State v. Griffin

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STATE OF CONNECTICUT v. CHAZANTINE GRIFFIN
(AC 45019)
Prescott, Elgo and DiPentima, Js.
Syllabus
Convicted of assault of an elderly person in the second degree, the defendant
appealed to this court. The defendant regularly sold illegal drugs to the
victim, who was sixty-four years old. After the victim failed to pay off
an outstanding debt, the defendant went to her residence and struck
her multiple times on the head with a handgun. The victim reported the
incident to the police, and, a few weeks later, in an attempt to apprehend
the defendant, the police arranged for a confidential informant to con-
duct a controlled purchase of illegal drugs from him. When the defendant
arrived at the agreed upon location, the informant identified him to
the police officers who were observing the transaction from unmarked
vehicles. The officers arrested the defendant, handcuffed him, and
placed him into a police car. At the time of his arrest, the defendant
had a key fob to a vehicle in his pocket, and the police used it to find
the vehicle the defendant had arrived in, which was parked in a visitor’s
spot of the parking lot of a nearby apartment building. One of the
vehicle’s windows was down, and the smell of marijuana emanated from
it. The police officers determined that the vehicle was registered to the
defendant’s foster mother and then conducted a warrantless search of
it, seizing illegal drugs, a scale, and a handgun. After finding clothing
consistent with that worn by a suspect in an unrelated shooting that
had occurred earlier that month, the police officers stopped their search,
towed the vehicle to the police department, and subsequently obtained
a warrant to seize the clothing and the handgun. The defendant filed a
motion to suppress the evidence recovered from the vehicle, claiming
that the police had lacked probable cause to search it. The trial court
denied the motion, and the state introduced into evidence the handgun
and a photograph of it. On the defendant’s appeal to this court, held
that the defendant was not entitled to a new trial because the trial
court’s denial of the defendant’s motion to suppress was not improper,
as the court properly relied on the automobile exception to the fourth
amendment’s warrant requirement to determine that the police were
not obligated to obtain a warrant before searching the vehicle: the
defendant’s claim that the state was required to prove that he was in
or near the vehicle at the time he was detained by the police in order
for the automobile exception to apply was unavailing, as the defendant
did not cite to any cases in his brief that were decided under the fourth
amendment that imposed such a proximity requirement and, even though
most Connecticut cases that arose under the exception typically involved
factual scenarios in which the warrantless search of a vehicle was
conducted immediately after observing the defendant in or near the
vehicle, the policy justifications that underlie the exception, namely,
the reduced expectation of privacy in the contents of a vehicle and
the inherent mobility of a vehicle, applied regardless of whether the
defendant was near the vehicle at the time of the search or otherwise
lacked access to it because he was in the custody of law enforcement,
and, in the present case, any expectation of privacy the defendant may
have had in the contents of the vehicle was further reduced by the fact
that the vehicle was left in a public place with the window of the vehicle
open; moreover, the defendant’s reliance on State v. Miller (227 Conn.
363) was misplaced because he raised a claim pursuant only to the
federal constitution, whereas Miller specifically addressed a claim under
our state constitution and, by its own terms, was limited to situations
in which a vehicle was searched at a police station and, therefore, did
not govern situations in which a vehicle remained in public and was
potentially mobile; furthermore, the totality of the facts supported the
conclusion that probable cause existed to search the defendant’s vehicle,
as the police had ample evidence to infer that the vehicle was the one
that the defendant had driven to the scene to complete a narcotics
transaction, including that the defendant had agreed to meet the confi-
dential informant to engage in a narcotics transaction, the defendant
was in possession of cocaine and marijuana at the time of his arrest,
other individuals to whom the defendant had previously sold drugs told
the police that he typically would park his vehicle near the agreed upon
location and then walk the remainder of the way, the key fob found on
the defendant operated the vehicle’s lights, the vehicle was located less
than 500 yards from where the defendant was arrested, and the vehicle
was registered to his foster mother, and, although the police did not
observe the defendant in or near the vehicle, that did not undermine
the factual nexus between the defendant and the vehicle; additionally,
the police had a reasonable basis to conclude that there was a fair
probability of finding contraband or evidence of a crime in the defen-
dant’s vehicle, as it was found by the police within minutes of the
defendant’s arrest, the police knew that the defendant had arrived in
the vehicle with the intent to sell illegal drugs, the defendant had illegal
drugs on his person when he was taken into custody, and the police
could smell marijuana emanating from the vehicle.
