State v. Murphy, 3214

• Decision Date: 11 March 1986
• Docket Number: No. 3214,3214
• Citation: 505 A.2d 1251,6 Conn.App. 394
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Terrence S. MURPHY.

Page 1251

505 A.2d 1251

6 Conn.App. 394

STATE of Connecticut v. Terrence S. MURPHY.

No. 3214.

Appellate Court of Connecticut.

Argued Dec. 6, 1985.

Decided March 11, 1986.

James J. Alaimo, Jr., with whom, on brief, was Edward Pontacoloni, Hartford, for appellant (defendant).

Jeffrey L. Kline, Sp. Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and SPALLONE and BIELUCH, JJ.

DUPONT, Chief Judge.

This is an appeal from the judgment of guilty rendered against the defendant, following his pleas of nolo contendere, to the crimes of tampering with physical evidence, a violation of General Statutes § 53a-155, illegal possession of marihuana, a violation of General Statutes § 21a-279(c), and violation of probation, a violation of General Statutes § 53a-32. The defendant entered his pleas conditional on the right to appeal from the trial court's denial of his motion to suppress evidence based on an unreasonable search or seizure. See General Statutes § 54-94a. The sole issue on appeal is whether the court should have granted the motion to suppress because the search in question violated either the fourth amendment to the United States constitution or article first, § 7 of the Connecticut constitution.

The defendant was stopped while driving his motor vehicle by a police officer for a minor traffic violation. A check of the vehicle registration by the police officer revealed that the temporary registration of the defendant's motor vehicle had expired less than one hour before the defendant was stopped. The defendant was issued a summons by the police officer for operating an unregistered motor vehicle, and for an improper turn. At this point, the police officer informed the defendant that his automobile would be impounded pursuant to police department policy. The police officer asked the defendant to remove any valuables from the automobile. The defendant replied that there were no valuables in his automobile and that he wished to have his automobile taken to his home, approximately one and a half miles from the location of the stop, rather than have his automobile impounded and towed to a police lot. The police officer denied the defendant's request and began to search the defendant's automobile in order to inventory its contents. In the course of this inventory, the police officer opened the glove compartment of the defendant's automobile and observed a mirror lying face up with a quantity of white powder on it. At this point, a passenger, who had been in the defendant's vehicle from the time it was initially stopped, attempted to leave the scene. As the police officer got out of the defendant's automobile in order to prevent the passenger from leaving, the defendant reentered his vehicle and turned over the mirror, spilling its contents onto the car seat. As a result of the defendant's action, an insufficient amount of the substance remained for chemical analysis. Upon resuming his search, the police officer also discovered the remains of two marihuana cigarettes in the ashtray of the defendant's car. The defendant was later placed under arrest and charged with tampering with physical evidence and possession of marihuana.

It is conceded by the parties that the search was a warrantless one and, therefore, must come within a recognized exception to the warrant requirement of the fourth amendment in order to be reasonable and thereby pass constitutional muster. See State v. Zindros, 189 Conn. 228, 236-38, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984); State v. Tully, 166 Conn. 126, 133-35, 348 A.2d 603 (1974). Although several exceptions to the warrant requirement have been recognized, the parties agree that the only exception at issue in this case is the administrative inventory search of the type recognized in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). ¹ See also State v. Gasparro, 194 Conn. 96, 107, 480 A.2d 509 (1984), cert. denied, --- U.S. ----, 106 S.Ct. 90, 88 L.Ed.2d 74 (1985); ² State v. Reddick, 189 Conn. 461, 467, 456 A.2d 1191 (1983). ³ The state contends that the factual pattern in this case is similar to that reviewed by the United States Supreme Court in Opperman and that the search in question should be upheld on the basis of the same policies as those advanced in Opperman. The defendant maintains that the factual pattern of Opperman is inapposite to the present case.

