State v. Longo

• Decision Date: 03 March 1998
• Docket Number: No. 15792,15792
• Citation: 243 Conn. 732,708 A.2d 1354
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Donna Marie LONGO.

Page 1354

708 A.2d 1354

243 Conn. 732

STATE of Connecticut v. Donna Marie LONGO.

No. 15792.

Supreme Court of Connecticut.

Argued Dec. 10, 1997.

Decided March 3, 1998.

John R. Day, Certified Legal Intern, with whom were Richard Emanuel, Assistant Public Defender, and, on the brief, Charles L. Mudd, Certified Legal Intern, for appellant (defendant).

Leon F. Dalbec, Jr., Assistant State's Attorney, with whom, on the brief, were John A. Connelly, State's Attorney, and Eva Lenczewski, Assistant State's Attorney, for appellee (State).

Before BORDEN, KATZ, PALMER, McDONALD and PETERS, JJ.

McDONALD, Associate Justice.

The principal issue in this case is whether the police, pursuant to the automobile exception to the warrant requirement under the federal and state constitutions, may, in some circumstances, conduct a warrantless search of a closed container found inside a car. The defendant, Donna Marie Longo, was charged with one count of conspiracy to transport a narcotic substance with intent to sell in violation of General Statutes §§ 53a-48 and 21a-277 (a). ¹ Prior to her trial, she filed a motion to suppress evidence, which the trial court denied. Following a jury trial, the defendant was convicted as charged and sentenced to a term of imprisonment of ten years, execution suspended after five years, followed by three years of probation. The defendant appealed from the judgment of conviction to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We conclude that both the motion to suppress and the evidentiary ruling of the trial court were decided properly, and, therefore, we affirm the judgment of the trial court.

The following evidence was adduced at the hearing on the motion to suppress. On May 6, 1995, Lieutenant Benjamin Pagoni and Trooper Anthony Cretella of the Connecticut state police established an automobile safety check point on Route 69 between New Haven and Waterbury. At approximately 6 p.m., the officers stopped a Honda Civic that was being driven by Thomas Allegrini. They made the stop because Allegrini and Matthew Summa, his front seat passenger, were not wearing seat belts, and because the side windows of the Civic appeared to be tinted beyond the legal limit. When Pagoni approached the driver's side of the car and spoke to Allegrini through the open window, Pagoni smelled the odor of marijuana coming from inside the car. Pagoni then proceeded to the passenger side and asked Summa to roll down his window. From there, Pagoni could see scattered throughout the car numerous green seeds that he believed were marijuana seeds and the burnt ends of several rolled marijuana cigarettes. Pagoni also observed Summa trying to push a large black bag ² under the front seat with his feet.

Pagoni then asked Summa to step out of the vehicle. Once Summa was outside the car, Pagoni saw several more marijuana seeds on the seat where Summa had been sitting. Allegrini told Pagoni that there were no other drugs in the car but that he had smoked some marijuana in the car the night before. The officers asked Allegrini and the defendant, who was in the back seat, to exit the car. At that point, Allegrini was arrested for possession of marijuana.

Pagoni then asked for and received Allegrini's consent to search the car. In conducting the search, he came upon the black bag under the front seat. The defendant told Pagoni that it was her bag and that she did not want it to be searched. ³ Nonetheless, Pagoni searched the bag, and found the following items: credit cards in Michael Greco's name; a credit card in the defendant's name; a driver's license in the defendant's name; a Connecticut state police gun permit in the defendant's name; a handwritten note with directions to a house in New Haven; a price list for various amounts of cocaine; and in a zippered compartment in the back of the bag, a plastic bag containing cocaine.

At the conclusion of the suppression hearing, the trial court made the following findings. On May 6, 1995, the officers established a routine automobile safety check point on the highway. There the officers stopped a vehicle in which the defendant was a passenger for automobile equipment violations. Pagoni, whose training qualified him to recognize the presence of marijuana, smelled marijuana coming from inside the car. He also could see marijuana seeds scattered on the floor of the vehicle and the burnt ends of several rolled marijuana cigarettes in the ash tray. The driver told Pagoni that he had been smoking marijuana in the car the previous night.

