Opinion
No. CR-07-293066
March 20, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SUPPRESS
Procedural History
Defendant Sherman Norman was arrested on August 1, 2007 and charged with Illegal Possession of a Weapon in a Motor Vehicle, Carrying a Pistol without a Permit, Criminal Possession of a Pistol and Possession of Narcotics. Defendant filed a Motion to Suppress dated December 28, 2007 followed by a "Supplement/Addition" dated January 9, 2008. The Court held evidentiary hearings on defendant's Motion on January 9, 2008, January 16, 2008 and January 22, 2008. The State and defendant each filed legal memoranda dated February 4, 2008.
Facts
On July 25, 2007, Officer Cornelius Rodgers of the New London Police Department observed a green Cadillac with a temporary license plate located in its rear window involved in what appeared to be a drug transaction with a third party on Maple Avenue in New London. The vehicle sped away, but Officer Rodgers arrested the third party for possession of crack cocaine and issued an advisory to his fellow officers to be on the lookout for the green Cadillac.
On August 1, 2007, Officer Lorenzo De La Cruz of the New London Police Department radioed Officer Rodgers and they engaged in the following exchange:
Officer De La Cruz: Remember last week you were looking for that green Cadillac? Did you ever locate that?
Officer Rodgers: It's a green Cadillac with a yellow temporary tag on the left hand side. Nope.
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Officer De La Cruz: It's on South Water Street. Now occupied, if you want to talk to him.
Officer Rodgers: All right. Can you find a violation? That'd be better.
After this exchange, Officer De La Cruz followed defendant's vehicle for a short period of time and then pulled it over on Eugene O'Neill Drive for an excessively noisy muffler. Officer Rodgers joined Officer De La Cruz at the scene almost immediately, along with a third officer. Officer Rodgers and Officer De La Cruz approached the vehicle and Officer Rodgers asked the defendant for his license, registration, and insurance information. Defendant provided the requested documentation, in addition to the vehicle's bill of sale, as he had recently purchased the vehicle. Officer Rodgers also questioned the defendant about the previous week's alleged drug transaction, conducted a "pat-down" search of defendant, and then requested defendant's consent to search the vehicle. None of the officers gave the defendant his Miranda warnings. While Officer Rodgers conducted the search of the vehicle, the defendant stood at the rear of the vehicle with the other officers nearby.
Defendant's vehicle possessed an exhaust system with a sufficient number of cracks and holes to justify a stop for excessive noise according to defendant's own witness, Gregory Senick, a former member of the Connecticut State Police.
Officer Rodgers's search of the vehicle quickly revealed a handgun hidden at the bottom of the center console. Officer Rodgers testified that in order to find the gun, he opened the lid of the center console and then removed a tray that fit inside the console. Officer Rodgers testified that the console itself was "loose" and "flimsy" as some of the screws that anchored it to the floor were missing. In addition, he testified that he was able to easily lift the tray out of the console. Upon Officer Rodgers's discovery of the handgun, defendant was placed in custody and the defendant expressed his belief that the search was illegal. The infraction for excessive noise did not issue until after defendant was taken to police headquarters.
The officers eventually procured a search warrant for the vehicle, the search yielding an amount of crack cocaine hidden in the driver's side door. Defendant was charged with Illegal Possession of a Weapon in a Motor Vehicle, Carrying a Pistol without a Permit, Criminal Possession of a Pistol and Possession of Narcotics.
Law
Defendant raises a series of legal challenges to the search of his vehicle, which the Court will consider in seriatim.
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A. Defendant Voluntarily Consented to the Search of the Vehicle.
The officers testified that defendant consented to the search of his vehicle, a contention that the defendant denies. In resolving this issue, the Court must answer two questions: Did the defendant, in fact, consent to the search and, if so, was that consent voluntary?1. Defendant Consented to the Search.
The state proved by a preponderance of the evidence that defendant consented to the search of his vehicle. The officers' versions of events, including the substance of defendant's consent, were plausible and consistent. Defendant testified that he has history of being uncooperative with the police and it was not in his nature to have consented to the search, but both officers testified that while the defendant did have a history of noncompliance, he was uncharacteristically cooperative on the night in question. Defendant attempted to buttress his claims regarding his noncompliant nature with video evidence of a post-arrest incident at the police station, but the video shows that defendant was quite calm for a significant period of time after his arrest before problems arose.
The state bears the burden of proof at a suppression hearing. State v. Jenkins, 104 Conn.App. 417, 434 (2007), cert. granted, 285 Conn. 909 (2008). "Whether there was valid consent to a search is a factual question . . ." State v. Zarick, 227 Conn. 207, 226, cert. denied, 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 595 (1993). Based on the evidence presented at the hearing, the Court finds that the state proved by a preponderance of the evidence that the defendant consented to the search of his vehicle.
