State v. Waz

• Decision Date: 15 April 1997
• Docket Number: No. 15471,15471
• Citation: 240 Conn. 365,692 A.2d 1217
• Parties: STATE of Connecticut v. Jamison Martin WAZ.
• Court: Connecticut Supreme Court

Page 1217

692 A.2d 1217

240 Conn. 365

STATE of Connecticut v. Jamison Martin WAZ.

No. 15471.

Supreme Court of Connecticut.

Argued Nov. 5, 1996.

Decided April 15, 1997.

Anthony J. Bosco III, Killingworth, for appellant (defendant).

John A. East III, Assistant State's Attorney, with whom, on the brief, were John T. Redway, State's Attorney, Russell C. Zentner, Assistant State's Attorney, and Tracy Carlson, Certified Legal Intern, for appellee (state).

Before BORDEN, BERDON, NORCOTT, PALMER and PETERS, JJ.

PALMER, Associate Justice.

The sole issue presented by this appeal is whether article first, § 7, of the Connecticut constitution ¹ prohibits the police from subjecting a mail parcel in the possession of the United States Postal Service to a canine sniff examination by a trained narcotics detection dog based upon a reasonable and articulable suspicion that the mail contains illegal drugs. The defendant, Jamison Martin Waz, entered a conditional plea of nolo contendere, under General Statutes § 54-94a and Practice Book § 4003(a), ² to possession of more than four ounces of marijuana in violation of General Statutes § 21a-279 (b) ³ following the trial court's denial of his motion to suppress marijuana found in a parcel seized from his automobile. The trial court accepted the plea and rendered judgment thereon. ⁴ The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The relevant facts, as set forth in the trial court's decision on the defendant's motion to suppress, are undisputed. "On March 24, 1994, Postal Inspector Thomas Lambert identified an Express Mail ⁵ package addressed to Down Deep, Inc., 34-3 Shunpike Road, # 104, Cromwell, CT. 06416 as fitting characteristics of the 'drug package profile.' This profile consists of the following characteristics: [s]ize and shape of the package; [w]hether the package is taped to close or seal all openings; [h]andwritten or printed labels; [n]ature and destination of the package; [t]he absence or presence of odors; [w]hether the zip code of the sender matches that put on by the postal clerk; [w]hether it contains a fictitious return address; [o]rigin of the package; and [t]he outward appearance of the package.

"At a suppression hearing held on September 22 and October 27, 1994, Lambert testified that the Down Deep, Inc. package fit a number of characteristics relative to the drug package profile. Such characteristics included: [t]he fact that the edges were taped to seal all openings; [t]he package contained a fictitious return address; [t]he package contained handwritten labels; [i]t came from a source state, i.e., California; and [t]he size and shape of the package. He further stated that the package was sent via Express Mail which, based on his seven years of training and experience as a Postal Inspector and four years experience in narcotic[s] investigations, is primarily the exclusive carrier used by individuals to transport controlled substances through the United States mail.

"It was a combination of each of these profile characteristics as well as the use of Express Mail which gave rise to Lambert's suspicions that the parcel contained a controlled substance. He then removed the package from the mail stream and obtained a narcotics trained dog named 'Zak' ⁶ to externally examine the parcel. The parcel was placed among eight other similar sized parcels. Zak, however, twice alerted to the Down Deep, Inc. parcel while it was placed in different positions on the floor.

"Lambert then applied for and obtained a federal search warrant to open the package. When the search warrant was executed, it was discovered that the package contained approximately one-half pound of suspected marijuana. A field test revealed a positive reaction for the presence of marijuana. The package was then resealed for the purpose of conducting a controlled delivery. Later that day on March 24, 1994, members of the mid-state narcotics unit and Postal Inspectors Lambert and Terry Loftus began surveillance of the mail drop addressed to Down Deep, Inc. At approximately 2:28 p.m. on March 24, 1994, the defendant picked up the Down Deep, Inc. package from the mail drop. Shortly thereafter, he was stopped and taken into custody. The parcel containing marijuana was seized from the right front floorboard of the vehicle the defendant was operating." The defendant was arrested and charged with possession of marijuana and possession of marijuana with intent to sell.

