State v. Tully
State v. Tully
Opinion of the Court
On a jury trial, the defendant was found guilty of the illegal possession of drugs in violation of §§ 19-480 (b) and 19-481 (a) of the General Statutes. The sole issue presented on his appeal to this court is whether the removal of heroin and marihuana from the automobile which the defendant was driving and the subsequent
The facts are not disputed. On September 29, 1970, at approximately 11:50 p.m., Officer Bruce Scott, while on routine patrol as an officer of the Wilton police department, observed an automobile operated by the defendant. Scott became suspicious because of the slow speed of the automobile, for there had been several acts of vandalism in the area. Furthermore, the automobile appeared to cross the yellow line dividing the lanes. Scott stopped the vehicle in the driveway leading to the Miller School parking lot and, upon Scott’s request, the defendant handed Scott a Connecticut registration for the vehicle and a California driver’s license. A check with police headquarters revealed that the defendant’s Connecticut driver’s license was under suspension. Scott advised the defendant that he was going to issue him a summons and that the defendant would not be permitted to operate the automobile any further. Thereupon the defendant parked the automobile in the empty school parking lot and Scott transported him in the patrol car to the Wilton police headquarters, where the defendant was issued a summons for driving while his license was under suspension. Since the defendant was unable to obtain anyone to remove the vehicle from the school parking lot, it was decided to leave it there until morning, at which time the defendant would be able to obtain its removal. At the defendant’s request, Scott drove him to a friend’s house in Wilton. Scott then returned to the Miller School where he conducted a routine check of the doors to the building. Thereafter he stopped at the automobile parked by the defendant in the school yard
The court found that Officer Scott did not enter the defendant’s vehicle pursuant to a search warrant or with the consent of the defendant or because he had probable cause to believe that the automobile contained contraband or to make an inventory pursuant to the impounding of the motor vehicle, but expressly found that he made the entry “with the purpose of removing a guitar from the motor vehicle for safe-keeping.”
The fourth amendment to the constitution of the United States 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.” These federal constitutional provisions are applicable to the states through operation of the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, rehearing denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72. State searches and seizures are to be judged by the same constitutional standards as exist in the federal system. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726.
The policy underlying the warrant requirement of the fourth amendment is that the right of privacy must yield to a right of search only when the inferences of probable cause which reasonable men could draw from evidentiary facts are reviewed “ ‘by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S. Ct. 2022, 29 L. Ed. 2d 564, rehearing denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120, quoting Mr. Justice
The fourth amendment does not prohibit all searches and seizures; it forbids only those that are unreasonable. Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 4 L. Ed. 2d 1669; United States v. Rabinowitz, 339 U.S. 56, 60, 70 S. Ct. 430, 94 L. Ed. 653. “[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564, rehearing denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120,
More recently than the aforementioned decisions, the United States Supreme Court in Cady v. Dombrowski, supra, enlarged the principle of prior justification for the initial intrusion to encompass the search of a vehicle not in police custody by sanctioning the entry by police into the locked trunk of an automobile which had been disabled in an accident and towed to a private garage. The operator of the vehicle, who was himself a police officer, was unconscious in the hospital, unable to make arrangements to have the car removed, and the police were attempting to locate the officer’s service revolver. As the court stated in Cady (p. 448): “The Framers of the Fourth Amendment have given us only the general standard of ‘unreasonableness’ as a guide in determining whether searches and seizures meet the standard of that Amendment in those cases where a warrant is not required. Very little that has been said in our previous decisions, see Cooper v. California, 386 U.S. 58 [87 S. Ct. 788, 17 L. Ed. 2d 730,
Several factual considerations bring the police conduct herein within the “community caretaking function” principle enunciated in the Cady case. First, there is no evidence that this was a general exploratory search on the part of the policeman on the pretext of protecting the defendant’s property although in fact related to the processes or objectives of the criminal law. On the contrary, the court expressly found that the purpose of the officer’s entry was to remove the guitar for safekeeping. Second, the automobile was parked where it
