State v. Jenkins
State v. Jenkins
Opinion of the Court
Opinion
In this certified appeal, we consider the limitations, under the fourth amendment to the United States constitution
The record reveals the following facts and procedural history. On the night of May 7, 2004, Michael Morgan, a detective with the Newington police department, was patrolling the Berlin Turnpike (turnpike) in Newington in connection with a special traffic safety detail known as turnpike traffic enforcement. Morgan drove an unmarked police cruiser, but wore a full police uniform, complete with a badge, a sidearm, and a utility belt with handcuffs, pepper spray and a Stinger flashlight. At approximately 11:15 p.m., Morgan observed a Nissan Altima (Altima), operated by the defendant and proceeding northbound on the turnpike, make two abrupt lane changes without signaling. Morgan then activated his cruiser’s emergency lights and initiated a traffic stop for making lane changes without signaling in violation of General Statutes § 14-242.
After Morgan stopped the Altima on the shoulder of the turnpike near its intersection with Griswoldville Avenue, a short distance south of the former Krispy Kreme doughnut shop, he radioed the Altima’s Pennsylvania license plate number to his dispatcher, who checked it and did not report any matters of concern. Morgan then approached the defendant on the driver’s
Morgan then took the defendant’s papers back to his cruiser, where he checked the defendant’s personal and vehicular information with his dispatcher, and learned that there were no outstanding warrants, wants or cautions pertaining to the defendant. Morgan also requested a backup officer to respond to the scene of the traffic stop, because he had decided that he was going to ask the defendant for consent to search his vehicle. Morgan then began to write an infraction ticket for the illegal lane changes.
By the time Morgan had finished writing the ticket, the backup officer and shift supervisor, Sergeant Derrick Sutton, had arrived, also wearing a full police uniform. Morgan then approached the defendant and asked him to exit his car in order better to explain the ticket.
Morgan began his search of the Altima on the driver’s side of the vehicle and immediately proceeded to open a closed compartment in its center console, where he found a package wrapped in white tissue paper. The tissue paper concealed a plastic bag that contained a white powder substance that Morgan identified as cocaine. At that point, Morgan stopped the search, handcuffed the defendant and placed him under arrest. Following the defendant’s arrest, a search of the rest of the Altima, including the backseat and trunk area, revealed additional cocaine and a large quantity of heroin.
Thereafter, the state charged the defendant with two counts of possession of narcotics by a person who is not drug-dependent in violation of § 2 la-278 (a) and (b),
The trial court, Alexander, J., following an eviden-tiary hearing at which Morgan was the only witness, denied the defendant’s motion to suppress. The trial court found that the state had proven by a preponderance of the evidence that the defendant had “freely and voluntarily given consent ... in the search of his motor vehicle” because “the initial motor vehicle stop was a result of observed traffic violations; the length
The defendant appealed from the judgment of conviction to the Appellate Court, which concluded that the trial court should have suppressed the evidence taken from the defendant’s car because he “was unlawfully detained . . . his consent to search the vehicle was
Having concluded that the stop had been extended beyond the time necessary to effectuate its initial purpose, the Appellate Court then concluded that the
On appeal to this court, the state argues that the Appellate Court improperly: (1) relied on an inadequate record and reached out to decide claims not properly raised before the trial court, specifically whether Morgan improperly had patted down the defendant prior to obtaining his consent to search the Altima; and (2) concluded that, under the federal constitution, the scope or length of a traffic stop must be limited to its initial purpose, particularly given that there was probable cause that the defendant had committed two traffic violations in Morgan’s presence. In response, the defendant strongly disagrees, and also argues as alternative grounds for affirming the judgment of the Appellate Court that: (1) his consent to search was involuntary; (2) Morgan’s search exceeded the scope of the defendant’s consent; and (3) Morgan obtained the defendant’s consent to search in violation of article first, § 7, of the
“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, 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 .... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Citation omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008). The issues presented in this appeal concern the articulation and application of the relevant federal and state constitutional rules governing the conduct of routine traffic stops. Unless specifically noted; see part IIB of this opinion; we agree with the defendant that they present questions of law over which our review is plenary.
I
ADEQUACY OF THE RECORD FOR REVIEW OF CLAIMS PERTAINING TO THE PATDOWN SEARCH OF THE DEFENDANT
Given the fact sensitive nature of constitutional suppression inquiries, we begin with the state’s claim that the Appellate Court improperly considered the fact of an illegal patdown search in agreeing with the defendant’s contention that his consent to search the Altima was tainted by the previously performed illegal search. The state notes that the issue was not raised in the defendant’s motion to suppress or litigated during the suppression hearing, and relies on State v. Brunetti,
The record reveals the following additional relevant facts and procedural history. When the defendant moved the trial court to suppress the narcotics found in the Altima, he claimed that the evidence was the fruit of an illegal search and seizure, namely, his detention “for an extended period without probable cause or a reasonable and articulable suspicion that the defendant was engaged in illegal activity . . . .’’In his motion, the defendant contended that, “[a]t no time did [he] voluntarily consent to the search of his vehicle,” any consent obtained “was tainted by the illegal action of [the] officers,” and that he “did not feel free to leave or decline to answer any questions posed by the officer due to the circumstances of the time of day, the number of officers called to the scene, and the fact that [he] was alone.” The defendant did not mention or question the legality of the patdown in his motion to suppress.
Before this court, the defendant renews his argument, accepted by the Appellate Court, that, under Brown v. Illinois, supra, 422 U.S. 603-604, the illegal patdown demonstrates that Morgan had engaged in “flagrant” misconduct by extending the stop. The defendant also relies on the patdown in support of his alternative ground for affirming the judgment of the Appellate
The defendant’s various claims in this certified appeal are an amalgam of issues both preserved and unpre-served in the trial court. With respect to those issues that are unpreserved, he seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40, under which “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” To the extent that the defendant relies on the patdown in support of his constitutional claims, the legality of the frisk itself implicates the Golding rule because the defendant did not raise that issue before the trial court.
Our recent case law addressing whether a record is adequate for review under the first prong of Golding makes clear that this preservation exception operates in a very restrictive manner, particularly in the fact sensitive context of illegal search and seizure claims. The leading recent decision on this topic is State v. Brunetti, supra, 279 Conn. 42, wherein we declined to review the defendant’s claim, made for the first time on appeal, “that he was entitled to a new trial because, even though his father had consented to the search [of
We thereafter concluded that the record was inadequate for review of the defendant’s joint consent claim under the first prong of Golding. Id., 56-64. We rejected his argument that the trial court’s statement, in ruling on his suppression motion, that “[i]t is clear that at least one of the parties, one of the parents, declined to consent to [the] search,” “perfected the record for review because it [constituted] a finding, supported by [the] evidence, that the defendant’s mother had declined to consent to the search.” (Internal quotation
Most importantly, we emphasized that, “because the defendant’s motions to suppress did not implicate the mother’s consent or lack thereof, the state was not on notice that it was required to establish, on the basis of the totality of the circumstances, that the defendant’s mother had consented to or acquiesced in the search. In such circumstances, the state bears no responsibility for the evidentiary lacunae, and, therefore, it would be manifestly unfair to the state for this court to reach the merits of the defendant’s claim upon a mere assumption that the defendant’s mother had declined to consent to the search.”
Our other recent case law is consistent with Brunetti and makes clear that we consistently have declined to grant Golding review to fourth amendment claims wherein the predicate factual record was not completely developed before the trial court. See State v. Dalzell, 282 Conn. 709, 721, 924 A.2d 809 (2007) (This court declined to decide whether pretextual traffic stops violate the state constitution because “the trial court . . . made no findings regarding [the officer’s] motivation for stopping the defendant’s vehicle. Furthermore, to allow this claim to be presented for the first time on appeal would work a grave injustice on the state as it did not have any opportunity to develop a factual record to dispute the defendant’s claim of pretext.”); State v. Canales, 281 Conn. 572, 582, 916 A.2d 767 (2007) (following Brunetti and finding record inadequate for review of claim that defendant’s statements were product of illegal arrest “because the defen
Thus, we agree with the state that the Appellate Court improperly considered any illegality attendant to Morgan’s patdown of the defendant. Given the fact that the state was not alerted to the need to develop a factual record concerning whether potentially permissible bases, such as consent,
II
FEDERAL CONSTITUTIONAL CLAIMS
Accordingly, we now turn to the federal constitutional issues presented by the present case. First, we must consider whether Morgan’s acts of questioning the defendant about topics unrelated to the reason for the traffic stop, as well as asking for consent to search, were themselves constitutionally permissible during a
A
Permissible Scope of Investigation during Routine Traffic Stops
The state, relying on Arizona v. Johnson, supra, 555 U.S. 323, and Ohio v. Robinette, supra, 519 U.S. 33, claims that, under the restrictions of Terry v. Ohio, supra, 392 U.S. 1, questioning during a routine traffic stop need not be carefully tailored to the initial purpose of the stop, so long as the stop’s overall duration is not “measurably extended” beyond the time necessary to accomplish the tasks attendant to that reason for the stop. In response, the defendant contends that Morgan ordered him from his car at a point when the traffic stop should have ended with the issuance of the traffic ticket and the return of the defendant’s papers, thus creating an independent stop for Terry purposes that improperly lacked its own separate basis of reasonable suspicion beyond the moving violation. The defendant further argues that, because Morgan had not yet issued the ticket and had retained his documentation, the defendant was not free to leave at the time Morgan asked for consent to search, thereby rendering his consent the fruit of an improper stop not supported by reasonable suspicion. We conclude that Morgan’s questions, including his request for consent to search, were permissible because they did not measurably extend the duration of the traffic stop.
Courts considering the constitutionality under the fourth amendment of a police officer’s interaction with a motorist during a routine traffic stop apply the principles developed under the line of case law implementing the central holding of Terry v. Ohio, supra, 392 U.S.
A Terry stop does not give law enforcement officers carte blanche to stop and detain citizens indefinitely or unreasonably because, “if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops. While it is clear that the brevity of the invasion of the individual’s [f|ourth [ajmendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion . . . we have emphasized the need to consider the law enforcement purposes to be served by the stop as well
Applying this reasoning in the traffic stop context, the United States Supreme Court recently followed Muehler v. Mena, supra, 544 U.S. 100-101, wherein it had determined that the police did not violate the fourth amendment rights of a woman detained during the execution of a search warrant by questioning her about her immigration status,
Thus, questions permissible under Terry during a routine traffic stop include inquiries about whether the car or driver are carrying contraband, as well as concomitant requests for consent to search the vehicle. See 4 W. LaFave, supra (4th Ed. 2004), § 9.3 (d), p. 389 and § 9.3 (e), p. 397, and (2009-2010 Sup.), § 9.3, pp. 91, 94 (noting that Illinois v. Caballes, supra, 543 U.S. 405, supports requests for consent to search that do not extend duration of stop). These inquiries are permissible even if they are irrelevant to the initial purpose of the stop, namely, the traffic violation, so long as they do not “measurably extend” the stop beyond the time necessary to complete the investigation of the traffic violation and issue a citation or warning. Consideration of that time period necessarily includes the completion of tasks attendant to the traffic stop, including “a check of the driver’s license, vehicle registration, and criminal history, and the writing of the citation or warning,” as well as background questions about the destination and purpose of the driver’s trip. United States v. OliveraMendez, 484 F.3d 505, 509 (8th Cir. 2007); see also, e.g., Salmeron v. State, supra, 280 Ga. 737 (“[i]t does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver’s license, insurance, and vehicle registration” [internal quotation marks omitted]). Indeed, given that complications with respect to these tasks may well result in an extension of the time of detention without
Accordingly, decisions in the wake of Arizona v. Johnson, supra, 555 U.S. 323, hold similarly and, in upholding the conduct of such stops as reasonable, uniformly have emphasized the de minimis nature of the nontraffic related questioning and requests for consent to search within the context of the stop as a whole.
We emphasize, however, that in evaluating the duration of a traffic stop, the reviewing court still must consider the stop through the lens of the time reasonably necessary to effectuate the initial purpose of the traffic stop, and expansions of the stop beyond that time are constitutionally impermissible in the absence of an independent basis of objectively reasonable, articulable suspicion. See, e.g., United States v. White, 584 F.3d 935, 949 (10th Cir. 2009), cert. denied, 559 U.S. 985, 130 S. Ct. 1721, 176 L. Ed. 2d 202 (2010); United States v. Bell, supra, 555 F.3d 541; see also United States v. Alix, 630 F. Sup. 2d 145, 157-58 (D. Mass. 2009) (forty-five minute stop with multiple frisks and no reasonable suspicion to believe that driver or passenger was dangerous was unreasonable, particularly when their actions did not contribute to length of stop); People v. Burei, 391 Ill. App. 3d 1, 8-9, 908 N.E.2d 538 (2009) (traffic stop was prolonged beyond time necessary to issue summons for cracked windshield by continuing to question defendant, eventually obtaining consent to search vehicle). Moreover, judicial review of routine traffic stops goes beyond a strict stopwatch test; reasonableness is not measured solely by the temporal duration of the stop alone but, rather, requires scrupulous consideration of the reasonableness of the officers’ actions during the time of the stop. See United States
A review of the Appellate Court’s opinion in the present case indicates, then, that it did not apply the correct legal standard, in that it relied on pre-Muehler case law,
Applying the proper legal standard to the facts of the present case, we conclude that Morgan did not measurably or unreasonably prolong his traffic stop of the defendant. In so concluding, we note that it is undisputed that the traffic stop for unsignaled lane changes was valid at its inception, and also that, under Pennsylvania v. Mimms, supra, 434 U.S. 111 and n.6, Morgan properly ordered the defendant to step out of the car for purposes of explaining the ticket. The total relevant duration of the stop, namely, from the time that the defendant was pulled over until the time that he gave his consent to the search of the Altima, was at most fifteen minutes; indeed, the defendant was under arrest twenty minutes from the inception of the stop. See United States v. Rivera, supra, 570 F.3d 1013-14 (“when a motorist gives consent to search his vehicle, he necessarily consents to an extension of the traffic stop while the search is conducted”). Moreover, during that fifteen minute time period prior to searching the defendant’s Altima, Morgan engaged only in activities that themselves related directly to the traffic stop, namely, questioning the defendant about his travels, checking the defendant’s license and rental agreement, performing a warrants check and then writing the ticket. Morgan asked only two brief off-topic questions concerning the presence of illegalities in the vehicle or on the defendant’s person near the end of the stop, after explaining the ticket to the defendant, but before
B
Whether the Defendant’s Consent Was Voluntary
Having determined that the traffic stop itself was not conducted in a manner that violated the fourth amendment, we now must consider whether the defendant voluntarily consented to the search of his vehicle.
“A warrantless search is not unreasonable under either the fourth amendment to the constitution of the United States or article first, § 7, of the constitution of Connecticut if a person with authority to do so has freely consented to the search. . . . The state bears the burden of proving that the consent was free and voluntary
“In determining whether a defendant’s will was overborne in a particular case, the [c]ourt has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the
In evaluating the voluntariness of the defendant’s consent, we note that, “while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” Id., 249. The Supreme Court has emphasized that this rule remains applicable to requests for consent to search during traffic stops, calling it “unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.” Ohio v. Robinette, supra, 519 U.S. 40 (following Schneckloth); see also, e.g., People v. Reddersen, 992 P.2d 1176, 1182-83 (Colo. 2000) (consent to search given during ongoing traffic stop was voluntary, despite officer’s failure to advise motorist of his right to refuse or to give warning pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).
Moreover, that consent to search is given while a defendant is being detained does not render it involuntary per se, as “the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” United States v. Watson, 423
With respect to the remainder of the defendant’s claims,
We further disagree with the defendant’s claim that Morgan and Sutton behaved in a “subtly coercive” manner because they were armed, the defendant was a minority from out of state who was alone in his car, and the traffic stop took place on a dark area of the
C
Scope of the Defendant’s Consent
The defendant next proffers a second ground for affirming the judgment of the Appellate Court, namely,
“The standard for measuring the scope of a suspect’s consent under the [f]ourth [a]mendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id., 251. “The scope of a search is generally defined by its expressed object.” Id. “Although objective reasonableness is a question of law [over which our review is plenary], the factual circumstances are highly relevant when determining what a reasonable person would have believed to be the outer bounds of the consent that was given.”