When the driver and the two other occupants of the vehicle had exited the car, as requested, Pagoni searched the vehicle for marijuana and weapons and found the black bag positioned partly under the front seat. The defendant told Pagoni that the black bag was hers and that she did not want it to be searched. Pagoni did search the black bag, finding the cocaine and other items inside.

At the defendant's trial, the state presented evidence that on May 6, 1995, Summa telephoned Allegrini and asked him for a ride. After Allegrini picked up Summa, Summa received a call on his pager, which displayed the defendant's telephone number. Summa called the defendant and spoke with her husband, Michael Greco. Greco asked if they could give the defendant a ride to New Haven and Allegrini agreed to do so. When Summa and Allegrini arrived at the defendant's residence, the defendant entered the back seat of the car carrying a large black bag.

Following the defendant's directions, Allegrini drove to a residential neighborhood in New Haven and the defendant told Allegrini where to park the car. The defendant left the car carrying her black bag, and returned approximately ten minutes later, still carrying her bag. During the return trip to Waterbury, the defendant asked Summa to put her bag on the floor in front of him, which he did. Thereafter, they were stopped by the officers.

On appeal, the defendant raises two issues: (1) whether the trial court improperly denied her motion to suppress evidence obtained during the search of her bag, under both the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution; ⁴ and (2) whether the trial court abused its discretion by permitting the state to introduce her gun permit into evidence. We conclude that the motion to suppress was decided correctly, and that the trial court did not abuse its discretion in admitting the gun permit into evidence.

I

Under both the federal and the state constitutions, the police must first obtain a warrant before conducting a search, unless an exception to the warrant requirement applies. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (warrant required before every search or seizure, "subject only to a few specifically established and well-delineated exceptions" [internal quotation marks omitted] ); State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). We hold that because in this case the police had probable cause to search the automobile under the automobile exception to the warrant requirement, they also could search any containers found in the vehicle that might hold the objects of their search.

A

The search of the black bag does not violate the United States constitution. This case is controlled by United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982), in which the United States Supreme Court upheld the search of a closed brown paper bag found in the trunk of the defendant's automobile. "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id. "The scope of a warrantless search of an automobile ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found." Id., at 824, 102 S.Ct. at 2172.

It is undisputed that Allegrini was lawfully stopped based on traffic violations. Probable cause to search the car arose ⁵ when Pagoni smelled marijuana and saw marijuana seeds and cigarettes in plain view inside the car. ⁶ Here, the officers were searching for marijuana and weapons. See State v. Wilkins, 240 Conn. 489, 509-11, 692 A.2d 1233 (1997) (upholding, for safety reasons, limited weapons search of passenger compartment of lawfully stopped vehicle). In these circumstances, because probable cause existed to search the vehicle and any of its contents that might have concealed contraband, the automobile exception permitted the police to search the defendant's bag. United States v. Ross, supra, 456 U.S. 798, 102 S.Ct. 2157.

B

The warrantless search was also justified under our interpretation of the warrant requirement of article first, § 7, of the Connecticut constitution. State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988). In Dukes, a police officer stopped the defendant for speeding. Id., at 100, 547 A.2d 10. After learning that the defendant's driver's license had been suspended, the officer asked him to get out of the car and arrested him. The officer immediately conducted a search of the defendant's clothing and found a small plastic vial of crack cocaine in his jacket pocket. Id., at 101, 547 A.2d 10. Afterward, while searching the car for additional contraband, the officer used the defendant's keys to open a " 'heavy plastic security type box' " that was located on the rear seat. Id., at 103, 547 A.2d 10. Inside the box, the officer discovered a loaded revolver and over ninety vials of a white substance that was later determined to be crack cocaine, cocaine and heroin. Id.

Although the search in Dukes could have been justified either as a search incident to the defendant's arrest or under the automobile exception, we held that...