Since the concept of reasonableness varies in cases involving automobiles from those cases involving buildings; see Cooper v. California, supra, 59; the situation in People v. Parra, 30 Cal. App. 3d 729, 106 Cal. Rptr. 531, cert. denied, Parra v. California, 414 U.S. 1116, 94 S. Ct. 849, 38 L. Ed. 2d 743, is particularly noteworthy. In the Parra case, the police entered an unlocked florist shop on a Sunday night for the purpose of locating the name of the proprietor in order to secure the premises. In pursuit of this purpose, the police found heroin in a desk drawer which discovery prompted a further search of the desk revealing still more contraband. The California Court of Appeals held that the search was reasonable and not constitutionally proscribed, stating: “Necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and rea
The defendant claims that Officer Scott’s entry can be justified only if the vehicle was impounded and in police custody, as in Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067, and Cooper v. California, supra. In Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706, the Supreme Court has made it clear that prior justification as deemed sufficient in Cooper and Harris is not limited to situations involving custodial and bailment concepts applicable in the impoundment context. Rather, the court stated that police procedures followed by a small community as part of the caretaking function are not unreasonable simply because, in a large, metropolitan area, the responsibility of protecting the public might have been accomplished by “less intrusive means.” Cady v. Dombrowski, supra, 447. A rational analysis of reasonableness requires that emphasis be placed upon the purpose and scope of the intrusion and that it not be burdened by an inflexible factual prerequisite. Wilton, Connecticut, is not the District of Columbia of the Harris case.
Once Officer Scott entered the defendant’s motor vehicle in performance of his “community caretaking function,” the ensuing seizure of the marihuana in the open brown bag was lawful under the “plain view doctrine” applicable “where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.” Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564, rehearing denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120.
We conclude that the trial court properly denied the defendant’s motion to suppress and properly admitted into evidence the items taken from the defendant’s car.
There is no error.
In this opinion Shapiro, Loiselle and MacDonald, Js., concurred.
This precise argument was advanced in Cady v. Dombrowski, 413 U.S. 433, 442 n., 93 S. Ct. 2535, 37 L. Ed. 2d 706, but the United States Supreme Court found it unnecessary to decide the merits of the contention, since the petitioner had conceded in the Court of Appeals that the intrusion was a search and the court was of the opinion that Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067, and other decisions controlled its decision “even if the intrusion is characterized as a search.”
One commentator has observed that “an individual’s interest in privacy in Ms automobile is probably negligible. The greater part of the interior is constantly -within the public view. Automobiles are consistently left with casual bailees who have complete control over the car for extended periods of time. Therefore, the privacy interest in the automobile may be sufficiently inferior to that of a home to justify permitting a less stringent procedure for search.” Szwajkowski, “The Aftermath of Cooper v. California: Warrantless Automobile Search in Illinois,” 1968 U. Ill. L.F. 401, 410.
Dissenting Opinion
(dissenting). I believe that Officer Scott violated the fourth amendment prohibition against “unreasonable searches and seizures” when he entered and searched the defendant’s automobile.
The majority opimon suggests, without, however, deciding, that Officer Scott’s entry with intent to remove the guitar was not subject to fourth amendment requirements because he did not have the specific intent of seeking evidence of a crime. The fourth amendment safeguards “[t]he right of the people to be secure in their persons, houses, papers, and effects.” Invasions of the privacy of the individual do not vary in the severity of their impact with the specific intent of the intruders. In Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706, a police officer opened the trunk
In Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067, the Supreme Court did not hold that entry into an automobile to remove and protect its contents did not constitute a “search” when the specific intent to discover evidence of a crime was absent. In that case, the defendant’s automobile had been lawfully impounded by the police as evidence of a robbery. A police officer opened one of the car doors in order to roll up a window for the vehicle’s protection. As he did so, the automobile registration card of the robbery victim became exposed to his plain view. The officer had no warrant to search the vehicle. The Supreme Court held that the registration card had not been discovered by means of an illegal search, because opening the door of a car lawfully in police custody to roll up a window with no intent to discover or seize its contents for any purpose at all was not a search within the meaning of the fourth amendment.