Argued September 12, 2022—officially released January 24, 2023
Procedural History
Substitute information charging the defendant with
the crimes of robbery in the first degree and assault of
an elderly person in the second degree, brought to the
Superior Court in the judicial district of New Haven,
geographical area number seven, where the court,
Alander, J., denied the defendant’s motion to suppress
certain evidence; thereafter, the case was tried to the
jury before Alander, J.; verdict and judgment of guilty
of assault of an elderly person in the second degree,
from which the defendant appealed to this court.
Affirmed.
Alexander T. Taubes, for the appellant (defendant).
Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, chief
state’s attorney, and Andrew Reed Durham, former
assistant state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Chazantine Griffin,
appeals from the judgment of conviction, rendered after
a jury trial, of assault of an elderly person in the second
degree in violation of General Statutes § 53a-60b (a)
(1). On appeal, the defendant claims that the trial court
improperly denied his motion to suppress a firearm and
narcotics that were seized by the police following a
warrantless search of a motor vehicle that was con-
nected to the defendant and located near the scene of
the defendant’s arrest.1 We conclude that, under the
circumstances of this case, the court properly relied on
the automobile exception in determining that the police
were not obligated to obtain a warrant before searching
the vehicle. Accordingly, we affirm the judgment of
the court.
The jury reasonably could have found the following
facts. The defendant regularly sold crack cocaine to
the victim, who was sixty-four years old and resided in
Meriden. In August, 2018, the victim owed the defendant
$80, which she intended to pay after receiving her next
pension check. On August 2, 2018, the defendant went
to the victim’s residence and threatened to shoot her
if she did not have the money by the following day.
The defendant returned the next day to collect his
money. A friend of the victim was present, and the
victim began taking pictures of the defendant with her
friend’s cell phone. This enraged the defendant. The
defendant took out a small black and silver handgun,
struck the victim in the head with it several times, and
said to her, ‘‘bitch, I should end you.’’ The assault caused
her to suffer physical pain and lumps on her head. After
the defendant left the residence, the victim’s friend
called 911 and reported the assault to the police.
The following day, the victim gave a statement to the
police regarding the incident and identified the defen-
dant in a photographic array as the individual who had
struck her with a handgun. The friend of the victim also
gave a statement to the police, corroborated the victim’s
account of the incident, and described the firearm used
to strike the victim.
Approximately three weeks after the assault, police
officers arrested the defendant in Meriden on an out-
standing warrant. At the time of his arrest, the defendant
tossed a yellow baggy containing crack cocaine onto
the ground. In a search incident to his arrest, the police
seized from one of his pockets marijuana and a car key
with a key fob that opened a motor vehicle parked
nearby. From the vehicle, the police ultimately seized
a small black and silver handgun and other contraband.
Comparisons of DNA taken from swabs of the handgun
and the defendant’s DNA yielded a statistical probability
of one in one hundred billion that the defendant was
not a contributor to the DNA found on the firearm.
The firearm and a photograph of it were admitted into
evidence at the defendant’s subsequent trial.
The jury returned a split verdict of not guilty of rob-
bery in the first degree and guilty of assault of an elderly
person in the second degree. The court subsequently
sentenced the defendant to fifty-four months of incar-
ceration. This appeal followed.
On appeal, the defendant claims that he is entitled
to a new trial on the assault charge because the trial
court improperly denied his motion to suppress the
evidence seized from the vehicle. Specifically, he con-
tends that the search of the vehicle by the police without
a warrant violated the fourth amendment’s prohibition
on unreasonable searches and seizures2 because the
automobile exception did not excuse the police officer’s
failure to obtain a search warrant authorizing a search
of the vehicle.3 We are not persuaded.
