State v. Dissent

• Decision Date: 07 September 2010
• Docket Number: SC18077 t
• Court: Connecticut Supreme Court
• Parties: STATE v. JENKINS—SECOND DISSENT

STATE

v.JENKINS—SECOND DISSENT

SC18077 t

Supreme Court of Connecticut

Released September 7, 2010

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PALMER, J., dissenting.

The majority concludes that Detective Michael Morgan of the Newington police department did not violate the rights of the defendant, Christopher Jenkins, under article first, § 7, of the Connecticut constitution when Morgan conducted a consent search of the defendant's vehicle following his lawful stop of the defendant for a traffic violation in Newington at approximately 11:30 p.m. on May 7, 2004. I disagree with the majority's conclusion because I believe that, under the state constitution, Morgan was required to inform the defendant that he had no obligation to consent to the search of his vehicle and that he was free to leave, once he received the traffic ticket, if he chose to withhold consent to search.¹ I reach this conclusion for two interrelated reasons. First, such an advisement is necessary to ensure that a waiver of the constitutionally protected right to refuse consent to a vehicle search following a routine traffic stop has been given freely and intelligently. Second, without that advisement, there exists too great of a risk that the person being detained in connection with the traffic stop, who may not leave the scene until permitted to do so by the police, will feel constrained to agree to the search due to the element of compulsion inherent in the nature of an encounter with the police. The need for such an advisement is all the greater when, as in the present case, the police lack even a reasonable and articulable suspicion that the detained vehicle contains contraband. Because Morgan failed to advise the defendant, I would conclude that the search violated the defendant's rights under article first, § 7. Accordingly, I respectfully dissent.²

The undisputed facts and procedural history relevant to this issue are set forth in the majority opinion and require no repetition. I turn, therefore, to the legal principles that guide my analysis. ''It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.... Furthermore, although we often rely on the United States Supreme Court's interpretation of the amendments to the constitution of the United States to delineate the boundaries of the protections provided by the constitution of Connecticut, we have also recognized that, in some instances, our state constitution provides protections beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court.... Indeed, this court has determined that, in certain respects, article first, § 7, of the state constitution affords greater protection than the fourth amendment to the United States constitution. E.g., State v. Miller, 227 Conn. 363, 377, 630 A.2d 1315 (1993) (article first, § 7, requires police to obtain warrant to search impounded automobile); State v. Geisler, 222 Conn. 672, 691-92, 610 A.2d 1225 (1992) (emergency exception to warrant requirement is narrower under article first, § 7, than under federal constitution); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990) (good faith exception to warrant requirement does not exist under article first, § 7, of state constitution); State v. Dukes, 209 Conn. 98, 120-21, 547 A.2d 10 (1988) (search incident to arrest exception to warrant requirement is narrower under article first, § 7, than under federal constitution). In determining the scope of the rights secured by our state constitution, the following tools of analysis should be considered to the extent applicable: (1) the [text of the constitutional provision]... (2) holdings and dicta of this court... (3) federal precedent... (4) sister state decisions... (5) the [history of the constitutional provision]... including the historical constitutional setting and the debates of the framers... and (6) economic/sociological considerations.''³ (Citation omitted; internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 305-306, 929 A.2d 278 (2007).

I agree with the majority that neither the text nor the constitutional history of article first, § 7, of the Connecticut constitution supports the defendant's claim that the state constitution affords greater protection than the federal constitution with respect to a request for consent to search a vehicle made by a police officer in connection with a routine traffic stop. I disagree, however, with the majority's analysis of the remaining Geisler factors, ⁴ which, in my view, leads to the conclusion that, under the state constitution, a consent search of such a vehicle is invalid unless the detained motorist is informed of his or her right to withhold consent to such a search.

IFEDERAL PRECEDENT

As the majority observes, in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), the United States Supreme Court rejected the very same claim under the fourth amendment to the federal constitution that the defendant in the present case raises under the state constitution. Specifically, the court in Schneckloth concluded that ''the question [of] whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.'' Id., 227. For the reasons that follow, I am unpersuaded by the court's analysis in Schneckloth, at least in the context of a request for consent during a routine traf-fic stop.⁵

In Schneckloth, the court commenced its analysis by observing that ''[t]he most extensive judicial exposition of the meaning of 'voluntariness' has been developed in those cases in which the [c]ourt has had to determine the 'voluntariness' of a defendant's confession for purposes of the [fourteenth [a]mendment.'' Id., 223. A review of these cases, the court explained, reveals ''no talismanic definition of 'voluntariness, ' mechanically applicable to the host of situations [in which] the question has arisen.... It cannot be taken literally to mean a 'knowing' choice.'' (Citation omitted.) Id., 224. ''Rather, 'voluntariness' has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws.... At the other end of the spectrum is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice.'' (Citations omitted.) Id., 224-25. The court further explained that, in light of these competing concerns, it traditionally has framed the test for voluntariness as whether ''the confession [is] the product of an essentially free and unconstrained choice by its maker Id., 225. In making this determination, the court made clear that the totality of the circumstances must be considered, and, although the accused's awareness of his constitutional rights is one of several factors relevant to that determination, it is not a dispositive factor. Id., 226-27.

The court in Schneckloth reasoned that a similar analysis should apply to the determination of whether a suspect voluntarily has given consent to search. ''As with police questioning, two competing concerns must be accommodated in determining the meaning of a 'voluntary' consent—the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.'' Id., 227. In reaching this conclusion, the court observed that, in cases in which the police may ''have some evidence of illicit activity, but lack probable cause to arrest or search, '' consent searches serve a vital purpose because they ''may be the only means of obtaining important and reliable evidence.'' Id. These searches, the court stated, may ''[provide] some assurance that [third parties], wholly innocent of the crime, [will] not [be] mistakenly brought to trial.'' Id., 228.

The court then stated that requiring the state to prove ''affirmatively... that the subject of the search knew that he had a right to refuse consent would, in practice, create...