State v. Towry

• Decision Date: 03 May 1965
• Docket Number: No. 13309,13309
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. John TOWRY.

Page 455

210 A.2d 455

26 Conn.Supp. 35

STATE of Connecticut v. John TOWRY.

No. 13309.

Superior Court of Connecticut, New Haven County at New Haven.

May 3, 1965.

George R. Tiernan, State's Atty., for the State.

Charles G. Albom, New Haven, for defendant.

THIM, Judge.

The defendant moves to suppress as evidence, upon the trial of the information pending against him, the results of a test of his blood for its alcoholic content which he claims was taken illegally and without his consent.

On November 14, 1964, at approximately 10:40 p. m., the defendant was discovered in the front seat behind the wheel of a motor vehicle. Immediately prior to such discovery, the vehicle had been operated on a public highway at a high rate of speed. It left the highway and landed on the tracks of a railroad. The vehicle was found straddling the tracks and it was in a badly damaged condition.

The defendant was removed from the vehicle and taken unconscious by ambulance to a hospital. At 2:20 a. m. on November 15, a sample of blood was taken from him, without his consent and without a search warrant, by a medical examiner. At that time the defendant was still incapable of comprehending what was going on about him. The sample was taken by a police officer to a state laboratory. Upon analysis, the sample showed in the blood an alcoholic content of 18 percent by weight. On November 27, after the results of the blood test were known, and after the defendant had returned to his home from the hospital, the police went to his home and arrested him. A court clerk was present at the time of the arrest and accepted a bond guaranteeing the defendant's appearance in court. Subsequent to the arrest, an information charging the defendant with committing the crime of misconduct of motor vehicle operator (General Statutes § 53-17) was filed in this court.

The defendant urges suppression on the ground that the taking of his blood under the circumstances constituted an illegal search and seizure in violation of his rights under § 8, article first, of the constitution of Connecticut, and under the fourth and fourteenth amendments to the United States constitution, which insure him against an unreasonable search and seizure of his person or property.

The state seeks to sustain the admissibility of the results of the test on three grounds: (1) The taking and testing of the defendant's blood was not, under the circumstances, an unreasonable search and seizure in violation of any of the defendant's constitutional rights; (2) the officer had probable cause for arresting the defendant without awaiting the results of the test and he was prevented from making an arrest because of the condition of the defendant; and (3) the taking of the defendant's blood is expressly authorized under the provisions of § 14-227b of the General Statutes.

It is now well settled that no search of the person or seizure of any article found thereon can be made on mere suspicion that the person searched is violating the law, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest or shall be lawfully arrested without a warrant as authorized by law. State v. Miller, 152 Conn. 343, 347, 206 A.2d 835; Mapp. v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Not every search made without a warrant is illegal. For example, a search which is an incident to a lawful arrest is proper. State v. DelVecchio, 149 Conn. 567, 572, 182 A.2d 402. A search with consent is lawful. State v. Collins, 150 Conn. 488, 191 A.2d 253.

Here the defendant was not arrested until November 27, thirteen days after the taking of blood from him. In no sense could such taking be regarded as an incident of his arrest. The confinement of the defendant in the hospital and his condition at that time did not, as argued by the state, prevent the police from making an arrest. It is true, as claimed by the state, that the defendant's physical condition on November 14 necessitated hospital confinement. However, he could have been legally arrested at that time without removing him from the hospital. Not until November 27 did the enforcement officials take any steps to detain the defendant or interfere with freedom of his movement.

In arguing that the taking and testing of the defendant's blood was not, under the circumstances, an unreasonable search and seizure, the state relies in part upon a 1957 decision of the United States Supreme Court in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448. The facts in Breithaupt are similar to those in the instant case. Breithaupt, while driving a truck on a public highway, was involved in a collision which resulted in the deaths of three persons and his injuries. While he was lying unconscious in the emergency room of a hospital, a policeman request that a sample of blood be taken. A physician, using a hypodermic needle, withdrew a blood sample, which on laboratory analysis contained about .17 percent alcohol. Thereafter, Breithaupt was charged with involuntary manslaughter and convicted thereof. At his trial, evidence of the blood test and results were admitted over his objection. Breithaupt urged that the evidence was obtained in violation of the due process clause of the fourteenth amendment, in that the taking was the result of an unreasonable search and seizure in violation of the fourth amendment and that there was a violation of the fifth amendment in that the introduction of the test compelled him to be a witness against himself.

In rejecting the claims of Breithaupt and upholding the admissibility of the results of the blood test, the court followed the rule set forth in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (decided in 1949), which holds that in a prosecution in a state court for a state crime the fourteenth amendment to the United States constitution does not forbid the admission of evidence obtained by an unreasonable search and seizure. Following the Breithaupt decision, the Supreme Court of the United States in Mapp v. Ohio, supra, and again in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (decided in 1963), held unequivocally that the fourth amendment is enforceable against the...