State v. Waller

• Decision Date: 04 August 1992
• Docket Number: No. 14367,14367
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Billy WALLER, Jr.

Page 1189

612 A.2d 1189

223 Conn. 283

STATE of Connecticut v. Billy WALLER, Jr.

No. 14367.

Supreme Court of Connecticut.

Argued March 31, 1992.

Decided Aug. 4, 1992.

Stephen D. Brown, Sp. Public Defender, with whom was Timothy Patrick Brady, for appellant (defendant).

Timothy J. Sugrue, Asst. State's Atty., with whom were Margaret G. Radionovas, Deputy Asst. State's Atty., and, on the brief, Richard N. Palmer, Chief State's Atty., Donald A. Browne, State's Atty., and Steven M. Sellers, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

GLASS, Associate Justice.

After a jury trial, the defendant, Billy Waller, Jr., was convicted of possession of narcotics with the intent to sell by a person who is not drug-dependent, in violation of General Statutes § 21a-278(b), ¹ and failure to appear in the first degree, in violation of General Statutes § 53a-172(a). ² The trial court imposed a total effective sentence of ten years imprisonment, execution suspended after six years, followed by five years probation. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment. State v. Waller, 25 Conn.App. 575, 595 A.2d 916 (1991). We granted certification and now affirm the judgment of the Appellate Court.

The disposition of this appeal turns on the validity of a warrantless search of the defendant's car by the police. That search led the police to discover and to seize certain contraband from the defendant's car. The trial court denied the defendant's motion to suppress the contraband on the following factual record. On August 12, 1987, several police officers were on routine patrol in Father Panik Village, a housing project in Bridgeport. At approximately 6:15 p.m., Sergeant Joe Convertito observed what he considered to be suspicious behavior by the driver of a blue or gray Lincoln automobile. Upon running a check of the license plate, Convertito discovered an outstanding arrest warrant for the vehicle's owner. On the basis of information transmitted by Convertito over the police radio, Officer George Vivo stopped the vehicle, which was being driven by the defendant. Vivo requested the defendant's license and, upon ascertaining that he was the party named in the warrant, asked him to step out of the car. The defendant complied, at which point Officers Nick Ortiz and John Loscak arrived. Vivo then conducted a pat down search of the defendant's person, which yielded no weapons or incriminating evidence. Vivo informed the defendant that he was being arrested on the basis of an outstanding arrest warrant. The defendant told Vivo that he had taken care of the warrant. After confirming the validity of the warrant, Vivo arrested the defendant, handcuffed him and placed him in the police cruiser of Ortiz and Loscak. While the defendant remained at the scene in the cruiser, Vivo proceeded to secure the defendant's car in accordance with orders from Convertito. He opened the driver's side door of the defendant's vehicle, and on the armrest on the inside of the door he observed in plain view a glassine envelope containing a white substance. Vivo then looked in the storage area beneath the armrest, where he discovered a brown paper bag. He opened the bag and found seven glassine envelopes similar to the one that he had found atop the armrest. Vivo then drove the defendant's car to police headquarters, following Ortiz and Loscak, who had the defendant in their cruiser. The glassine envelopes found in the defendant's vehicle were subsequently determined to contain narcotics.

The defendant moved to suppress the eight packets of narcotics seized as a result of the warrantless search of his automobile on the basis that the search violated his rights under the fourth and fourteenth amendments to the United States constitution, ³ and article first, § 7, of the Connecticut constitution. ⁴ The defendant argued that although the search was contemporaneous with his arrest, it nonetheless was unreasonable because he did not have access to his automobile and because no justification existed for a warrantless search. State v. Waller, supra, 25 Conn.App. at 576, 595 A.2d 916. The trial court, after a hearing, concluded that the search was lawful and denied the defendant's motion to suppress. The court determined that the stop of the defendant's car was proper, and that, because the defendant remained at the scene of the arrest while Vivo conducted the search, the search was a proper search incident to arrest pursuant to New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). The trial court concluded, moreover, that even if the search was not lawful as a search incident to arrest, it could, nevertheless, be upheld under the inevitable discovery rule. State v. Waller, supra.

