State v. Dukes, 13246

Decision Date06 September 1988
Docket NumberNo. 13246,13246
Citation209 Conn. 98,547 A.2d 10
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Angelo DUKES.

Gary J. White, Asst. Public Defender, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom were John J. Kelly, Chief State's Atty., and, on the brief, Roseann Wagner, Deputy Asst. State's Atty., for appellee (state).


ARTHUR H. HEALEY, Associate Justice.

After a trial to a jury, the defendant, Angelo Dukes, was convicted of the crimes of possessing narcotics with intent to sell in violation of General Statutes § 21a-277(a) 1 and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. 2 He received a total effective sentence of ten years to be suspended after seven years with three years probation. This appeal followed.

On appeal, the defendant claims that the trial court violated the constitution of Connecticut, article first, § 7, 3 in denying his motion to suppress certain evidence taken from his person and the motor vehicle that he was operating at the time of his arrest. 4 In doing so, he argues that his Connecticut constitutional protection against unreasonable searches and seizures was violated because the scope of the search that followed his being stopped on Interstate 95 for motor vehicle charges was improper. We find no error.

The following circumstances serve as the factual backdrop for the search and seizure involved. At approximately 6:20 a.m. on June 17, 1986, a Connecticut state police sergeant stopped a Buick automobile bearing New York license plates as it traveled north on the Connecticut Turnpike in Norwalk. He did so because he had clocked the Buick's speed at eighty-five miles per hour in a fifty-five mile per hour zone. When the officer pulled the Buick over and parked behind it, the defendant, who had been operating the Buick, got out of his car and started walking toward the officer's cruiser. The defendant was ordered to get back into his car and he complied. The officer exited his cruiser, walked up to the driver's side of the Buick and asked the defendant for his driver's license, registration and insurance identification card. He noted the presence of a passenger, later identified as John Antone, seated next to the defendant. From his vantage point, the officer saw two New York license plates on the floor behind the driver's seat, which appeared "unusual" to him. He also saw a sticker "similar to a bumper sticker" affixed to the dashboard in front of the passenger's seat, which related: "This car insured by Smith and Wesson." This indicated to him "a strong possibility of the presence of a handgun" because he knew that Smith and Wesson was a manufacturer of guns, "particularly handguns." In addition, he observed that "during the whole time" the defendant and Antone were "very nervous, visibly shaking ... [t]heir hands were shaking and [they] appeared to be in some panic of some sort."

The officer, having obtained the documents that he had requested from the driver, went back to his vehicle and, using his radio, requested a wanted person and driver's license suspension check from the desk officer at the police barracks. Within moments, the desk officer reported that the defendant's driver's license in New York was then under suspension, as was his right to drive in Connecticut. Thereupon the officer went to the driver's side of the defendant's car, opened the door, told the defendant that he was under arrest for driving under suspension and for speeding. He told the defendant to get out of his vehicle and the defendant did so.

Once the defendant was out of the Buick, the officer immediately conducted a search of his clothing, "starting with the outer clothing and working [his] way into the pockets," as he normally did in a custodial arrest. He "[patted] the clothing down for anything that [was] bulky and obvious and [proceeded] further going into pockets and such"; he felt nothing that was "bulky and obvious." In the defendant's jacket pocket he found a small plastic vial that contained a form of cocaine called "crack," a burnt hand-rolled cigarette butt, a glassine package of white powder, an aluminum foil packet and two small straws with residue inside. The defendant was thereupon handcuffed, brought back to the officer's cruiser and secured inside it with the officer's belt. The officer requested a back-up trooper.

When the back-up trooper arrived, the first officer asked the passenger Antone to exit the Buick. A pat-down search of Antone did not disclose any weapons or any of the items eventually seized. The "pat-down" search of Antone was not a "pat-down" search in the sense of the search of the defendant's person, which was a "full search of the [defendant's] pockets and his clothing...." The officer's distinction was that the defendant was in custody and Antone was not. 5 The officer said that the intensity of his search "depends [on] whether there's a back-up there who can keep an eye on the person while [I'm] doing something else. If [I'm] the only one then it's going to be a very thorough pat-down and if he's got a lot bulkier clothing on [I'm] going to go a little bit further." He felt that "it's necessary to protect [himself] to do a pat-down search."

With Antone standing off to the side of the highway with the back-up officer there, the arresting officer proceeded to search "the passenger compartment of the [Buick] vehicle." 6 The fact that he had seen the Smith and Wesson sticker on the dashboard, the fact that he had already found suspected narcotics on the defendant and the fact that he had observed a "pocket pager type of instrument commonly used in drug trafficking nowadays" on the console between the two seats on the transmission hump, when combined with the fact that he had found an empty holster under the front passenger seat, caused him to suspect that "there was a gun somewhere in [the] car." His "primary concern was not finding any other evidence, it was locating the gun."

As he proceeded in his search, he also saw two credit cards that did not belong to the defendant or Antone. On the rear seat behind the driver's seat he located "a plastic, heavy plastic security type box ... a small safe ... [it was] portable ... it had a handle on it and a key type lock." Having noticed a large ring of keys with "perhaps over a dozen keys ... on it" on the front seat where the defendant had been sitting, he went back and asked the defendant which key would open the safe. The defendant proved uncooperative and, eventually, after trying some of the keys, the officer found the right key and opened the safe. Inside the safe, the officer discovered a .38 caliber loaded snubnosed revolver in a leather purse type container, a bag containing ninety-one vials (similar to the red and clear plastic vial found in the defendant's pocket, that contained the crack) of crack, "a few other containers of white powdered substance" (eventually found to be heroin and some cocaine), a note pad containing various records ("telephone numbers and such"), a watch and "a few other things." Antone was then placed under arrest for possession of cocaine, possession of cocaine with intent to sell and having weapons in a motor vehicle. A wrecker was called to tow the defendant's Buick to the Westport police barracks. The wrecker arrived within about fifteen minutes. It would have been normal police procedure to inventory the contents of the vehicle after it had been towed. Both the defendant and Antone were transported to police barracks and were subjected to full searches of their persons. No further evidence "or anything" was seized.

Initially, the defendant recognizes that the United States Supreme Court has held that the fourth amendment to the federal constitution permits police, who have made a custodial arrest of a person apprehended while operating a motor vehicle while his license to do so is suspended, to search his person. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); see Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). In like fashion, he acknowledges that the same court has construed the fourth amendment to permit police, after making a lawful arrest, to search the interior of the arrestee's motor vehicle, including any closed containers, for weapons and contraband. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). He then concedes that anyone who is lawfully arrested, even for a minor traffic offense, has no complaint under federal law if police search his person and his motor vehicle, including its contents.

Given this posture of the federal law, the defendant has invoked the Connecticut constitution, specifically article first, § 7 thereof, properly pointing out that the United States Supreme Court's decisions do not limit the authority of state courts to interpret their state constitutions to give greater rights and protections than the federal constitution gives. In that context, that court has specifically recognized that each state has the "sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980); see Oregon v. Hass, 420 U.S. 714, 718, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975). Moreover, we note that that court has also stated that its holdings "[do] not affect the State's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so." Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730, reh. and modification denied, 386 U.S. 988, 87 S.Ct. 1283, 18 L.Ed.2d 243 (1967); see State v. Kimbro, 197 Conn. 219, 235, 496 A.2d 498 (1985).

The defendant,...

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2 books & journal articles
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