In the present case, Officer Scott entered the defendant’s vehicle, which was not in police custody, for the purpose of removing some of its contents. I therefore conclude that his conduct was subject to the requirements of the fourth amendment. Camara v. Municipal Court, supra. The fourth amendment prohibits searches and seizures which are “unreasonable.” As the majority recognizes, the funda
Some of the traditional exceptions are clearly inapplicable to the police intrusion in this case. For instance, Officer Scott did not obtain the defendant’s prior consent; Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312; nor did he have probable cause to believe that the defendant’s vehicle contained contraband or evidence of a crime; Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 2d 543; nor did he think that the automobile had been abandoned. Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898.
Another exception to the warrant requirement exists for a search incident to a valid arrest. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685. But Officer Scott’s entry cannot be sustained under this exception either, because the defendant had already been arrested and released when Officer Scott entered the vehicle. Even assuming that his search would have been within the permissible scope of a search incident to an arrest for driving while one’s license is under suspension, “the search was too remote ... to have been made as incidental to the arrest.” Preston v. United States, 376 U.S. 364, 368, 84 S. Ct. 881, 11 L. Ed. 2d 777.
The majority opinion relies on the exception to the warrant requirement exemplified by Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d
The present case does not fall within the exception established in Cooper and Cady. The defendant’s vehicle was neither impounded nor otherwise within the control or custody of the police. Officer Scott did not enter the vehicle to find evidence of a crime or to protect the public or himself, but merely to protect the defendant’s personal property from the speculative danger of vandalism. And there is
The remaining question is whether the new exception to the warrant requirement enunciated by the majority is “reasonable” within the meaning of the fourth amendment. That question is not answered by saying that Officer Scott’s intention to protect the defendant’s guitar brought his conduct within the “community caretairing function” of the police articulated in Cady
Most previous fourth amendment cases in which warrants have been held unnecessary have required courts to balance the individual’s right to privacy against a genuine and immediate public interest, such as the detection of a crime, the discovery of evidence or contraband, or the protection of the general public or the police. The justification for the invasion of privacy in the present case is far less
There is of course a general public interest in the protection of private property, but no more so than in the preservation of individual privacy. The record before us does not suggest the existence of a prevailing public expectation that police officers will remove items of value from insecure and unattended automobiles for safekeeping without the consent of the owners. The intrusions on privacy and inconvenience attending such a practice would more likely generate public dismay. Moreover, there was no evidence in the record that Officer Scott’s conduct in this case was standard police procedure.
In my view, the remote risk that an individual may suffer a minor property loss does not justify a police invasion of that individual’s constitutionally protected privacy where the police are not already charged with custodial responsibility
In a footnote, at p. 442, the court said: “Petitioner argued before this Court that unlocking the trunk of the Ford did not constitute a 'search' -within the meaning of the Fourth Amendment. The thesis is that only an intrusion, into an area in which an individual has a reasonable expectation of privacy, with the specific intent of discovering evidence of a crime constitutes a search .... Swt see Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967) .... We need not decide this issue. Petitioner conceded in the Court of Appeals that this intrusion was a search. Inasmuch as we believe that Sarris and other decisions control this case even if the intrusion is characterized as a search, we need not deal with petitioner’s belated contention.” (Emphasis added.)
In Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706, the United States Supreme Court said: “Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”
Cf. Restatement (Second) 1 Torts §§ 197, 263. These sections legitimate entry on land in the possession of another, or trespass to the chattel of another, “if it is or is reasonably believed to be reasonable and necessary to protect the . . . property of the . . . other . . . from serious harm, unless the actor knows that the person for whose benefit he acts is unwilling that he shall do so.” (Quoted from § 263.) As the comment to § 197 emphasizes, the privilege stated in these sections exists only in an emergency.
I venture no opinion on the constitutional validity of “inventory searches” of vehicles lawfully in police custody. See, e.g., Mozzetti v. Superior Court, 4 Cal. 3d 699, 485 P.2d 84; People v. Sullivan, 29 N.Y.2d 69, 272 N.E.2d 464, and note, 48 A.L.R.3d 537.
Reference
- Full Case Name
- State of Connecticut v. Lawrence P. Tully
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