2. Defendant's Consent was Voluntary.
The Court finds that the defendant's consent to the search of his vehicle was voluntary. The evidence indicated that while the defendant characteristically exhibited a combative attitude toward the authorities, the vehicle stop at issue was relatively cordial in nature. Officer Rodgers was familiar with defendant and expressed his surprise that defendant readily agreed to the search. In addition, it was evident to the Court during the three days of hearings in this matter that defendant is an intelligent and dynamic person; someone not readily susceptible to being intimidated, coerced, or duped.
In order to determine whether consent is truly voluntary, the Court must determine "whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice." State v. Cobbs, 7 Conn.App. 656, 659 (1986). "Whether a search was based on consent, which the state has the burden of establishing, requires a finding of voluntariness, as opposed to acquiescence to lawful authority. The consent must be free and voluntary, which is a question of fact to be determined from the totality of the circumstances." State v. Van Der Werff, 8 Conn.App. 330, 341 (1986).
Defendant argues that the Appellate Court's recent decision in State v. Jenkins, 104 Conn.App. 417, 434 (2007), cert. granted, 285 Conn. 909 (2008) compels the suppression of the seized evidence in this matter because defendant's consent was tainted by the actions of the officers. In Jenkins, the Appellate Court reversed the trial court's denial of a motion to suppress under factual circumstances similar to those at issue in this case. Defendant was stopped in his vehicle for a traffic violation and "after learning that the license was valid and that there were no outstanding warrants, [the police officer] nevertheless requested the defendant's consent to search the vehicle." Id. at 420. The officer cited defendant's nervousness and his out of state registration and driver's license as the basis for his suspicion. Id. Defendant consented to the search, which yielded a significant amount of narcotics. Id. at 421.
In overruling the trial court's denial of the motion to suppress, the Jenkins court held that the defendant was illegally detained by the officer because once the officer gave him a ticket, the defendant should have been free to go "absent a reasonable suspicion supported by articulable facts that that a crime has been or is being committed." Id. at 432, citing United States v. Santiago, 310 F.3d 336, 341-42 (5th Cir. 2002). The Court concluded that absent such a suspicion on the part of the arresting officer, that the continued detention of the defendant was illegal and tainted his consent to the search, rendering it involuntary. Jenkins, supra, 104 Conn.App., 432.
While the facts in this case are similar to those in Jenkins, they differ in one important respect: Officer Rodgers possessed a reasonably articulable suspicion that the vehicle contained illicit drugs sufficient to justify the search while the officer in Jenkins held no such suspicion, but rather sought defendant's consent to search based upon defendant's nervousness, coupled with his out-of state license and registration. Id. The Court held that these factors did not provide the officer with a reasonable suspicion that defendant was engaged in criminal activity and therefore were insufficient to justify the expansion of the scope of the traffic stop into an investigatory stop. CT Page 4743 Id. at 434. As a result, the further detention of the defendant was unlawful and his consent to the search, while perhaps voluntary on its face, was impermissibly tainted. Id. at 434-35. In this case, however, Officer Rodgers clearly possessed a reasonable suspicion supported by articulable facts that defendant was involved in the drug trade, specifically his witnessing a remarkably similar vehicle involved in suspicious behavior one week prior to the stop. As a result, Officer Rodgers's expansion of the traffic stop into an investigatory stop was justified; the detention of defendant lawful, and defendant's consent untainted and voluntary.
Based on the totality of the circumstances surrounding the vehicle stop, the Court finds that the state established by a preponderance of the evidence that defendant's consent to the search of his vehicle was voluntary.
B. The Stop Was Not Pretextual.
Defendant argues that the stop of defendant for a noisy muffler was pretextual, in violation of Article First, §§ 7 and 9 of the Connecticut Constitution; the Connecticut Constitution providing greater protections than the U.S. Constitution in the area of pretextual stops. Article first, § 7 of the Connecticut Constitution provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." Article first, § 9, provides: "No person shall be arrested, detained or punished, except in cases clearly warranted by law."
There is no question that Officer De La Cruz had the independent authority to stop defendant's vehicle for its noisy muffler as a police officer has the right to stop a motor vehicle operating on a Connecticut highway even if the reason for the stop is only an infraction. State v. Dukes, 209 Conn. 98, 122 (1988). The critical question in this case becomes whether the stop based on the noisy muffler was mere pretext for a stop based on the vehicle's possible relation to the drug transaction that took place the previous week and, if so, whether such a motivation on the officer's part made the stop unconstitutional.
