State v. Johnson

• Decision Date: 13 February 1981
• Citation: 183 Conn. 148,438 A.2d 851
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John J. JOHNSON.

Page 851

438 A.2d 851

183 Conn. 148

STATE of Connecticut v. John J. JOHNSON.

Supreme Court of Connecticut.

Argued Nov. 4, 1980.

Decided Feb. 13, 1981.

Joette Katz Rubin, Asst. Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Walter D. Flanagan, State's Atty. and Martin A. Rader, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

COTTER, Chief Justice.

The defendant has appealed from a judgment rendered pursuant to a jury verdict finding him guilty of knowingly having a weapon in a motor vehicle in violation of General Statutes § 29-38. ¹ The defendant's sole claim on appeal is that the trial court erred in failing to suppress and in admitting into evidence the fruits of a warrantless search.

Five members of the Danbury police force testified to the following facts: On August 29, 1978, detectives Tierney and Carvalho were driving along Clapboard Ridge Road in Danbury looking for Robert Nardella for whom an arrest warrant was outstanding. Upon reaching the intersection with King Street, Tierney saw the defendant and a passenger seated in a 1968 Chevrolet parked perpendicular to the roadway. The passenger, later identified as Francis Main, put his arm over his face, leading the officers to believe him to be Nardella. The Chevrolet driven by the defendant then took off down Clapboard Ridge Road. After pursuing the defendant's car for one-quarter mile, the detectives activated their lights and siren. After a two mile chase, the defendant pulled his car to the side of the road when traffic conditions blocked his progress.

During the two mile chase, the police officers observed two items, a red cloth and a yellow box, being thrown from the passenger side of the defendant's automobile. After the police had stopped the automobile, detective Carvalho and two uniformed officers who had responded to a radio call for assistance detained the defendant and Francis Main, and detective Tierney walked back to where the box had been thrown out of the car. While waiting for Tierney to return, officer Karcz noticed a shotgun shell in plain view on the front passenger seat. Tierney returned with the yellow box which he found to contain unspent .38 caliber ammunition. Tierney also found other ammunition scattered along the shoulder of the road. He ordered the two uniformed officers to search the automobile for weapons. The defendant and Main, standing outside the vehicle, were also searched. Officer Karcz found a knife over four inches in length under the driver's seat. Officer Dodge discovered a shotgun shell on the floor. The officers also noticed items of clothing in the back seat.

The knife found under the driver's seat prompted the police officers to arrest the two men and take them back to the Danbury police station. Officer Karcz drove them to the station in the police cruiser and officer Dodge drove the defendant's car. Officer Dodge drove the car to the rear parking lot at the station and secured it in that area. Detectives Tierney and Carvalho returned to the site on Clapboard Ridge Road where the red cloth had been thrown from Johnson's car. They found the cloth and a .38 caliber fully loaded pistol with its serial number filed off. The detectives returned to the station and placed the defendant and his passenger under arrest for carrying a dangerous weapon in a motor vehicle and for altering its serial number. ²

A renewed search of the defendant's automobile was conducted by officers Dodge and Bertolowicz in the police station parking lot. This search yielded additional clothing, a shaving kit containing more ammunition and a denim jacket and denim pants in which more .38 caliber ammunition was found. The denim jacket and denim pants were presented to the defendant to determine ownership. The defendant identified the jacket and pants as his.

The defendant moved to suppress the items discovered in the search of the car at the police station at a pretrial suppression hearing as well as at trial. The trial court denied the motion and permitted the state to introduce evidence that .38 caliber ammunition was found in the pockets of clothing belonging to the defendant. The defendant claims error in these rulings, stating that the only proof of his knowledge of the existence of the gun was this evidence regarding the ammunition found in his clothing.

At the suppression hearing, the trial court made an oral finding that there was probable cause to search the vehicle on Clapboard Ridge Road. The defendant does not seriously contest the validity of this initial search. As to the renewed search, the court concluded that it was not an inventory search, ³ but held that the probable cause that existed for the earlier search continued. The validity of this renewed search is the issue on appeal.

The search of the defendant's vehicle was conducted without a warrant and thus must come within a recognized exception to the warrant requirement of the fourth amendment in order to satisfy constitutional safeguards. Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the fourth amendment-subject only to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). "The requirement of a warrant protects the individual's legitimate expectation of privacy against the overzealous police officer." South Dakota v. Opperman, 428 U.S. 364, 383, 96 S.Ct. 3092, 3104, 49 L.Ed.2d 1000 (1976) (Powell, J. concurring). "Its protection consists in requiring that (probable cause be determined) by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.... When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman ...." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) (Jackson, J.). The only exception to the warrant requirement relevant to the facts of this search is the automobile exception. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

As we noted in our decision earlier this term in State v. Kolinsky, --- Conn. ---, ---, 438 A.2d 762 (1980), the United States Supreme Court has relied upon two justifications for its constitutional distinction between searches of and seizures from homes and similar structures as compared to automobiles. " 'First, as the Court repeatedly has recognized, the inherent mobility of an automobile often makes it impracticable to obtain a warrant. See, e.g., United States v. Chadwick, 433 U.S. (1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977)); Chambers v. Maroney, (supra, 399 U.S. 49-50, 90 S.Ct. 1980); Carroll v. United States, supra. In addition, the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property. See Rakas v. Illinois, 439 U.S. 128, 155 (99 S.Ct. 421, 436, 58 L.Ed.2d 387) (1978) (Powell, J., concurring); United States v. Chadwick, supra; South Dakota v. Opperman, 428 U.S. 364, 368 (96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000) (1976); Cardwell v. Lewis, 417 U.S. 583, 590 (94 S.Ct. 2464, 2469, 41 L.Ed.2d 325) (1974...