State v. Lamme, 7108

• Decision Date: 12 October 1989
• Docket Number: No. 7108,7108
• Citation: 19 Conn.App. 594,563 A.2d 1372
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard LAMME.

Page 1372

563 A.2d 1372

19 Conn.App. 594

STATE of Connecticut v. Richard LAMME.

No. 7108.

Appellate Court of Connecticut.

Argued May 9, 1989.

Decided Sept. 5, 1989.

Petition for Certification Granted Oct. 12, 1989.

James J. Ruane, Bridgeport, for appellant (defendant).

James M. Ralls, Deputy Asst. State's Atty., with whom, on the brief, were Donald Browne, State's Atty., and Susan Marks and Richard Palumbo, Asst. State's Attys., for appellee (state).

Before DUPONT, C.J., and STOUGHTON and NORCOTT, JJ.

NORCOTT, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of one count of operation of a motor vehicle while under the influence of intoxicating liquor, in violation of General Statutes § 14-227a, and one count of operation of a motor vehicle while his license was under suspension, in violation of General Statutes § 14-215(a). Prior to trial, the defendant moved to suppress evidence of all observations by the police involving the defendant's performance of field sobriety tests. After a hearing, the trial court denied the defendant's motion.

On appeal, the defendant claims that the trial court erred (1) in failing to suppress the evidence derived from the roadside sobriety tests, (2) in admitting the opinion testimony of certain police officers regarding the defendant's intoxication, and (3) in instructing the jury on the principle of reasonable doubt. We find no error.

The jury could have reasonably found the following facts. In the early morning of October 23, 1987, Officer Richard Applebaum of the Trumbull police department was assigned to special duty at the Trumbull Marriott Hotel. Responding to a complaint from the hotel management concerning the defendant, Applebaum found the defendant asleep in a chair in the front lobby. Upon awakening him, Applebaum noticed a strong odor of alcohol on his breath. The defendant at first became irate, loud and boisterous, and Applebaum had to calm him by explaining that he was not arresting him but was merely asking him to leave the hotel lobby. After Applebaum offered to arrange a safe ride home for him, the defendant responded that his car was parked in a lot next to the Marriott and that he would wait in his car for a friend at the bar who would drive him home. At trial, Applebaum testified that he then observed the defendant walk, with an uncertain gait, to his automobile.

Applebaum then radioed police headquarters with a description of the defendant's vehicle and asked that a police car be sent into the area. When he returned, the defendant's vehicle was no longer in the parking lot. Applebaum called headquarters again to report this fact, and was informed that another Trumbull police officer had already stopped the defendant.

Thereafter, Applebaum joined Trumbull police officer Thomas Savarese at the side of the road near the entrance to the Merritt Parkway, where Savarese was completing field sobriety tests on the defendant. Savarese testified at both the hearing on the motion to suppress and at the trial that he stopped the defendant and told him that his vehicle had been stopped for failure to have headlights on. When the defendant responded to Savarese, the officer noticed a strong odor of alcohol on the defendant's breath. Savarese further testified that, after he had administered the sobriety tests, he arrested the defendant for driving while under the influence and took him to headquarters where the defendant acted belligerently and spoke with slurred speech. Police officer Richard Bernaud testified that, during the booking procedure, the defendant was combative, his speech was slurred and he was hesitant in his movements. Bernaud also testified that he smelled the odor of alcohol on the defendant's breath. ¹

The defendant testified that he had consumed several drinks at the hotel bar but was not intoxicated.

I

The essence of the defendant's first claim is that the trial court erred in determining that probable cause to arrest is not a condition precedent to the administering of a field sobriety test. The defendant argues that because the trial court found that probable cause for the defendant's arrest did not arise until after the field sobriety tests, the court erred in admitting the observations by the police concerning those tests. ² The trial court rejected the defendant's argument and held that the police had legally detained the defendant on a reasonable suspicion and that the roadside sobriety tests were a minimal intrusion on his constitutional rights. The trial court further held that the police "seized" nothing from the defendant and, accordingly, that the police testimony regarding the observations of the roadside tests was admissible.