At first blush, it appears that the stop was clearly pretextual. "Pretext" is defined as an "[o]stensible reason or motive assigned or assumed as a color or cover for the real reason or motive." Black's Law Dictionary, 5th Edition (1979). The testimony of the police officers and the recording of their conversation in this case unequivocally support the notion that the stop was "pretextual" as the word is commonly used: only after the defendant's vehicle was identified as the suspected vehicle in the alleged drug sale was any notice given to its noisy muffler.
However, it appears that as the state of the law has evolved it relates to vehicle stops, the term "pretextual" has become something of a misnomer as officers' motivations for a stop are now irrelevant if the stop itself was independently justified, at least under the U.S. Constitution. Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Defendant's brief in this case contains a thorough legal analysis in support of the argument that Connecticut Constitution offers greater protections than the U.S. Constitution in the wake of Whren, however, no Connecticut precedent exists on the issue: "[T]his court never has defined the term `pretextual' stop . . ." State v. Datzell, 282 Conn. 709, 715, n. 5 (2007). While State v. Parker, 84 Conn.App. 739 (2004) is sometimes cited for the proposition that the Whren standard applies to claims under the Connecticut Constitution, in fact, the court in Parker declined to consider the issue. Id. at 744, n. 3.
Absent any Connecticut precedent on this issue, the Court is left to examine defendant's claim in light of the factors set forth in State v. Geisler, 222 Conn. 672 (1992): "In order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach; see, e.g., Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1973) appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S.Ct. 496, 70 L.Ed.2d 374 (1981) ("Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution."); (2) holdings and dicta of this court, and the Appellate Court; see, e.g., Doe v. Maher, 40 Conn.Sup. 394, 448-49, 515 A.2d 134 (1986) (trial court used strict scrutiny to analyze sex discrimination claim based on the equal protection clause of the state constitution, relying, in part, on dicta from the Connecticut Supreme Court regarding what standard would be used once Connecticut's equal rights amendment was adopted); (3) federal precedent; see, e.g., State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) ("The adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution."); (4) sister state decisions or sibling approach; see, e.g., State v. Gethers, 197 Conn. 369, 386-87, 497 A.2d 408 (1985); Cologne v. Westfarms Associates, supra, 58-59; (5) the historical approach, including the historical constitutional setting and the debates of the framers; see, e.g., State v. Lamme, supra, 178-80; Cologne v. Westfarms Associates, supra, 60-62; Palka v. Walker, 124 Conn. 121, 126, 198 A. 265 (1938); and (6) economic/sociological considerations. See State v. Barton, supra, 546; State v. Dukes, supra, 115; see generally State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985); M. Margulies, "Connecticut's Free Speech Clauses: A Framework and an Agenda," 65 Conn. B.J. 437 (1991) (an analytical framework for state constitutional analysis in the context of the free speech clauses); E. Peters, "State Constitutional Law: Federalism in the Common Law Tradition," 84 Mich. L. Rev. 583 (1986) (book review)." Id. at 685-86.
The Court finds federal precedent and sister state decisions on the issue of pretextual stops to be of assistance in applying the Geisler factors in this case. Clearly, the federal precedent in Whren unequivocally supports a finding that the officers' motivations in stopping defendant's vehicle were irrelevant and the stop constitutionally permissible in this case. As relates to the state of the law in other jurisdictions, defendant cites State v. Ladson, 979 P.2d 833 (Wash. 1999) (en banc) as an example of a case where a state court held that its state constitution provided greater protections than the U.S. Constitution in the wake of Whren: "[T]he problem with a pretextual traffic stop is that it is a search or seizure which cannot be constitutionally justified for its true reason (i.e., speculative criminal investigation), but only for some other reason (i.e., to enforce traffic code) which is at once lawfully sufficient but not the real reason. Pretext is therefore a triumph of form over substance; a triumph of expediency at the expense of reason." Id. at 836.