In Jimeno, the Supreme Court concluded that it was “reasonable for an officer to consider a suspect’s general consent to a search of his car to include consent to examine a paper bag lying on the floor of the car.” Florida v. Jimeno, supra, 500 U.S. 251. The court noted that “the terms of the search’s authorization were simple” because the defendant had granted the officer “permission to search his car, and did not place any explicit limitation on the scope of the search,” after the officer “had informed [the defendant] that he believed [the defendant] was carrying narcotics, and that he would be looking for narcotics in the car. We think that it was objectively reasonable for the police to conclude that the general consent to search [the defendant’s] car included consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container.” Id.
Post-Jimeno case law makes clear that, on the basis of the exchange between Morgan and the defendant, Morgan reasonably could have understood the defendant’s invitation to “check” the Altima as an invitation to search the interior of the car and unlocked compartments therein, including its center console. First, Morgan’s question about the presence of “anything illegal” in the car reasonably is understood as directing the defendant’s attention to contraband such as narcotics or weapons, despite the fact that he did not mention those items specifically.
We further disagree with the defendant’s reliance on the fact that Morgan “never used the word ‘search,’ ”
m
STATE CONSTITUTIONAL CLAIMS
As his final proffered alternative ground for affirming the judgment of the Appellate Court, the defendant provides an analysis under State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), and contends that we should adopt a rule, pursuant to article first, § 7, of the Connecticut constitution;
“It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Furthermore, although we often rely on the United States Supreme Court’s interpretation of the amendments to the constitution of the United States to delineate the boundaries of the protections provided by the constitution of Connecticut, we have also recognized that, in some instances, our state constitution provides protections beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court. . . . The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled. In State v. Geisler, [supra, 222 Conn. 684-86], we enumerated the following six factors to be considered in determining that issue: (1) persuasive relevant federal precedents; (2) the text of the operative constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies.” (Internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 509-10, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007).
A
Operative Constitutional Text
With respect to the first Geisler factor, namely, the operative constitutional text, we agree with the state that the language of article first, § 7, does not support the defendant’s claim of greater protections than are provided under the fourth amendment. See footnotes 1 and 2 of this opinion. The state provision “closely resembles” the fourth amendment; State v. Barton, 219 Conn. 529, 540, 594 A.2d 917 (1991); particularly as “both proscribe only unreasonable searches and seizures.” State v. Dukes, supra, 209 Conn. 121; see also, e.g., Washington v. Meachum, 238 Conn. 692, 719, 680
B
Connecticut and Federal Case Law
We also agree with the state that contemporary federal case law governing the police conduct during routine traffic stops; see parts II A and B of this opinion; similarly does not support the defendant’s interpretation of the state constitution.
Moreover, the defendant has not identified any on point Connecticut case law interpreting the federal constitution that conflicts with the federal constitutional principles recently articulated in Arizona v. Johnson,
C
Constitutional History
With respect to the relevant constitutional history, we agree with the defendant that the “original 1818
D
Sister State Case Law
The defendant relies specifically on state constitutional case law from ten states, Alaska, Kansas, Massa
Like the New Jersey Supreme Court, the Minnesota Supreme Court has interpreted its state constitution to require that officers have “reasonable, articulable suspicion” of criminal activity prior to asking for consent to search during a routine traffic stop. State v. Fort, 660 N.W.2d 415, 416 (Minn. 2003). Fort, however, is legally inapposite, because in that case, the Minnesota court was constrained to follow its then recent precedent in a dog sniff case that had interpreted both the fourth amendment, pre-Illinois v. Caballes, supra, 543 U.S. 408-409, and the state constitution, to limit “the scope and duration of a traffic stop investigation . . . to the justification for the stop.”
Case law from the high courts of Massachusetts and Pennsylvania is similarly restrictive, as both states also do not permit police to inquire beyond the purpose of a traffic stop in the absence of a reasonable suspicion of criminal activity. The case law from these states, however, is not persuasive because of the cursory state constitutional analyses contained in those opinions. See Commonwealth v. Torres, 424 Mass. 153, 158, 674 N.E.2d 638 (1997) (“police inquiry in a routine traffic stop must end on the production of a valid license and registration unless the police have grounds for inferring that either the operator or his passengers were involved in the commission of a crime ... or engaged in other suspicious conduct” [internal quotation marks omitted]);
In O’Boyle v. State, 117 P.3d 401, 411 (Wyo. 2005), the Wyoming Supreme Court did not adopt a specific rule such as that followed in State v. Carty, supra, 170 N.J. 632, but emphasized a reasonableness inquiry
With respect to state constitutional decisions issued after the United States Supreme Court’s decision in Muehler v. Mena, supra, 544 U.S. 93, the Kansas decision relied upon by both Justice Katz in her dissent and the defendant, State v. Smith, 286 Kan. 402, 184 P.3d 890, cert. denied, 555 U.S. 1062, 129 S. Ct. 628, 172 L. Ed. 2d 639 (2008), is facially on-point but, upon closer review, ultimately lacking in persuasive value. In Smith, the court concluded that Muehler v. Mena, supra, 100-101, does not “[allow] law enforcement officers to expand the scope of a traffic stop to include a search not related to the purpose of the stop, even if a detainee has given permission for the search. Rather, we continue to adhere to our longstanding rule that consensual searches during the period of a detention for a traffic stop are invalid under the [fjourth [a]mendment . . .
E
Economic and Sociological Factors
With respect to the relevant economic and sociological factors, the defendant first contends that, as a practical matter, many citizens do not feel free to refuse consent to a search during a routine traffic stop. Numerous commentators, in articles revealed by our independent research, support this assertion.
The defendant and the amicus also emphasize the “national concern” regarding racial profiling and pre-textual stops. The defendant cites General Statutes § 54-
F
Conclusion
Having performed a complete Geisler analysis of the defendant’s state constitutional claims in this appeal, we conclude that article first, § 7, does not provide greater protection than does the federal constitution with respect to consent searches during routine traffic stops, and we decline to adopt the rules proposed by the defendant. Our own constitutional language, precedents and history do not support a ready departure from the federal case law in this area, particularly because the recent United States Supreme Court decisions do not represent a sea change from prior Connecticut precedent. See State v. Oquendo, supra, 223 Conn. 647-49. Moreover, the only relevant sister state constitutional decision that provides greater protection than the fourth amendment in this context, but is written persuasively, is State v. Carty, supra, 170 N.J. 632. That decision, however, is founded upon a factual predicate of local law enforcement abuses that simply does not exist on this record, disinclining us to follow it. See State v. Snell, supra, 323 Mont. 161 (declining to follow Catty because defendant “does not argue — much less establish — that Montana law enforcement officers are abusing their authority”); Commonwealth v. Strickler, supra, 563 Pa. 80-81 n.28 (declining to “take judicial notice that police employ tactics such as consent searches on a selective, discriminatory basis against members of protected classes, primarily on Pennsylvania interstate highways used as conduits by traffickers of illegal drugs” and noting that “the assertion of such discriminatory conduct finds no support in the record of any of the consolidated cases”); cf. O’Boyle v. State,
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.
In this opinion VERTEFEUILLE and ZARELLA, Js., concurred.
“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 fourth amendment has been made applicable to the states via the fourteenth amendment.” State v. Gonzalez, 278 Conn. 341, 344 n.4, 898 A.2d 149 (2006).
The constitution of Connecticut, article first, § 7, 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.”
We granted the state’s petition for certification limited to the following issue: “Did the Appellate Court correctly determine that the trial court improperly denied the defendant’s motion to suppress?” State v. Jenkins, 285 Conn. 909, 940 A.2d 809 (2008).
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 marijuana, 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 or more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years or 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.”
Although § 21a-278 (b) was the subject of technical amendments in 2007; see Public Acts 2007, No. 07-217, § 97; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision.
Morgan testified that, when working traffic enforcement on the turnpike, his regular practice is to ask the driver to exit his or her car for an explanation of the ticket, because that enables Morgan to show the driver the amount of traffic on the turnpike, as well as to have the driver’s full attention away from distractions such as radios or cellular telephones. Morgan also testified that he created a lane of safety for himself and the defendant to move around in by parking his cruiser half in the right travel lane, and half on the shoulder, and offsetting it from the Altima, which was parked entirely on the shoulder.
Morgan did not, however, consider it unusual that the rental vehicle was registered in a different state than its driver was licensed.
Morgan testified that he did not believe that the defendant was armed at the time of the stop.
For additional discussion with respect to the phrasing of the defendant’s consent, see footnote 38 of this opinion and the accompanying text.
We note that the defendant does not contest the propriety of this subsequent search of the Altima.
We note that § 21a-278 (b) proscribes, inter alia, both the possession and sale of narcotics. The substitute information in the present case charged the defendant with violations of § 21a-278 (a) and (b) on the basis of the defendant’s alleged “[s]ale of certain illegal drugs.” This statement appears to be a scrivener’s error. At no point in the proceedings before the trial court did the state claim that the defendant had participated in the actual sale of drugs. Additionally, we note that the judgment file in the present case notes that the § 21a-278 (b) violation to which the defendant pleaded nolo contendere was “[pjossession of [njarcotics with [ijntent to [s]ell.” Accordingly, we refer to the crimes with which the defendant was charged under § 21a-278 (a) and (b) as possession of narcotics with intent to sell by a person who is not drug-dependent.
General Statutes § 54-94a provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. . . .”
The Appellate Court also rejected the state’s claim that the record was inadequate for appellate review with respect to whether Morgan had returned the defendant’s ticket and paperwork to him. The court noted that the record indicated that Morgan had not given the defendant the ticket, and that any inadequacy on this point should be charged to the state because it bore the burden of proof to establish the voluntariness of the defendant’s consent at the suppression hearing. State v. Jenkins, supra, 104 Conn. App. 430.
In Brown v. Illinois, supra, 422 U.S. 603, in considering whether a confession was the fruit of the poisonous tree, or the “exploitation of an illegal arrest,” the Supreme Court concluded that the “voluntariness of the statement is a threshold requirement.” Id., 604. The Supreme Court then concluded that, once the confession was determined to be voluntary, the reviewing court then must consider other “relevant” factors to determine whether taint of the police misconduct has been attenuated, including specifically: (1) “[t]he temporal proximity of the arrest and the confession”; (2) “the presence of intervening circumstances”; and (3) “the purpose and flagrancy of the official misconduct. . . .” Id., 603-604. The Brown analysis is applicable to consents as well as statements. See State v. Cates, 202 Conn. 615, 621, 522 A.2d 788 (1987).
In his dissent, Judge Schaller concluded that the defendant had failed to provide an adequate record for review of his claim that he had been detained unlawfully because the purpose of the traffic stop already had
As noted previously, Morgan was the only witness to testify at the suppression hearing. On cross-examination, while exploring the circumstances of the defendant’s consent to search the Altima, the defendant asked Morgan whether he had searched the defendant. Morgan replied in the affirmative, and further testified that he did not find anything illegal on the defendant’s person. After further testimony about the search of the Altima, Morgan testified during recross-examination, in response to a question from the defendant asking why Morgan had searched his person: “I asked him if he had anything illegal on him and he said no, and I checked.” Morgan then testified that he had not believed that the defendant was armed at the time. This was the only testimony about the patdown adduced during the suppression hearing.
At oral argument before the trial court, the defendant mentioned the patdown in an effort to distinguish this case from State v. Story, 53 Conn. App. 733, 741, 732 A.2d 785, cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999), by noting, for purposes of whether the defendant was free to leave at the conclusion of the stop, that the present case had a patdown, whereas Story did not.
Having reviewed the defendant’s briefs to the Appellate Court, we deem the Appellate Court’s description of his arguments an accurate representation of the claims that he made therein.
For its part, upon receipt of the defendant’s brief, the state moved for permission to file a late motion for rectification, seeking to include in the record Morgan’s police report, which was mentioned, but not admitted as an exhibit at the suppression hearing. The state claimed that the report indicated that the patdown was proper because it had been invited by the defendant himself. The Appellate Court denied the state’s motion for
We noted that, other than the testimony that the defendant’s mother had refused to sign the consent form, the defendant had “presented no other evidence on the issue. Because the mother’s actions relating to the consent to search were not at issue at the suppression hearing — the defendant had claimed only that his father had not given valid consent to search and, in fact, expressly had indicated that the mother’s consent was not necessary— the state had no reason to present any evidence regarding the mother’s consent or lack thereof, and, consequently, it did not do so. As a result, we simply do not know any of the other circumstances surrounding the mother’s refusal to sign the consent to search form.” (Emphasis altered.) State v. Brunetti, supra, 279 Conn. 57-58.
In so concluding, we relied on State v. Medina, supra, 228 Conn. 300-302, wherein this court “declined to review an unpreserved constitutional claim regarding the alleged involuntariness of the confession of the defendant . . . because the record was inadequate for review.” State v. Brunetti, supra, 279 Conn. 60. We emphasized that in Medina the defendant’s claim in the trial court, namely, that his confession was not knowing and voluntary because he had not received Miranda warnings, arose from a different factual predicate than his state constitutional claims on appeal, “namely, that his confession was involuntary due to his impaired mental state.” Id. We further emphasized that the defendant’s failure in Medina to raise that claim deprived the state of the opportunity to litigate against it, and left us without the “ ‘benefit of a complete factual inquiry into [the defendant’s] mental condition at the time his statements were made.’ ” Id., quoting State v. Medina, supra, 300.
See, e.g., United States v. Jahkur, 409 F. Sup. 2d 28, 31-32 (D. Mass. 2005); State v. Caraveo, 222 Ariz. 228, 233, 213 P.3d 377 (App. 2009).
We note that the state contends, in its brief, that Terry restrictions are inapplicable to the routine traffic stop in the present case because Morgan had probable cause to believe that the defendant had committed a traffic violation. Indeed, the state notes that, the provisions of General Statutes § 51-164o (b) notwithstanding, the defendant constitutionally could have been subjected to custodial arrest for the minor traffic offense; Atwater v. Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001); and, because he was not placed under arrest, Morgan was not required to inform the defendant of his right to remain silent. At oral argument before this court, the state cited Arizona v. Johnson, supra, 129 S. Ct. 781, and acknowledged, however, that in the absence of an arrest, the police cannot detain a stopped motorist indefinitely. This is consistent with the well established general proposition that an automobile stop occasioned by a traffic violation is more akin to a Terry stop than a custodial arrest, and is, therefore, governed by Terry principles, even when the police officer has probable cause to believe that the motorist has violated a traffic law. See, e.g., id., 786; United States v. Bell, 555 F.3d 535, 539-40 (6th Cir.), cert. denied, 557 U.S. 945, 129 S. Ct. 2887, 174 L. Ed. 2d 595 (2009). But see United States v. Childs, 277 F.3d 947, 953 (7th Cir.) (en banc) (“[Although traffic stops usually proceed like Terry stops, the [constitution does not require this equation. Probable cause makes all the difference . . . .” [Citation omitted.]), cert. denied, 537 U.S. 829, 123 S. Ct. 126, 154 L. Ed. 2d 43 (2002); D. Moran, “Traffic Stops, Littering Tickets, and Police Warnings: The Case for a Fourth Amendment Noncustodial Arrest Doctrine,” 37 Am. Crim. L. Rev. 1143, 1149-50 (2000) (arguing that traffic stops do not fit into three delineated fourth amendment categories of investigative stops, custodial arrests or consensual encounters, and that “[t]his tripartite categorization has resulted in strained, and ultimately erroneous, efforts in both the federal and state courts to categorize traffic violation stops as Terry stops”).