The police may detain an individual for a brief period of time without probable cause to make an arrest, if they have a reasonable and articulable suspicion that the person is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983). The purpose of such a detention is to maintain the status quo while investigating the circumstances that give rise to the suspicion of criminal wrongdoing. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); State v. Carter, supra, 189 Conn. at 618, 458 A.2d 369. Once a lawful stop is made, a police officer's suspicions may become further aroused and "the stop may be prolonged and the scope enlarged as required by the circumstances, provided the scope of the investigation remains within the limits created by the facts upon which the stop is predicated and the suspicion which they arouse. Terry v. Ohio, supra, [392 U.S. at] 21-22, 29 ....." State v. Perez, 181 Conn. 299, 305, 435 A.2d 334 (1980).

The fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut guaranty the right to be secure against unreasonable searches and seizures. Connecticut cases have presumed that roadside sobriety tests are incident to the initial stop and that chemical blood and breath tests are incident to the arrest. See State v. Hancich, 200 Conn. 615, 618-19, 513 A.2d 638 (1986); State v. Rutledge, 17 Conn.App. 250, 252, 552 A.2d 435 (1989); State v. Smith, 16 Conn.App. 156, 158, 547 A.2d 69 (1988). ³ The fourth and fourteenth amendments apply, however, "because stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of 'reasonableness' upon the exercise of discretion by government officials, including law enforcement agents in order ' "to safeguard the privacy and security of individuals against arbitrary invasions...." ' Marshall v. Barlow's, Inc., 436 U.S. 307, 312 [98 S.Ct. 1816, 1820, 56 L.Ed.2d 305] (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528 [87 S.Ct. 1727, 1730, 18 L.Ed.2d 930] (1967). Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). The intrusion must be confined to what is "minimally necessary" under the circumstances. Terry v. Ohio, supra, 392 U.S. at 30, 88 S.Ct. at 1884-85.

In the present case, there is no question that the initial stop, made because the defendant was driving without headlights in the dark of night, was permissible. See Delaware v. Prouse, supra, 440 U.S. at 663, 99 S.Ct. at 1401. After making the stop near an entrance to the Merritt Parkway in Trumbull, Savarese detected a strong odor of alcohol on the defendant's breath, and, suspicions aroused, he conducted field sobriety tests.

The state has a vital interest in keeping intoxicated drivers off the roads and highways. That interest is evinced by our legislature's passage of General Statutes § 14-227a(a)(2), which makes it per se illegal for a person to drive "while the ratio of alcohol in the blood of [the driver] is ten-hundredths of one per cent or more of alcohol, by weight." Balanced against that strong state interest is the intrusiveness of roadside sobriety testing, by which the police measure the physical performance of a suspected intoxicated driver before allowing that person to continue driving. The defendant relies heavily on People v. Carlson, 677 P.2d 310 (Colo.1984), in which a Colorado court required that probable cause to arrest exist before the police administer field sobriety tests. The defendant strongly urges that we adopt the Carlson rule in Connecticut. Other jurisdictions, however, have held that the degree of intrusion by the governmental authority into a person's affairs in administering such tests is minimal and therefore is outweighed by the strong governmental interest. See State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986); State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693 (1984). We agree with the latter holdings. To hold otherwise and to accept the defendant's position that we require the police to have the equivalent of probable cause to arrest before giving the field sobriety tests would seriously impair the state's efforts to meet the enormous danger posed by the presence of intoxicated drivers on the highways. In rejecting the Carlson standard, we find the holding of State v. Superior Court, supra, to be the most compelling and persuasive. In that case, the Arizona Supreme Court held that "roadside sobriety tests that do not involve long delay or unreasonable intrusion, although searches under the fourth amendment, may be justified by an officer's reasonable suspicion (based on specific, articulable facts) that the driver is intoxicated." Against this...