In Opperman, the United States Supreme Court held that an inventory search of the contents of an automobile, impounded by the police for multiple parking violations, was not an unreasonable search in violation of the fourth amendment, where the inventory search was conducted in accordance with standard police procedures and the inventory was not for investigatory purposes. In order to determine the reasonableness of a routine inventory search, a court is required to weigh "the governmental and societal interests advanced to justify such intrusions against the constitutionally protected interest of the individual citizen in the privacy of his effects." South Dakota v. Opperman, supra, 428 U.S. 378, 96 S.Ct. 3101-02 (Powell, J., concurring); see also Illinois v. Lafayette, 462 U.S. 640, 643-44, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65 (1983); Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

In applying this balancing test, the Supreme Court identified three governmental and societal interests in support of inventory searches: (1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property; and (3) protection of the owner's property while it remains in police custody. South Dakota v. Opperman, supra, 428 U.S. 369, 96 S.Ct. 3097. When these interests singly or together comprise the reason for invading a citizen's expectation of privacy in his automobile, ⁴ the Supreme Court has concluded that the limited intrusion into an individual's privacy interest caused by an inventory search is outweighed by the legitimate governmental interests embodied in the "community caretaking functions" of the police. Id., 428 U.S. 368-69, 96 S.Ct. 3096-97; Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); see also State v. Tully, supra, 166 Conn. 136-37, 348 A.2d 603.

An examination of the governmental interests usually advanced in support of inventory searches leads to the conclusion that the inventory search in this case was unreasonable. The first governmental interest, protection of the police from potential danger, cannot justify the inventory search in this case. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). It is generally acknowledged that, except in rare cases, there is little danger to the police in impounding automobiles which have not been subjected to an inventory search. South Dakota v. Opperman, supra, 428 U.S. 378, 96 S.Ct. 3101-02. (Powell, J., concurring). In this case, the police officer testified that he did not observe anything in the defendant's vehicle which constituted a threat to him. The officer further testified that he had no suspicion that a possible felony or misdemeanor was in progress at the time he stopped the defendant's vehicle.

The other two governmental interests identified in Opperman, protection of police against claims and disputes over lost or stolen property and protection of the owner's property while it remains in police custody, could have been satisfied by having the defendant's vehicle towed to his home, as the defendant requested, rather than having the vehicle impounded and searched.

A police officer testified that the defendant's car could have been towed to his home, in accordance with police department regulations, if satisfactory arrangements for the towing charge were made with the authorized "impound" towing service but that an inventory was first required. ⁵ If police department policy allowed the car to be towed to the home of its owner, an inventory just prior to such towing was not necessary to protect the police against claims of lost or stolen property or necessary to protect the owner's property while in police custody.

State courts sometimes disagree as to the constitutionality of inventory searches based on the particular facts or the particular administrative procedures, but, in general, agree that the police should inventory an impounded vehicle when the owner or possessor is present at the time only if he elects to allow the police to have custody of it. See 2 LaFave, Search and Seizure : A Treatise on the Fourth Amendment § 7.4. If the defendant's car had been towed the one and a half miles to his house, after satisfying the "impound wrecker" of payment for the towing, the police could have eliminated any bailment situation and, thus, protected themselves from claims involving lost or stolen property, and the defendant could have protected his own property. ⁶

Whether a search is reasonable is to be determined on a case by case basis, depending upon the particular fact situation. South Dakota v. Opperman, supra, 428 U.S. 373, 375, 96 S.Ct. 3099, 3100; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). On the facts of this case, the search was not reasonable. The ownership and registration of the car had been established by the time of the search to inventory the contents of the glove compartment and the defendant had already stated that no valuable property was located in the car. See South Dakota v. Opperman, supra, 428 U.S. 372, 96 S.Ct. 3098-99. The policy of the police department did not require that the vehicle be held in its custody if the defendant could make arrangements, through an authorized towing service, for its removal from the side of the highway and no valuables were visible to the police.

The conclusion that the inventory search in this case was unreasonable is not inconsistent with the United...