State v. Lamme

• Citation: 216 Conn. 172,579 A.2d 484
• Decision Date: 07 August 1990
• Docket Number: No. 13792,13792
• Court: Supreme Court of Connecticut
• Parties: , 59 USLW 2150 STATE of Connecticut v. Richard LAMME.

Page 484

579 A.2d 484

216 Conn. 172, 59 USLW 2150

STATE of Connecticut v. Richard LAMME.

No. 13792.

Supreme Court of Connecticut.

Argued May 31, 1990.

Decided Aug. 7, 1990.

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

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were John J. Kelly, Chief State's Atty., and Donald A. Browne, State's Atty., for appellee (State).

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

PETERS, Chief Justice.

The sole issue in this appeal is whether the provisions of article first, § 9, ¹ of the Connecticut constitution preclude the police from detaining a person for limited investigative purposes without having probable cause to arrest. The state charged the defendant, Richard Lamme, with the operation of a motor vehicle while under the influence of intoxicating liquor and with the operation of a motor vehicle while his license was under suspension, in violation of General Statutes §§ 14-227a(a) and 14-215(a), respectively. ² The defendant unsuccessfully moved, prior to trial, for the suppression of evidence concerning his performance of field sobriety tests. The trial court rendered judgment against the defendant on a jury verdict finding him guilty as charged, and the Appellate Court affirmed that judgment in State v. Lamme, 19 Conn.App. 594, 563 A.2d 1372 (1989). This court granted certification to consider the merits of his novel state constitutional claim, 212 Conn. 820, 565 A.2d 541, and we now affirm. ³

The opinion of the Appellate Court reports the relevant facts. During the evening of October 22, 1987, the defendant consumed several alcoholic beverages at the bar of the Trumbull Marriott hotel. At the request of the hotel management, in the early hours of the following day, police officer Richard Applebaum of the Trumbull police department wakened the defendant who was asleep in a chair in the front lobby. State v. Lamme, supra, 19 Conn.App. at 595, 563 A.2d 1372. Noticing a strong odor of alcohol on the defendant's breath, Applebaum offered to arrange a safe ride home for the defendant. Id. The defendant responded, however, that he would wait in his car for a friend to drive him home. Id., 595-96, 563 A.2d 1372. Having watched the defendant walk to his car with an uncertain gait, Applebaum radioed police headquarters with a description of the defendant and his car. Id., 596, 563 A.2d 1372.

Police Officer Thomas Savarese heard the police broadcast and drove down a public road in the vicinity of the Marriott where he observed the defendant driving a car that matched the broadcast description and did not have its headlights illuminated. Because the failure to display lighted headlights while on a public highway at night is an infraction; see General Statutes § 14-96a(d); ⁴ Savarese stopped the defendant's car. Id. Savarese too noticed a strong odor of alcohol on the defendant's breath and then asked the defendant to step out of his car to take roadside sobriety tests of his physical dexterity. ⁵ Id. The defendant's failure to pass these tests was the basis for his arrest for driving while under the influence of intoxicating liquor. Id. After the defendant's arrest, Savarese took him to police headquarters. Id.

On these facts, the trial court and the Appellate Court concluded that the defendant was not entitled to suppress evidence concerning his performance on the field sobriety tests. Both courts agreed that the police had legally stopped the defendant, in the first instance, for driving without illuminated headlights in the dark of night. Id., 599, 563 A.2d 1372. Thereafter, the odor of alcohol on the defendant's breath furnished a reasonable and articulable suspicion that the defendant might be involved in criminal activity and justified his further detention for the limited intrusion represented by sobriety testing at the place where he was being detained. As a matter of federal constitutional law under the fourth and fourteenth amendments to the United States constitution, the police made a valid Terry stop, as such a detention has been defined in Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968), and subsequent cases. See, e.g., United States v. Hensley, 469 U.S. 221, 227, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985); Florida v. Royer, 460 U.S. 491, 499-500, 103 S.Ct. 1319, 1324-1325, 75 L.Ed.2d 229 (1983); State v. Aillon, 202 Conn. 385, 398-402, 521 A.2d 555 (1987); State v. Carter, 189 Conn. 611, 617-18, 458 A.2d 369 (1983).

