State v. Dukes

Shea, J., with whom Covello, J.,

joins, concurring. Although I agree with the majority that the exclusionary rule should be applicable to evidence seized in violation of state as well as federal constitutional provisions, and that this court has authority to construe our state constitution to give greater protection against illegal seizures than that afforded by our federal constitution, I see no necessity in this case for such an elaborate treatise on that subject by way of obiter dictum. As the majority recognizes, the same conclusion, that the evidence found in the search of the defendant’s person and also in the search of his automobile was not unlawfully seized, would be reached under both state and federal constitutional provisions. This court has previously held implicitly in State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), where our state constitutional prohibition against unreasonable searches was construed to have been violated, although its federal counterpart had not been, that the exclusionary rule was applicable to a state constitutional violation, thus over*128ruling sub silentio State v. Reynolds, 101 Conn. 224, 125 A. 636 (1924). If we are ever to reexamine the position we took in Kirnbro, we should at least wait for a case where further consideration of the subject is relevant to the disposition of the appeal.

As I understand the majority opinion, it approves as consistent with our state constitutional prohibition against unreasonable searches and seizures; Conn. Const., art. I, § 7; the holding in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), that a search of those arrested for traffic violations of a kind for which custody is required,1 as in this case, need not be limited to a frisk of the outer clothing for weapons, the kind of search approved in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), for police encounters with suspicious persons on the street. Rather than endorse under our state constitution the broader holding of Robinson that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment”; United States v. Robinson, supra, 235; the majority would limit “the intensity of such a search ... to that which, under the circumstances, is necessary to the discovery of weapons. Thus, it will depend upon what is reasonable to the officer at that time and permits the accomplishment of the purpose of neutralizing potentially available weapons without endorsing a broader purpose of searching for evidence.”2

*129By attempting in this fashion to restrict the scope of searches made by arresting officers of those who are to be taken into custody, whether traffic offenders or others, the majority invites a great deal of litigation in defining precisely how far beyond a “mere pat-down” a police officer may go in protecting himself and makes the validity of a search depend largely upon the intentions of the officer in conducting it. The opinion provides little guidance to an officer, whose determination as to how extensively he may search a person he has arrested is necessarily a quick ad hoc judgment. By making the critical issue whether the purpose of the officer was to protect himself or to discover evidence of a crime, the opinion invites a new round of swearing contests involving constitutional rights.

The majority apparently agrees with Robinson that no distinction should be made in respect to the permissible scope of a search for weapons between traffic offenders and violators of the criminal law when a custodial arrest is required. The opinion recognizes that such a search may include any reasonable measure that, “under the circumstances, is necessary to the discovery of weapons.” The majority, however, would bar the search of a traffic offender for evidence, presumably allowing such a search of a criminal offender. I see no *130constitutional basis for making such a distinction between those arrested for traffic offenses and for crimes when the violation of law is such that custody is required, as in the present case. In either event, “[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” United States v. Robinson, supra, 235.

Although the safety of the officer is undoubtedly the paramount concern that justifies a search of a person to be taken into custody, there are other reasons significantly related to law enforcement that justify the rule we have followed heretofore permitting searches of those arrested for violating the criminal law for evidence as well as for weapons. State v. Copeland, 205 Conn. 201, 210-11, 530 A.2d 603 (1987); State v. Christian, 189 Conn. 35, 40-41, 454 A.2d 262 (1983). In the course of being transported to the police station a person may not only have an opportunity to conceal or dispose of evidence in his possession but may, also consume some substance on his person detrimental to himself. A full body search is commonly made at the police station of an arrested person who is to be held in custody for any substantial period to ensure that no contraband is introduced or made available to others similarly held. Where a station house search of an arrested person would have been made in any event and would have resulted in the discovery of the same items the arresting officer has found in a search contemporaneous with the arrest, it is difficult to perceive what purpose would be served by suppressing the evidence discovered by the officer on the ground that the “full” search took place at the scene of the arrest rather than the police station. These considerations are sufficiently applicable to traffic offenders taken into cus*131tody to undermine any basis for distinguishing between them and others in respect to the scope of a permissible search by an arresting officer.

Because the limitation placed by the majority opinion creates problems for law enforcement without affording as a practical matter any substantial additional protection to those who are taken into custody for a traffic offense, I would adopt the Robinson position that no distinction should be made between traffic offenders and others who are to be taken into custody in defining the scope of the search made at the scene by a police officer.

I also disagree with the view expressed by the majority that the lawfulness of a warrantless automobile search may not be justified by the need of an arresting officer to search not only the person but also the automobile of the traffic offender he has arrested in order to protect himself against weapons accessible to the offender. In Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), the United States Supreme Court held that a lawful custodial arrest allows the police to make a contemporaneous search without a warrant not only of the person arrested but also of the immediately surrounding area. Justification for such searches was found in the need to remove weapons that the arrestee “might seek to use in order to resist arrest or effect his escape” and to prevent the concealment or destruction of evidence. Id., 762-63. In New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), this principle was applied to allow a police officer who has made a lawful custodial arrest of the occupant of an automobile, as a contemporaneous incident of that arrest, to search the passenger compartment of the automobile. The rationale for this extension of Chimel was that “articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact *132generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].' ” Id., 460, quoting Chimel v. California, supra, 763.3 Because an officer under a duty to make a custodial arrest of a traffic offender should be able to make as full a search of the offender as the officer believes his own safety warrants, he should also be able to search the passenger compartment of the automobile involved to be sure that it contains no weapon the offender might obtain while he remains in the vicinity of the automobile. See State v. Badgett, 200 Conn. 412, 426-28, 512 A.2d 160, cert. denied, 479 Conn. 940, 107 S. Ct. 473, 93 L. Ed. 2d 373 (1986). In the case before us, for example, until the .38 caliber revolver was found in the search of the car, a serious threat was posed to the safety of the two police officers involved during the course of their encounter with the defendant and his companion.4

I would justify the search of the defendant’s person on the ground that a full search should be permitted *133of anyone whom a police officer is under a duty to take into his custody, regardless of whether the arrest is for a traffic offense or for some other crime. United States v. Robinson, supra. The search of the defendant’s automobile was also permissible, whether or not there was probable cause to believe that it contained contraband, as the majority assumes, because it was made while the defendant remained at the scene under circumstances where it was reasonable for the arresting officer to remove a suspected threat to his own safety. New York v. Belton, supra.

Accordingly, I agree with the result.

The majority opinion declares: “Where an operator is stopped by police for a traffic violation, the officer, in order to protect himself, has the right to conduct a search of his person for weapons that goes beyond a mere pat-down.” I assume that the “traffic violation” referred to is one for which custody is justified and not one for which the officer is authorized only to issue a summons.

In State v. Christian, 189 Conn. 35, 40-41, 454 A.2d 262 (1983), where the defendant was stopped for speeding under circumstances requiring that *129he be taken into custody, this court approved the full search the defendant claimed the officer had made of his person that had resulted in the discovery of narcotics as follows: “If the search of the defendant’s person was of the search-for-weapons variety sanctioned by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), as a protective measure when a policeman stops a person who he reasonably suspects has committed an offense, no fourth amendment infraction would have occurred. If it exceeded the limits of such a search, it was in effect a seizure of the person amounting to an arrest. The existence of probable cause based upon the speeding violation, however, satisfies the fourth amendment. See United States v. Robinson, [414 U.S. 218, 232-35, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)].” Thus, we followed Robinson by sanctioning a full search of a traffic offender where custody was authorized by law.

Although a search of an automobile incident to a lawful arrest has been deemed to permit the seizure of evidence as well as weapons found in the vehicle; New York v. Belton, 453 U.S. 454, 460-61, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); we need not in this case consider whether the possibility that a traffic offender might be able to reach into the passenger compartment of his car to destroy or conceal evidence of some crime would also justify its search. The arresting officer testified that his “primary concern” in making the search was “locating the gun.” Furthermore, the officer had discovered evidence of unlawful drugs in searching the defendant outside the car justifying his arrest for the offense of drug possession as well as for operating while his license was suspended. The search of the car, therefore, was not subject to any special limitations that possibly might apply to the search of the automobile of a person arrested solely as a traffic offender.

The available statistical evidence indicates that a traffic stop has often been the occasion for an assault upon a police officer. According to one study, approximately 30 percent of the shootings of police officers occur in the course of an encounter resulting from stopping a person in an automobile. A. Bristow, “Police Officer Shootings—A Tactical Evaluation,” 54 J. Crim. L. C. & P. S. 93 (1963); see United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973).