The following additional facts and procedural history
are relevant to the defendant’s claim. In late August,
2018, the police attempted to find the defendant to serve
on him two arrest warrants. On August 29, 2018, the
police, with the cooperation of a reliable, confidential
informant, arranged a controlled purchase of illegal
drugs from the defendant. The police had the confiden-
tial informant set up the purchase to take place on
Crown Street in Meriden because the defendant lived
nearby. The police officers awaited in several unmarked
vehicles nearby to observe.
As the defendant approached the area, the confiden-
tial informant identified the defendant for the officers,
who then converged on him near the intersection of
Roy and Crown Streets. During the process of taking
him into custody, the defendant threw a cellophane
wrapped package into the tall grass just off the street.
The substance contained in the package field tested
positive for cocaine.
The police searched the defendant incident to his
arrest, and, in his pocket, the police found a bag of
marijuana and a car key to a Mercury automobile. The
defendant was handcuffed and put into a police car.
Prior to the defendant’s arrest, the police had
obtained information from individuals who previously
had purchased drugs from the defendant that it was his
practice when selling drugs to park on a side street or
around the corner from the location where the sale was
to take place and then to walk to that location. On
the basis of this information, and after considering the
direction from which the defendant had walked to the
scene, two officers began to search for the defendant’s
vehicle. Within five minutes, the officers located the
defendant’s automobile, a 2004 Mercury Sable LS. They
were successful in doing so by pressing the key fob
taken from the defendant, which illuminated the vehi-
cle’s lights. The hood and front grill of the vehicle were
warm to the touch, suggesting that it recently had
been driven.
The vehicle was parked in a visitor’s parking spot at
an apartment building located at 27 Harrison Place, less
than one-quarter mile away from where the defendant
was taken into custody. One of its windows was down
and the officers could smell the odor of marijuana com-
ing from the vehicle. The officers quickly determined
that the vehicle was registered to the defendant’s foster
mother.
The police officers then conducted a warrantless
search of the Mercury and seized from the vehicle crack
cocaine, marijuana, and a digital scale. The officers
also found a handgun in the center console and, in
the backseat area, clothing that was consistent with
clothing worn by a suspect who had been involved in
a shooting incident at a Sam’s Food Store in Meriden
earlier that August. The officers then stopped the search
and towed the vehicle to the police department. The
police subsequently obtained a warrant to seize the
clothing and the gun found in the Mercury.
Following the evidentiary portion of the hearing on
the defendant’s motion to suppress, the state argued to
the court that the officers had probable cause to search
the vehicle and that their warrantless search of the
vehicle was permitted by the well established automo-
bile exception to the warrant requirement. The state
argued that, having found that the defendant possessed
marijuana and cocaine at the time he was taken into
custody, they had probable cause to suspect that addi-
tional contraband would be found in his vehicle because
(1) the officers possessed information that the defen-
dant typically engaged in the sale of narcotics and that
he would park in an area near to where the sale was
to occur and then walk to that location, (2) the officers
knew, through the confidential informant, that the
defendant had come to the location to sell drugs that
day, (3) the Mercury was found in close proximity to
where the defendant was arrested, (4) the car key found
on the defendant connected him directly to the vehicle,
and (5) the smell of marijuana was emanating from a
window of the vehicle.
In response, defense counsel claimed that the motion
to suppress should be granted because the police lacked
probable cause, under the totality of the circumstances,
to search the vehicle. Specifically, defense counsel con-
tended that the degree of attenuation between the Mer-
cury and the defendant was too great because (1) no
one saw him operating the vehicle or in close proximity
to it, (2) the vehicle was not in eyesight when he was
arrested, (3) the Mercury was not registered to him,
and (4) the officers had to search for the vehicle in
order to locate it.
At the conclusion of the parties’ legal arguments, the
court, Alander, J., denied the defendant’s motion to
suppress in an oral ruling. The trial court found, in
addition to much of the evidence discussed by the state
in its argument, that, on the basis of the evidence that
had been presented, including the search warrant, the
vehicle was registered to someone directly connected
to the defendant and the vehicle was warm to the touch,
thereby suggesting that the defendant had just driven
the vehicle to the location where it was found. As a
result, the state was permitted to introduce into evi-
dence during the defendant’s subsequent trial the hand-
gun seized from the defendant’s vehicle and a photo-
graph taken by the police of the handgun. The victim
and her friend who was present during the assault testi-
fied at trial that the handgun depicted in the photograph
was the weapon used to strike the victim in the head
or was at least consistent in appearance thereto.
We now address the standard of appellate review
applicable to the defendant’s claim on appeal and the
substantive law governing the warrantless search of an
automobile. ‘‘The standard of review for a motion to
suppress is well settled. A finding of fact will not be
disturbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record . . . . [If]
a question of fact is essential to the outcome of a partic-
ular legal determination that implicates a defendant’s
constitutional rights, [however] and the credibility of
witnesses is not the primary issue, our customary defer-
ence to the trial court’s factual findings is tempered by
a scrupulous examination of the record to ascertain
that the trial court’s factual findings are supported by
substantial evidence. . . . [If] the legal conclusions of
the court are challenged, [our review is plenary, and] we
must determine whether they are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision . . . .’’ (Internal
quotation marks omitted.) State v. Pompei, 338 Conn.
749, 756, 259 A.3d 644 (2021). In the present case, the
defendant on appeal does not challenge any of the fac-
tual findings made by the court in adjudicating his
motion to suppress. Accordingly, our review of the trial
court’s legal conclusion that the search of the defen-
dant’s vehicle was permitted by the automobile excep-
tion is plenary.
‘‘We next consider the scope of the warrant require-
ment as applied to motor vehicle searches. The police
ordinarily may not conduct a search and make a seizure
unless a neutral and detached magistrate first issues a
warrant based on probable cause. . . . [A] warrantless
search and seizure is per se unreasonable, subject to a
few well defined exceptions. . . . These exceptions
have been jealously and carefully drawn . . . . Specifi-
cally, a warrantless search of an automobile may be
deemed reasonable if it was: (1) made incident to a
lawful arrest; (2) conducted when there was probable
cause to believe that the car contained contraband or
evidence pertaining to a crime; (3) based upon consent;
or (4) conducted pursuant to an inventory of the car’s
contents incident to impounding the car.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Winfrey, 302 Conn. 195, 201, 24 A.3d 1218 (2011). The
burden is on the state to establish the applicability of
the automobile exception. State v. Badgett, 200 Conn.
412, 424, 512 A.2d 160, cert. denied, 479 U.S. 940, 107
S. Ct. 423, 93 L. Ed. 2d 373 (1986).
Under our federal constitution, ‘‘[t]he justification
for . . . [the] automobile exception is twofold: (1) the
inherent mobility of an automobile creates exigent cir-
cumstances; and (2) the expectation of privacy with
respect to one’s automobile is significantly less than
that relating to one’s home or office. . . . In recent
years, the United States Supreme Court has placed an
increasing emphasis on the reduced expectation of pri-
vacy justification . . . [such] that [e]ven in cases
where an automobile [is] not immediately mobile, the
lesser expectation of privacy resulting from its use as
a readily mobile vehicle justifie[s] application of the
vehicular exception. Thus, under the fourth amend-
ment, a warrantless vehicle search does not require a
showing of exigent circumstances.’’4 (Internal quotation
marks omitted.) State v. Brito, 170 Conn. App. 269, 293,
154 A.3d 535, cert. denied, 324 Conn. 925, 155 A.3d
755 (2017).
‘‘Probable cause to search exists if: (1) there is proba-
ble cause to believe that the particular items sought to
be seized are connected with criminal activity or will
assist in a particular apprehension or conviction . . .
and (2) there is probable cause to believe that the items
sought to be seized will be found in the place to be
searched. . . . The determination of whether probable
cause exists under the fourth amendment to the federal
constitution . . . is made pursuant to a totality of cir-
cumstances test. . . . Under [this] test, a court must
examine all of the evidence relating to the issue of
probable cause and, on the basis of that evidence, make
a commonsense, practical determination of whether
probable cause existed. . . . We have said that the
question is whether there was a fair probability that
the contraband was within the place to be searched.’’
(Citations omitted; internal quotation marks omitted.)