On appeal, the Appellate Court affirmed the judgment of the trial court, concluding: "The facts of this case fall squarely within the boundaries established in State v. Badgett, [200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986) ], and its progeny. In addition, the state constitution has been construed to allow warrantless searches incident to lawful arrests. State v. Delossantos, 211 Conn. 258, 266, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d 142 (1989); State v. Lizotte, 11 Conn.App. 11, 12, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987). The defendant's claim, therefore, is without merit." Id., 25 Conn.App. at 578, 595 A.2d 916.

We granted the defendant's petition for certification limited to two questions: "(1) [w]hether pursuant to article first, § 7, of the Connecticut constitution, Officer Vivo's warrantless search of the defendant's car was unreasonable since the defendant did not have access to a weapon or the ability to destroy evidence of a crime"; and "(2) [w]hether the warrantless search of the defendant's car could be justified under any exception to the warrant requirement found in article first, § 7, of the Connecticut constitution, especially since the defendant was restrained from reaching his vehicle, and Officer Vivo lacked any reason to justify the search. State v. Waller, 220 Conn. 920, 597 A.2d 343 (1991).

The defendant argues that the Appellate Court incorrectly upheld the trial court's admission into evidence of the contraband seized during the warrantless search of his automobile, under an exception to the warrant requirement of article first, § 7, of the Connecticut constitution. The defendant acknowledges that pursuant to New York v. Belton, supra, the fourth amendment to the United States constitution permits a police officer who has made a lawful custodial arrest of the occupant of an automobile, to search the vehicle's passenger compartment as a contemporaneous incident of the arrest. The defendant thus concedes that "[u]nder federal law, officer Vivo's search of [his] car would be considered reasonable as a search incident to a lawful custodial arrest." The defendant contends, however, that article first, § 7, of the state constitution affords greater protection against warrantless searches of automobiles to Connecticut's citizens than does the federal constitution, where no independent probable cause to search exists. The state argues that the Appellate Court correctly held that the disposition of this case is controlled by our decisions in State v. Badgett, supra, and State v. Delossantos, supra. We agree with the state. ⁵

Recently, on two separate occasions, we have reviewed the status of our law regarding the warrantless search of an automobile stopped in a public area, that is conducted after the driver has been arrested, handcuffed and placed in a police cruiser. State v. Delossantos, supra; State v. Badgett, supra. In State v. Badgett, supra, in determining the validity of the warrantless search of a vehicle incident to a lawful custodial arrest, pursuant to the fourth amendment of the United States constitution, we stated: "Although [New York v. Belton, supra] appears to have removed the necessity for factual analysis in each case of the actual likelihood that a person arrested may be able to obtain a weapon or destroy evidence contained in the passenger compartment of his vehicle, we construe it to allow a warrantless search of a vehicle incident to a lawful custodial arrest only while the arrestee remains at the scene of the arrest at the time the search is conducted." (Emphasis added.) Id., 200 Conn. at 428, 512 A.2d 160. Thus, in Badgett, we followed the rationale of Belton to the extent that where the defendant is restrained as the result of a lawful custodial arrest and he remains at the scene of the arrest, his vehicle may legally be searched incident to the arrest. ⁶ The defendant in Badgett however, raised no state constitutional claim.

Our conclusion in Badgett was brought into sharper focus in State v. Delossantos, supra. In Delossantos, a state police trooper stopped the defendant for speeding. After the defendant had produced his operator's license in response to the trooper's request, the trooper, while standing at the side of the automobile, observed through the window what appeared to be the butt of a gun under the driver's seat. The trooper ordered the defendant out of the vehicle, escorted him to the front and frisked him. The trooper then opened the front passenger door of the vehicle, reached beneath the driver's seat and removed a fully loaded revolver. After discovering that the defendant had no permit for the gun, the trooper placed him under arrest, handcuffed him and searched him. Thereafter, another trooper arrived on the scene and watched the defendant while the arresting trooper searched the interior of the defendant's automobile, including its hatchback area. In the hatchback area, the trooper found a brown paper bag, inside of which was a plastic bag that contained...