In Muehler v. Mena, supra, 544 U.S. 95, 100, an action brought under 42 U.S.C. § 1983 wherein the plaintiff had alleged that the police violated her fourth amendment rights by handcuffing her for several hours during the execution of a search warrant on her home, the Supreme Court concluded that the police had not violated the fourth amendment “by questioning her about her immigration status during the detention.” The court emphasized that the questioning was not a “discrete [fjourth [a]mendment event,” and stated that “mere police questioning does not constitute a seizure.” (Internal quotation marks omitted.) Id., 101. The court further concluded that, because the detention was not “prolonged by the questioning, there was no additional seizure within the meaning of the [f]ourth [a]mendment. Hence, the officers did not need reasonable suspicion to ask [the plaintiff] for her name, date and place of birth, or immigration status. ” Id. Relying on Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005), which had upheld the use of a narcotics-sniffing dog during a routine traffic stop, the court further emphasized that the key constitutional inquiry remained the duration of the detention; so long as the questioning did not extend the time of detention,
Although the majority opinion in Ohio v. Robinette, supra, 519 U.S. 35, 39-40, was cast in terms of voluntariness, and concluded that a “lawfully seized” defendant need not be informed that he is “free to go” before a consent to search during a routine traffic stop will be deemed voluntary, it necessarily must be read, given its statement that the defendant was subject to a seizure at the time of being questioned; id., 35; as permitting such brief, incidental questioning during the course of a routine traffic stop. We note, however, that in his dissent, Justice Stevens attacked the underlying predicate of the majority’s determination, namely, that the defendant was “lawfully seized.” Id., 49. Specifically, Justice Stevens concluded that the defendant had been detained because he would not have felt free to leave at the time that the officer asked him for consent to search, primarily because the “question itself sought an answer ‘before you get gone.’ ” (Emphasis added.) Id., 47. Justice Stevens also determined that, “by the time [the defendant] was asked for consent to search his automobile, the lawful traffic stop had come to an end; [he] had been given his warning, and the speeding violation provided no further justification for detention. The continued detention was therefore only justifiable, if at all, on some other grounds.” Id., 50. Justice Stevens then concluded that, because there was no reasonable suspicion to justify a further detention, “(the officer’s] continued detention of [the defendant] constituted an illegal seizure.” Id., 50-51.
Cases on point released subsequent to Muehler v. Mena, supra, 544 U.S. 93, but prior to Arizona v. Johnson, supra, 555 U.S. 323, are similarly illustrative. See United States v. Turvin, supra, 517 F.3d 1101-1102 (noting that fourteen minute period from commencement of stop until consent was obtained was “no longer than an ordinary traffic stop could reasonably take,” and that “brief pauses to ask questions during traffic stops, even if those questions are unrelated to the purpose of the stop, may be permissible under Muehler"); United States v. Valenzuela, 494 F.3d 886, 890 (10th Cir.) (officer properly asked defendant about presence of “ ‘weapons or other illegal items,’ ” as well as for permission to search, because questioning was simple and “did not appreciably lengthen the duration of the stop”), cert. denied, 552 U.S. 1032, 128 S. Ct. 636, 169 L. Ed. 2d 411 (2007); United States v. Hernandez, 418 F.3d 1206, 1209 n.3 (11th Cir. 2005) (“it is unreasonable extensions of the duration — not the scope of conversation — that could render an otherwise justified detention unreasonable for [fjourth [ajmendment purposes”), cert. denied, 549 U.S. 889, 127 S. Ct. 303, 166 L. Ed. 2d 155 (2006); United States v. Bowers, 490 F. Sup. 2d 285, 291-92 (D. Conn. 2007) (police officer reasonably asked about presence of illegalities and for consent to search in seat belt violation stop that lasted less than ten minutes); Salmeron v. State, supra, 280 Ga. 736 (following Muehler and concluding that request for consent to search during valid traffic stop does not violate fourth amendment so long as stop is not unreasonably prolonged); State v. Washington, supra, 898 N.E.2d 1203, 1205 (with no claim of excessive delay, police officer properly questioned moped driver about whether he had drugs
Other jurisdictions had concluded similarly under the fourth amendment even prior to the publication of Muehler. See United States v. Childs, 277 F.3d 947, 953-54 (7th Cir.) (en banc) (“[b]y asking one question about marijuana, [the] officer ... did not make the custody of [the defendant passenger during a traffic stop] an ‘unreasonable’ seizure, ” particularly given existence of probable cause to suspect traffic violation, which meant that “neither the driver nor [the defendant] had a right to be released the instant the steps to check license, registration, and outstanding warrants, and to write a ticket, had been completed”), cert. denied, 537 U.S. 829, 123 S. Ct. 126, 154 L. Ed. 2d 43 (2002); United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) (The court rejected a challenge to police questioning and a request for consent to search that “occurred while the officers were waiting for the results of the computer check. Therefore, the questioning did nothing to extend the duration of the initial, valid seizure.”); State v. Kremen, 754 A.2d 964, 967-68 (Me. 2000) (reasonable suspicion was not required to justify questioning and request to search vehicle during lawful traffic stop), cert. denied, 531 U.S. 1079, 121 S. Ct. 777, 148 L. Ed. 2d 675 (2001); State v. Snell, 323 Mont. 157, 161, 99 P.3d 191 (2004) (same); State v. Akuba, 686 N.W.2d
Prior to the United States Supreme Court’s 2005 decision in Muehler v. Mena, supra, 544 U.S. 100-101, some federal and state jurisdictions had interpreted Terry to mean that questioning must be limited to the purpose of the traffic stop, and could not be extended beyond that pmpose without either consent or an independent basis of reasonable suspicion of criminal activity, which might well have been yielded by permissible and reasonable inquiries about travel plans. In so concluding, these courts relied on the United States Supreme Court’s statement in Terry v. Ohio, supra, 392 U.S. 19-20, that the determination of whether a seizure and search pursuant to a Terry stop were reasonable “is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” See United States v. Holt, 264 F.3d 1215, 1228 (10th Cir. 2001) (en banc); Caldwell v. State, 780 A.2d 1037, 1045-46 (Del. 2001) (decision based on federal constitution); People v. Gonzalez, 204 Ill. 2d 220, 235-36, 789 N.E.2d 260 (2003) (adopting reasonableness analysis under federal and state constitutions to determine whether police conduct altered fundamental nature of stop), overruled by People v. Harris, 228 Ill. 2d 222, 240, 886 N.E.2d 947 (2008); State v. McKinnon-Andrews, 151 N.H. 19, 25-27, 846 A.2d 1198 (2004) (concluding accordingly under both federal and state constitutions); People v. Banks, 85 N.Y.2d 558, 562-63, 650 N.E.2d 833, 626 N.Y.S.2d 986 (unclear whether holding is based on federal or state constitution), cert. denied, 516 U.S. 868, 116 S. Ct. 187, 133 L. Ed. 2d 124 (1995); Commonwealth v. Strickler, 563 Pa 47, 70-71 n.20, 757 A.2d 884 (2000) (“Terry . . . and its progeny strongly suggest that a traffic stop [viewed as the equivalent of a Terry stop] is not an appropriate vehicle within which to make inquiries about potential unlawful conduct unrelated to the stop not supported by reasonable suspicion”); State v. Hansen, 63 P.3d 650, 660 (Utah 2002) (federal constitution); O’Boyle v. State, 117 P.3d 401, 415-16 (Wyo. 2005) (federal constitution). We note that apost-MreWer case relied on extensively by the defendant holds similarly. See State v. Smith, 286 Kan. 402, 419, 184 P.3d 890 (concluding that Muehler did not alter “the rules regarding the limited scope of a
Particularly in light of Arizona v. Johnson, supra, 555 U.S. 331-33, we agree with the Illinois Supreme Court’s observation that this more restrictive type of fourth amendment analysis has, with respect to the federal constitution, been “unequivocally overruled by” the holding of Muehlerr. See People v. Harris, supra, 228 Ill. 2d 240; see also United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir. 2006) (“[a]lthough Holt held that further questioning is justifiable only if it is reasonable in relation to the initial purpose of the traffic stop . . . the scope of this holding has been limited by the Supreme Court’s decision in Muehler” [citation omitted]); United States v. Turvin, supra, 517 F.3d 1099-1100 (noting that Muehler had “overruled” Ninth Circuit case law “that required police officers to have reasonable suspicion to ask questions beyond the scope of a traffic stop”); People v. Harris, supra, 244 (emphasizing that duration remains the “sole focus of the scope inquiry” and “overrul[ing] Gonzalez to the extent that it holds that the reasonableness of a traffic stop must be judged not only by its duration, but by the additional criterion of whether the actions of the officer alter the fundamental nature of the stop”); State v. Morlock, supra, 218 P.3d 807-808 (explaining, in contradiction to State v. Smith, supra, 286 Kan. 419, that “Johnson therefore also confirmed that an officer’s inquiries into matters unrelated to the justification for the stop did not necessarily require reasonable suspicion” and “eliminated any doubt that the Muehler rationale applied to traffic stops”).
Indeed, the cited portions of United States v. Jones, supra, 234 F.3d 234, the Fifth Circuit decision that was relied upon by the Appellate Court and also cited by the defendant in his brief in this certified appeal, appear to be inconsistent with that court’s subsequent en banc opinion in United
In Brigham, the en banc Fifth Circuit noted, however, that police officers could question a motorist on any subject during a traffic stop; United States v. Brigham, supra, 382 F.3d 508; emphasized that “there is ... no constitutional stopwatch on traffic stops”; id., 511; and, noting the fourth amendment touchstone of reasonableness, declined to impose a particular sequence or constitutionally mandated protocol on questioning and computer checks during traffic stops. Id.; see also Kothe v. State, 152 S.W.3d 54, 66 (Tex. Crim. App. 2004) (rejecting challenge to traffic stop based on officer’s running of warrant check after already having determined that driver was not intoxicated, because fourth amendment reasonableness does not “require rigid adherence to ‘the least intrusive means’ of investigation defined by Monday-morning reviewing courts”).
The Appellate Court also noted that, in State v. Story, 53 Conn. App. 733, 741, 732 A.2d 785, cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999), it had “concluded that a police officer’s request for consent to search on the basis of nothing more than a hunch was not improper because the officer did not request the consent to search until after the stop had concluded and the defendant was free to leave at the time of the request. Mindful of Story, if we now sanction arbitrary requests for consent searches by the police prior to the conclusion of a stop, we effectively close the door on a criminal defendant’s ability ever to contest the validity of a consent to search during a motor vehicle stop.” (Emphasis in original.) State v. Jenkins, supra, 104 Conn. App. 431-32. We disagree with the Appellate Court’s prediction, in that, post-Arizona v. Johnson, supra, 555 U.S. 331-33, a defendant still may challenge the overall duration of a traffic stop as unreasonable under the circumstances, as well as make an analytically separate claim with respect to the voluntariness of his consent to search.
We note that several courts have held the timing of the questioning or requests for consent to have independent constitutional significance, and have emphasized that questioning after discrete events such as the issuance of a ticket or warning, or the return of a driver’s paperwork, may create a detention distinct from the initial stop, which then would require independent justification such as consent or reasonable suspicion. Put differently, these courts conclude that the return of the paperwork marks the end of the initial traffic stop, and determining the consensual nature of the subsequent interaction requires analysis of whether the driver reasonably would have felt free to leave under United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). See State v. Ferris, 355 Md. 356, 364, 378-79, 735 A.2d 491 (1999) (concluding that officer improperly subjected motorist to second seizure when, after handing him ticket and returning his license, he asked him to step out of car at night on shoulder of highway to answer questions about use and possession of narcotics without first advising him that he was free to depart); accord State v. Story, 53 Conn. App. 733, 745-47, 732 A.2d 785 (Hennessy, J., dissenting) (concluding that traffic stop had ended after trooper returned defendant’s identification and issued ticket, and that request for defendant and passenger to exit car, answer questions and consent to car search amounted to separate seizure not justified by reasonable suspicion), cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999); see also People v. Banks, 85 N.Y.2d 558, 562, 650 N.E.2d 833, 626 N.Y.S.2d 986 (“once [the trooper’s] license and stolen vehicle radio check came back negative and he prepared the traffic tickets for the seat belt violations, the initial justification for seizing and detaining [the] defendant and [the driver] was exhausted,” and retention of their licenses pending arrival of backup officer was illegal seizure without independent justification), cert. denied, 516 U.S. 868, 116 S. Ct. 187, 133 L. Ed. 2d 124 (1995); People v. Rainey, 49 App. Div. 3d 1337, 1339, 853 N.Y.S.2d 807 (The court held that Banks was not controlling “because, in [Banks], the driver of the vehicle had been detained after he was issued traffic tickets. Here, the [t]rooper testified that he had not given the driver a traffic ticket before backup arrived, and there was no evidence to the contrary.”), appeal denied, 10 N.Y.3d 963, 893 N.E.2d 453, 863 N.Y.S.2d 147 (2008). We need not, however, determine in this appeal whether any of these events, alone or in some combination, terminate a traffic stop as a matter of law because there is no evidence that Morgan returned the license, rental papers and infraction ticket to the defendant; thus, the factual predicate of this appeal is an ongoing traffic stop, and the relevant legal inquiry is whether it was measurably or unreasonably extended.
Because we conclude that the defendant was not subjected to an illegal seizure, we need not consider whether the evidence taken from the consent search was the fruit of the poisonous tree subject to the attenuation analysis of Brown v. Illinois, supra, 422 U.S. 603-604. See, e.g., State v. Nowell, 262 Conn. 686, 700, 817 A.2d 76 (2003). We consider only whether the defendant’s consent was voluntary under the totality of the circumstances.
Practice Book § 84-11 (a) provides in relevant part: “Upon the granting of certification, the appellee may present for review alternative grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the appellate court. ... If such alternative grounds for affirmation or adverse rulings or decisions to be considered in the event of a new trial were not raised in the appellate court, the party seeking to raise them in the supreme court must move for special permission to do so prior to the filing of that party’s brief. Such permission will be granted only in exceptional cases where the interests of justice so require.” The state acknowledges that the defendant raised these claims properly before the Appellate Court, and we may, therefore, review them without special permission.
We note that the state had the burden of proving the voluntariness of the consent to the search by a preponderance of the evidence. See United States v. Isiofia, 370 F.3d 226, 230 (2d Cir. 2004); State v. Ortiz, 17 Conn. App. 102, 103, 550 A.2d 22 (per curiam), cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988); accord State v. Lawrence, 282 Conn. 141, 177, 920 A.2d 236 (2007) (state and federal constitutions require “the state to prove the voluntariness of a confession by a preponderance of the evidence, rather than by proof beyond a reasonable doubt”).
Relying on Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996), the defendant contends that we should engage in de novo review of the trial court’s determination about the voluntariness of his consent. In Ornelas, the Supreme Court concluded that, “as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id., 699. The Ornelas decision is, however, limited only to appellate review of determinations of probable cause and reasonable suspicion and, inasmuch as the defendant has not cited any cases extending that decision to the more subjective voluntariness determination; see Schneckloth v. Bustamonte, supra, 412 U.S. 229 (“account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents”); we continue to apply the clearly erroneous standard of review to trial courts’ determinations with respect to the voluntariness of consents to search.
As noted previously, we decline to consider the defendant’s second proffered ground for finding his consent involuntary, namely, that Morgan already had escalated the encounter by patting down the defendant without justification. See part I of this opinion.
See also, e.g., United States v. Walker, 922 F. Sup. 724, 727 (N.D.N.Y. 1996) (noting that defendant’s “original consent to search the vehicle was spontaneous, unsolicited, and without any indication that it was produced by coercion”); State v. Sullivan, 49 S.W.3d 800, 812 and n.8 (Mo. App. 2001) (consent was voluntary when defendant responded to question of her knowledge of narcotics investigation by stating that police officer could search her car); State v. Lowe, 135 N.M. 520, 525, 90 P.3d 539 (App.) (taint attenuated from illegal detention when defendant volunteered spontaneously to permit officer to search her car), cert. quashed, 103 P.3d 1098 (N.M. 2004).
But see United States v. Canipe, 569 F.3d 597, 604 (6th Cir.) (applying clearly erroneous standard of review to District Court’s determination that search did not exceed scope of consent), cert. denied, 558 U.S. 1036, 130 S. Ct. 655, 175 L. Ed. 2d 499 (2009); United States v. Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir. 1992) (same), cert. denied, 507 U.S. 932, 113 S. Ct. 1315, 122 L. Ed. 2d 702 (1993).
We disagree with the defendant’s reliance on United States v. Isiofia, 370 F.3d 226 (2d Cir. 2004), in support of his argument that Morgan exceeded the scope of the consent by not elaborating about the nature of the contraband that he inquired about. Isiofia is inapposite, because the issue in that case was voluntariness and the court concluded on appeal that the District Court, in conducting a totality of the circumstances analysis to determine whether the defendant had voluntarily given his consent, properly considered as a factor the agents’ failure to inform the defendant of the type of
Relying on Morgan’s testimony during cross-examination that he did not record in his report the specific words used by the defendant, the defendant argues that the trial court committed clear error when it found that the exact words of his consent were “go ahead and check. You can check if you want.” We disagree. Morgan’s testimony on cross-examination, while acknowledging that he did not quote the defendant verbatim in his report, nevertheless does not contradict Morgan’s earlier statements that the defendant had invited him to “check” the car.
In any event, we note that courts have concluded that other words synonymous with “check” also have the legal effect of a request to “search.” See United States v. Canipe, supra, 569 F.3d 604 (defendant’s “consent to let the officers ‘look in’ his truck ‘would be understood by most people to involve a search’ of the vehicle, not merely permission to peer through its windows”); United States v. Mendoza-Gonzalez, supra, 318 F.3d 667-68 (rejecting defendant’s argument that “a reasonable person would have assumed he had consented to only a quick look inside of the trailer, rather than a search of the containers within, because this is what [the border patrol agent] had . . . literally requested,” because “it is established law . . . that a request to ‘look in’ a vehicle is the equivalent of a request for general consent to search”); United States v. Rich, supra, 992 F.2d 506 (officer’s request to “ ‘have a look in’ ” vehicle is proper request for permission to search because “any words, when viewed in context, that objectively communicate to a reasonable individual that the officer is requesting permission to examine the vehicle and its contents constitute a valid search request”); State v. Stephens, 946 P.2d 734, 735, 737 (Utah App. 1997) (“we conclude that [the police officer] could have reasonably believed that [the] defendant’s general consent to ‘look’ or ‘check’ under the front seat for weapons or drugs extended to the contents of the leather case” found under front seat).
The defendant also relies upon article first, § 9, of the Connecticut constitution, which provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” We agree with the state that the defendant’s reliance on this section is, in essence, superfluous, because, in the search and seizure context, article first, § 9, is our criminal due process provision that does not provide protections greater than those afforded by either the fourth amendment or its coordinate specific state constitutional provision, article first, § 7. See State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) (article first, § 9, does not preclude Terry stops or other detentions not founded upon probable cause); see also State v. Oquendo, 223 Conn. 635, 669 n.1, 613 A.2d 1300 (1992) (Borden, J., dissenting) (“Article first, § 7, is, of course, our state counterpart to the federal fourth amendment. Article first, § 9 ... is our criminal due process clause, and has not generally been regarded as adding significantly to search and seizure analysis.” [Internal quotation marks omitted.]).
The defendant also asks for a requirement that the state prove, at a subsequent suppression hearing, the voluntariness of the consent by a heightened standard of proof. The defendant’s analysis of this particular request is, however, limited to a sentence supported by a footnote citing three cases, State v. Hight, 146 N.H. 746, 781 A.2d 11 (2001), State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975), and State v. Ibarra, 953 S.W.2d 242 (Tex. Crim. App. 1997). Of these three cases, only Ibarra mentions the standard of proof applicable at a suppression hearing. The paucity of analysis with respect to this element of the defendant’s proposed rule renders it inadequately briefed, and we decline to consider further this portion of the defendant’s claim because the evidentiary standard applicable in a suppression hearing to determine the voluntariness of consent is a question deserving of its own analysis under State v. Geisler, supra, 222 Conn. 684-86. Compare State v. Akuba, 686 N.W.2d 406, 412 (S.D. 2004) (“[M]ost courts no longer require clear and convincing evidence. Today we conform our burden of proof to that used by the United States Supreme Court and the [United States Court of Appeals for the Eighth Circuit]. They hold that ‘in deciding whether a consent was voluntary, courts should require the prosecution to prove voluntariness by a preponderance of the evidence.’ ”), with State v. Ibarra, supra, 243-45 (rejecting state’s claim that state constitutional standard should be changed from clear and convincing evidence to conform with federal preponderance of evidence standard). See also State v. Lawrence, 282 Conn. 141, 177, 920 A.2d 236 (2007) (state constitution requires “the state to prove the voluntariness of a confession by a preponderance of the evidence, rather than by proof beyond a reasonable doubt”).
In their dissents, neither Justice Katz nor Justice Palmer disputes our conclusion under Arizona v. Johnson, supra, 555 U.S. 323, and Muehler v. Mena, supra, 544 U.S. 93, “that recent federal precedent suggests that the permissibility of a consent search following a routine traffic stop is dictated by the duration of the stop.” Justice Katz does, however, posit that this “holding constitutes a substantive departure from settled fourth amendment jurisprudence,” which requires the scope of the investigation during a Terry stop to be “carefully tailored to its underlying justification . . . .” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). Justice Katz’ critique of this recent body of federal case law is not without support. See, e.g., 4 W. LaFave, supra, (4th Ed. 2004) § 9.3 (d), p. 391 (“[t]he correct rule is that... in strict accordance with Terry and its progeny, questioning
See, e.g., State v. Miller, 227 Conn. 363, 386-87, 630 A.2d 1315 (1993) (“a warrantless automobile search supported by probable cause, but conducted after the automobile has been impounded at the police station, violates article first, § 7”); State v. Oquendo, 223 Conn. 635, 647-53, 613 A.2d 1300 (1992) (rejecting California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 [1991], and instead adhering to Connecticut precedents defining seizure as whether reasonable person would have felt free to leave due to restraint of movement by physical force or show of authority); State v. Geisler, supra, 222 Conn. 676, 690 (rejecting New York v. Harris, 495 U.S. 14, 21, 110 S. Ct. 1640, 109 L. Ed. 2d 13 [1990], and concluding that “the exclusionary rule under article first, § 7 requires that evidence derived from an unlawful warrantless entry into the home be excluded unless the taint of the illegal entry is attenuated by the passage of time or intervening circumstances”); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990) (rejecting United States v. Leon, 468 U.S. 897, 920, 104 S. Ct. 3405, 82 L. Ed. 2d 677 [1984], and concluding that article first, § 7, does not have good faith exception for invalid warrants); accord State v. Joyce, 229 Conn. 10, 15, 639 A.2d 1007 (1994) (concluding that warrantless chemical analysis of defendant’s clothing left at fire scene violated article first, § 7). But see State v. Johnson, 286 Conn. 427, 443-50, 944 A.2d 297 (rejecting claim that article first, § 7, requires stricter standard than totality of circumstances for assessing probable cause for warrantless arrests based on informant’s tips), cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008); State v. Davis, supra, 283 Conn. 323-24 (following federal “ ‘reasonable expectation of privacy’ ” standard and declining to adopt automatic standing rule under article first, § 7); State v. Trine, 236 Conn. 216, 234, 673 A.2d 1098 (1996) (following federal “plain feel” doctrine and concluding that “article first, § 7 does not categorically bar apolice officer from seizing, without a warrant, nonthreatening contraband that the officer feels during a lawful patdown search”); State v. DeFusco, 224 Conn. 627, 639, 620 A.2d 746 (1993) (warrantless police searches of curbside garbage containers are permissible under article first, § 7, because defendant lacks reasonable expectation of privacy therein); State v. Barton, supra, 219 Conn. 543-45 (overruling State v. Kimbro, 197 Conn. 219, 496 A.2d 498 [1985], which had adopted former
Justice Katz cites to several of this court’s decisions, namely, State v. Wilkins, supra, 240 Conn. 508, State v. Lamme, supra, 216 Conn. 184, State v. Edwards, 214 Conn. 57, 72, 570 A.2d 193 (1990), and State v. Carter, 189 Conn. 611, 618, 458 A.2d 369 (1983), in support of the unremarkable proposition that, “under our state constitution, a Terry stop must be both justified at inception and reasonably circumscribed.” (Emphasis added.) The dissent does not, however, point to any Connecticut case law definitively indicating that brief off-the-topic questioning, which does not measurably extend the length of the Terry detention, is per se unreasonable under our state constitution. Cf. State v. Edwards, supra, 73 (declining to “[extend] a Terry stop to include transporting a suspect to a police station for open ended questioning”).
The defendant cites State v. Conger, 183 Conn. 386, 439 A.2d 381 (1981), in support of the proposition that the present case differs from State v. Wilkins, supra, 240 Conn. 509-11, and State v. Dukes, supra, 209 Conn. 104-106, because in the present'case, officer safety was not an issue, and the defendant was not under arrest at the time of the request for consent to search. In State v. Conger, supra, 387, 391, this court concluded that the defendant, who sought to contest the legality of his stop while driving a stolen truck, had standing to raise a fourth amendment claim, because “[t]he defendant, as an occupant of the truck, has an interest in continuing his travels without government intrusion. Thus his fourth amendment rights could have been violated by the stopping of the truck even though the truck was stolen.” In our view, Conger does not support the defendant’s argument because it does not consider the propriety of the traffic stop itself under either the federal or state constitutions.
The defendant also relies on sister state case law interpreting the federal constitution, as well as some decisions applying state statutes restricting the scope of traffic stops. To the extent that the case law interprets the federal constitution, it, like those federal decisions preceding Muehler v. Mena, supra, 544 U.S. 93, and Arizona v. Johnson, supra, 555 U.S. 323, lacks current persuasive value for purposes of this Geisler analysis. See Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 240-41.
The defendant’s reliance on case law from Montana, Vermont and Washington is misplaced because the cited cases do not stand for the proposition that those states have implemented increased state constitutional protections in the area of consent searches. With respect to Montana, the defendant cites State v. Hill, 322 Mont. 165, 94 P.3d 752 (2004). Putting aside the distinction that consent was sought after the trooper had acted to end the stop by returning the defendant’s paperwork and telling him that “ ‘we’re done’ id., 168; Hill does not hold that Montana’s constitution provides motorists in that state with enhanced state constitutional protections. Id., 170; see also id., 174 (defendant lacks reasonable expectation of privacy in unlawfully possessed rental vehicle). Indeed, the Montana Supreme Court issued a decision subsequent to Hill holding to the contrary. See State v. Snell, 323 Mont. 157, 161, 99 P.3d 191 (2004) (“It is undisputed that [the officer] had particularized suspicion to stop [the defendant’s] vehicle. Montana law does not require additional justification for requesting consent.”).
Similarly, State v. Cunningham, 183 Vt. 401, 954 A.2d 1290 (2008), also does not stand for the proposition that the Vermont constitution provides greater protection to motorists during routine traffic stops than does the fourth amendment with respect to the scope of questioning or requests for consent to search. In Cunningham, the court merely held unreasonable under the state constitution the detention, not supported by reasonable suspicion, of a motorist for forty-six minutes pending the arrival of a drug-sniffing dog, after the motorist had refused to give officers consent to search his car. Id., 405, 415-16; see also id., 415 n.6 (emphasizing that court did not adopt “bright-line canine-response timing rule,” and also that it did not need to consider vitality of Illinois v. Caballes, supra, 543 U.S. 409-10, under state constitution because, unlike in Caballes, arrival of drug-sniffing dog in Cunningham measurably prolonged duration of stop).
The court further emphasized that 95 percent of detained motorists from whom consent was sought had agreed to searches of their vehicles, but that only 20 percent of those searches yielded any contraband, which “undermined” the court’s confidence in the “effectiveness of roadside con
Contrary to Justice Katz’ assertion, we do not suggest that State v. Fort, supra, 660 N.W.2d 416, is in any way “undermined” by Illinois v. Caballes, supra, 543 U.S. 408-409, at least not as a matter of Minnesota state constitutional law. Rather, we view Fort as having limited persuasive value with respect to our Connecticut state constitutional inquiry because, in Fort, the Minnesota Supreme Court was constrained to follow relevant recent precedent under its state constitution, namely, State v. Wiegand, supra, 645 N.W.2d 135-37. In contrast, our state constitutional jurisprudential landscape lacks an analytically dispositive precedent like Wiegand. See part III B of this opinion.
The lack of an independent state constitutional analysis makes Commonwealth v. Torres, supra, 424 Mass. 153, particularly difficult to rely upon, especially given the fact that the motions to suppress at issue were founded upon both the fourth amendment and the Massachusetts constitution. Id., 154. But see Commonwealth v. Gonsalves, 429 Mass. 658, 662-63, 711 N.E.2d 108 (1999) (characterizing Torres as state constitutional decision and relying on it in rejecting Pennsylvania v. Mimms, supra, 434 U.S. 111, and precluding police officers from requiring motorists to exit their vehicles without “reasonable belief’ of danger to officer or others).
In Commonwealth v. Strickler, supra, 563 Pa. 47, the Pennsylvania Supreme Court sought to apply the United States Supreme Court’s then recent decision in Ohio v. Robinette, supra, 519 U.S. 33. In Strickler, the court concluded that the encounter in that case, which had occurred after the officer had returned the defendant’s license to him, thanked him for his cooperation, and decided not to cite him for public urination on the side of the road; Commonwealth v. Strickler, supra, 53; was not itself a subsequent seizure despite the officer’s failure to inform the defendant specifically that he was free to leave because, inter alia, the officer did not act coercively and had informed the defendant that he was not required to consent to the search. Id., 76-78. The court then applied a similar analysis to determine that the defendant’s consent to the search was voluntary. Id., 79-80. Prior to performing these analyses, the court emphasized its adoption of “an interpretation of [Robinette] which allows for the possibility of a mere encounter following a traffic stop or similar detention . . . .” Id., 72. The court noted, in dicta, that the Supreme Court’s decision in Robinette reasonably could be read “as deeming all circumstances connected with the overall encounter [therein] to reflect a single, albeit constitutionally-permissible detention,” thus validating the request for consent to search in the Supreme Court case, which had been decided solely on voluntariness grounds. Id., 69. The Pennsylvania court noted, however, that this view of the detention would not comport with its understanding of Terry stops under the state constitution. Id., 69-70.
We find misplaced the defendant’s reliance on another Wyoming case, Garvin v. State, 172 P.3d 725 (Wyo. 2007). Garvin does not establish an elevated state constitutional standard or develop the analysis of O’Boyle v. State, supra, 117 P.3d 411-12. Indeed, any such discussion would be superfluous because the analysis in Garvin focused solely on the court’s record based legal determination that a state trooper had reasonable suspicion to detain a motorist pending the arrival of a drug-sniffing dog. See Garvin v. State, supra, 729-30.
Our independent research has revealed three other states, Indiana, New Hampshire and Tennessee, that utilize, in essence, reasonableness standards under their state constitutions in this context. For example, in State v. Washington, supra, 898 N.E.2d 1202-1203, the defendant claimed that a police officer had violated the fourth amendment and the Indiana constitution by questioning the defendant during a routine traffic stop about whether he had weapons or drugs on his person. After rejecting the defendant’s federal constitutional claims; see id., 1205; the Indiana Supreme Court noted that “[t]he determination of the reasonableness of a search and seizure under the Indiana [constitution turns ‘on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.’ ” Id., 1206, quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). The court then applied those factors to conclude that the initial stop of the defendant was appropriate because the officer had observed the defendant commit multiple
Similarly, in State v. McKinnon-Andrews, 151 N.H. 19, 25, 846 A.2d 1198 (2004), the New Hampshire Supreme Court adopted a tripartite test to determine whether the Terry scope requirement has been exceeded in the context of a traffic stop, and evaluated “whether: (1) the question is reasonably related to the initial justification for the stop; (2) the law enforcement officer had a reasonable articulable suspicion that would justify the question; and (3) in light of all the circumstances, the question impermissibly prolonged the detention or changed its fundamental nature.” The court noted that, “[i]f the question is reasonably related to the purpose of the stop, no [constitutional] violation occurs. If the question is not reasonably related to the purpose of the stop, we must consider whether the law enforcement officer had a reasonable, articulable suspicion that would justify the question. If the question is so justified, no [constitutional] violation occurs. In the absence of a reasonable connection to the purpose of the stop or a reasonable, articulable suspicion, we must consider whether in light of all the circumstances and common sense, the question impermissibly prolonged the detention or changed the fundamental nature of the stop.” (Internal quotation marks omitted.) Id. Indeed, the New Hampshire Supreme Court specifically has declined to adopt the rule of State v. Carty, supra, 170 N.J. 632, requiring requests for consent to search to be justified by a reasonable suspicion of criminal activity. See State v. Carbo, 151 N.H. 550, 552, 864 A.2d 344 (2004).