State v. Smith, 257 Conn. 216, 223, 777 A.2d 182 (2001).
We now turn to the merits of the defendant’s claim.
The defendant first argues that the ‘‘automobile excep-
tion cannot apply where the defendant was neither seen
inside the vehicle nor anywhere near the vehicle.’’ We
construe the defendant’s assertion to mean that, even
if law enforcement has probable cause to search a vehi-
cle for contraband or evidence of a crime, the automo-
bile exception categorically does not apply unless the
state also proves that the defendant was inside or near
the vehicle at the time he was arrested or that the police
stopped the vehicle with the defendant in it. We disagree
that the fourth amendment imposes such a requirement.
In the two pages that the defendant devotes to this
argument in his principal brief, he has not cited to a
single case decided under the fourth amendment that
specifically has imposed such a proximity requirement.
Although Connecticut cases arising under the automo-
bile exception to the fourth amendment’s warrant
requirement typically have involved factual scenarios in
which the warrantless search of a vehicle is conducted
immediately after observing the defendant near or in
the vehicle; see, e.g., State v. Longo, 243 Conn. 732, 735,
708 A.2d 1354 (1998) (defendant was in rear seat of
vehicle when it was stopped by police); State v. Dukes,
209 Conn. 98, 100–101, 547 A.2d 10 (1988) (defendant
was stopped by police while he was driving vehicle);
State v. Badgett, supra, 200 Conn. 414 (defendant was
driving vehicle when stopped by police); State v. Pat-
terson, 31 Conn. App. 278, 309, 624 A.2d 1146 (1993)
(police observed defendant as he exited vehicle to
approach them), rev’d on other grounds, 230 Conn. 385,
645 A.2d 535 (1994);5 the policy justifications that under-
lie the automobile exception to the fourth amendment’s
warrant requirement apply just as vigorously even if
the defendant is not found in or observed near the
vehicle at the time of the search. Indeed, the defendant
has a reduced expectation of privacy in the contents
of the vehicle regardless of whether he is viewed by
law enforcement in or near his vehicle at the time of
the search because it is the inherent nature of an auto-
mobile and its presence in a public place that creates
a reduced expectation of privacy in it. See California
v. Carney, 471 U.S. 386, 391–93, 105 S. Ct. 2066, 85 L.
Ed. 2d 406 (1985).6 Moreover, any expectation of privacy
the defendant may have in the contents of the vehicle
may be further reduced if he has left the vehicle in a
public location where he lacks the ability to monitor
the vehicle and others’ access to it. This is especially
true if a person leaves a window of the vehicle open,
as did the defendant here.
Additionally, fourth amendment case law makes clear
that the inherent mobility of the vehicle exists regard-
less of whether the defendant is near the vehicle; see
United States v. Howard, 489 F.3d 484, 492–94 (2d Cir.)
(concluding that vehicles parked on side of highway
were inherently mobile despite defendant’s voluntary
presence at police barracks located some distance from
highway), cert. denied, 552 U.S. 1005, 128 S. Ct. 525,
169 L. Ed. 2d 365 (2007); State v. Smith, supra, 257
Conn. 227, 230 (despite defendant’s flight from his vehi-
cle, there was ‘‘continuing possibility that the defen-
dant’s car, which was located in a parking lot accessible
to a public housing building, would be moved’’); or
otherwise lacks access to the vehicle because he or she
is in the custody of, or detained by, law enforcement.
See State v. Winfrey, supra, 302 Conn. 206; State v.
Smith, supra, 229–30.
The defendant principally relies on our Supreme
Court’s decision in State v. Miller, 227 Conn. 363, 384–
85, 630 A.2d 1315 (1993), to assert that the automobile
exception does not apply unless the defendant, at the
time the vehicle was searched, had just been seen by
law enforcement in or near the vehicle. In Miller, the
court specifically addressed a claim that our state con-
stitution prohibited the warrantless search of a vehicle
after it had been impounded and towed to the police
station. Id., 377. Although the federal constitution does
not prohibit the warrantless search of a vehicle that
has been impounded at a police station, provided the
police have probable cause to search the car; see id.;
see also Chambers v. Maroney, 399 U.S. 42, 51–52, 90
S. Ct. 1975, 26 L. Ed. 2d 419 (1970); our Supreme Court
concluded that article first, § 7, of the Connecticut con-
stitution prohibits such a warrantless search.7 State v.
Miller, supra, 386–87.
The defendant’s reliance on Miller is misplaced for
two reasons. First, as we previously discussed, the
defendant in the present case has raised a claim pursu-
ant to only our federal constitution. See footnotes 3
and 4 of this opinion. Second, ‘‘Miller, by its own terms,
was limited to situations in which a vehicle is searched
at the police station . . . [and] does not govern cases
[in which] an automobile remains in public and is there-
fore potentially mobile, even [if] the driver has been
taken into police custody and the police have effective
control of the vehicle.’’ State v. Winfrey, supra, 302
Conn. 206. Accordingly, Miller does not support the
defendant’s fourth amendment challenge to the war-
rantless search in the present case.
We recognize, as the defendant argues, that our
Supreme Court sometimes has referred to the automo-
bile exception as applying to ‘‘ ‘warrantless on-the-
scene automobile searches’ . . . .’’ See, e.g., State v.
Williams, 311 Conn. 626, 641, 88 A.3d 534 (2014); State
v. Miller, supra, 227 Conn. 384. The defendant attempts
to rely on this language, in isolation, to argue that the
automobile exception applies only to cases in which a
defendant’s vehicle is searched immediately after his
arrest or detention after he had been driving the vehicle
or standing near it. This assertion is devoid of merit.
Read in context, our Supreme Court has occasionally
used such shorthand terminology simply to distinguish
a warrantless search of a vehicle conducted while the
vehicle is impounded at the police station from a war-
rantless search of a vehicle conducted while that vehicle
is still located in a public place. None of the cases cited
by the defendant that employs such language purports
to define what is meant by the term ‘‘on-the-scene’’ or,
with the exception of Miller, involved a claim in which
the vehicle is searched when the defendant is not imme-
diately next to or taken out of the vehicle.
By rejecting the defendant’s claim, we do not mean
to suggest that a defendant’s physical proximity to, and
factual connection with, the vehicle to be searched is
irrelevant to the question of whether the automobile
exception applies in a particular case. Such facts often
will bear directly on the question of whether probable
cause exists to search the vehicle under the totality of
the circumstances. See, e.g., United States v. Edwards,
632 F.3d 633, 644–45 (10th Cir. 2001) (analyzing defen-
dant’s lack of proximity to vehicle as part of totality of
circumstances bearing on existence of probable cause).
Indeed, if a vehicle is located hundreds of miles from
the location of the defendant’s arrest or the site of the
criminal activity, it may be more factually difficult to
prove that there is probable cause to believe that the
vehicle contains contraband or evidence of a crime. On
the other hand, in such circumstances, there may be
other facts in existence that support a finding of proba-
ble cause despite a lack of physical proximity to the
vehicle. In sum, the location of the vehicle, including
its proximity to the defendant, is just one fact to be
considered, under the totality of the circumstances, in
determining whether there is probable cause to search
the vehicle under the automobile exception to the
fourth amendment’s warrant requirement.
Having disposed of the defendant’s assertion that the
automobile exception categorically does not apply
unless the state also proves that the defendant was seen
inside or near the vehicle at the time he is arrested or
that the police stopped the vehicle, we next address the
defendant’s assertion that the police lacked probable
cause under the totality of the circumstances to search
his vehicle. Although the defendant does not challenge
any of the underlying facts found by the trial court in
support of its conclusion that the police had probable
cause to search his vehicle in this case, he argues that
those facts, alone or in combination, do not demon-
strate probable cause to search his vehicle. We are not
persuaded.
We agree with the court that the totality of the follow-
ing facts supported a reasonable belief by law enforce-
ment that there was a fair probability that evidence
of a crime or contraband was within the defendant’s
vehicle. First, the defendant had agreed to meet the
confidential informant on Crown Street to engage in a
narcotics transaction. That fact was confirmed when
the police officers took the defendant into custody at
the location and found him to be in possession of mari-
juana and cocaine. The police officers also knew from
other individuals to whom the defendant had sold drugs
in the past that he typically would drive his vehicle to
a place near the location at which the sale was to occur,
park his vehicle, and then walk to the agreed upon
location.
Moreover, the police officers had substantial evi-
dence tying the defendant to the particular vehicle they
searched because the key fob found on the defendant
operated the vehicle’s lights, the vehicle was located
less than 500 yards from where the defendant was
arrested, and it was registered to someone directly con-
nected to the defendant, his foster mother.8 Accord-
ingly, the police officers had ample evidence to infer
that this was the vehicle that the defendant had driven to
the scene so that he could complete a nearby narcotics
transaction. The fact that no police officer observed
the defendant in or near the vehicle at that precise
moment does not undermine in any way the strong
factual nexus between the defendant and this vehicle.
The police officers had a reasonable basis to conclude
that there was a fair probability of finding contraband
or evidence of a crime in the defendant’s vehicle. The
defendant’s vehicle was found by the police within five
minutes of his arrest. They knew that the defendant
had arrived in his vehicle to sell drugs, and he had
cocaine and marijuana on his person when he was taken
into custody. From these facts, it was reasonable to
infer that his vehicle may contain additional contraband
or other evidence regarding the sale of illegal drugs.
Moreover, the police could smell the odor of marijuana
emanating from the vehicle.9 See State v. Brito, supra,170 Conn. App. 313–15. All of these facts, considered in
their totality, amply support a conclusion that probable
cause existed to search the defendant’s vehicle.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims that the state cannot demonstrate that the
admission of evidence unlawfully obtained from the search of the motor
vehicle was harmless beyond a reasonable doubt. Because we conclude
that the trial court properly denied the motion to suppress, we need not
address this claim.
2
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 affirma-
tion, and particularly describing the place to be searched, and the persons
or things to be seized.’’ U.S. Const., amend. IV.
3
Although the defendant, in his written motion to suppress, referred to
our state constitution, he did not brief or otherwise argue to the court that
the warrantless search of his automobile violated the state constitution. On
appeal, the defendant also does not appear to claim that the warrantless
search of his vehicle violated article first, § 7, of the Connecticut constitution.
Although in his principal brief on appeal he relies on one case addressing
the scope of the automobile exception under our state constitution, we
construe his brief, as does the state, as raising only a federal constitutional
claim. The defendant in his reply brief does not challenge the state’s assertion
that he properly briefed only a federal claim. Moreover, to the extent that
the defendant has attempted to advance such a state constitutional claim
on appeal, he has not adequately briefed it pursuant to the strictures of
State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992). Accordingly,
even if raised, we deem it abandoned.
4
We recognize that, under article first, § 7, of the Connecticut constitution,
the policies that justify the automobile exception are narrower than those
that underlie the fourth amendment’s automobile exception. See State v.
Miller, 227 Conn. 363, 384–85, 630 A.2d 1315 (1993) (state constitution
‘‘tolerate[s] the warrantless on-the-scene automobile search only because
obtaining a warrant would be impracticable in light of the inherent mobility
original)). Because the defendant has not asserted a claim under our state
constitution, however, we may properly rely on the defendant’s reduced
privacy interests in the contents of his vehicle under federal law. See footnote
3 of this opinion.
5
This is not always the case, at least not with respect to other jurisdictions.
In United States v. Williams, 878 F. Supp. 2d 190, 206–207 (D.D.C. 2012),
aff’d, 773 F.3d 98 (D.C. Cir. 2014), cert. denied, 575 U.S. 1019, 135 S. Ct.
2336, 191 L. Ed. 2d 997 (2015), the United States District Court for the
District of Columbia upheld the warrantless search of a defendant’s vehicle
that the police located by using a key fob seized from the defendant during
his arrest at the police station on unrelated drug charges. There was no
evidence in Williams that the police had ever seen the defendant driving,
occupying, or standing near this vehicle prior to conducting the warrantless
search. See id., 196, 206–207; see also United States v. Wider, 951 F.2d 1283,
1285–86 (D.C. Cir. 1991) (warrantless vehicle search was upheld even though
police did not observe defendant in vehicle or standing next to it).
6
Specifically, the United States Supreme Court in Carney stated: ‘‘[T]he
expectation of privacy with respect to one’s automobile is significantly less
than that relating to one’s home or office. . . .
‘‘Even in cases where an automobile was not immediately mobile, the
lesser expectation of privacy resulting from its use as a readily mobile
vehicle justified application of the vehicular exception. . . . In some cases,
the configuration of the vehicle contributed to the lower expectations of
privacy . . . because the passenger compartment of a standard automobile
is relatively open to plain view . . . . But even when enclosed repository
areas have been involved, we have concluded that the lesser expectations
of privacy warrant application of the exception. . . .
‘‘These reduced expectations of privacy derive not from the fact that the
area to be searched is in plain view, but from the pervasive regulation of
vehicles capable of traveling on the public highways. . . . As we [have]
explained . . . [a]utomobiles, unlike homes, are subjected to pervasive and
continuing governmental regulation and controls, including periodic inspec-
tion and licensing requirements. As an everyday occurrence, police stop and
examine vehicles when license plates or inspection stickers have expired,
or if other violations, such as exhaust fumes or excessive noise, are noted, or
if headlights or other safety equipment are not in proper working order. . . .
‘‘The public is fully aware that it is accorded less privacy in its automobiles
because of this compelling governmental need for regulation. Historically,
individuals always [have] been on notice that movable vessels may be
stopped and searched on facts giving rise to probable cause that the vehicle
contains contraband, without the protection afforded by a magistrate’s prior
evaluation of those facts. . . . In short, the pervasive schemes of regulation,
which necessarily lead to reduced expectations of privacy, and the exigen-
cies attendant to ready mobility justify searches without prior recourse to
the authority of a magistrate so long as the overriding standard of probable
cause is met.’’ (Citations omitted; internal quotation marks omitted.) Califor-
nia v. Carney, supra, 471 U.S. 391–92.
7
Article first, § 7, of the Connecticut constitution provides: ‘‘The people
shall be secure in their persons, houses, papers and possessions from unrea-
sonable 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.’’
8
The fact that the vehicle’s hood was warm to the touch also supports
a finding of probable cause because it reasonably suggests that it had just
been driven to the location in which it was found. Although the defendant
attempts to minimize this fact by asserting that the hood could have been
warm because it was August, the court was free to infer from the officer’s
testimony that the warmth was caused by the vehicle’s operation rather
than the August sun. Even if this fact did not support a determination of
probable cause and we were to disregard it, the totality of the remaining
factual circumstances amply supports the court’s ultimate determination of
probable cause.
9
In his reply brief, the defendant asserts that General Statutes § 54-33p
undermines the probable cause determination to the extent that it is prem-
ised on the odor of marijuana coming from his vehicle. This statute, first
enacted in 2021; see Public Acts, Spec. Sess., June, 2021, No. 21-1, § 18;
provides in relevant part: ‘‘(a) . . . [T]he existence of any of the following
circumstances shall not constitute in part or in whole probable cause or
reasonable suspicion and shall not be used as a basis to support any stop
or search of a person or motor vehicle: (1) [t]he odor of cannabis or burnt
cannabis . . . .
‘‘(b) Any evidence discovered as a result of any stop or search conducted
in violation of this section shall not be admissible in evidence in any trial,
hearing or other proceeding in a court of this state. . . .’’ General Statutes
§ 54-33p.
The defendant’s reliance on this statutory provision is misplaced for at
least two reasons. First, it is well established that we do not entertain
arguments raised for the first time in a reply brief. See State v. Myers, 178
Conn. App. 102, 103, 174 A.3d 197 (2017). Second, this provision became
effective on July 1, 2021, almost three years after the defendant’s arrest
and search of his motor vehicle. The defendant has not adequately briefed
whether this statute must be applied retroactively to the present case.
Finally, even if the police officer had not been able to smell the odor of
marijuana emanating from the vehicle, the other facts we have recited are
sufficient to establish probable cause to search the vehicle.