In the present appeal, the defendant urges us to hold that our state constitution requires a different result by virtue of article first, § 9, which provides that "[n]o person shall be arrested, detained or punished, except in cases clearly warranted by law." The defendant maintains that this section forbids the police to detain any person, even on reasonable and articulable suspicion, unless and until the police have probable cause to make an arrest. Applied to the facts of this case, the defendant's theory would require exclusion of the results of his roadside sobriety tests because the police concededly did not have probable cause to arrest him for driving while under the influence until he failed to pass these tests. We are unpersuaded.

The defendant's constitutional claim focuses on the phrase "except in cases clearly warranted by law." Although this court has not specifically addressed the import of this language in the context of an investigative detention short of an arrest, we have generally characterized article first, § 9, as one of our state constitutional provisions guaranteeing due process of law. See, e.g., State v. Marra, 195 Conn. 421, 425, 489 A.2d 350 (1985); State v. Castonguay, 194 Conn. 416, 420, 481 A.2d 56 (1984); Parks v. Bourbeau, 193 Conn. 270, 278 n. 8, 477 A.2d 636 (1984). ⁶ A due process perspective therefore informs our assessment of the defendant's contention that, because warrants cannot be issued without a showing of probable cause, the phrase "clearly warranted by law" mandates a universal probable cause standard whenever the police restrain personal freedom to any degree.

In examining the text of article first, § 9, to determine the extent to which it supports the defendant's claim, "we must assume that infinite care was employed to couch in scrupulously fitting language a proposal aimed at establishing or changing the organic law of the state. Cahill v. Leopold, 141 Conn. 1, 19, 103 A.2d 818 [1954]; 1 Cooley, Constitutional Limitations (8th Ed.) p. 125. Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution." Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S.Ct. 496, 70 L.Ed.2d 374 (1981). In article first, § 9, the "except in cases clearly warranted by law" clause modifies, without apparent distinction, the rights of a person "arrested, detained or punished." Although the validity of an arrest turns on proof of probable cause, that standard of proof has no bearing on the legality of punishment. Accordingly, on its face, § 9 does not impose a universal probable cause standard in all the circumstances that the section encompasses. Furthermore, § 9's separate inclusion of arrests and detentions counsels against finding an intent to impose a constitutional requirement for a parity of treatment between the greater intrusion on personal freedom represented by an arrest and the lesser intrusion represented by a detention. Read in its entirety, the text indicates that the specific content appropriately to be assigned to the phrase "clearly warranted by law" depends on the particular liberty interest that is at stake. Such a construction is, of course, entirely consonant with the general contours of a constitutional safeguard rooted in flexible principles of due process. See, e.g., Asherman v. Meachum, 213 Conn. 38, 46, 49-53, 566 A.2d 663 (1989); Mathews v. Eldridge, 424 U.S. 319, 324-25, 96 S.Ct. 893, 897-98, 47 L.Ed.2d 18 (1976); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

The historical antecedents of article first, § 9, shed little light on the scope of the section's mandate with regard to detentions. The precise language of the present section was originally adopted as article first, § 10, of the Connecticut constitution of 1818. ⁷ Prior to 1818, Connecticut's declaration of rights took the form of a statutory enactment dating back to the preamble to Ludlow's Code of 1650. That preamble provided that "no mans life shall bee taken away ... no mans person shall bee arrested, restrained, banished, dismembered nor any way punished ... under colour of Law or countenance of Authority, unless it bee by the vertue or equity of some express Law of the Country warranting the same, established by a General Courte, and sufficiently published, or in case of the defect of a Law in any perticular case, by the word of God." 1 Public Records of the Colony of Connecticut 509 (J.H. Trumbull Ed. 1850). This text survived with only minor changes until its last codification before the adoption of the constitution, in the 1808 Public Statute Laws of Connecticut. At that time, the final clause of the preamble read: "unless clearly warranted by the laws of this state." Public Statute Laws of the State of Connecticut (1808), Title I, § 2.

For present purposes, the most significant aspect of the pre-1818 declaration of rights is that it had constitutional overtones even though it was statutory in form. "The Declaration and supplementary statutes relating to individual rights were grounded in the Connecticut common law and viewed as inviolate. Abridgements perpetrated by the government were considered void on their face and courts were to refuse to enforce them." C. Collier, "The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim...