State v. Smolen

• Decision Date: 29 May 1967
• Docket Number: No. MV,MV
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Joseph S. SMOLEN. 12-37020.

Page 339

232 A.2d 339

4 Conn.Cir.Ct. 385

STATE of Connecticut v. Joseph S. SMOLEN.

No. MV 12-37020.

Circuit Court of Connecticut, Appellate Division.

Argued May 16, 1967.

Decided May 29, 1967.

Karl Fleischmann, of Hartford, for appellant (defendant).

Eugene T. Kelly, Pros. Atty., for appellee (state).

JACOBS, Judge.

The defendant was convicted in a trial to the court of failure to carry registration certificate, in violation of § 14-13(b) of the General Statutes, ¹ and of failure to obey orders of an officer, in violation of § 14-223, ² and he has appealed from the judgment.

The facts are substantially undisputed. On December 16, 1966, at about 9:30 p.m., two uniformed state police troopers were engaged in spotchecking all automobiles by means of a roadblock which was set up at the intersection of route 32 and Crow Hill Road, public highways, in the town of Stafford, for the purpose of checking safety equipment, registration certificates and operators' licenses. Early the next morning, on December 17, 1966, at about 12:20 a.m., a Mercury automobile operated by the defendant was proceeding in a southerly direction on route 32 when one of the state troopers waved him to come to a halt, but he attempted to pass the trooper without stopping. When the defendant did come to a stop, the trooper requested him to back his vehicle because it was blocking the highway. The defendant refused to remove his car from the traveled portion of the highway. He questioned the officers' right to stop him. In its corrected finding, the trial court found that the officers 'had no reason to believe that the defendant had committed a crime when they stopped his car.' At the request of the officer, the defendant produced a valid Connecticut operator's license; although the vehicle was properly registered under the laws of this state, the defendant failed to produce on request the certificate of registration. The defendant was thereupon given a uniform traffic ticket notifying him to appear in the Circuit Court on January 16, 1967, to answer to the foregoing violations. The defendant then continued on his way. He was not booked, nor was bond required of him. ³

The basic issues involved in this appeal are (1) whether roadblock stopping of vehicles to check operators' licenses, certificates of registration, safety equipment and the like constitutes an arrest; (2) whether roadblock stopping of vehicles is constitutionally permissible as a valid exercise of the police power; and (3) whether roadblock stopping of vehicles constitutes an invasion of privacy.

I

Under Connecticut law, '(a)n arrest in criminal cases is the apprehending, or detaining the person in order to be forth-coming to answer an alleged or suspected crime.' 2 Swift, Digest, p. 387; see Ryan v. Ebecke, 102 Conn. 12, 18, 128 A. 14, 40 A.L.R. 88; 6 C.J.S. Arrest § 1(b); 4 Wharton, Criminal Law and Procedure § 1581; 1 Orfield, Criminal Procedure under the Federal Rules § 4.4. In Henry v. United States, 361 U.S. 98, p. 103, 80 S.Ct. 168, p. 171, 4 L.Ed.2d 134, decided in 1959, the court said: 'The prosecution conceded below, and adheres to the concession here, that the arrest took place when the federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete.' See Sobel, Current Problems in the Law of Search and Seizure, p. 115. But we do not interpret the Henry case as standing for the proposition that every stopping of an automobile constitutes a technical arrest. In Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, decided one year after Henry, the court left open the question whether the momentary halting of an automobile for investigation purposes automatically constitutes an arrest. And in Brinegar v. United States, 338 U.S. 160, p. 188, 69 S.Ct. 1302, p. 1317, 93 L.Ed. 1879, Mr. Justice Jackson, a leading exponent of a citizen's fourth amendment rights, in a dissenting opinion said: 'I do not, of course, contend that officials may never stop a car on the highway without the halting being considered an arrest or a search. Regulations of traffic, identifications where proper, traffic census, quarantine regulations, and many other causes give occasion to stop cars in circumstances which do not imply arrest or charge of crime.'