Finally, the Tennessee Supreme Court, in State v. Cox, 171 S.W.3d 174 (Tenn. 2005), concluded that a detective properly obtained consent to search a motorist’s vehicle and her nearby motel room during a traffic stop, emphasizing that the duration and scope of traffic stops are measured by the time reasonably necessary to accomplish the traffic enforcement purpose of the stop. Id., 179-80, 186. The court concluded that the totality of the circumstances test for determining the voluntariness of consent; see Schneckloth v. Bustamonte, supra, 412 U.S. 243; provided motorists with adequate protection under the state constitution, and rejected the defendant’s request, founded on State v. Carty, supra, 170 N.J. 632, seeking state constitutional rules requiring the police to: (1) have reasonable suspicion of criminal activity in order to seek a motorist’s consent to search; and (2) inform
In relying on state constitutional case law from Arkansas and Washington requiring law enforcement officers to give warnings prior to seeking consent to search a home in the “knock and talk” context; see, e.g., State v. Brown, 356 Ark. 460, 466, 156 S.W.3d 722 (2004); State v. Ferrier, 136 Wash. 2d 103, 118-19, 960 P.2d 927 (1998); Justice Palmer quotes O’Boyle v. State, supra, 117 P.3d 412, for the proposition that the “the standards [that have been] . . . applied in [cases involving] premises searches — where the individual is on his or her own premises and likely feels freer to turn law enforcement away — [are] even more applicable in the context of roadside vehicle searches — where the traveler has been stopped for a traffic offense and is not free to leave.” (Internal quotation marks omitted.) This observation by the Wyoming Supreme Court is, however, inconsistent with the well established proposition that, “[i]n contrast to an individual’s expectation of privacy in his own home, a diminished expectation inheres with automobiles.” United States v. Cantu, 405 F.3d 1173, 1179 (10th Cir. 2005); see also, e.g., State v. Pittman, 209 Conn. 596, 602, 553 A.2d 155 (1989) (“there is a diminished expectation of privacy in an automobile”).
The court stated that, under Kansas law, during a routine traffic stop, “a law enforcement officer may request the motorist’s driver’s license, car registration, and proof of insurance; conduct a computer check; issue a citation; and take those steps reasonably necessary to protect officer safety. The stop can last only as long as necessary to complete those tasks, and those tasks must be diligently pursued. ... If no information raising a reasonable and articulable suspicion of illegal activity is found during the time period necessary to perform the computer check and other tasks incident to a traffic stop, the motorist must be allowed to leave without further delay.” (Citations omitted; internal quotation marks omitted.) State v. Smith, supra, 286 Kan. 410-11.
We note also that the federal constitutional analysis in State v. Smith, supra, 286 Kan. 412, also is unpersuasive to the extent that it criticized the state’s intermediate appellate court for relying on a “contemporary line of [decisions from the United States Court of Appeals for the Tenth Circuit] in holding that the scope restrictions previously enforced in Kansas were altered by Mena,” and cited three cases in support of the proposition that “some panels of the Tenth Circuit have recognized a distinction between the permissibility of asking questions on any topic and of conducting a search based upon a question like ‘may I search?’ In these cases, even though the Tenth Circuit panels allowed questions outside the purpose of a traffic stop, they held the searches were not constitutionally permissible.” (Emphasis added.) See also id., 419 (criticizing Tenth Circuit panels for failing to explain why rule requiring return of license and completion of stop remains in effect).
We respectfully disagree with the Kansas court’s reading of the cases upon which it relied in support of its conclusion that the Tenth Circuit’s bright line rule requiring the return of a driver’s documents and the completion of the stop in order for a consent to be valid, could not be squared with the more expansive view of questioning and requests for consent to search followed subsequent to Mena. First, in United States v. Valenzuela, supra, 494 F.3d 890-91 and n.2, the Tenth Circuit concluded that the District Court properly had denied the defendant’s motion to suppress because a detective did not violate the defendant's fourth amendment rights by asking
The decision in Brown describes the state’s defense of the consent search during the routine traffic stop in that case as “eminently defensible under federal law,” including Muehler v. Mena, supra, 544 U.S. 100-101. Brown v. State, supra, 182 P.3d 628-29; see also id., 632 (“the [fjourth [a]mendment as interpreted by the United States Supreme Court, and as applied by various federal circuit courts and state courts, offers little protection to motorists in this situation”).
It also has been argued that requests for consent searches in the context of routine traffic stops should be deemed a practice that is impermissible per se, particularly given the perceived ineffectiveness of warnings. See C. Lassiter, “EHminating Consent from the Lexicon of Traffic Stop Interrogations,” 27 Cap. U. L. Rev. 79, 133-34 (1998) (discussing ineffectiveness of warnings in preventing involuntary consent, particularly by uneounseled motorists, and stating that “voluntary uncounseled consent to search and seizure which would lead to the discovery of self-incriminating evidence strains faith in the law”). But see B. Lawrence, note, “The Scope of Police Questioning During a Routine Traffic Stop: Do Questions Outside the Scope of the Original Justification for the Stop Create Impermissible Seizures if they do not Prolong the Stop?,” 30 Fordham Urb. L.J. 1919, 1948 (2003) (supporting constitutionality of questioning and requests for consent to search that do not prolong traffic stops because “the state interest in drug interdiction outweighs the minimal privacy interest” implicated by questioning).
We note that Professor LaFave has been highly critical of the United States Supreme Court’s recent Terry and traffic stop jurisprudence, in particular criticizing the drug dog case, Illinois v. Caballes, supra, 543 U.S. 405, upon which the subsequent decisions in Muehler v. Mena, supra, 544 U.S. 93, and Arizona v. Johnson, supra, 555 U.S. 323, are founded, as “ill-considered”; 4 W. LaFave, supra, (2009-2010 Sup.) § 9.3, p. 94; see also, e.g., id., pp. 77-78 (describing Caballes as significant departure from prior Terry precedents limiting scope of stop).
General Statutes § 54-11 provides: “(a) This section and section 54-lm shall be known as the ‘Alvin W. Penn Racial Profiling Prohibition Act’.
“(b) For the purposes of this section, ‘racial profiling’ means the detention, interdiction or other disparate treatment of an individual solely on the basis of the racial or ethnic status of such individual.
“(c) No member of the Division of State Police within the Department of Public Safety, amunicipalpolice department or any other law enforcement agency shall engage in racial profiling. The detention of an individual based on any noncriminal factor or combination of noncriminal factors is inconsistent with this policy.
“(d) The race or ethnicity of an individual shall not be the sole factor in determining the existence of probable cause to place in custody or arrest an individual or in constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a motor vehicle.”
Dissenting Opinion
dissenting. The majority concludes that Detective Michael Morgan of the Newington police department did not violate the rights of the defendant, Christopher Jenkins, under article first, § 7, of the Connecticut constitution when Morgan conducted a consent search of the defendant’s vehicle following his lawful stop of the defendant for a traffic violation in Newington at approximately 11:30 p.m. on May 7, 2004. I disagree with the majority’s conclusion because I believe that, under the state constitution, Morgan was required to inform the defendant that he had no obligation to consent to the search of his vehicle and that he was free to leave, once he received the traffic ticket, if he chose to withhold consent to search.
The undisputed facts and procedural history relevant to this issue are set forth in the majority opinion and require no repetition. I turn, therefore, to the legal principles that guide my analysis. “It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Furthermore, although we often rely on the United States Supreme Court’s interpretation of the amendments to the constitution of the United States to delineate the boundaries of the protections provided by the constitution of Connecticut, we have also recognized
I agree with the majority that neither the text nor the constitutional history of article first, § 7, of the Connect
I
FEDERAL PRECEDENT
As the majority observes, in Schneckloth v. Busta-monte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), the United States Supreme Court rejected the very same claim under the fourth amendment to the federal constitution that the defendant in the present case raises under the state constitution. Specifically, the court in Schneckloth concluded that “the question [of] whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Id., 227. For the reasons that follow, I am unpersuaded by the court’s analysis in Schneckloth, at least in the context of a request for consent during a routine traffic stop.
The court in Schneckloth reasoned that a similar analysis should apply to the determination of whether a suspect voluntarily has given consent to search. “As with police questioning, two competing concerns must be accommodated in determining the meaning of a ‘vol
The court then stated that requiring the state to prove “affirmatively . . . that the subject of the search knew that he had a right to refuse consent would, in practice, create serious doubt [about] whether consent searches could continue to be conducted.” Id., 229. In support of this assertion, the court explained: “There might be rare cases [in which] it could be proved from the record that a person in fact affirmatively knew of his right to refuse .... But more commonly where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact had known of his right to refuse consent.” Id., 229-30. “The very object of the inquiry — the nature of a person’s subjective understanding — underlines the difficulty of the prosecution’s burden under [a] rule [that would require proof of such knowledge]. Any defendant who [is] the subject of a search authorized solely by his consent could effectively frustrate the introduction into evidence of the fruits of that search by simply failing to testify that he in fact knew [that] he could refuse to consent. And the near impossibility of meeting this prosecutorial burden suggests why [the] [c]ourt has never accepted any such litmus-paper test of voluntariness.” Id., 230.
The court in Schneckloth also rejected the respondent’s contention that, because “ ‘consent’ is a waiver of a person’s rights under the [fourth and [fourteenth Amendments,” to establish waiver, the state must be required to “demonstrate ‘an intentional relinquishment
“ ‘That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. . . . Without the protections flowing from adequate warnings and the rights of counsel, “all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.” ’ [Miranda v. Arizona, supra, 384 U.S. 466].” (Emphasis in original.) Schneck-loth v. Bustamonte, supra, 412 U.S. 240.
The court continued: “[T]here is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the [fjourth [a]mendment.” Id., 241. Thus, the court concluded that there was no reason to extend the requirement of a knowing and intelligent waiver to consent searches. See id. The fourth amendment, the court explained, was not designed to protect the accuracy of the truth determining process at trial; instead, it protects an individual’s privacy against arbitrary intrusion by the police. Id.,
The court further explained that “it would be next to impossible to apply to a consent search the standard of ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Id. According to the court, in determining whether one knowingly and voluntarily has waived a right, a trial judge in “the structured atmosphere of a courtroom” must conduct an examination into whether there is an intelligent and competent waiver by the accused. Id., 243-44. This detailed examination would be unrealistic in the “informal, unstructured context of a consent search .... And if, for this reason a diluted form of ‘waiver’ were found [to be] acceptable, that would itself be ample recognition of the fact that there is no universal standard that must be applied in every situation [in which] a person forgoes a constitutional right.” Id., 245.
Finally, the court explained that Miranda does not compel a knowledge requirement in the context of a consent search. Id., 246. The court asserted that, unlike the inherent coerciveness of custodial interrogation
In separate opinions, Justices William O. Douglas, William J. Brennan, Jr., and Thurgood Marshall dissented from the opinion of the majority in Schneckloth. Justice Douglas concluded that a suspect should be informed of his right to withhold consent because, “ ‘[u]nder many circumstances a reasonable person might read an officer’s “[m]ay I” as the courteous expression of a demand backed by force of law.’ ” Id., 275-76 (Douglas, J., dissenting). In the same vein, Justice Brennan stated that “[t]he [c]ourt holds . . . that an individual can effectively waive this right even though he is totally ignorant of the fact that, in the absence of his consent, such invasions of his privacy would be constitutionally prohibited. It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence.” Id., 277 (Brennan, J., dissenting).
After concluding that cases involving coerced confessions are inapposite in the context of a consent search,
Justice Marshall also rejected the majority’s assertion that, “if an officer paused to inform the subject of his rights, the informality of the exchange would be destroyed. I doubt that a simple statement by an officer of an individual’s right to refuse consent would do much to alter the informality of the exchange, except to alert the subject to a fact that he surely is entitled to know. It is not without significance that for many years the agents of the Federal Bureau of Investigation have routinely informed subjects of their right to refuse consent, when they request consent to search. . . . The reported cases in which the police have informed subjects of their right to refuse consent show, also, that
Justice Marshall concluded “that when the [majority in Schneckloth] speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. . . .
“I find nothing in the [majority] opinion [in Schneckloth] to dispel my belief that . . . ‘[u]nder many circumstances a reasonable person might read an officer’s “[m]ay I” as the courteous expression of a demand backed by force of law.’ . . . Most cases, in my view . . . [reflect that] consent ordinarily is given as acquiescence in an implicit claim of authority to search. Permitting searches in such circumstances, without any assurance at all that the subject of the search knew that, by his consent, he was relinquishing his constitutional rights, is something that I cannot believe is sanctioned by the [constitution.” (Citations omitted.) Id., 288-89 (Marshall, J., dissenting).
The United States Supreme Court reaffirmed its holding in Schneckloth in Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996). In Robi-nette, the state of Ohio appealed from the judgment of the Supreme Court of Ohio, which had adopted the following rule under the United States and Ohio constitutions: “ ‘[C]itizens stopped for traffic offenses [must] be clearly informed by the detaining officer when they are free to go after a valid detention, before an officer
The analysis employed by the court in Schneckloth has been widely criticized by legal scholars. See, e.g., United States v. Gagnon, 230 F. Sup. 2d 260, 269 n.8 (N.D.N.Y. 2002) (“[t]he judicially created framework of the consent doctrine has been severely criticized, with no small measure of merit, as ignoring the practical realities of encounters between police and citizens”), rev’d on other grounds, 373 F.3d 230 (2d Cir. 2004); Brown v. State, 182 P.3d 624, 632 (Alaska App. 2008) (noting that “legal commentators have been widely critical of the United States Supreme Court’s consent-search jurisprudence”); 4 W. LaFave, Search and Seizure (4th Ed. 2004) § 8.2 (i), p. 111 (“Perhaps the most telling criticism of . . . Schneckloth ... is that the [c]ourt misapprehended the potential for psychological coercion in the context of consent searches. . . . [T]here is much to be said for the conclusion that . . . [the] right to withhold consent [should be communicated to a suspect].” [Internal quotation marks omitted.]); R. Simmons, “Not ‘Voluntary’ but Still Reasonable: A New Paradigm for Understanding the Consent Search Doctrine,” 80 Ind. L.J. 773, 775 (2005) (“[i]t is no exaggeration to say that the nearly unanimous condemnation of the [c]ourt’s rulings on consensual searches is creating a problem of legitimacy [that] threatens to undermine the integrity of judicial review of police behavior”); R. Ward, “Consensual Searches, The Fairytale That Became a Nightmare: Fargo Lessons Concerning Police Initiated Encounters,” 15 Touro L. Rev. 451, 457 (1999) (“many of the suppositions underlying [Schneckloth] are false”); A. Barrio, note, “Rethinking Schneckloth v. Bustamonte: Incorporating Obedience Theory into the Supreme Court’s Conception of Voluntary Consent,”
First, Schneckloth has been criticized for overlooking the coercive effect that an officer’s request for consent is likely to have on a motorist who has been detained in connection with a traffic stop. As one commentator has stated, “[w]hat is remarkable ... is the ever-widening gap between [f]ourth [a]mendment consent jurisprudence, on the one hand, and scientific findings about the psychology of compliance and consent on the other. Ever since the [c]ourt first applied the ‘totality of the circumstances’ standard to consent search issues in Schneckloth ... in 1973, it has held in case after case, with only a few exceptions, that a reasonable person in the situation in question either would feel free to terminate the encounter with [the] police, or would feel free to refuse the police request to search. By contrast, empirical studies over the last several decades on the social psychology of compliance, conformity, social influence, and politeness have all converged on a single conclusion: the extent to which people feel free to refuse to comply is extremely limited under situation-ally induced pressures.” J. Nadler, “No Need to Shout: Bus Sweeps and the Psychology of Coercion,” 2002 Sup. Ct. Rev. 153, 155. It therefore has been argued that the United States Supreme Court should incorporate the “empirical findings on compliance and social influence into . . . consent [search] jurisprudence ... to dispel the ‘air of unreality’ that characterizes current doctrine.” Id., 156-57; see also W. LaFave, “The ‘Routine Traffic Stop’ From Start to Finish: Too Much ‘Routine,’ Not Enough Fourth Amendment,” 102 Mich. L. Rev. 1843, 1902 (2004) (“[i]t is . . . nonsensical for courts
The factual scenario in the present case provides a good example of why the court in Schneckloth was wrong in concluding that a motorist stopped for a traffic violation is not likely to feel compelled to agree to a
It is fanciful to think that the circumstances that led to the search of the defendant’s vehicle did not give risé to a substantial element of compulsion. The defendant, an African-American who does not reside in this state, was pulled over in a dark area of the highway, late at night, by an armed police officer, and detained there, in his car, for up to fifteen minutes, at which point a second armed police officer arrived at the scene in a separate cruiser. Morgan then directed the defendant to exit his vehicle, questioned him about contraband on his person, conducted a patdown search, and asked him whether he had any contraband in the vehicle. It is difficult to see how anyone held under such circumstances would not feel vulnerable as a result of the encounter with the police, and there is little doubt that, in light of that vulnerability, the average person in that situation also would feel the need to accommodate, if not placate, the police officers involved in the encounter.
