State v. Trine

• Citation: 657 A.2d 675,37 Conn.App. 561
• Decision Date: 01 June 1995
• Docket Number: No. 13194,13194
• Court: Connecticut Court of Appeals
• Parties: , 63 USLW 2695 STATE of Connecticut v. Terrence TRINE.

Page 675

657 A.2d 675

37 Conn.App. 561, 63 USLW 2695

STATE of Connecticut v. Terrence TRINE.

No. 13194.

Appellate Court of Connecticut.

Argued Nov. 29, 1994.

Decided April 18, 1995.

Certification Granted Limited to the Following Issue June 1, 1995.

Dominic S. Piacenza, New London, for appellant (defendant).

Kevin T. Kane, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, Sr., State's Atty., for appellee (State).

Before EDWARD Y. O'CONNELL, LAVERY and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals from a judgment of conviction, rendered after a conditional plea of nolo contendere, ¹ of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277(a). ² On appeal, the defendant claims that the trial court improperly denied his motion to suppress evidence that was seized without a warrant under circumstances that required a proper warrant. We agree with the defendant that the evidence seized should have been suppressed.

The facts necessary to a proper resolution of this appeal may be briefly summarized as follows. On March 26, 1993, Officers James Cash and Steven Sinagra of the statewide narcotics task force, a police squad consisting of officers of the Connecticut state and local police, applied for a search warrant authorizing the search of the person and residence of Marybeth Montesi. Partially on the basis of information given to them by two confidential informants, the officers stated that they had reason to believe that Montesi was involved in the sale of cocaine from her home in East Lyme. The warrant was issued the same day and entitled the officers to search Montesi's person and residence for various items common to trafficking in narcotics, including weapons and handguns.

That afternoon, the team assigned to execute the search warrant met for a preraid briefing. Sergeant Lawrence Pagan, a member of the Connecticut state police with fifteen years experience as a state police officer and three years experience as the sergeant in charge of the eastern division of the statewide narcotics task force, led the team. Pagan was familiar with the contents of the affidavits used in connection with the application for the search warrant and was aware that those affidavits indicated a probability of weapons being found at the scene of the search. He was also aware that the warrant application sought an order of nondisclosure of the warrant and affidavits, alleging that there existed a risk that Montesi or an associate might seek reprisals against the confidential informants that had been the source of the information on which the application was predicated.

At approximately 3 p.m., the task force arrived at Montesi's home. Because of the home's location, the task force was unable to conduct surveillance of the area without discovery. As a consequence, the officers were unable to ascertain who or how many persons might be present on the premises when the warrant was executed.

The officers gained entrance to the premises by use of a battering ram and entered with their weapons drawn. Pagan was the second officer to enter the premises, and he observed that three persons were present: two men and one woman. Pagan immediately directed his attention to the man closest to him, later identified as the defendant. Pagan ordered the defendant to lie down on the floor on his stomach with his hands behind his head. The defendant complied with the officer's direction. Pagan holstered his weapon and handcuffed the defendant with his arms behind his back. He then patted down the defendant for the purpose of discovering whether the defendant was carrying a weapon. The search revealed that the defendant was not armed.

In the course of conducting his pat down of the defendant, Pagan felt a hard object in the area of the right front pocket of the defendant's blue jeans and simultaneously heard a sound made by plastic. Pagan immediately concluded that the object that he felt was rock cocaine on the basis of his knowledge that rock cocaine was hard and often kept in small plastic bags, like the object that he felt in the defendant's pocket. Pagan reached into the defendant's pocket, seized the object and arrested him for a narcotics violation. It was later discovered that the bag recovered from the defendant's pocket contained approximately one ounce of rock cocaine.

The defendant asserts that the cocaine seized from his pocket was obtained in violation of article first, § 7, of the Connecticut constitution ³ and, therefore, should have been suppressed. The state, however, urges us to adopt the United States Supreme Court holding in Minnesota v. Dickerson, --- U.S. ----, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), which permits law enforcement officers to seize, without a warrant, that which is determined to be contraband on the basis of an officer's sense of touch during a legal pat down search of a suspect for weapons. The dispositive issue in this appeal is, therefore, whether the constitution of Connecticut, article first, § 7, contains sufficient elasticity to permit a new exception to the search warrant requirement similar to that created by the United States Supreme Court when it concluded that a "plain feel" exception was not violative of the fourth amendment to the constitution of the United States. ⁴ We agree with the defendant that adoption of such a rule would be "incompatible with the fundamental precepts underlying [the constitution of Connecticut,] article first, § 7." State v. Miller, 29 Conn.App. 207, 223, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993).

We begin our analysis by restating the principles that govern the relationship between our state constitution and the federal constitution. "It is well established that federal constitutional ... law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights...." (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 649, 613 A.2d 1300 (1992). "[W]e may [therefore] find greater protection of individual rights under our state constitution than that provided by the federal constitution." State v. Miller, 227 Conn. 363, 379, 630 A.2d 1315 (1993).

"[I]n the area of fundamental civil liberties--which includes all protections of the declaration of rights contained in article first of the Connecticut constitution--we sit as a court of last resort [subject to the review of our decision only by our Supreme Court].... In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law." (Internal quotation marks omitted.) Id., at 379-80, 630 A.2d 1315.

"Although our state constitutional decisional law is in its infancy, some distinct, principled jurisprudential theories are emerging for determining when it is appropriate to invoke our state constitution and to afford greater protections to Connecticut residents than those supplied by the United States Supreme Court's interpretations of consonant provisions of the federal constitution. Although the basis for departure is perhaps most obvious where either the text or the historical setting of the Connecticut constitutional provision at issue varies materially from that of its federal counterpart, our courts have in some instances interpreted our state constitutional provisions more broadly than their federal counterparts even where, as is the case with the search and seizure provisions of the two documents, there is no material difference between either the texts or the historical backgrounds of the two provisions.... This has been particularly so where the United States Supreme Court has created exceptions to or deviated from rules previously enunciated by it ... that are incompatible with the fundamental precepts underlying article first, § 7." (Citations omitted; internal quotation marks omitted.) State v. Miller, supra, 29 Conn.App. at 222-23, 614 A.2d 1229 (holding that warrantless searches of impounded automobiles violate Connecticut constitution despite United States Supreme Court holding in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 [1970]; see also State v. Geisler, 222 Conn. 672, 695, 610 A.2d 1225 (1992) (holding that emergency exception to warrant requirements recognized under federal constitution would be adopted by state but in more limited form); State v. Marsala, 216 Conn. 150, 151, 579 A.2d 58 (1990) (holding that good faith exception to exclusionary rule recognized under federal constitution inimical to purposes of state constitution). We believe that this is such a case.

Our cases have consistently held that both the state and federal constitution evince a preference for warrants to protect the individual rights of our citizens. "It is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." (Emphasis in original; internal quotation marks omitted.) State v. Miller, supra, 29 Conn.App. at 217, 614 A.2d 1229, citing Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978), and Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); see also State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). The requirement that a warrant be obtained before conducting a search "reflects the sound policy judgment that, absent exceptional circumstances, the...