'To determine whether an arrest has taken place (in this case), we look to the facts to see if there has been 'an actual restraint of the person." Foote, 'The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?' 51 J. Crim. L.C. & P.S. 402, 403. 'To constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.' Jenkins v. United States, 10 Cir., 161 F.2d 99, 101. The stopping of the defendant's car in this case cannot be considered as an arrest. No intent to apprehend the defendant was shown and no move was made to take him into custody at the time. The officers did not open the car door when it was stopped, nor state that the defendant was under arrest, nor touch his person. See Gilliam v. United States, 6 Cir., 189 F.2d 321, 323; Perkins, 'The Law of Arrest,' 25 Iowa L.Rev. 201; Restatement (Second), 1 Torts § 112, comment c. 'It is settled law that peace officers have the unquestioned right to detain one driving an automobile for the purpose of examining his driver's license. Such a detention is not unlawful where it is done in good faith for that specific purpose. But when it is a mere subterfuge, 'or an excuse for a failure to procure a * * * warrant', it is unlawful.' Murphy v. State, 194 Tenn. 698, 701, 254 S.W.2d 979, 980.

We hold that the stopping of the defendant's car under the particular circumstances of this case was not an arrest. See Lipton v. United States, 9 Cir., 348 F.2d 591, 593; Busby v. United States, 9 Cir., 296 F.2d 328, 332, cert. denied, 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 278; United States v. Bonanno, D.C., 180 F.Supp. 71, 79; Barrier v. Alexander, 100 Cal.App.2d 497, 500, 224 P.2d 436; People v. Yerman, 138 Misc. 272, 246 N.Y.S. 665 (N.Y.); Toledo v. Lowenberg, 99 Ohio App. 165, 167, 131 N.E.2d 682; 1 Orfield, Criminal Procedure under the Federal Rules § 4.66, p. 193; see also State v. Amara, 152 Conn. 296, 206 A.2d 438.

II

Under § 14-217, any officer in uniform is given the authority to require any person who is operating or who is in charge of any motor vehicle to produce on demand his motor vehicle registration certificate and operator's license. ⁴ And for the safety of the public, every operator is required to obtain an operator's license (§ 14-36), which he 'shall carry * * * while operating such vehicle.' § 14-213. Furthermore, all vehicles must be registered in compliance with § 14-13(a), and '(s)uch certificate shall at all times be carried upon such motor vehicle when upon the public highway.' § 14-13(b). 'The operation of a motor vehicle upon the public highways is not an absolute right, but only a privilege which the state may grant or withhold at pleasure in the course of its regulation and control of public ways.' 7 Am.Jur.2d 601, Automobiles and Highway Traffic, § 6. Our courts have consistently held that '(a)n operator's license is purely a personal privilege, nontransferable, and granted by the state on account of fitness. * * * The registration certificate is for purpose of identification and revenue.' Shea v. Corbett, 97 Conn. 141, 145, 115 A. 694, 696; Dempsey v. Tynan, 143 Conn. 202, 206, 120 A.2d 700; Dentamaro v. Motor Vehicles Commissioner, 20 Conn.Sup. 205, 208, 130 A.2d 568; 60 C.J.S. Motor Vehicles § 60. In addition to these regulations, the commissioner of motor vehicles is empowered by law to refuse to register any motor vehicle which is not equipped with lighting devices as prescribed by law. § 14-12. He may require as a condition precedent compliance with the provisions of the law governing such equipment for the 'protection of other users of the highway.' Gonchar v. Kelson, 114 Conn. 262, 265, 158 A. 545, 546. 'State legislatures may, in the exercise of their police and revenue powers, enact reasonable regulations requiring the licensing or registration of motor vehicles, the prime purpose of vehicle registration laws being to supervise vehicles, their movement and control, and to establish their identity in relation to the public and to any resultant damage or injury they may occasion; in this way proper supervisory authority may be invoked when it becomes necessary to verify the owner of the vehicle.' 7 Am.Jur.2d 633, Automobiles and Highway Traffic, § 50. The underlying purpose of the provisions of our motor vehicle laws is not establish throughout the state a uniform system.

There can be little doubt that '(t)he death rate from motor accidents rivals that of our severest wars.' ⁵ Brinegar v. State, 97 Okl.Cr. 299, 308, 262 P.2d 464, 474. 'Increase of highway casualties is one of the most impelling social questions now confronting the public. Civic bodies and law enforcement officers at every level are bending their efforts of reduce them.' Thornhill v. Kirkman, 62 So.2d 740, 742 (Fla). In the light of such a compelling social problem, Professor Landynski asks: 'Is there any situation short of probable cause which would justify a policeman in stopping an automobile? There is no doubt that he may do so for the purpose of enforcing the traffic laws, as, for example, the checking of drivers' licenses. One who drives an automobile does so subject to certain regulations made in the interest of community safety, and these would be meaningless if they could not be enforced.' Landynski, Search and Seizure and the Supreme Court, p. 97. 'It has been held that police officials may set up highway roadblocks for the purpose of requiring motorists to display their...