A second criticism of Schneckloth, which also is based on empirical evidence, concerns the assertion that a knowledge requirement could jeopardize the continued viability of consent searches. In fact, studies suggest just the opposite, that is, that it appears that persons subjected to traffic stops give consent to vehicle searches at the same rate regardless of whether they are aware that such consent may be withheld. See, e.g., I. Lichtenberg, “Miranda in Ohio: The Effects of Robinette on the ‘Voluntary’ Waiver of Fourth Amendment Rights,” 44 How. L.J. 349, 370, 373 (2001) (study demonstrated that between approximately 75 and 95 percent of motorists agree to police search of vehicle and that rates were very similar regardless of whether
Although these data indicating that the provision of warnings has little effect on the rate at which consent is granted may suggest that such warnings are ineffective, it fairly may be argued that warnings nevertheless serve a salutary purpose insofar as they are likely to reduce the compulsion that people feel on the basis of “an inaccurate belief that the police have the legal right to compel them to [agree to the requested] search.” R. Simmons, supra, 80 Ind. L.J. 819. To be sure, motorists undoubtedly have a multitude of reasons for granting consent to search, not all of which are the product of the inherently coercive nature of the police stop and following encounter; see People v. James, 19 Cal. 3d 99, 114, 561 P.2d 1135, 137 Cal. Rptr. 447 (1977) (“[T]here may be a number of ‘rational reasons’ for a suspect to consent to a search even though he knows the premises contain evidence that can be used against him: for example, he may wish to appear cooperative
There also seems to be little or no basis for the assertions of the court in Schneckloth that it would be unreasonable to burden the state with having to prove that a motorist who gives consent to search during the course of a routine traffic stop was aware of his or her right to refuse consent; Schneckloth v. Bustamonte, supra, 412 U.S. 229-30; and that requiring the police to advise motorists of their right to withhold consent to search would adversely affect the informality of the encounter, thereby impairing the ability of the police to use the consent search as a standard investigatory technique. See id., 231-32. With respect to the court’s first assertion, I see no reason why the state could not meet its burden of proving knowledge simply by demonstrating that the officer at the scene had advised
Finally, the court in Schneckloth has been criticized for essentially ignoring the issue of how a consent to search fairly may be deemed to be truly voluntary when the person giving consent does not know that he or she has an absolute right, protected by the constitution, to refuse to do so. Thus, as one commentator has stated, “[a]ny competent person can give up rights at the request of the government. But it is hard to comprehend a theory of individual rights that permits that decision
In sum, because the reasons underlying the court’s holding in Schneckloth ultimately are not persuasive, the holding of the court is itself not persuasive.
II
HOLDINGS AND DICTA OF THIS COURT
As I discussed in part I of this opinion, this court has interpreted article first, § 7, of the Connecticut constitution as providing protections beyond those guaranteed under the fourth amendment to the federal constitution in a variety of different contexts. In no case, however, has this court or the Appellate Court previously had occasion to consider the scope of article first, § 7, in the context of consent searches generally or, more specifically, in the context of a consent search of a vehicle following a routine traffic stop. Accordingly, Connecticut precedent is neutral on the issue of whether the state constitution provides the same or greater protection than the federal constitution with respect to searches of the kind conducted in the present case.
SISTER STATE DECISIONS
A significant majority of the states that have considered the issue apply the Schneckloth totality of the circumstances test in assessing whether consent was voluntary for purposes of their state constitutions, and do not require an express advisement of the right to withhold consent. E.g., Henry v. State, 621 P.2d 1, 4 and n.9 (Alaska 1980); State v. Knaubert, 27 Ariz. App. 53, 56-57, 550 P.3d 1095 (1976), overruled on other grounds by State v. Grilz, 136 Ariz. 450, 666 P.2d 1059 (1983); People v. Hayhurst, 194 Colo. 292, 295-96, 571 P.2d 721 (1977); State v. Thompson, 284 Kan. 763, 779-81, 166 P.3d 1015 (2007); Scott v. State, 366 Md. 121, 145, 782 A.2d 862 (2001), cert. denied, 535 U.S. 940, 122 S. Ct. 1324, 152 L. Ed. 2d 231 (2002); Reese v. State, 95 Nev. 419, 421, 596 P.2d 212 (1979); State v. Osborne, 119 N.H. 427, 433, 402 A.2d 493 (1979); State v. Robinette, 80 Ohio St. 3d 234, 245, 685 N.E.2d 762 (1997); State v. Flores, 280 Or. 273, 279-82, 570 P.2d 965 (1977); Commonwealth v. Cleckley, 558 Pa. 517, 527, 738 A.2d 427 (1999); State v. Cox, 171 S.W.3d 174, 181-84 (Tenn. 2005); State v. Contrel, 886 P.2d 107, 111-12 (Utah App. 1994), cert. denied, 899 P.2d 1231 (Utah 1995); State v. Zaccaro, 154 Vt. 83, 88-91, 574 A.2d 1256 (1990); State v. McCrorey, 70 Wash. App. 103, 110-11, 851 P.2d 1234, review denied, 122 Wash. 2d 1013 (1993); State v. Rodgers, 119 Wis. 2d 102, 114-15, 349 N.W.2d 453 (1984). For many of the reasons set forth in part I of this opinion, however, I believe that the cases that have rejected Schneckloth are better reasoned and, therefore, more persuasive with respect to the determination of whether consent voluntarily was granted in the inherently coercive context of a routine traffic stop.
For example, in State v. Johnson, 68 N.J. 349, 353-54, 346 A.2d 66 (1975), the New Jersey Supreme Court
Justice Morris Pashman dissented. Although he agreed with the majority in rejecting Schneckloth for purposes of the New Jersey constitution, he concluded that the standard that the majority adopted fell “short of what [was] necessary to protect the privacy rights of the consenting individual.” Id., 359 (Pashman, J.,
Similarly, in Penick v. State, 440 So. 2d 547, 551 (Miss. 1983), the Mississippi Supreme Court concluded, contrary to the holding of Schneckloth, that a knowing waiver is necessary before consent may be deemed valid under the Mississippi constitution. Subsequently, the Mississippi Supreme Court clarified that the state is not required to prove that the defendant had knowledge of his or her right to refuse consent; instead, the defendant must show “impaired consent or some diminished capacity.” (Internal quotation marks omitted.) Graves v. State, 708 So. 2d 858, 863 (Miss. 1997). Thus, “ [i]f the defendant claims that his waiver was not knowledgeable, the burden is on him to raise the issue of lack of knowledgeable waiver. Knowledgeable waiver is defined as consent [when] the defendant knows that he or she has a right to refuse, being cognizant of his or her rights in the premises.” Id., 864. Although this standard is not crystal clear, most courts have interpre
In a context analogous to the temporary detention of the subject of a routine traffic stop, that is, a consensual investigative encounter,
Moreover, at least two state courts expressly have declined to apply Schneckloth in the context of a “knock and talk” search, which has been described as a “fashionable . . . alternative to obtaining a search warrant when police officers do not have sufficient probable cause to obtain a search warrant. What generally occurs is that several law enforcement officers accost a home dweller on the doorstep of his or her home and request consent to search that home. If an oral consent is given, the search proceeds. What is found by police officers may then form the basis for probable cause to obtain a search warrant and result in the subsequent seizure of contraband.” (Internal quotation marks omitted.) State v. Brown, 356 Ark. 460, 466, 156 S.W.3d 722 (2004). Thus, in State v. Ferrier, 136 Wash. 2d 103, 115, 118-19, 960 P.2d 927 (1998), and State v. Brown, supra, 472-74, the Supreme Court of Washington and the Supreme Court of Arkansas, respectively, held that the use of the “knock and talk” investigative technique is unconstitutional when the police fail to inform the subject of his or her right to refuse consent.
In Ferrier, the Supreme Court of Washington concluded that, under article I, § 7, of the Washington constitution,
Although it is axiomatic that the “physical entry of the home is the chief evil against which the wording of the [fjourth [a]mendment is directed”; United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972); the analysis of the coercive effect of the knock and talk investigative procedure involved in the foregoing cases also is applicable to a request by the police for consent to search following a routine traffic stop because of the inherently coercive nature of the latter type of encounter. Indeed, the Wyoming Supreme Court has observed that the atmosphere surrounding a traffic stop is more coercive than that attendant to the knock and talk encounter, stating that “the standards [that have been] . . . applied in [cases involving] premises searches — where the individual is on his or her own premises and likely
As in O’Boyle, several courts have taken notice of the coercion inherent in the routine traffic stop in crafting rules applicable to that factual scenario. For example, in State v. Carty, 170 N.J. 632, 790 A.2d 903, modified, 174 N.J. 351, 806 A.2d 798 (2002), the court observed that, “[i]n the context of motor vehicle stops, [in which] the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume that the individual feels compelled to consent.” Id., 644. Indeed, after analyzing scholarly articles and empirical data, the court observed that (1) detained motorists give consent approximately 95 percent of the time it is sought even though, in New Jersey, following the decision of the New Jersey Supreme Court in State v. Johnson, supra, 68 N.J. 349, police in New Jersey are required to inform motorists of their right to withhold consent, and (2) the vast majority of motorists subjected to consent searches following routine traffic stops are not charged with any wrongdoing. State v. Carty, supra, 645. As a result, the court in Carty concluded that, despite its holding in Johnson, “consent searches following valid motor vehicle stops are either not voluntary because people feel compelled to consent for various reasons, or are not reasonable because of the detention associated with obtaining and executing the consent search.”
Finally, although many state courts have adopted the Schneckloth standard under their respective state constitutions, I am more persuaded by the thoughtful dissenting opinions that have been issued in many of those cases. For example, in Commonwealth v. Cleckley, supra, 558 Pa. 517, the Supreme Court of Pennsylvania concluded that article I, § 8, of the Pennsylvania constitution does not require the subject of a consent search to be informed of his or her right to refuse to consent. See id., 527. The court, relying on (1) the fact that most states apply Schneckloth for purposes of their own constitutions, and (2) the lack of local policy issues indicating that a departure from the federal standard is needed; id., 526-27; concluded that “the federal volun-tariness standard as enunciated in Schneckloth adequately protects the privacy rights obtained under [a]rticle I, [§] 8 of [the Pennsylvania] constitution.” Id., 527.
In his dissent, Justice Russeli M. Nigro concluded “that when police seek consent to perform an otherwise unconstitutional search, they should be required under . . . the Pennsylvania constitution to expressly advise the subject of the search that he or she has the right to refuse to give consent and that any refusal will be respected.” Id., 528 (Nigro, J., dissenting). In reaching this conclusion, Justice Nigro stated that “the majority . . . ignore[d] the practical impact that a police officer’s request for consent to search has on the average citizen.” Id., 530 (Nigro, J., dissenting). Relying on both
Likewise, in State v. Flores, supra, 280 Or. 273, the Supreme Court of Oregon concluded that the Oregon
In his dissent, Justice Hans A. Linde noted the then existing criticism of Schneckloth and explained that the
Ultimately, I am not convinced by the reasoning of those courts that have adopted Schneckloth as the governing standard for purposes of their state constitutions. Indeed, those courts generally have not engaged
IV
ECONOMIC AND SOCIOLOGICAL CONSIDERATIONS
In my view, these considerations support the conclusion that the police should be required to advise a motorist that he or she has a right to withhold consent
V
CONCLUSION
Upon review of the Geisler factors, I conclude that article first, § 7, of the Connecticut constitution provides greater protection than the federal constitution with respect to consent searches undertaken in connection with routine traffic stops. For the foregoing reasons, I am not persuaded by the analysis of Schneckloth and its progeny; the view that the police must inform motorists of their right to withhold consent, although the minority position, is considerably more persuasive. Indeed, by and large, those courts that have adopted the standard articulated in Schneckloth have failed to engage in any real analysis of the rationale underlying the court’s holding in that case. Cf. State v. Thompson, supra, 284 Kan. 779-80 (observing that scholarly criticism of Schneckloth “is valid in many respects” and that, if the court were free to adopt different rule, it “would consider a different paradigm,” but also noting
Applying these principles to the present case, I conclude that the defendant was not properly informed of his right to withhold consent. Although the state asserts that the defendant volunteered permission to search before consent was sought, and, consequently, there was no need for Morgan to inform the defendant of his right to withhold consent, I agree with the defendant that he reasonably construed Morgan’s inquiry about whether the vehicle contained anything illegal as demonstrating Morgan’s interest in searching the vehicle. Indeed, prior to asking the defendant about the contents of his vehicle, Morgan asked him whether he had anything illegal on his person; when the defendant responded in the negative, Morgan patted him down. In such circumstances, the defendant reasonably would have believed that Morgan intended to search the vehicle — an intent that Morgan readily and candidly acknowledged.
I disagree with Justice Katz that the defendant inadequately briefed his claim that Morgan’s search of his vehicle violated his rights under the state constitution on the ground that Morgan had failed to advise the defendant that he had a right not to consent to the search of his vehicle.
I agree with the majority that the record is inadequate for review of the defendant’s claim that Morgan’s patdown search of the defendant was unlawful and, further, that Morgan’s conduct in obtaining the defendant’s consent to search did not violate the fourth amendment to the United States constitution. Finally, I also agree with the majority that, in contrast to the view expressed by Justice Katz in her dissenting opinion, it was not improper under the state constitution for Morgan to seek the defendant’s consent to search despite his lack of reasonable and articulable suspicion to do so, at least in the absence of evidence indicating an abuse of the use of consent searches following routine traffic stops by the police. Thus, in my view, the search violated article first, § 7, of the state constitution not because Morgan sought the defendant’s consent to search his vehicle but, rather, because Morgan had failed to advise the defendant that he had the right to refuse to consent to such a search.
This court first articulated the importance of considering these factors for purposes of state constitutional analysis in State v. Geisler, supra, 222 Conn. 684-85, and, consequently, they often are referred to as the Geisler factors.
See footnote 3 of this opinion.
Because Schneckloth is the seminal case concerning consent searches following routine traffic stops, it is necessary to discuss the case in some detail.
In reaching this conclusion, Justice Marshall explained that “the phrase Voluntary consent’ seems redundant in a way that the phrase Voluntary confession’ does not.” Schneckloth v. Bustamonte, supra, 412 U.S. 280 n.6 (Marshall, J., dissenting). Relying on Miranda, Justice Marshall asserted that, “[b]ecause of the nature of the right to be free of compulsion, it would be pointless to ask whether a defendant knew of it before he made a
By contrast, Justice Marshall explained, the Schneckloth case did not involve the right to be free from police misconduct of the kind implicated by a coerced confession but, rather, the issue of consent. Id., 282 (Marshall, J., dissenting). Justice Marshall further observed that the two concepts are different because freedom from coercion is a substantive, constitutional right, whereas consent “is a mechanism by which substantive requirements, otherwise applicable, are avoided.” Id. Thus, the substantive requirement of the fourth amendment is that searches may be conducted only on the basis of a properly issued warrant supported by probable cause. See id. Justice Marshall further asserted that, although there are exceptions to this requirement, they are justified by the overriding needs of law enforcement, which are applicable when consent is the sole justification for a search. Id., 282-83 (Marshall, J., dissenting). Indeed, Justice Marshall explained that “the needs of law enforcement are significantly more attenuated, for probable cause to search may be lacking but a search permitted if the subject’s consent has been obtained. Thus, consent searches are permitted, not because such an exception to the requirements of probable cause and warrant is essential to proper law enforcement, but because we permit our citizens to choose whether . . . they wish to exercise their constitutional rights.” Id., 283 (Marshall, J., dissenting).
