State v. Waller , 223 Conn. 283 ( 1992 )

Glass, J.

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, 576. 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, 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., 578.

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 to 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 warrant-less 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., 428. 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 a white powdery substance, later determined to be cocaine.

Prior to trial, the defendant challenged the admission into evidence of the cocaine on the basis that the trooper’s search of the hatchback area was illegal. The trial court admitted the challenged evidence, however, on the ground that the search was valid as a search incident to arrest. On appeal, the defendant argued that “the warrantless search of the hatchback area exceeded the permissible scope of a search incident to arrest, in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution.” Id., 263. We upheld the validity of the search under the federal constitution pursuant to New York v. Belton, supra, and its progeny. See United States v. Russell, 670 F.2d 323 (D.C. Cir.), cert. denied, 457 U.S. 1108, 102 S. Ct. 2909, 73 L. Ed. 2d 1317 (1982). In addressing the defendant’s claim under the state constitution, we stated: “The defendant urges us to hold that even if the hatchback search is permissible as a search incident to arrest under the federal constitution, it should not be permissible under article first, § 7, of the Connecticut constitution. It is beyond debate that each state has the ‘ “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980); see Oregon v. Hass, 420 U.S. 714, 718, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975).’ State v. Dukes, 209 Conn. 98, 104, 547 A.2d 10 (1988). In considering the level of individual protection and the scope of a warrantless search of an automobile under article first, § 7, of the Connecticut constitution, we have observed that ‘our automobile exception permits a warrantless search of an automobile whenever the police have probable cause to do so. See, e.g., State v. Badgett, [supra]. It is also correct that we have recognized that the police may make a search without a warrant incidental to a lawful custodial arrest. Id., 424; see New York v. Belton, supra; State v. Shaw, 186 Conn. 45, 48, 438 A.2d 872 (1982).’ State v. Dukes, supra, 120-21.” State v. Delossantos, supra, 265-66.

In Delossantos, therefore, we recognized that our state constitution permits law enforcement officers to conduct a warrantless search when it is done as a contemporaneous incident to a lawful custodial arrest. We held, accordingly, pursuant to article first, § 7, that “when police make a lawful custodial arrest of an occupant of an automobile, and the arrestee is detained at the scene, police may contemporaneously search without a warrant the interior passenger compartment of the automobile. State v. Dukes, supra; State v. Shaw, supra.” (Emphasis added.) Id., 266-67. We are persuaded, as was the Appellate Court, that the present case is governed by our holding in Delossantos.

The defendant attempts to distinguish Delossantos on the basis that the trooper in that case had independent probable cause to search the defendant’s car because he had found a gun under the driver’s seat. The defendant concedes, however, that the warrant-less search in Delossantos was not upheld by this court on the basis of probable cause, but rather as a valid search incident to arrest. While the defendant in Délossantos did not challenge the search of the vehicle interior other than the hatchback area, our holding in that case encompasses the facts in the present case. The defendant in this case does not contest the lawfulness of his arrest and the record, including the defendant’s own testimony, establishes that he remained at the scene while Vivo searched his car. In accordance with our holding in State v. Delossantos, supra, therefore, we conclude that the trial court properly admitted the evidence obtained as a result of the warrantless search of the defendant’s vehicle.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., Callahan and Borden, Js., concurred.

1 General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

2 General Statutes § 53a-172 (a) provides: “Any person who, while charged with the commission of a felony and while out on bail or released under other procedure of law, wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, is guilty of failure to appear in the first degree.”

3 The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The United States Supreme Court has held that the fourth amendment’s prohibition against the use of evidence obtained as the result of an illegal search is applicable to the states through the fourteenth amendment to the United States constitution. See Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72 (1961).

4 Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

5 The state argues, alternatively, that if this court concludes that the search of the defendant’s vehicle was not valid as a search incident to arrest pursuant to 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 State v. Delossantos, 211 Conn. 258, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989), the search should nonetheless be upheld under a “community caretaking function” exception to the warrant requirement. See Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); State v. Tully, 166 Conn. 126, 136, 348 A.2d 603 (1974). In essence, the state contends that under the circumstances of this case, it was reasonable for Vivo to enter the defendant’s car in order to drive it from the scene. Therefore, the evidence that the defendant sought to suppress, which was in “plain view” when Vivo opened the car door, was properly admitted by the trial court. See Coolidge v. New Hampshire, 403 U.S. 443, 465-71, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971). As a second alternative argument, the state claims that the evidence would inevitably have been discovered in an inventory search pursuant to established police procedures and, therefore, was properly admitted by the trial court. See, e.g., State v. Roseboro, 221 Conn. 430, 445-46, 604 A.2d 1286 (1992). Because we conclude that Vivo’s search of the defendant’s automobile was proper as a search incident to arrest under State v. Badgett, supra, and State v. Delossantos, supra, we do not address these alternative claims of the state.

6 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), the defendant was being driven away from the scene in a police cruiser when the search of his car yielded the incriminating evidence. We held that “the right of a police officer to search the vehicle ceases the instant the arrestee departs the scene because the arrestee's removal forecloses any possibility that he could reach for an article within the vehicle.” Id., 428. The defendant asserts that Badgett “shows this court’s unwillingness to follow the dicta or extend the holding of [New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)], authorizing, without limitation, all vehicle searches incident to a lawful arrest under all circumstances.” While this court in Badgett “refuse[d] . . . to extend the‘fiction’that the passenger compartment is always within reach of the arrestee ... to circumstances . . . where the defendant is no longer at the scene of the arrest when the warrantless search was undertaken”; (emphasis in original) State v. Badgett, supra, 427; implicit in that holding was the conclusion that a search undertaken while the defendant remains at the scene is a valid search incident to arrest. See id., 428.