The defendant moved to suppress the marijuana on the ground that the canine sniff of the parcel was a warrantless search in violation of the fourth amendment to the United States constitution ⁷ and article first, § 7, of the Connecticut constitution. The trial court concluded that although the canine sniff was not a search within the meaning of the fourth amendment, the brief seizure of the parcel for the purpose of conducting the canine sniff required a showing of reasonable and articulable suspicion. The trial court further concluded that because the state had established that Lambert had a reasonable and articulable suspicion that the parcel contained illegal drugs, the defendant's federal constitutional claim was without merit. The trial court declined to address the defendant's state constitutional claim because he had failed to provide an adequate analysis of that claim. Accordingly, the trial court denied the defendant's suppression motion. The defendant then entered a conditional plea of nolo contendere to a substitute information charging him with possession of more than four ounces of marijuana, ⁸ and this appeal from the trial court's judgment of conviction followed.

On appeal, the defendant does not challenge the trial court's conclusion that Lambert possessed a reasonable and articulable suspicion concerning the contents of the parcel. Nor does he claim that the investigation of his parcel caused any delay in its delivery or that its brief removal from the mail stream constituted an unreasonable seizure in violation of article first, § 7, of the constitution of Connecticut. ⁹ Rather, the defendant's sole contention is that the canine sniff of the parcel constituted a search for purposes of article first, § 7, and, therefore, that the state was required to obtain a search warrant based upon probable cause before subjecting the mail to the canine sniff. ¹⁰ The state claims that the canine sniff was not a search within the meaning of article first, § 7, and, consequently, that the use of that investigative technique does not implicate the state constitutional prohibition against unreasonable searches. ¹¹ The state further maintains that even if the canine sniff was a search within the meaning of article first, § 7, it was constitutionally permissible because Lambert had a reasonable and articulable suspicion that the parcel contained contraband. ¹² We need not decide whether the canine sniff of the parcel constituted a search under article first, § 7, because we conclude that even if it did, the state constitution requires no more than a showing that the investigating officers had a reasonable and articulable suspicion that the parcel contained contraband. ¹³

As we have indicated, the defendant concedes that Lambert had a reasonable and articulable suspicion that the parcel contained illegal drugs, and the state concedes that Lambert did not have probable cause to believe that the parcel contained contraband prior to the canine alert. Because we assume, without deciding, that the canine sniff of the mail constituted a search for purposes of the state constitution, we must determine whether Lambert was required to obtain a search warrant based upon probable cause before subjecting the parcel to the canine sniff, as the defendant claims, or whether Lambert's reasonable and articulable suspicion that the parcel contained contraband provided a sufficient constitutional basis for the use of that technique, as the state contends. ¹⁴

"When evaluating the rights afforded to Connecticut citizens under the state constitution, we consider, to the extent applicable, six factors: (1) the text of the relevant constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of our constitutional forebears; and (6) contemporary understandings of applicable economic and sociological norms. State v. Ross, 230 Conn. 183, 249, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995); State v. Geisler, [222 Conn. 672, 684-86, 610 A.2d 1225 (1992) ]." State v. Trine, 236 Conn. 216, 230 n. 12, 673 A.2d 1098 (1996). In this case, our adjudication of the defendant's state constitutional claim is informed principally by those federal and sister state cases involving the use of a trained narcotics detection dog. ¹⁵ Our review of those precedents persuades us that the canine sniff in this case did not violate article first, § 7, of the state constitution. ¹⁶

The seminal federal case involving the use of a trained narcotics detection dog is United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983), wherein the United States Supreme Court concluded that a canine sniff of luggage briefly detained upon reasonable suspicion in a public airport "[does] not constitute a 'search' within the meaning of the Fourth Amendment." ¹⁷ See also United States v. Jacobsen, 466 U.S. 109, 123-24, 104 S.Ct. 1652, 1661-62, 80 L.Ed.2d 85 (1984). ¹⁸ In concluding that the use of the canine sniff technique in those circumstances did not constitute a search requiring probable cause, the Place court stated that "[a] 'canine sniff' by a well-trained narcotics detection dog ... does not...