“When a prosecutor seeks to rely [on] consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance [on] a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the [s]tate does not even attempt to rely [on] the validity of the warrant, or fails to show that there was, in fact, any warrant at all.” Bumper v. North Carolina, 391 U.S. 543, 548-50, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968).
Although the Ohio Supreme Court had decided the case on the basis of both the federal and Ohio constitutions, the United States Supreme Court concluded that it was appropriate to consider the federal constitutional issue because the Ohio Supreme Court had relied almost entirely on fourth amendment jurisprudence in reaching its decision. Ohio v. Robinette, supra, 519 U.S. 36-37.
Justice John Paul Stevens dissented, concluding that, on the basis of the facts presented, the Supreme Court of Ohio “correctly held that [the] consent [of the defendant, Robert Robinette] to the search of his vehicle was the product of an unlawful detention.” Ohio v. Robinette, supra, 519 U.S. 45 (Stevens, X, dissenting). In reaching this conclusion, Justice Stevens explained that “[t]he [Supreme Court of Ohio] was surely correct in stating: ‘Most people believe that they are validly in a police officer’s custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him.’ ” Id., 47 (Stevens, X, dissenting).
I note that commentators also have criticized the court’s reliance in Schneckloth on coerced confession cases because the court never explained why those cases are relevant in the fourth amendment context; e.g., D. Smith, comment, “Ohio v. Robinette: Per Se Unreasonable,” 29 McGeorge L. Rev. 897, 928 (1998); whereas other commentators have characterized “the [ejourt’s distinction between ‘trial rights’ and [fjourth [ajmendment rights [as] questionable (Emphasis added.) D. Kaplan & L. Dixon, “Coerced Waiver and Coerced Consent,” 74 Denv. U. L. Rev. 941, 951 (1997).
The court in Johnson reached this conclusion even though article I, paragraph seven, of the New Jersey constitution is virtually identical to the fourth amendment and previously had not been interpreted to provide greater protections than the fourth amendment. State v. Johnson, supra, 68 N.J. 353 n.2.
Johnson involved the consent search of a residence, but its holding applies to consent searches of vehicles following a routine traffic stop, as well. See, e.g., State v. Carty, 170 N.J. 632, 639, 790 A.2d 903, modified on other grounds, 174 N.J. 351, 806 A.2d 798 (2002).
A1999 consent decree required the provision of warnings in New Jersey in all cases involving requests for consent to search following a routine traffic stop. Consent Decree in United States v. New Jersey, Civil No. 99-5970 (MLC) (D.N.J. December 30, 1999), available at http://www.state.iq.us/ oag/jointapp.htm (last visited August 26, 2010).
“The Supreme Court has said [that] there are three types of police-citizen encounters:
“(1) consensual encounters [that] do not implicate the [f]ourth [a]mendment; (2) investigative detentions [that] are [f]ourth [a]mendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of [f]ourth [a]mendment seizures and reasonable only if supported by probable cause.” (Internal quotation marks omitted.) United States v. Brown, 496 F.3d 1070, 1074 (10th Cir. 2007).
The Hawaii Supreme Court characterized this police practice as a “walk and talk” investigation. (Internal quotation marks omitted.) State v. Kearns, 75 Haw. 558, 564, 867 P.2d 903 (1994). The court explained the practice as follows: “[T]he Honolulu [pjolice [department] . . . utilizes a walk and talk drug interdiction program in order to arrest drug smugglers and to seize any narcotics [that] they might be carrying on their persons or in their luggage. This walk and talk program does not employ any type of drug courier profile or require the officers to have a reasonable suspicion that a person may be in possession of illegal drugs . . . or . . . engaged in criminal activity. Instead, [officers] are trained to engage in consensual encounters whereby airline passengers are approached and in a conversational manner, [are] requested to consent to a search of their luggage or person.” (Internal quotation marks omitted.) Id.
It must be noted that, in Kearns, the court stated that, for purposes of a consent search, the police are not required to inform the person whose
See footnote 15 of this opinion.
Article I, § 7, of the Washington constitution, Washington’s analogue to the fourth amendment, provides: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” As the court in Ferrier observed, “[t]his provision differs from the [f]ourth [a]mendment in that [u]nlike the [f]ourth [ajmendment, [the Washington constitution] clearly recognizes an individual’s right to privacy with no express limitations.” (Internal quotation marks omitted.) State v. Ferrier, supra, 136 Wash. 2d 110.
Article two, § 15, of the Arkansas constitution provides: “The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” As the court in Brown observed, this provision is almost identical to the fourth amendment to the United States constitution. State v. Brown, supra, 356 Ark. 467.
In reaching its conclusion, however, the court in Brown distinguished its automobile search jurisprudence. See State v. Brown, supra, 356 Ark. 468. Specifically, the Arkansas Supreme Court previously had determined that, with respect to automobile searches, the protections of the Arkansas constitution are coterminous with those of the fourth amendment to the United States constitution. Id. With respect to the search of a home, however, the Arkansas Supreme Court previously had determined that the Arkansas constitution provides greater protection than the federal constitution. See id., 468-70.
Accordingly, the New Jersey Supreme Court engrafted onto Johnson an additional requirement, namely, “that consent searches following a lawful stop of a motor vehicle should not be deemed valid under Johnson unless there is reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity.” State v. Carty, supra, 170 N.J. 647. The court reasoned that this requirement “serves to validate the continued detention associated with the search. It
Specifically, the defendant, Armando Zamora Flores, contended that his consent to search two lockers at a bus station was invalid because the police had failed to inform him of his right to refuse to consent to the search. State v. Flores, supra, 280 Or. 275-76. Flores was in custody when he gave consent to search. See id., 275. Although the court in Schneckloth did not address whether its rationale extended to cases in which a suspect is in custody, in United States v. Watson, 423 U.S. 411, 424-25, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), the United States Supreme Court concluded that it did under the circumstances of that case.
See footnote 22 of this dissenting opinion.
The Supreme Court of Oregon addressed the merits of the state constitutional claim of the defendant, Armando Zamora Flores, only briefly, concluding that “requiring proof that a criminal suspect was aware of his right to refuse consent would be tantamount to requiring a police warning similar to the Miranda warning. . . .
“The application of [Miranda] to searches and seizures can ... be justified [only] on the basis that there is the same necessity for prophylaxis because of similar abuses by the police in obtaining consents to searches and seizures.” (Internal quotation marks omitted.) State v. Flores, supra, 280 Or. 281-82. The court, however, did not analyze the reasoning of either Schneckloth or Watson.
“[T]he reporter for the search and seizure sections of the Model Code of Pre-Arraignment Procedure . . . commented [further] on Schneckloth as follows: ‘It seems unlikely that there is any greater knowledge of one’s right to refuse a search than the right to silence.’ He goes on to explain that a choice based on a wholly erroneous factual belief may not be the result of a will that has been overborne, but neither is it an understanding choice.
“ ‘In consent searches, the police have full knowledge that the person from whom they are seeking consent is under no obligation to give it. The right to refuse is a fact crucially pertinent to an understanding consent and, if there is the slightest doubt that the person in question is not aware of his right, and no such information is given [to] him, the police are eliciting consent on the basis of withheld information. It is hard to describe such conduct as other than deceptive, or the [c]ourt’s decision [in Schneckloth] as other than retrograde.’ ” State v. Rodgers, supra, 119 Wis. 2d 119-20 n.3 (Abrahamson, J., dissenting).
For example, in State v. Cox, supra, 171 S.W.3d 174, the court adopted Schneckloth as the governing test under the Tennessee constitution, predicated on the following analysis: “In the case of consent searches . . . the totality of the circumstances test adequately balances the government’s interest in pursuing criminal investigations against the citizen’s right to be free from unreasonable searches and seizures. The very nature of a consent search differs from the other exceptions to the warrant requirement; a subject approached regarding a consent search is presumed free to decline the request. . . .
“Schneckloth remains the minority rule despite the occasional efforts to scuttle it. Accordingly, [the court] decline[s] to impose a requirement that the subject be informed of the right to refuse consent.” Id., 183-84; see also Henry v. State, supra, 621 P.2d 4 n.9 (adopting Schneckloth because “the formal waiver requirements appropriate in a trial setting or during custodial interrogation would unjustifiably hamper proper police investigation”).
It may be argued, as some courts have concluded, that the state should not be required to establish that the police advised the subject of the consent search of his or her right to refuse consent, as long as the state can prove that the subject actually knew that consent could be withheld. I do not agree with this approach because it is important that the subject be made aware that the police are prepared to honor the subject’s decision to refuse consent and that no adverse consequences will befall the subject upon such a refusal. Unless the police warn the subject of his or her right to refuse consent, there remains the risk that the subject will feel compelled to agree to the search out of concern for how the police will react to a decision to withhold consent.
As I previously indicated, I agree with the majority’s conclusion that the record is inadequate to review the defendant’s separate claim that the patdown search was illegal. The fact that Morgan conducted a patdown search of the defendant, however, is relevant to the issue of whether the defendant reasonably would have considered Morgan’s subsequent inquiry regarding the presence of contraband in the vehicle as indicative of Morgan’s intent to search the vehicle.
Dissenting Opinion
dissenting. Both the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution protect individuals against unreasonable searches and seizures. In this case, it is undisputed that the initial stop of the defendant, Christopher Jenkins, for improperly changing lanes was reasonable and, therefore, valid under both of these provisions. See State v. Jenkins, 104 Conn. App. 417, 427, 934 A.2d 281 (2007). The question before us is whether the subsequent consent search of the defendant’s vehicle, conducted after Officer Michael Morgan, a detective with the Newington police department, had completed a check of the defendant’s personal and vehicular information, asked the defendant to step out of the vehicle, frisked him and explained the ticket to him, also was reasonable. I do not contest the majority’s conclusion in part II of its opinion that, under the weight of recent federal precedent, the scope of the traffic stop was not improper under the federal constitution. Such a development, however, clearly would constitute a
“It is well established that federal constitutional . . . law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . State v. Oquendo, 223 Conn. 635, 649, 613 A.2d 1300 (1992). Moreover, we have held that [i]n the area of fundamental civil liberties — which
“The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled. In State v.
I agree with the majority that neither the text nor the constitutional history of article first, § 7, support the defendant’s claim to greater protections under the state constitution than the federal constitution. I disagree, however, with the majority’s analyses of persuasive relevant federal precedents, related Connecticut precedents, the persuasive precedents of other state courts and contemporary understandings of public policy. I believe that these four factors necessitate a conclusion that article first, § 7, requires us to examine both the temporal and substantive scope of a routine traffic stop and that, more specifically, a consent search during a routine traffic stop is not valid unless there is a reasonable and articulable suspicion to believe that a detained driver or passenger has engaged in, or is about to engage in, criminal activity.
I
FEDERAL PRECEDENTS
As I previously have noted herein, I do not dispute the majority’s conclusion that recent federal precedent suggests that the permissibility of a consent search following a routine traffic stop is dictated by the duration of the stop. For the reasons that follow, however, it
As both the majority and the state properly recognize, the reasonableness of traffic stops under the fourth amendment is analyzed under the framework established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See Arizona v. Johnson, 555 U.S. 323, 330, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009); State v. Wilkins, supra, 240 Conn. 508-509. Under Terry, “[c]ertain seizures are reasonable under the fourth amendment even in the absence of probable cause if there is a reasonable and articulable suspicion that a person has committed or is about to commit a crime. Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); Terry v. Ohio, [supra, 24] ... . When a reasonable and articulable suspicion exists, the detaining officer may conduct an investigative stop of the suspect in order to confirm or dispel his suspicions.” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 517, 903 A.2d 169 (2006).
The United States Supreme Court had been careful, however, to limit the boundaries of such warrantless stops. The court acknowledged that it had “held in the past that a search which is reasonable at its inception may violate the [f]ourth [a]mendment by virtue of its intolerable intensity and scope. . . . The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.” (Citations omitted; internal quotation marks omitted.) Terry v. Ohio, supra, 392 U.S. 17-19. Although the court declined to set out bright-line limitations on the scope of the search, it warned that “[t]he manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all. The [f]ourth [a]mendment proceeds as much by limitations upon the scope of governmental
Drawing from the scope analyses set forth in Terry and Royer, several federal courts had required that routine traffic stops, justified under Terry, be reasonable in both duration and manner. See, e.g., United States v. Boyce, 351 F.3d 1102, 1111 (11th Cir. 2003) (“[T]here are two possible tests for when a police investigation exceeds the scope of a routine traffic stop. . . . The first test comes from the Tenth Circuit and limits the questions a police officer may ask to those questions that are justified by reasonable suspicion of criminal activity or reasonable safety concerns. . . . The second test comes from the Fifth Circuit and holds that questions unrelated to the reason for the initial stop are only unlawful if they extend the duration of the initial seizure.” [Citations omitted.]); United States v. Holt, 229 F.3d 931, 935 (10th Cir. 2000) (“the [United States] Supreme Court has indicated that although the permissible scope of an investigatory detention depends on the particular facts and circumstances of each case, it must in any case last no longer than is necessary to effectuate the purpose of the stop and be carefully tailored to its underlying justification” [emphasis added; internal quotation marks omitted]). Accordingly, these courts had required that, during a routine traffic stop, an “officer’s actions must be reason
The United States Supreme Court recently seemed to refute this reasonableness in manner approach in Arizona v. Johnson, supra, 555 U.S. 332-34, wherein it addressed whether police questioning of a detained motorist during a traffic stop had exceeded the scope of the initial detention. Ultimately, the court stated a broad, unqualified conclusion that “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” Id., 333. In reaching this conclusion, the court relied heavily on its prior decision in Muehler v. Mena, 544 U.S. 93, 96, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005), which in turn had relied on Illinois v. Caballes, 543
The majority reads this recent jurisprudence as dictating that the requirement of reasonableness in Terry is satisfied as long as the duration of a routine traffic stop is not unreasonably extended. This conclusion, if correct; see footnote 3 of this dissenting opinion; indicates that the United States Supreme Court has
II
CONNECTICUT PRECEDENTS
A review of this court’s precedents indicates that we never before have adopted the broadly permissive approach to the scope of Terry stops, including routine traffic stops, championed by the state and suggested by the United States Supreme Court’s recent decisions. This court consistently has concluded that, under our state constitution, a Terry stop must be both justified at inception and reasonably circumscribed. See State
Our jurisprudence also supports the specific rule that the defendant asks us to adopt — that an officer conducting a routine traffic stop must have a reasonable and articulable suspicion of criminal activity unrelated to the initial traffic stop before asking for consent to search a vehicle. This court has required that a Terry stop be grounded upon “reasonable and articulable suspicion that the individual has committed or is about to
Ill
SISTER STATE PRECEDENTS
State courts have taken widely varying approaches to the proper analysis of the scope of a routine traffic stop. Some states either have expressly adopted the purely durational test under their state constitutions or have held that their state constitutions provide no greater rights than the federal constitution.