However, the weight of authority stands against a rejection of the Whren standard by state courts: "In nearly every state that has considered the issue, Whren has been followed or cited with approval. See People v. Robinson, 97 N.Y.2d. 341, 741 N.Y.S.2d 147, 767 N.E.2d 638, 642 (N.Y. 2001) (collecting cases). For those courts, probable cause arising from an observed traffic violation justifies a traffic stop. See, e.g., State v. McClendon, 350 N.C. 630, 517 S.E.2d 128, 132 (1999) (adopting the reasoning of Whren and holding that an objective standard, rather than a subjective standard, must be applied to determine the reasonableness of police action related to probable cause); State v. Farabee, 302 Mont. 29, 22 P.3d 175, 181 (2000) (stating that the lawfulness of a traffic stop under the Montana Constitution depends on whether the officer had an articularized suspicion that an occupant of the vehicle has committed or is committing an offense); State v. Vineyard, 958 S.W.2d 730, 736 (Tenn. 1997) (concluding that probable cause justifies a traffic stop under Article 1, Section 7 of the Tennessee Constitution regardless of the subjective motivations of police officers); and Dufries v. State, 133 P.3d 887, 889 (Okla.Crim.App. 2006) (holding that if the officer had probable cause to believe a driver had violated some traffic law, stopping the driver's vehicle is lawful regardless of the officer's subjective motivation for the stop)." Fertig v. State, 146 P.3d 492, 500 (Wy. 2006).
As cited above, the vast majority of other jurisdictions that have considered the issue of whether state constitutional protections related to pretextual stops are greater than those provided under the U.S. Constitution have rejected the argument and embraced Whren. The Court finds this fact compelling and concludes that the Whren standard applies to the circumstances at hand and that the stop was not pretextual under Connecticut law.
C. Defendant's Consent Was Not Tainted by a Miranda Violation.
Defendant argues that his consent to search was tainted by the fact that he was not read his Miranda rights prior to being asked for his consent to search the vehicle. "[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." State v. Kirby, 280 Conn. 361, 398 (2006), citing Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). While the absence of a Miranda warning in this matter would certainly serve to preclude any incriminating statements by defendant regarding the gun or the drugs, the evidence does not indicate that defendant made any incriminating statements. As a result, defendant's argument is rejected.
In the alternative, defendant cites Jenkins, supra, in support of its argument that the officers' failure to give defendant a Miranda warning prior to conducting a "pat-down" search tainted defendant's consent to the search of his vehicle. However, the preponderance of the evidence indicates that the consent to search in this case took place prior to the "pat-down" of defendant, while the opposite was true in Jenkins. Given the sequence of events in this case, the "pat-down" could not have tainted the consent to search because the consent was given first.
D. Officer Rodgers's Search Did Not Exceed the Scope of Defendant's Consent.
While defendant maintains that he did not give consent, he argues that if the Court finds to the contrary, the search of his vehicle expanded beyond the limits of his consent. All parties agree that Officer Rodgers questioned defendant regarding the previous week's alleged drug transaction prior to requesting his consent to search the vehicle. There was no evidence that defendant placed any limits on the scope of that search. Officer Rodgers testified that the console itself was "loose" and "flimsy" as some of the screws that anchor it to the floor were missing. Defendant does not contest the search of the center console as being beyond the scope of the consent, but rather the removal of the tray located in the console.
Consensual searches are constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). "The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found." United States v. Ross, 456 U.S. 798, 824 (1982). In Florida v. Jimeno, 500 U.S. 248 (1991), a case with similar facts to those at issue in this case, the defendant granted the police officer permission to search his car after being questioned about narcotics and did not place any limitation on the scope of the search. Id. at 249-50. The police officer found narcotics in a closed container in the vehicle and the defendant sought to suppress the evidence. Id. at 250. "We think that it was objectively reasonable for the police to conclude that the general consent to search respondent'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. Contraband goods rarely are strewn across the trunk or floor of a car. The authorization to search in this case, therefore, extended beyond the surfaces of the car's interior to the paper bag lying on the car's floor." Id. at 251.
In this case, Officer Rodgers questioned defendant about illicit drugs prior to seeking his permission to search his vehicle and defendant placed no limits on the scope of his consent. Given the broad scope that searches for drugs necessarily entail, the Court finds that Officer Rodgers's removal of the center console tray was reasonably within the scope of defendant's consent and did not extend outside its scope.
E. Officer Rodgers Was Not Required to Procure Defendant's Written Consent.
Defendant argues that Officer Rodgers was required to procure defendant's written consent prior to searching his vehicle. Defendant cites no authority for this proposition, beyond a non-specific reference the right to privacy and the Connecticut Constitution. Absent specific authority, the Court must reject defendant's argument and note that even in those cases that view consents to search with great probity, see, e.g., Jenkins, supra, there is no evident legal support for such a requirement.F. The "Four Rules" Do Not Apply in This Case.
Defendant urges the Court to adopt "four rules" proposed by the defendant's counsel in Jenkins, supra. However, these "four rules" do not appear to have been adopted in the majority opinion and are only outlined in the dissent, which expressly refuses to adopt them. Id. at 454-5 (Schaller, J., dissenting). As a result, this Court finds no authority for applying the "four rules" to this matter.
Conclusion
For the foregoing reasons, defendant's Motion to Suppress is denied.