weighed approximately 17.3 ounces and contained 64.2 percent pure cocaine. The defendant testified at trial that he did not know the cocaine was in the automobile.

On appeal, the defendant claims that the trial court erred: (1) in denying his motion to suppress evidence of the cocaine; (2) in excluding a defense witness' testimony that Urena, the owner of the automobile, was a cocaine dealer; (3) in denying his motions for judgment of acquittal of the § 29-38 count on the ground of insufficient evidence of the revolver's "operability," and in failing to instruct the jury that "operability" is an element of the crime; (4) in instructing the jury on "constructive possession" and "aggregate weight" of the seized narcotics; (5) in denying his motion for judgment of acquittal based on the ground of insufficient evidence that he violated § 21a-278(a); (6) in denying his pretrial motion to dismiss based on a claim that the trial court had no authority to

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sentence him under § 21a-278(a); and (7) in denying his motion for a new [211 Conn. 263] trial based on a claim of statewide selective enforcement of § 21a-278(a). We find no error. I

Prior to trial, the defendant moved to suppress evidence of the cocaine, claiming that Kenney's search of the hatchback area of the automobile was illegal. After a pretrial hearing, the trial court denied the defendant's motion, ruling that the search was valid as a search incident to a lawful arrest. On appeal, the defendant argues that the warrantless search of the hatchback area exceeded the permissible scope of a search incident to arrest, in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. He claims, therefore, that the trial court erred in failing to suppress the evidence seized in the hatchback search. We disagree.

In New York v. Belton, supra, at 460-61, 101 S.Ct. at 2864, the United States Supreme Court held that "when a [police officer] has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.... [P]olice may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. United States v. Robinson, [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ]; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 [1959]. Such a container may, of course, be searched whether it is open or closed, since ... the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have." The Belton rule "encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk." Id., at 460 n. 4, 101 S.Ct. at 2864 n. 4.

[211 Conn. 264] In United States v. Russell, 670 F.2d 323, 327 (D.C.Cir.), cert. denied, 457 U.S. 1108, 102 S.Ct. 2909, 73 L.Ed.2d 1317 (1982), the Court of Appeals for the District of Columbia held that, under Belton, the hatchback area of an automobile is part of the "passenger compartment," and therefore may be searched as a contemporaneous incident to the lawful custodial arrest of an occupant. In Russell, the police had probable cause to believe that there were drugs in the defendant's automobile. Id., at 324. The police stopped the automobile and conducted a warrantless search while holding the defendant and three passengers in custody at the scene. The search uncovered a bag containing a handgun underneath the front seat and a large grocery type bag, covered by clothing, in the hatchback area. The second bag contained heroin. Id.

Addressing the argument that the search of the hatchback area was unconstitutional, the court stated that "[t]he question at issue ... is whether the Belton rule encompasses hatchbacks. See [New York v. Belton, supra 101 S.Ct.] at 2869 (Brennan, J., dissenting). This question has already attracted scholarly comment. See Y. Kamisar, [The 'Automobile Search' Cases: The Court Does Little to Clarify the 'Labyrinth' of Judicial Uncertainty, in J. Choper, Y. Kamisar & L. Tribe, The Supreme Court: Trends and Developments 1980-1981], at 94-95; 30 Crim.L.Rep. (BNA) 2065, 2066 (Oct. 21, 1981) (summarizing remarks of Prof. Yale Kamisar); Kamisar, Fourth Amendment Hatchback, Washington Post, Oct. 15, 1981, at A29. We note particularly the comment of an authority the Court cited in Belton, Professor Wayne R. LaFave, author of Search and Seizure: A Treatise on the Fourth Amendment. Belton, Professor LaFave observes, 'rejects a case-by-case [approach] in favor of a standardized procedure' that police officers may follow routinely. 2 W. LaFave, supra, § 7.1, at 132 & n. 9.2 (Supp.1982). In keeping [211 Conn. 265] with the Belton majority's intent 'to avoid case-by-case evaluations of control,' id. at 136, LaFave suggests that 'passenger compartment,' for purposes of the Belton rule, is properly read 'as including all space reachable without exiting the vehicle.' Id. (distinguishing, however, areas that would require 'some dismantling of

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the vehicle,' for example, door panel interiors, and other places to which there is 'virtually no chance the arrestee could have acquired access') (emphasis in original)." United States v. Russell, supra, at 326. The court concluded that "in light of the emphasis the Supreme Court placed in Belton on a workable definition of the area of a car subject to warrantless search in conjunction with a lawful custodial arrest ... a hatchback reachable without exiting the vehicle properly ranks as part of the interior or passenger compartment." Id., at 327.

In the present case, the trial court found that it was unnecessary to open the hatchback of Urena's automobile from the exterior to gain access, and that "the hatchback really amounts to an extension of the passenger compartment of the car. At least it's an area that's readily accessible from the interior of the car." See United States v. Russell, supra (hatchback within control of car occupants from interior). The defendant does not challenge the trial court's factual conclusions respecting the interior accessibility of the hatchback. That the hatchback area could not be reached by someone...