I begin with the several cases in which state courts have drawn from both federal and state constitutional provisions in limiting the scope of roadside traffic stops and requiring a reasonable and articulable suspicion of criminal activity unrelated to the initial stop before a police officer validly can ask for consent during a roadside search. In State v. Smith 286 Kan. 402, 419, 184 P.3d 890, cert. denied, 555 U.S. 1062, 129 S. Ct. 628, 172 L. Ed. 2d 639 (2008), the Kansas Supreme Court held
I next turn to the New Jersey Supreme Court’s holding in State v. Carty, 170 N.J. 632, 790 A.2d 903 (2002). In that case, the court analyzed whether evidence discovered during a roadside consent search was admissible when the state trooper had requested consent without having an articulable suspicion of any criminal activity besides an initial speeding violation. The court first determined that “[r]oadside consent searches are . . . more akin to an investigatory stop that does involve a detention. Such a stop traditionally has required reasonable and articulable suspicion.” Id., 640. The court then held that a consent search during a lawful motor vehicle stop is valid only if there is a “reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity.” Id., 647. The court explained that “[t]he requirement of reasonable and articulable suspicion is derived from our [s]tate [constitution
I agree with the majority that Carty differs from the present case on three grounds: (1) the New Jersey Supreme Court consistently has afforded a higher level of scrutiny to consent searches than does the United States Supreme Court; (2) the New Jersey police were
I also find persuasive the Minnesota Supreme Court’s decision requiring that officers have reasonable and articulable suspicion of criminal activity independent of the initial traffic violation before asking for consent to search during a traffic stop. See State v. Fort, 660 N.W.2d 415, 418-19 (Minn. 2003). Therein, the court noted that “the scope and duration of a traffic stop investigation must be limited to the justification for the stop.” Id., 418. It relied on an earlier case, State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002), for support. The court explained: “In Wiegand, the defendants were stopped for a bumed-out headlight, but the police conducted a search using a narcotics-detection dog in the absence of reasonable articulable suspicion of drug-related activity. [Id., 128-29, 137]. We reversed the defendants’ convictions holding, among other things, that under [a]rticle [first], [§] 10, of the Minnesota [constitution any expansion of the scope or duration of a traffic stop must be justified by a reasonable articulable suspicion of other criminal activity. [Id., 135].” State v. Fort, supra, 418-19. Under this framework, although the initial traffic stop was proper, “the investigative questioning, consent inquiry, and subsequent search went beyond the scope of the traffic stop and was unsupported by any reasonable articulable suspicion.” Id., 419. Accordingly, the court affirmed the trial court’s order suppressing evidence discovered during the consent search.
RELEVANT PUBLIC POLICY
Routine requests to search a detained motorist, in the absence of any suspicion of criminal activity beyond an initial traffic violation, represent a real and disturbing burden on motorists
Although we have no specific data evidencing the frequency of consent searches during routine traffic stops in Connecticut, the fact that so many people must drive in order to fulfill their daily work, family and educational needs means that many Connecticut citizens may be subject to requests for consent searches and the significant interruption that such searches entail. See Brown v. State, supra, 182 P.3d 631-32 (“because most people need to travel by car, and because of the near-inevitability that people will commit traffic infractions, the ‘routine’ traffic stop has become the doorway to widespread and probing searches of persons, vehicles, and luggage”). Moreover, research suggests that these searches have in fact become more
V
CONCLUSION
Having reviewed the relevant Geisler factors, I conclude that article first, § 7, of the Connecticut constitution provides greater protection than the federal constitution with respect to consent searches during routine traffic stops in that it requires that the scope of a Terry stop be reasonable both in substance and duration. This conclusion is supported by this court’s long emphasis on the overall reasonableness of Terry searches, especially in light of the uncertain and conflicting dictates of federal law, as well as persuasive sister state precedents and contemporary public policy concerns. In order to effectuate the requirement that Terry stops be both substantively and temporally reasonable in scope, I further conclude that a consent search during
In determining whether reasonable and articulable suspicion exists, “a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. ... [A] court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom.” (Internal quotation marks omitted.) State v. Batts, 281 Conn. 682, 691-92, 916 A.2d 788, cert. denied, 552 U.S. 1048, 128 S. Ct. 667, 169 L. Ed. 2d 524 (2007). Although a trial court’s findings of facts in connection with a suppression hearing are entitled to deference, the determination of whether reasonable and articulable suspicion existed is a question of law, subject to plenary review. See State v. Brown, supra, 279 Conn. 516 (“The defendant challenges not the trial court’s factual findings but, rather, its legal conclusions that the actions of the police constitutionally were valid. These conclusions are subject to plenary review.”).
In the present case, the Appellate Court thoroughly reviewed the circumstances surrounding the stop and
I agree with the majority’s conclusion in part I of its opinion that, because the defendant failed to create an adequate record before the trial court regarding the validity of the patdown search, the Appellate Court improperly considered that conduct in analyzing the defendant’s claims regarding the vehicle search, other than as a historical fact.
In addition to asking the court to adopt this standard under the state constitution, the defendant requests that this court adopt the following rules: (1) an officer conducting a routine traffic stop that has not elevated into a justifiable investigatory stop must inform the motorist that he is free to leave and free to refuse consent to search as a prerequisite to obtaining consent after the traffic stop has ended; (2) the state must show that any exchange between an officer and a motorist clearly and unambiguously supports the conclusion that the motorist actually consented to the search performed; and (3) the state should be held to a higher standard of proof for consent searches that occur during routine, noncriminal traffic stops. The defendant has offered no analysis directly addressing these claims or any case law that would tend to support them. I therefore decline to address them.
In Muehler v. Mena, supra, 544 U.S. 101, the court noted: “Our recent opinion in Illinois v. Caballes, [supra, 543 U.S. 405], is instructive. There, we held that a dog sniff performed during a traffic stop does not violate the [¶] ourth [a]mendment. We noted that a lawful seizure can become unlawful if it is prolonged beyond the time reasonably required to complete that mission, but accepted the state court’s determination that the duration of the stop was not extended by the dog sniff. . . . Because we held that a dog sniff was not a search subject to the [fjourth [ajmendment, we rejected the notion that the shift in purpose from a lawful traffic stop into a drug investigation was unlawful because it was not supported by any reasonable suspicion. . . . Likewise here, the initial . . . detention was lawful; the Court of Appeals did not find that the questioning extended the time [the defendant] was detained. Thus no additional [fjourth [ajmendment justification for inquiring about [the defendant’s] immigration status was required.” (Citations omitted; internal quotation marks omitted.)
Because neither Muehler nor Caballes involved a separate search under the fourth amendment, the United States Supreme Court cases relied on by the state and the majority do not squarely address the proper analysis of a shift in purpose between a lawful Terry stop and a consent search. Nonetheless, because I recognize that the weight of federal precedent after Arizona v. Johnson, supra, 555 U.S. 333-34, tends toward applying apurely durational analysis to both police inquiries and requests for consent made within a routine traffic stop; see United States v. Everett, 601 F.3d 484, 489-90 (6th Cir. 2010); United States v. Taylor, 596 F.3d 373, 375-76 (7th Cir. 2010); United States v. Rivera, 570 F.3d 1009, 1013-15 (8th Cir. 2009); United States v. Cousin, United States District Court, Docket No.1:09-CR-89, 2010 U.S. Dist. LEXIS 3688, *8-10 (E.D. Tenn. January 19, 2010); United States v. Mbodji, United States District Court, Docket No. 1:09-CR-29, 2010 U.S. Dist. LEXIS 53356, *13-14 (E.D. Tenn. January 8, 2010); United States v. McBride, United States District Court, Docket No. 1:09-CR-21-TS, 2009 U.S. Dist. LEXIS 113405, *12-13 (N.D. Ind. December 4, 2009); I do not contest the majority’s conclusion regarding federal law.
See State v. Teagle, 217 Ariz. 17, 23, 170 P.3d 266 (App. 2007) (“any additional delay attributable to asking for defendant’s consent was de minimus and did not unreasonably extend the traffic stop”); People v. Vibanco, 151 Cal. App. 4th 1, 14, 60 Cal. Rptr. 3d 1 (2007) (“ [investigative activities beyond the original purpose of a traffic stop . . . are permissible as long as they do not prolong the stop beyond the time it would otherwise take”); Holland v. States, 696 So. 2d 757, 759 (Fla. 1997) (“the conformity clause [of article first, § 12, of the Florida constitution] not only binds the Florida courts to follow the United States Supreme Court’s interpretation of the
In State v. Washington, 898 N.E.2d 1200, 1206 (Ind. 2008), the Indiana Supreme Court held that, under the Indiana constitution, a consent search during a routine traffic stop must be substantively reasonable. The reasonableness inquiry turns “on a balance of: (1) the degree of concern, suspicion, or knowledge that a violation has occurred, (2) the degree of intrusion the method of search or seizure imposes on the citizen’s ordinary activities, and (3) the extent of law enforcement needs.” (Internal quotation marks omitted.) Id.
In State v. McKinnon-Andrews, 151 N.H. 19, 25, 846 A.2d 1198 (2004), the New Hampshire Supreme Court adopted a three factor test to determine whether the permissible scope of a routine traffic stop has been exceeded: “(1) the question is reasonably related to the initial justification for the stop; (2) the law enforcement officer had a reasonable articulable suspicion that would justify the question; and (3) in light of all the circumstances, the question impermissibly prolonged the detention or changed its fundamental nature.” See also State v. Carbo, 151 N.H. 550, 552, 864 A.2d 344 (2004) (“In McKinnon-Andrews, we dealt with the issue of expanding the scope of a police stop by adopting a three-part test to evaluate the validity of the police conduct. . . . This test is designed to regulate police conduct by not allowing police to fundamentally alter . . . the nature of the stop by converting it into a general inquisition about past, present and future wrongdoing, absent an independent basis for reasonable suspicion or probable cause.” [Citation omitted; internal quotation marks omitted.]).
In State v. Cunningham, 183 Vt. 401, 409-10, 954 A.2d 1290 (2008), the Vermont Supreme Court held that, “[ujnder both the [fjourth [ajmendment and [ajrticle 11 [of the Vermont constitution], a traffic stop is a seizure and must be supported by a reasonable suspicion of criminal activity. . . . We also inquire into whether [the subsequent investigation] was reasonably related in scope to the circumstances which justified the interference in the first place. ... An investigative stop, based at its inception on a reasonable suspicion, may reveal further information that justifies greater restrictions on a suspect’s liberty, up to and including arrest.” (Citations omitted; internal quotation marks omitted.) The majority attempts to distinguish Cunningham because it concerned a dog sniff rather than a consent search. I nonetheless find it persuasive as a general statement of the court’s approach to the scope of a routine traffic stop.
Similarly, in O’Boyle v. State, 117 P.3d 401, 410-12 (Wyo. 2005), the Wyoming Supreme Court held that article first, § 4, of the Wyoming constitution requires that searches conducted during routine traffic stops, including consent searches, be reasonable under the circumstances. The majority attempts to distinguish O’Boyle on the ground that the decision was dependent on local factors. While the Wyoming Supreme Court did look to the impact of drug interdiction traffic stops on Interstate 80, a national drug trafficking route that bisects the state, the court grounded its decision on prior precedents interpreting the state’s constitutional search and seizure protections as well as general policy concerns favoring the protection of citizens’ privacy rights. Id., 411.
Although these cases do not require the exact relief the defendant in the present case seeks, they nonetheless are persuasive evidence that suspicion of a traffic violation, without more, does not authorize free ranging roadside investigations fettered only by temporal limitations.
See Ala. Code § 32-1-4 (Cum. Sup. 2009) (“[ejxcept when an arresting officer cites a person with an [electronic ticket], the officer shall, upon the giving by such person of a sufficient written bond, approved by the arresting officer, to appear at such time and place, forthwith release the person from
See People v. Brandon, 140 P.3d 15, 19-20 (Colo. App. 2005) (drawing on state and federal law in concluding that “[o]nce the underlying basis for an initial traffic stop has concluded . . . [(lengthening the detention for further questioning beyond that related to the initial stop is permissible if [1] the officer has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring; or [2] the initial detention has become a consensual encounter”); Commonwealth v. Torres, 424 Mass. 153, 158,
The majority suggests that the analytical approach set forth in these cases is not implicated in the present case because the factual predicate in this case is an ongoing traffic stop. I believe that they nonetheless illuminate our sister courts’ discomfort with overreaching in connection with traffic stops, but, because I would conclude that the Connecticut constitution requires a rule limiting the use of consent searches at any point during a routine traffic stop, I do not primarily rely on these cases.
Subsequently in State v. Morlock, 289 Kan. 980, 988-89, 218 P.3d 801 (2009), the Kansas Supreme Court noted that: “[T]he Muéhler [c]ourt’s test of ‘no extension’ of the detention’s duration was expanded [four] years later by the Johnson [c]ourt to become a test of ‘no measurable extension.’ Johnson also eliminated any doubt that the Muehler rationale applied to traffic stops. . . . Johnson therefore also confirmed that an officer’s inquiries into matters unrelated to the justification for the stop did not necessarily require reasonable suspicion.” (Citations omitted.) The court’s analysis was confined, however, to the federal constitution, and did not address any limitations imposed by the state constitution or undermine its requirement that reasonable and articulable suspicion of criminal activity unrelated to the initial stop must exist before a police officer validly can ask for consent during a routine traffic stop.
Like the Connecticut constitution, article first, paragraph seven, of the New Jersey 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 warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.”
Indeed, the majority takes notice of many of these studies in its discussion of the Geisler factor relating to public policy.
Although the majority suggests that Fort is undermined because Wiegand no longer would be good law after Illinois v. Caballes, supra, 543 U.S. 405, that conclusion is unwarranted because the court in Fort grounded its reliance on Wiegand on the proposition that ”under [article first, § 10], of the Minnesota [constitution any expansion of the scope or duration of a traffic stop must be justified by a reasonable articulable suspicion of other criminal activity.” (Emphasis added.) State v. Fort, supra, 660 N.W.2d 419.
Despite this specific language, the majority dismisses the import of Brown v. State, supra, 182 P.3d 624, because the Alaska Court of Appeals ultimately concluded that, under the specific facts of the case, it “need not decide whether [the state constitution] should be interpreted to completely preclude requests for searches during a routine traffic stop unless the search is related to the ground for the stop or is otherwise supported by areasonable
In revisiting Brown, the Alaska Court of Appeals has characterized that case as setting forth various considerations, not a per se rule that the detention becomes unreasonable — and thus constitutionally invalid — if the duration, manner, or scope of the investigation lasts longer than necessary to effectuate the purpose of the stop. See Murphy v. Anchorage, Alaska Court of Appeals, Docket No. A-10345, No. 5576, 2010 Alaska App. LEXIS 28, *11-12 (March 17, 2010) (memorandum decision); Bostwick v. State, Alaska Court of Appeals, Docket No. A-10224, No. 5569, 2010 Alaska App. LEXIS 21, *6-7 (February 24, 2010) (memorandum decision); Skjervem v. State, 215 P.3d 1101, 1105 (Alaska App. 2009). In my view, the Alaska court’s qualification on the reach of the holding in Brown is insufficient to discount the persuasive value of the court’s analysis in that case. That analysis emphasized the importance of considering the substantive reasonableness of a routine traffic stop, and highlighted the dangers of suspicionless consent searches during such stops. By contrast, the court’s subsequent case-by-case application of factors seems arbitrary and inconsistent with the per se rules adopted by other states specifically to counter the same dangers. Moreover, even if the nondurational factors articulated in Brown are relied on by that court only occasionally, such an approach is inconsistent with the majority’s per se rule that duration is the only factor relevant for fourth amendment purposes.
The defendant and the amicus curiae focus much of their analysis of relevant policy considerations on what this court has labeled the “insidious specter of [racial] profiling.” (Internal quotation marks omitted.) State v. Donahue, 251 Conn. 636, 648, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000). While I agree with the state that the record does not support a finding of racial bias in this particular case, I note the body of research demonstrating the way consent searches during routine traffic stops function as tools of racial and ethnic profiling, and the disproportionate impact of such searches on minority drivers. See, e.g., J. Burkoff, “Search Me?,” 39 Tex. Tech. L. Rev. 1109, 1123 (2007) (“consent searches which are undertaken largely upon the basis of an individual’s race, class, or ethnicity have increasingly become a major social and political concern in the United States, and rightly so”); D. Harris, “ ‘Driving
As the majority notes, some courts have held that the timing of the questioning and request for consent have independent constitutional significance, and therefore require additional justification for inquiries made after a discrete event signals the end of the traffic stop or after the purposes of the traffic stop have been effectuated. See footnote 7 of this dissenting opinion. In the present case, Officer Morgan retained the defendant’s license and paperwork while he asked him to step out of the car, frisked him, and asked for consent to search the car. Under the approach of some of our sister states, such a search would be legitimate because Morgan had not yet concluded the traffic stop.
Reference
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